Overview

[1] On July 20, 2015, at approximately 1:10 am, a firearm was discharged outside the apartment building at 10 Boultbee Avenue, shattering a glass window on the outside wall of the lobby of that building (the “shooting incident”). One young man named Karlyle Robinson-Costain (“Mr. Costain”) was in the lobby of 10 Boultbee Avenue at the time and the shattered glass caused him some minor injuries. Police attended the scene and gathered evidence including the surveillance videos from 10 Boultbee Avenue and 20 Boultbee Avenue (the “Boultbee Videos”). As a result of the Boultbee Videos and other investigation, the police seized a motor vehicle on July 25, 2015 that they believed was involved in the shooting incident. There is no dispute that the defendant, Mr. Kabanga-Muanza (“Mr. Kabanga”) was the registered owner of this vehicle at the relevant time; a grey/silver 2004 Pontiac Grand Prix (the “Vehicle”) with a VIN No. 2G2WP522841338097 (the “Vin Number”).

[2] During the course of an authorized search of Mr. Kabanga’s Vehicle, a firearm was located that for reasons I will come to, I have found was the firearm used in the shooting incident. Mr. Kabanga was charged with attempted murder, discharging a firearm with intent to endanger life, and using a firearm in relation to the shooting. The shooter was never identified. The Crown alleges that Mr. Kabanga is a party to these offences by driving the shooter to and from the site of the shooting in his Vehicle and supplying the shooter with the firearm. Mr. Kabanga is also charged with various firearms possession-related offences.

[3] Mr. Kabanga re-elected trial by judge alone and pleaded not guilty to all of the charges.

[4] Mr. Kabanga alleged various breaches of his rights pursuant to s. 8 of the Charter of Rights and Freedoms (the “Charter”) and brought an application to obtain an order pursuant to s. 24(2) of the Charter to exclude all items seized as a result of the execution of the search warrant which authorized the search of his Vehicle. Evidence on that application was heard on a voir dire blended with the trial. On August 27, 2018 I dismissed that application with written reasons to follow; R. v. Kabanga-Muanza 2018 ONSC 6514 (“Section 8 Decision”). Although there is some overlap between that decision and this judgment, I have tried to set out herein only that evidence which is relevant to the merits of the charges.

[5] The Crown called Mr. Costain and Benjamin Sampson, a forensic scientist, as well as various officers involved in the investigation of the shooting incident, along with other officers who either testified that they saw Mr. Kabanga driving his Vehicle or that he reported to them that his Vehicle was stolen, . As well some business records were entered into evidence by way of affidavit and an Agreed Statement of Facts was filed. After Mr. Holder decided not to bring a motion for a directed verdict, he called Walter Fink, a private investigator. Mr. Kabanga did not testify. I did not permit the Crown to call certain reply evidence.

[6] The theory of the Defence was that Mr. Kabanga’s Vehicle was stolen sometime before the shooting incident and that in any event the Crown had not proven beyond a reasonable doubt that he was the driver of the vehicle used in the shooting incident or that he was in possession of the firearm found in his vehicle.

[7] In the course of the Crown’s case I heard evidence that Mr. Kabanga had been arrested on prior occasions. This evidence was relevant to various issues before me and counsel did their best to limit the information I heard about these matters. As I repeatedly advised Mr. Kabanga during the course of the trial, I did not and do not make any adverse findings against him as a result of hearing this evidence. I considered it only to the extent that it was relevant to my findings of fact. In short, I presumed that Mr. Kabanga was before me without a criminal record.

The Issues

[8] The Crown’s case is largely circumstantial. There are two central issues:

a) Has the Crown proven beyond a reasonable doubt that Mr. Kabanga was in possession of the firearm found in his Vehicle; and

b) Has the Crown proven beyond a reasonable doubt that Mr. Kabanga was a party to the offence of attempted murder?

[9] Although the issue of whether or not Mr. Kabanga was a party to the offence of attempted murder is clearly more serious than the firearm possession charges, I will consider the possession charges first as the evidence related to those charges and my conclusion on those charges will be relevant and perhaps determine the issues related to the attempted murder charge.

The Evidence - Agreed Facts and Preliminary Findings of Fact

The shooting incident – July 20, 2015

[10] DC Grantham was the officer in charge of the investigation of this shooting incident. He testified about his observations based on his watching the Boultbee Videos. I agree with his evidence that those Videos show the following:

• at approximately 01:09:08 in the early morning of July 20, 2015, a vehicle arrived at 10 Boultbee Avenue and circled the roundabout area in front of that building prior to stopping by the garbage dumpsters near 20 Boultbee Avenue, a short distance away from the vestibule of 10 Boultbee;

• the driver’s door of the vehicle opened and remained open for a few seconds and during the time this door was open, movement inside the vehicle can be seen between the driver and front passenger through the front windshield; the driver's door was then shut, without the driver ever exiting the vehicle;

• the front passenger, wearing all dark clothing, then exited the vehicle and made his way towards the lobby of 10 Boultbee, stopping on the roundabout;

• for reasons that follow I find that the passenger discharged a single shot, ran back towards the vehicle he exited from, which then quickly departed the scene;

• the bullet went through the upper half of the full-length window next to the entrance door of 10 Boultbee, shattering the glass;

• bullet fragments from this bullet became lodged in the interior wall of the lobby, next to where Mr. Costain was sitting on his E-bike;

• Mr. Costain was the only person in the lobby at the time the firearm was fired;

• it is not possible to make any observations of the driver of the vehicle from the Boultbee Videos;

Did the passenger who exited from the vehicle fire the bullet that went through the window next to the entrance door of 10 Boultbee Avenue?

[11] Mr. Holder challenged the evidence of DC Grantham that he could see a gun in the passenger’s hand and the flash of the gun when it was discharged in the Boultbee Videos. I agree that that is difficult to see; I am not able to see it either, but I do not find that DC Grantham was being dishonest about this. Mr. Costain was a reluctant witness but he testified that he heard a firecracker sound and saw a flash. Furthermore, given the timing of the vehicle being at the scene, the movement of the vehicle, the movements of the passenger and the timing of the shattering of the glass, I have no difficulty finding that it was the passenger who exited the vehicle who fired a firearm in the direction of the entrance to 10 Boultbee. Mr. Costain corroborates this, as well as that when he saw the vehicle stop by the garbage dumpsters, he saw a car door open and thought someone was getting dropped off. He saw a black shadow by the car coming towards the entrance to 10 Boultbee, and he testified that after the bang he saw a car driving off.

[12] Although the Boultbee Videos show other persons outside on the sidewalk and there was another car in front of the vehicle when it first stopped by the dumpsters, I reject Mr. Holder’s suggestion that someone other than the passenger from the vehicle fired a firearm at that moment towards the lobby of 10 Boultbee when the glass shattered. No one exited from the other car, and my finding that the passenger is the person who discharged a firearm towards the lobby of 10 Boultbee Avenue is confirmed by the evidence of Mr. Costain I have just reviewed, and my other findings that I will come to that the vehicle used in this shooting incident was Mr. Kabanga’s vehicle and that the firearm used in this shooting incident was found in Mr. Kabanga’s vehicle after it was seized by police.

Was the vehicle involved in the shooting incident Mr. Kabanga’s vehicle?

[13] Mr. Holder very fairly conceded in his closing submissions that the vehicle seen in the Boultbee Videos was “very likely” Mr. Kabanga’s Vehicle, which was seized by police. This was not reduced to a formal admission but I have no difficulty in coming to the conclusion that it clearly was. This Vehicle has certain distinguishing features which match the vehicle seen in the Boultbee Videos, including heavily tinted side windows; moldings running horizontally along both sides of Vehicle, in the middle of the doors, which are a darker colour than the Vehicle; there is no front licence plate or licence plate holder, and finally the Vehicle has silver "5-star" rims/hub caps. These identifiers and the fact that, as I will come to, the firearm used in the shooting incident was found hidden in the Vehicle makes it absolutely clear that the vehicle observed in the Boultbee Videos was Mr. Kabanga’s Vehicle. Furthermore, as I have already found, there is no doubt that the person who shot in the direction of Mr. Costain was the passenger in the vehicle.

Was the firearm found in the Vehicle the one used in the shooting incident?

[14] The Crown called Benjamin Sampson, a forensic scientist whom I qualified to give expert evidence on the issue of whether or not the bullet fragments found in the lobby of 10 Boultbee Avenue were fired from the firearm found in Mr. Kabanga’s Vehicle (the “Firearm”). It was his opinion that the Firearm found in Mr. Kabanga’s Vehicle was a semi-automatic pistol and a firearm as defined in s. 2 of the Criminal Code and a restricted firearm and a prohibited device as defined in s. 84 of the Criminal Code. He also testified that the serial number that was placed by the manufacturer on the right-hand side of the frame of the Firearm had been removed.

[15] Mr. Sampson opined that the ammunition found in the Firearm was suitable for use in the Firearm and that “within the limits of practical certainty” the bullet fragments were fired from the Firearm. By “practical certainty” he stated that:

Since it is not possible to collect and examine samples of all firearms, it is not possible to make an identification with absolute certainty. However all scientific research and testing to date and the continuous inability to disprove the principles of toolmark analysis have demonstrated that firearms produce unique, identifiable characteristics which allow examiners to reliably make identifications.

[16] In his closing submissions Mr. Holder conceded that the bullet that was fired in the shooting incident came from the Firearm found in Mr. Kabanga’s vehicle. This was not reduced to a formal admission but again I have no difficulty in coming to this conclusion. Mr. Sampson’s evidence was both credible and reliable and largely unchallenged. For these reasons I find that the Firearm found in Mr. Kabanga’s Vehicle at the time it was seized was the firearm that discharged the bullet in the direction of Mr. Costain during the shooting incident.

[17] It was Mr. Holder’s position however that Mr. Kabanga was not the only driver of the Vehicle and that there is no evidence that the Firearm was in the Vehicle between the time of the shooting incident and the seizure of the Vehicle. He submitted that it would be “a leap” to find that the Firearm was in the Vehicle in the intervening period. The Defence theory is that Mr. Kabanga’s Vehicle was stolen shortly before the shooting incident and that the Firearm used in the shooting incident was not Mr. Kabanga’s. These are issues I deal with when I consider whether or not the Crown has proven beyond a reasonable doubt that Mr. Kabanga was in possession of the Firearm.

Where was Mr. Kabanga living at the time in question

[18] The question of where Mr. Kabanga was living at the time in question has some relevance as it is the position of the Crown that he was living at 29 Louvain Avenue, Unit 312, in the city of Toronto (the “Louvain Address”), which is reasonably close to 10 Boultbee Avenue and a four-minute walk from where the Vehicle was parked when it was seized. There is a lot of evidence that supports the Crown’s position as follows:

• First of all, a business records affidavit from an employee of Toronto Community Housing states that this employee searched the computer database known as “Easytrac” in relation to the Louvain Address. He located a tenant record for that address that spans between March 13, 2008 and October 28, 2015. The tenancy record for this apartment includes three occupants, including Mr. Kabanga. There is no evidence before me as to who signed the lease. The only admissible evidence I have as to who else was living at this location is the evidence of DC Rinkoff that in 2011, Mr. Kabanga’s younger brother, Jordan, was at this address (I will come to that).

• A driver’s license search done on February 22, 2018 at the Ministry of Transportation shows the Louvain Address as Mr. Kabanga’s address in the “Address History” as at May 30, 2011 and at the time of this search.

• For reason that follow I have found that Mr. Kabanga picked his Vehicle up on July 13, 2005 from JP Towing Service & Storage Ltd. (“JP Towing”), and at that time he gave the Louvain Address as his address.

• The business records from the Royal Bank of Canada (“RBC”) show that there was a RBC account in the period from July 13 to July 26, 2015 in the name of Jessy Muanza with the Louvain Address. There is no dispute that this account was in the name of Mr. Kabanga, the Defendant before the Court, as he admitted that he is the person that can be seen on the security videos entered into evidence withdrawing money from this account at various ATMs.

• Two of the three parking tickets that were issued to Mr. Kabanga’s Vehicle in July 2015 were issued at locations that were very close to the Louvain Address; the third parking ticket was issued at a location 30 minutes away by walking.

• The location of the Vehicle when it was seized was a four-minute walk from the Louvain Address.

• For reasons I will come to I find that Mr. Kabanga was vacuuming his vehicle on July 23, 2017 at an ESSO gas station at Lakeshore Blvd. East and Carlaw Avenue which is also close to the Louvain Address.

[19] Mr. Holder submitted that this evidence does not prove that Mr. Kabanga was actually living at the Louvain Address. There is evidence to the contrary that I must also consider. As Mr. Holder pointed out, on July 26, 2015 Mr. Kabanga told Officer Curtis that he was living at 89 Main Street when he reported to police that his Vehicle was stolen. Although Mr. Holder also submitted that the Crown had not proven that this caller was in fact Mr. Kabanga, for the reasons that follow I find that it was Mr. Kabanga who called police. I have also found however, that Mr. Kabanga fabricated the report to police that his Vehicle was stolen, and so he may have lied about this address as well. In any event, this address is also in the east end of the city of Toronto in the same general area as the Louvain Address.

[20] A search on the VIN of the Vehicle showed a Montreal address for Mr. Kabanga, but based on the evidence before me he was clearly not living there at the time in question.

[21] I find that the only reasonable inference to draw from all of this evidence is that at the material time Mr. Kabanga was living at the Louvain Address. Even if that is not the case I find that he was living at an address that was reasonably close to the Louvain Address.

What was Mr. Kabanga’s physical description at various times?

[22] Mr. Kabanga’s physical appearance at various times became an issue because the Defence disputed that he was the person seen driving his Vehicle on one occasion (as testified to by DC Rinkoff) and vacuuming his Vehicle on another occasion (as testified to by DC Leung). This was an area where it became necessary for me to receive evidence of prior times when Mr. Kabanga was charged because of the booking photographs taken on those occasions.

[23] Toronto Police Service (“TPS”) Booking Data Sheets (“booking sheets”), which included photographs of Mr. Kabanga taken in the period from October 2007 to July 2011 and from the period April 2012 to August 2014 were entered into evidence. I am not able to determine the accuracy of the “physical characteristics” set out in these booking sheets; and save for one photograph, the photographs are of poor quality but they do give me some idea of how Mr. Kabanga’s appearance has changed over the years.

[24] All of the booking sheets entered into evidence describe Mr. Kabanga as a black male with a dark complexion. The booking photograph taken of Mr. Kabanga at the time of his arrest in July 2015 for these offences records his weight as 80 kg, medium build, 185 cm tall, eye colour as brown, short braided hair short and that he was unshaven and had a goatee. Tattoos are noted on his left wrist and left hand. There is no note of a tattoo on the left side of his neck that is visible in another booking photograph that I will come to.

[25] In a booking sheet from October 2007, when Mr. Kabanga was just shy of being 15 years old, his weight was stated to be only 64 kg and he was only 178 cm tall. His hair type was listed as a short “afro” and he was noted to be clean shaven with a slim build. The same was true in February 2010 save that his hair was now short and in cornrows, and he was described as having “thick lips”. By January 2011 Mr. Kabanga’s weight had increased to 77 kg and he was stated to be 185 cm tall with a slim build. He now had a moustache and for the first time a tattoo on his neck was noted. There was no change in the booking photographs of May and July 2011 save that by July 2011 Mr. Kabanga was also described as having a tattoo on his left hand. The last page of this booking sheet shows the tattoo on the left side of the Mr. Kabanga’s neck, which I would describe as a few black lines that crisscross. Given the colour of the tattoo and the colour of Mr. Kabanga’s skin I would not say that this tattoo would be that obvious. It was not something I was able to see from my vantage point with Mr. Kabanga in the dock.

[26] The search of Mr. Kabanga’s driver’s license with the Ontario Ministry of Transportation when his license was issued in May 2011 shows that he gave a height of 175”.

[27] In the booking sheet from April 2012, Mr. Kabanga’s physical description had not changed from July 2011. In October 2012 he was described as having a medium build for the first time with a weight of 85 kg and a tattoo on his left wrist was noted. Although there was no mention of the other two tattoos I presume they were still there. On this occasion, Mr. Kabanga’s height was stated to be only 176 cm. There was no mention of a moustache. In December 2012 Mr. Kabanga’s weight had dropped to 80 kg and his hair was a short afro again. In August 2014, his physical description was unchanged save that now there was also a note of a tattoo on Mr. Kabanga’s right forearm and for the first time it is noted that the tattoo on his left hand states “R.I.P.”.

The JP Towing evidence – July 12 -13, 2015

[28] A business records affidavit sworn by Lisa Rowe, an employee from JP Towing, establishes that there was a record at JP Towing of the towing and impound of a silver Pontiac Grand Prix with license plate E11HFL, on July 12, 2015 at 5:20 p.m. There was no dispute that this was the Vehicle, nor could there be any doubt about that. The impound invoice for this impound states that the Vehicle, a silver Pontiac-Grand Prix, was located at 122 Lambton Avenue and that the windows were down. This was a tow requested by the TPS. The customer receipt/invoice produced by JP Towing states that the Vehicle was released to “Jessy Muanza” of the Louvain Address on July 13, 2015 at 4:48 pm. There is a signature from the person the Vehicle was released to, but it looks like only two initials and I have nothing to compare it to.

[29] In his closing submissions Mr. Holder conceded that license plate E11HFL was on the Vehicle when it was at JP Towing. There is no evidence from JP Towing that suggests that this plate was removed from the Vehicle and Mr. Holder conceded that he is not asking me to draw an inference that the plate was actually removed from the Vehicle at that time. There would be no basis to make such a finding in any event. As a matter of common sense, if the license plate was going to be seized by police it would have been done before they asked that the Vehicle be towed. The evidence is clear that the Vehicle had this plate when it arrived at JP Towing. For these reasons I find that the plate E11HFL was on the Vehicle on July 12, 2015. It had not been seized as suggested by the caller who reported the Vehicle stolen as I will come to.

[30] Ms. Laine submitted that I should find that the person who picked up the Vehicle from JP Towing was in fact Mr. Kabanga. In R. v. Brown (2003), 2003 27393 (ON SC), 13 C.R. (6th) 317 (S.C.J.), at paras. 21-41, A. Campbell J. considered the admissibility of statements made by a caller to a police operator about his name, address and date of birth and the various ways this evidence was admissible to identify the caller as the defendant. I have applied those legal principles to the facts in this case.

[31] Based on the business records from JP Towing, the person who attended to pick up the Vehicle identified himself as Jessy Muanza; a name that is somewhat unusual. That is the form of Mr. Kabanga’s name that was on his temporary RBC bank card. Furthermore the person gave the Louvain Address as this person’s address, which I have found was Mr. Kabanga’s address at this time. In addition, I have the evidence that I will come to of the person who identified himself as Jessy Muanza in calls to police on July 26, 2015 and reported that “my car” was stolen and that he had last parked it in the parking lot next to JP Towing by Glen Scarlett Road, the same day he got it back from JP Towing. I will come to the reasons for why I find that this caller was in fact Mr. Kabanga. Given that finding this was an admission by Mr. Kabanga that he was the person who picked up his Vehicle. For all of these reasons I find that it was in fact Mr. Kabanga who picked up his Vehicle from JP Towing on July 13, 2015.

The seizure of the Vehicle by DC Grantham – July 25, 2015

[32] On July 25, 2015, DC Grantham checked the area around 55 Winifred Avenue, Toronto, where he believed the vehicle he was looking for might be located. The Agreed Statement of Facts confirms that Mr. Kabanga’s Vehicle was located by DC Grantham, parked outside of 55 Winifred Avenue at 8:40 a.m. on that day, with license plate BNJK309 affixed to the rear. The location where the Vehicle was found is a four-minute walk from the Louvain Address.

[33] DC Grantham testified that he saw a flashing LED light inside the Vehicle which led him to believe the Vehicle was locked, but he did not try the door. For reasons set out in my Section 8 Decision, I accepted his evidence and found that DC Grantham did not search the Vehicle. Given the evidence of DC Hubbard, who did search the Vehicle, I find that at this time it was not in fact locked but that if the driver’s door was opened that would trigger an alarm as this is what occurred when the Vehicle was searched by DC Hubbard.

[34] DC Grantham did do an inventory search based on what he was able to observe inside the Vehicle, by looking through the windows of the Vehicle. He testified that through the rear passenger window on the driver’s side he could see a temporary Royal Bank of Canada (“RBC”) bank card (“RBC bank card”) with the handwritten name “J. Muanza” on the rear seat. For reasons set out in my Section 8 Decision, I accept that evidence. I have already referred to the RBC records related to this RBC card. The Crown relies on Mr. Kabanga’s use of this RBC bank card at various times and the fact that it was found on the back seat at the time the Vehicle was seized and searched in support of its position that Mr. Kabanga was in possession of his Vehicle throughout the relevant time period; an issue I will come to.

[35] I also accept DC Grantham’s evidence that the license plate on the Vehicle; BNJK309, was held on by two large oversized silver washers. DC Grantham testified that he had seen this before in cases where a license plate had been removed by force, leaving two large holes in the plate, requiring larger washers to affix it to a vehicle.

[36] According to a report from the Ministry of Transportation, this plate; BNJK309, had the status of “missing” and had been removed from a green 2004 Ford Explorer, registered to a person named Rocio and reported missing as of July 18, 2015.

[37] There is no doubt that the Vehicle seized by police was registered to Mr. Kabanga, which was an admitted fact. DC Grantham also testified that he believed he ran the VIN number of the Vehicle at the scene and it came back as a match to the VIN number of Mr. Kabanga’s vehicle. The report he received confirms this and states that the license plate E11HFL, a Quebec plate, was registered to Jessy Kabanga-Muanza with a Montreal address, DOB October 19, 1992. The report states that the Vehicle is “not authorized to circulate” and that the Vehicle was “prohibited from being put into operation (Quebec only)”.

The search of the Vehicle by DC Hubbard

[38] A search warrant was obtained on July 27, 2015 and DC Hubbard searched the Vehicle on July 28, 2015. I heard his evidence as part of the section 8 application and after he testified Mr. Holder abandoned his challenge of this search. I was not surprised as DC Hubbard was a very fair, credible and reliable witness. I accept all of his evidence without hesitation.

[39] DC Hubbard did not have a key to the Vehicle. After an examination of the exterior of the Vehicle, which included lifting fingerprints, DC Hubbard pulled the driver’s door handle and the door opened but it triggered a car alarm. He opened the door fully at that point so that he could look into the Vehicle to find the release for the hood so that he could disconnect the battery to turn off the alarm. He saw a plastic panel on the driver’s floor mat and as he leaned into the Vehicle to reach the toggle by the brake pedal and as he pulled it back to release the hood latch he observed that a panel from the end of the dashboard on the driver’s side was missing. It was at this point that he saw the rear grip section of the Firearm inside the cavity at the end of the dashboard.

[40] DC Hubbard testified that the Firearm was a semi-automatic pistol; a handgun and when he proved it safe he found that there was no ammunition in the chamber but there were six live rounds in the magazine affixed to the Firearm.

[41] DC Hubbard testified that when he was looking at the exterior of the Vehicle he did not notice the panel that he saw on the driver’s floor mat floor of the Vehicle once he opened the driver’s door. Photographs of what he saw were entered into evidence. The panel that was on the driver side floor mat is of a rounded triangle shape. The evidence from the photographs and as confirmed by DC Hubbard is clear that this panel would ordinarily cover the opening at the end of the dashboard on the driver’s side (the “Panel”).

[42] DC Hubbard confirmed that if the driver’s door of Mr. Kabanga’s Vehicle was shut, the cavity in the dashboard where he found the Firearm would not be visible. It is clear from the photos that the Panel is not flat, but slightly raised, and DC Hubbard described an indentation in the driver side door, which matched this Panel and where the Panel would be next to when the door was closed. This would ensure that there was no gap from the fact that the Panel was not flat when the driver door was closed. This can be seen in the photographs.

[43] DC Hubbard also testified that the Panel fit this opening at the end of the dashboard and that it was held in place by three plastic clips or tabs; one at the top, one at the forward edge and one at the bottom. He testified that the clips had a little lip on them and that there were corresponding slots in the dashboard that they fit into so that they would snap in place; what he described as sort of a “pressure fit”. He did not recall how worn the clips were but did confirm all three were present. DC Hubbard testified that this Panel was not designed to be taken off and replaced, but someone who knew how to do so could by applying force to the back edge of the Panel to overcome the resistance of the plastic and pop it loose. When asked if he put the Panel back in, DC Hubbard testified that he placed it to check that it actually fit in place and he was satisfied that it was the Panel for this opening in the dashboard. It is not clear whether or not he actually snapped it in place and left it that way but that in my view is not material to the issues before me.

[44] An important issue in this case is whether or not the Panel that covered the opening in the end of the dashboard, where the Firearm was found, was in place or on the floor when DC Hubbard searched the Vehicle. DC Hubbard testified that he did not know and could only say that the Panel was on the floor when he opened the door. This is an issue I will come to.

[45] The Defence relies on the evidence of DC Hubbard that he found only fingerprints belonging to Mr. Kabanga on the exterior of the vehicle. He found none inside the vehicle or on the Firearm. DC Hubbard testified however that because the way the interior of the Vehicle is made, the surfaces are not ideal for fingerprint development. However, he said that he would apply powder to anything that is a smooth flat surface that is likely to come into contact with the human hand such as the interior edges of the doorframe, door handles, button switches in the dash area, the control lever for the transmission etc. I do not believe DC Hubbard was asked what fingerprints he found in the interior of the vehicle but there is no dispute that there is no evidence of Mr. Kabanga’s fingerprints inside the Vehicle.

[46] DC Hubbard took a swab for trace DNA from the Firearm itself, and another swab was collected from the ammunition. He did not examine the Firearm for fingerprints. He testified that another officer would have done so. There is no evidence as to whether or not any fingerprints or DNA was found on the Firearm.

[47] DC Hubbard located one knit glove that was in the interior storage pocket of the driver’s door and he retained it for possible gunshot residue (“GSR”) analysis. He also took four “lifts” for GSR and seized various article of clothing for possible GSR residue analysis. Apparently because he recovered the Firearm, it was determined by the scientists at the Center for Forensic Sciences that it was not necessary to do a GSR analysis.

[48] DC Hubbard did take a number of swabs for DNA analysis including one from the cutting edge of a nail clipper, the back of a watch strap and a baseball cap; and there is no evidence before me as to whether or not any came back to Mr. Kabanga. There was an issue between Counsel as to whether or not I could conclude that this meant that the DNA results did not come back to Mr. Kabanga because the Crown submitted such a conclusion was contrary to information disclosed to the Defence. I have simply concluded that there is no evidence one way or the other on this issue.

[49] On the back seat of the Vehicle, DC Hubbard located the temporary RBC bank card in the name of J. Muanza, with the number 4519031720215608 that DC Grantham had seen. In the trunk of the vehicle DC Hubbard found a Quebec license plate: M33FWZ underneath the carpet. He examined it for fingerprints but did not find any.

The report to police of the theft of Mr. Kabanga’s Vehicle

[50] I heard the evidence of Nicole Pratt and Officer Malcolm Curtis to determine the voluntariness of statements alleged to have been made by Mr. Kabanga to them. After their evidence was completed, Mr. Holder conceded that the statements were made voluntarily although he did not admit it was Mr. Kabanga who made them. He did not challenge the contents of the statements.

[51] Ms. Pratt was a civilian communications officer with the TPS who received 911 and non-emergency telephone calls. Ms. Pratt explained that depending on the nature of the call it would be determined if it had to go to an officer on the road or to “Prime” in which case a police officer handled the call over the phone.

[52] Ms. Pratt testified about a call she received on July 26, 2015 and identified an audio recording of that call which was entered into evidence. During the course of that call, the caller identified himself as Jessy Muanza and he reported that “my car” was stolen, that he had last parked it in the parking lot next to JP Towing by Glen Scarlett Road, the same day he got it back from JP Towing, which he thought was July 13 or 14, 2015, that he had pushed it out of the JP Towing lot to a close parking lot because his plates were no good and had been taken away/seized, that he came back a couple of days later and his vehicle was gone and that he had called JP Towing the day before to see if his vehicle was there, but they could not locate the car. This caller gave a phone number and a VIN Number, which corresponds to the VIN Number of Mr. Kabanga’s Vehicle. The caller was advised that an officer would call him back.

[53] Malcolm Curtis was the officer who was assigned to do the call back. When he called the number given by the caller originally he received no answer. He had the VIN Number and called JP Towing and spoke to Lisa Rowe who advised him that the Vehicle could not be located in their system. After receiving this information Officer Curtis called the number that had been given by the caller again and spoke to a male who identified himself as Jordan Kabanga-Muanza who said that his brother had given his number to police. Officer Curtis was given another number to call and eventually he spoke to someone who identified himself as Jessy Muanza with a date of birth of October 19, 1992 and an address of 84 Main Street, Toronto. This individual told Officer Curtis that his 2004 silver four-door Grand Prix had been stolen. He said that he was not sure when it was stolen, and that his keys might have been left inside as they were also missing. He said that on either the 13th or 14th of July he pushed the car next door to JP Towing in a big parking lot because it had no plates. He advised that JP Towing had towed the vehicle from Lambton Avenue because he had parked it in a no-parking zone. He advised that he realized the car had been stolen two days earlier because on the 24th he went to see it at JP Towing and he walked around everywhere and could not find it. He repeated that the vehicle had no plates.

[54] The call ended and Officer Curtis searched the JP Tow records with the information that he had been provided with and still could not find the Vehicle. Officer Curtis then called the number he had been given by Jordan Kabanga-Muanza and asked the caller if he still had the JP Towing paperwork and could give him an invoice or stock number as he had been told those numbers could be searched. He was told that the caller was looking for it and that it might be in the car and that it had been towed on the 13th and that he picked it up from JP Towing the next day. The caller then gave Officer Curtis the tow number of 942864 and stated that the vehicle had a Quebec License plate of E11HFC.

[55] Once Officer Curtis had the tow number he was able to call Ms. Rowe from JP Towing again, and she was able to locate the Vehicle in her system. I appreciate that the information from Ms. Rowe was hearsay evidence but it was confirmed in her business records affidavit.

[56] I will come back to the issue of whether or not it was Mr. Kabanga who spoke to Ms. Pratt and Officer Curtis and reported his Vehicle had been stolen.

Mr. Kabanga’s use of the RBC bank card

[57] Whether or not it was Mr. Kabanga who was using the RBC bank card associated to his RBC account to access his account is important to the Crown’s position that Mr. Kabanga was at all material times in possession of his Vehicle and the Firearm, and the position of the Defence is that Mr. Kabanga’s vehicle was stolen at some point after it was released by JP Towing. This is because, as I have already stated, the temporary Royal bank card for Mr. Kabanga’s account was on the rear seat of his Vehicle when it was seized by DC Grantham on July 25, 2015. The importance of this temporary RBC bank card being found in the Vehicle presumes that it had not been replaced with a permanent card by RBC. The RBC affidavit with respect to this account does not address this possibility, not did Mr. Holder ever suggest this. He did not seek to cross-examine the affiant of the RBC business records affidavit.

[58] I carefully watched the RBC video surveillance evidence again and have concluded that it is very likely that Mr. Kabanga was using the same temporary RBC bank card found in the Vehicle to access his account. That card has a bright blue band running across the top with an equally sized white band where Mr. Kabanga’s name is written and there is a narrow blue band below that. I was able to see a card with the same colour markings in a couple of the video clips, when the card was ejected from the ATM; perhaps the clearest being in Clip 4 on July 15, 2015. I am therefore satisfied that the temporary RBC bank card is what was being used to access Mr. Kabanga’s account.

[59] During the trial, when the Crown played the RBC surveillance videos, Mr. Kabanga admitted the young black male in those video was him. These videos show Mr. Kabanga using a bank card at various ATMs. Only the withdrawals from the RBC ATMs were captured on video and those ATM machines are located at 1012 Gerrard Street East, Toronto and at 1233 The Queensway, Etobicoke. The particulars of those withdrawals are as follows:

• July 15, 2015 at 3:30 pm;

• July 16, 2015 at 12:38 pm;

• July 16, 2015 at 4:27 pm; and

• July 18, 2015 at 2:35 pm.

[60] There is no admission that at the times when there was no video surveillance that it was Mr. Kabanga who was using his RBC bank card. Those withdrawals were on July 16, 2015 at 12:57 pm, at 2:30 pm and again at 7:03 pm and on July 23, 2015 at 9:50 am.

[61] Given when I do have video surveillance that Mr. Kabanga admits shows him using his RBC bank card, I find that on the July 16, 2015 occasions when there was no video surveillance available, it was Mr. Kabanga who used his RBC bank card since he clearly had his card when he accessed the RBC ATM at 4:27 pm.

[62] Mr. Holder submitted that since there is no video surveillance of Mr. Kabanga using his RBC bank card on July 23, 2015 it cannot be said that it was Mr. Kabanga who used the card at that time. Given my conclusion that follows that a stolen license plate was affixed to Mr. Kabanga’s vehicle on July 19, 2015, and given the RBC bank card was in the Vehicle when it was seized by DC Grantham on July 25, 2015, if Mr. Kabanga’s Vehicle was stolen sometime after 2:35 pm on July 18th, when the evidence is clear that Mr. Kabanga used his RBC bank card, then arguably the person who stole his Vehicle could have accessed his account using the temporary RBC Card that was in his vehicle on July 23. 2015.

[63] However, given Mr. Kabanga’s admission that that he was the person accessing his account in the period between July 15th and the 18th and my finding that he was doing so by using the temporary RBC bank card found in his Vehicle, the report to police that he did not access his Vehicle after his picked it up from JP Towing on July 13, 2015 and pushed it to the nearby parking lot is inconsistent with this statement.

[64] The other fact that I was able to determine by watching the RBC video surveillance evidence again was that Mr. Kabanga was wearing the same unique watch that DC Hubbard found on the back seat of the Vehicle on both occasions when he went to the bank on July 16th and July 18th.

[65] In any event, as I will come to, I have found that the report that Mr. Kabanga’s Vehicle was stolen was false. That combined with the finding that I will come to that Mr. Kabanga was vacuuming his Vehicle on July 23, 2015 causes me to conclude that it was in fact Mr. Kabanga who accessed his RBC account at an ATM on July 23, 2015.

Search of Mr. Kabanga’s Vehicle on August 3, 2014

[66] While I was still hearing evidence on the Section 8 application Ms. Laine advised that she wished to call PC Paul Ingley who would testify about an examination he did of Mr. Kabanga’s Vehicle a year earlier, on August 3, 2014. The reason at the time Ms. Laine first raised this issue was to rebut a suggestion put to DC Grantham by Mr. Holder that he planted the Firearm in the dashboard of the Vehicle.

[67] At the time when Ms. Laine first raised this issue, Mr. Holder expressed a concern about this evidence as he submitted that it would provide me with information about an earlier occasion when Mr. Kabanga was arrested. As a result Ms. Laine began to prepare an application seeking to tender this evidence on the issue of both what PC Ingley found during the search in terms of the state of the Vehicle but also Mr. Kabanga’s knowledge of the condition of his Vehicle at the time and, in particular, the state of the dashboard at the time of PC Ingley’s search of the Vehicle.

[68] Before I heard the evidence of PC Ingley I assured Mr. Holder that if the evidence was admitted it could be limited to exclude the reason for why the Vehicle was in police custody and that I would draw no adverse inference from this. Mr. Holder did not then object to PC Ingley testifying.

[69] A few days after PC Ingley testified there was further argument about the use to which I could put his evidence and in particular whether or not I could rely on it as trial evidence. After reviewing all of the exchanges between counsel and the Court, and given Ms. Laine’s stated intention that she intended to adduce this evidence for the purpose of both the Section 8 application and the trial, Mr. Holder conceded that I could rely on the evidence of PC Ingley both as to the condition of the Vehicle and Mr. Kabanga’s knowledge as trial evidence.

[70] PC Ingley testified that on August 3, 2014 he was called to attend Blong Avenue where he found a grey 2004 Pontiac with a Quebec license plate E09 FWN. When he did a police computer check, the VIN number returned to Mr. Kabanga and his date of birth. That VIN number was the VIN number of Mr. Kabanga’s Vehicle that was seized by DC Grantham.

[71] PC Ingley examined the interior of Vehicle and as a result of a loose heating vent on the passenger side, which appeared to the officer to be a place where someone might hide something, he checked other panels, including a panel which he described as the left dashboard access panel on the driver’s side. PC Ingley testified that he “pried” this panel off with his hands, but he could not recall how loose or secure it was. He located an item inside the cavity behind this panel. Photographs of the interior of the Vehicle and what PC Ingley saw during his examination of the Vehicle were entered into evidence. Based on this evidence I find that the panel that PC Ingley pried off the driver’s side of the dashboard is the same panel that I have referred to as the Panel in this case that DC Hubbard found on the driver side door mat of Mr. Kabanga’s Vehicle when he searched it. PC Ingley testified that he continued to search the Vehicle and found another area around the instrument cluster that was loose and could be pulled away from the frame. He located an additional item inside that area.

[72] There is no evidence that Mr. Kabanga was present during the course of PC Ingley’s search of his Vehicle or that he saw what the officer found in terms of these cavities in the Vehicle where items could be hidden. PC Ingley testified that he arrived on the scene after Mr. Kabanga had had an exchange with another officer who had examined the Vehicle before him. I presume that Mr. Kabanga had been removed from the Vehicle by this other officer. PC Ingley confirmed that this other officer did not locate what he did.

[73] This is important evidence that establishes that as of August 2014, Mr. Kabanga’s Vehicle had been used to hide an item inside a cavity behind the left dashboard access Panel on the driver’s side; the same cavity where DC Hubbard found the Firearm.

Mr. Kabanga’s Prior s. 109 Order

[74] A weapons prohibition order pursuant to s. 109 of the Criminal Code for 10 years was imposed on Mr. Kabanga on November 14, 2014.

Records with the Canadian Firearms Registry

[75] An affidavit sworn on December 7, 2015 by a Senior Registration Analyst with the Canadian Firearms Registry confirms that no registration certificate had been issued to Mr. Kabanga on July 20, 2015. An affidavit sworn on December 23, 2015 by a Firearms Officer confirms that no Firearms Acquisition Certificate or License was issued to Mr. Kabanga and valid on July 20, 2015.

Admissibility of the Recognition Evidence of Officers Rinkoff and Leung

[76] The Crown relies on the evidence of Officers Rinkoff and Leung who testified that they recognized Mr. Kabanga driving his Vehicle. This evidence of course is important to the theory of the Crown that around the time of the shooting incident Mr. Kabanga was in possession of his Vehicle and that the later report to police that his Vehicle was stolen was false. I heard this evidence on a voir dire that was blended with the trial. For reasons I will come to I find that this evidence is admissible, an issue that was not really contested by the Defence. Mr. Holder did however vigorously argue that this evidence was not reliable and that I could not conclude based on this evidence that it was Mr. Kabanga who was driving his Vehicle on the occasions in question. I have considered his submissions on the law and the evidence in assessing the weight to be given to this evidence.

[77] The issue of admissibility of the evidence was argued by the Crown relying on what is known as recognition evidence, where a witness testifies that he or she recognizes a person seen in a photograph or on a video, based on a prior connection with that person. In this case, the officers testified that they recognized Mr. Kabanga at different times driving his Vehicle. They did not testify that they identified him from a photograph or video and there is no photograph or video from which I could determine whether the driver of the Vehicle was in fact Mr. Kabanga. The only video is of Mr. Kabanga’s Vehicle entering the Freshco parking lot at the time that DC Rinkoff testified that he saw him but it was not taken from an angle that allows this Court to see the driver of the Vehicle.

[78] In my view, the usual principles of identification evidence are relevant and there is no threshold issue of admissibility. This is not a case of the admissibility of recognition evidence. Given that this is how this issue was argued, I will review the law and determine the admissibility of this evidence on the basis that it is lay opinion recognition evidence. If admissible I will consider the weight to be given to this evidence when I turn to my analysis of all of the evidence.

[79] The test for the admissibility of this “non-expert recognition evidence” was dealt with in R v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137 at para. 14. The relevant principles are as follows:

14 In R. v. Brown, 2006 42683 (ON CA), 215 C.C.C. (3e) 330 (C.A.), at para. 39, Rosenberg J.A. stated succinctly that “this type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator.” Rosenberg J.A. relied on the decision of the Supreme Court of Canada in R. v. Leaney, 1989 28 (SCC), [1989] 2 S.C.R. 393, (S.C.C.), at p. 413, for that proposition, which I would characterize as the “prior acquaintance/better position” test. I would re-affirm that test.

[80] The court goes on to refer to the dissent by Harradence J.A. in the Alberta Court of Appeal in R. v. Leaney, 1987 ABCA 206,81 A.R. 247 at paras. 16-22 and what it calls the “Harradence criteria,” which essentially requires sufficient prior familiarity with the defendant’s unique features to enable the witness to identify the defendant’s idiosyncrasies as portrayed in a photograph or video. The court in Berhe rejected this as a requirement for threshold admissibility of this type of evidence. At para. 22, the court stated that such concerns are better resolved in determining the ultimate reliability of the evidence.

[81] In my view the evidence of these officers is admissible in that they each had some familiarity with Mr. Kabanga and are in a better position than this Court to make the identification. In fact, because they are not relying on a photograph or video, they are the only ones who could identify Mr. Kabanga as the driver of his Vehicle at the time. It is only through an assessment of the credibility and the reliability of their evidence that will permit me to determine if in fact they observed Mr. Kabanga driving his Vehicle as they testified to.

[82] Of assistance in that regard, Mr. Holder referred me to the Ontario Court of Appeal decision of R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, where the court dealt with recognition evidence. At paras. 33-34 the court pointed out that recognition evidence is a subset of eyewitness identification evidence. As I have already noted, the court reaffirmed the finding in Berhe, that a requirement for threshold admissibility of evidence related to the identification of idiosyncrasies of physical appearance or movement is only relevant to the ultimate reliability of the evidence. At paras. 46-47 in M.B. the court went on to discuss the importance of unique identifiable features in determining the ultimate reliability of recognition evidence. This included approval of a passage from R. v. Panghali, 2010 BCSC 170 at para. 42 where Holmes J. stated:

Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.

[83] The court in M.B. concluded at para. 47 that the trial judge erred in determining the weight of the recognition evidence in that none of the witnesses had a “long and closely familiar” relationship with the appellant, commenting that the officer with the greatest acquaintance had observed him 10 to 15 times as an undercover officer and had spoken with him on one occasion for 35-40 minutes. The court held that this was a case in which the inability to “articulate the particular features or idiosyncrasies that underlie the recognition” was important and should have been weighted appropriately. In this case, the court concluded that the verdict of guilt was unreasonable because the recognition evidence, properly scrutinized, could not support a finding of guilt.

[84] I note that in M.B. identity was an essential element of the offences that the Crown had to prove beyond a reasonable doubt in order to establish that the appellant was the shooter captured on video. The same is not true for this case, as my decision whether or not to accept the evidence from Officers Rinkoff and Leung that they observed Mr. Kabanga with his vehicle is only one of the many facts that I must determine. This is not an element of any of the offences that the Crown must prove beyond a reasonable doubt.

[85] Mr. Holder also referred to R. v. Powell, 2007 4024 (ON SC), 46 C.R. (6th) 214 (Ont. S.C.) at paras. 11, 12, 15 and 26 (S.C.J.) on the inherent frailties of identification evidence and how to assess it. Of particular assistance is para. 15, where Ducharme J. sets out those factors that have been recognized by our courts as useful in assessing the value of identification evidence. I have been guided by those factors that Mr. Holder pointed out have that particular application to the case at bar, namely points 2-4, 6, 8, 10 and 12.

The Law with Respect to Circumstantial Evidence

[86] In drawing inference in this case and making my findings of fact and culpability, I have applied the principles set out in the Supreme Court of Canada’s decision in R v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. In Villaroman the issue was whether the defendant had knowledge and possession of child pornography found on his computer. The relevant principles I have applied are as follows:

35 … In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts [citations omitted]. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

36 I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. …

37 When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt [citations omitted]. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused” [citation omitted]. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [Italics in original]

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.

39 I have found two particularly useful statement of this principle.

40 The first is from an old Australian case, Martin v Osborne 55 C.L.R. 367, at p. 375: [citation omitted].

41 … 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 [citation omitted].

42 The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138 (Alta. C.A.) 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.

50 … The [trial] judge properly noted that “the accused cannot ask … this Court to rely on supposition or conjecture, that flows from a purely hypothetical narrative to conclude that the Crown has not proven he is guilty of the offences with which the Crown has charged him”…The burden on the Crown does not extend to “negativing every conjecture” [Citation omitted, Emphasis added].

[87] Ms. Laine also referred me to the decision of R v. Morrissey, 1995 3498 (ON CA), 97 C.C.C. (3d) 193 at para. 52, which distinguishes between drawing reasonable inferences and engaging in impermissible speculation:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.

[88] To the extent the Crown relies on the Morrisey decision for the proposition that an inference is rendered “speculative” by the mere fact that it arises from a lack of evidence that is inconsistent with Villaroman, at para. 36, which of course is a recent decision of the Supreme Court of Canada which is binding on me. Villaroman provides me with a great deal of assistance on the issue of drawing reasonable inferences and impermissible speculation and I have done my best to apply those principles.

[89] Mr. Holder relies on the decision of R. v. Anderson-Wilson, 2010 ONSC 489 by Hill J. At para. 72, Justice Hill states that in cases like involving circumstantial evidence, the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the defendant is guilty. The existence of any rational non-guilty inference is sufficient to raise a reasonable doubt. I take no issue with this principle of law as it is consistent with para. 35 of Villaroman, as set out above. I note however, that the court in Villaroman preferred the reference be to reasonable inferences but that was to ensure no confusion for a jury.

[90] What I do find of assistance in Anderson-Wilson is the observation of Hill J. at para. 75 that not everyone who drives in a car containing concealed illegal objects necessarily knows the presence or nature of those objects. As he stated at para. 77, in some firearms prosecutions the established circumstances may give rise only “to a high degree of suspicion,” which of course is not sufficient to satisfy the burden on the Crown.

Findings of Fact

Did Officers Rinkoff and Leung see Mr. Kabanga driving or with his Vehicle?

(i) DC Rinkoff – July 21, 2015

[91] DC Lee Rinkoff testified that on July 21, 2015, although he was not assigned to 55 Division, he attended at the station to do some work while he waited to do an extra shift related to the Pan Am Games that were on at the time. While he was at 55 Division he was asked by DC Friessen to arrange to run a Quebec license plate; E09 FWN, to see who it was registered to. DC Rinkoff believed that he was asked to do this because he had contacts with the Quebec Ministry of Transportation. He knew at the time that the request was related to the shooting incident.

[92] DC Rinkoff testified that he was advised that Mr. Kabanga was registered to this license plate and that he recognized the name from a 2011 investigation of Mr. Kabanga that he was involved in. DC Rinkoff provided this information to DC Friessen and he stayed with her while she ran Mr. Kabanga’s name through the police database. At that time he saw booking photographs of Mr. Kabanga taken between April 2012 and August 2014, which were entered into evidence. I accept DC Rinkoff’s evidence that he saw those photographs even though he made no note of this and did not state that he did this at the preliminary inquiry. At the time he was not involved in the investigation of the shooting incident and was really just passing time until his shift for the Pan Am Games began. DC Rinkoff also testified that he saw a Police Bulletin DC Grantham created for the shooting incident (the “Bulletin”). This Bulletin contained still photographs from the Boultbee Videos showing Mr. Kabanga’s Vehicle although it did not state his name, include a photograph of Mr. Kabanga or suggest that he was associated with the Vehicle.

[93] DC Rinkoff testified that after he left 55 Division, at approximately 3:13 pm, he was driving through the Freshco parking lot just west of the intersection of Lakeshore Boulevard and Leslie Street. He said that while he was waiting behind two or three cars to exit onto Lakeshore he spotted a silver Grand Prix entering the parking lot using the same exit/entrance that he was waiting on. DC Rinkoff testified that looking through the front window of his vehicle and through the front windshield of the Grand Prix, he recognized Mr. Kabanga driving the vehicle. He testified that he saw Mr. Kabanga face-to-face as Mr. Kabanga was driving towards him for about ten seconds while he was stationary and that he was 100% certain that it was Mr. Kabanga whom he saw. It was mid-afternoon and broad daylight and there was nothing obstructing his view.

[94] DC Rinkoff testified that he was also able to make some observations of the vehicle, which were consistent with Mr. Kabanga’s vehicle. Significantly these included a partial license plate number that he saw through his rear view mirror of 309, which is the second half of the plate number of the plate on Mr. Kabanga’s Vehicle at the time it was seized. DC Rinkoff also confirmed that the vehicle he saw is the one that appears in the Freshco video that was entered into evidence and he was able to identify his own private vehicle that he was using in the same video, which corroborates his evidence that it was Mr. Kabanga’s Vehicle that he saw.

[95] DC Rinkoff testified that the reason that he recognized Mr. Kabanga was that he dealt with him in furtherance of the execution of a search warrant and arrest in July 201, when Mr. Kabanga was the target of the investigation and he was an officer with 55 Division. In particular his evidence was that prior to executing a search warrant at the Louvain Address at that time, he reviewed booking photographs of Mr. Kabanga and did some static surveillance of him. The booking photographs that DC Rinkoff reviewed at that time were entered into evidence. I agree with his evidence that Mr. Kabanga looked identical at trial to how he looked in those photographs although the quality of some of the photographs is not that good.

[96] In his evidence in chief, DC Rinkoff testified that he conducted surveillance of Mr. Kabanga before executing the search warrant for at least three days and that he actually saw Mr. Kabanga five times during that time for a period of seconds to one and one half minutes. According to DC Rinkoff, he spent about 20-30 minutes talking face-to-face with Mr. Kabanga at the Louvain Address, both during the execution of the warrant and back at the station. He did not see Mr. Kabanga again until July 21, 2015.

[97] DC Rinkoff was cross-examined at length on two occasions as an issue arose during his cross-examination because there had been no disclosure of his notes concerning the 2011 investigation of Mr. Kabanga, which he testified he had reviewed before giving his evidence and preparing a will say. Once those notes were disclosed his cross-examination continued. DC Rinkoff was challenged on differences between his evidence and his notes, most notably that his evidence he had surveilled Mr. Kabanga for three days was incorrect – it was in fact only three hours. Mr. Holder submitted that I should take the officer’s apology to this Court with respect to that error with reservation.

[98] Mr. Holder also vigorously cross-examined DC Rinkoff on the question of whether or not it was even possible for him to have observed the driver of the Grand Prix as he testified to including the fact that Mr. Kabanga’s Vehicle had heavily tinted side windows. Mr. Holder also submitted that I must keep in mind the issues relating to cross-racial identification as both DC Rinkoff and DC Leung are white. On that issue however I also accept Ms. Laine’s submission that police officers who are expected to identify people from another race, are not on the same playing field as your average witness with no training and experience in doing this. Despite this vigorous cross-examination DC Rinkoff did not waiver from his evidence in chief that he was certain that it was Mr. Kabanga that he saw driving his Vehicle.

[99] In the course of the cross-examination, Mr. Holder put it to DC Rinkoff that he could have mistaken Mr. Kabanga for his brother. DC Rinkoff denied this suggestion stating that he had dealt with the brother at the time of the July 2011 incident and that Mr. Kabanga’s brother was eight to ten years younger than Mr. Kabanga. Mr. Holder submitted that this was a careless exaggeration because Mr. Kabanga’s brother was only two years younger than Mr. Kabanga but I have no record of receiving that evidence.

[100] Considering all of the evidence that I heard, there is no doubt in my mind that DC Rinkoff saw Mr. Kabanga’s Vehicle on July 21, 2015 with a license plate that ended in 309; in other words the license plate on the Vehicle at the time it was seized. That evidence is corroborated by the Freshco video. Although I reject the Defence submission that DC Rinkoff deliberately lied under oath about what he observed, given the passage of time between when he dealt with Mr. Kabanga in July 2011 and the time of his observations of Mr. Kabanga’s Vehicle in the Freshco parking lot, and given that he was able to make his observations for only a matter of seconds through the windshield of his vehicle and the windshield of Mr. Kabanga’s Vehicle, I agree with Mr. Holder that his evidence that it was Mr. Kabanga that he saw is not that reliable. I do find that the officer truly believes this but in my view it would have been difficult for him to be so certain in all of the circumstances.

[101] As I will come to however, it is relevant that if DC Rinkoff was mistaken and that it was not in fact Mr. Kabanga that he saw driving his Vehicle, that the person who was driving Mr. Kabanga’s Vehicle must have looked very similar to him in order for the officer to be mistaken. I will come back to this when I review the question of whether or not the report to police of Mr. Kabanga’s Vehicle being stolen was false.

(ii) DC Leung – July 23, 2015

[102] DC Norman Leung was an officer with 55 Division at the material time in the Primary Response Unit. As such, he became aware of the shooting incident and he testified that the Major Crime Unit had asked that officers from this Division be on the lookout for a silver vehicle, possibly a Pontiac Grand Prix. DC Leung was also aware of the Bulletin prepared by DC Grantham. In addition DC Leung testified that on July 21 or 22, 2015 DC Rinkoff told him that he believed that he saw the vehicle in question and that the last numbers on the license plate were 309.

[103] On July 23, 2015, at approximately 3 pm, DC Leung was off duty and getting gas at an Esso station on the south side of Lakeshore Boulevard and Carlaw Avenue. He testified that at that time he observed a black male in the process of vacuuming out his vehicle. DC Leung testified that the vehicle he saw was a silver Pontiac Grand Prix with only a rear license plate with the marker BMJK309. He noticed that the license plate was not affixed to the vehicle with the typical screws and washers, which he found unusual. The vehicle looked very similar to the vehicle he had seen in the Bulletin and had a license plate ending in 309 that DC Rinkoff had seen.

[104] Given the license plate and the vehicle description, and the fact that this Esso station was just south of the Louvain Address, I find that the vehicle DC Leung observed on the 23rd of July 2015 was in fact Mr. Kabanga's Vehicle.

[105] DC Leung testified that he did not recognize this male, and he confirmed that at this time he had never dealt with Mr. Kabanga before or seen any photographs of him. DC Leung testified that he did begin to pay close attention to this male for the next three or four minutes while the male finished vacuuming his vehicle as he knew that this person was now being linked to a crime vehicle. He was a close distance away; approximately 20 feet and DC Leung testified that he saw the male driver from multiple angles; the side, the front and the back. DC Leung described this male as black, 20’s – 30’s, approximately 5’ 11”, thin build, black hair, corn-rows back to front, wearing a dark top and black pants. It was the middle of the afternoon, clear and sunny. DC Leung called the station and relayed all of this information. Mr. Kabanga was not arrested at this time.

[106] DC Leung also testified that on the 31st of July 2015, he observed the same male that he recognized from the gas station come into the station around 8 pm while he was working at the front desk. This male said he was there to speak to a Major Crime officer, officer Grantham. In cross-examination DC Leung admitted that this male identified himself as Jessy Kabanga-Muanza. DC Leung testified that he realized that this was the same person that he saw a few days earlier at the Esso gas station vacuuming his vehicle and that he felt it was important to get one of the officers involved in the investigation of the shooting incident right away. DC Grantham happened to be passing by the front desk just as he was about to page him and DC Leung told him that he believed it was the same person he had seen at the Esso gas station.

[107] DC Leung testified that he and this male interacted face-to-face but they did not have an in-depth conversation-he just said Ok when the male asked to speak to officer Grantham. DC Leung did testify that the one thing he noticed was that this male had a black tattoo on the side of his neck and that he did not know what it was. He testified that he forgot to mention this in his notes.

[108] DC Leung could not recall if he saw this tattoo when he first saw the male on July 23rd but he testified that this male had “pretty much the exact same overall appearance” as the male whom he had seen vacuuming a vehicle and in his notes he stated that he had corn rows front to back, 5’9”, thin build. I appreciate that this height is slightly different than what he reported earlier and DC Leung fairly admitted that his descriptors of this male were relatively vague and could apply to a lot of individuals. DC Leung testified that when he returned to work he was assigned to work the front desk and that he had not been involved in any investigations in the interim or dealt with any other individual, since July 23rd and so the image of this man that he had seen vacuuming his car was still fresh in his mind. While he did not note any further descriptors in his notebook DC Leung was quite clear in his evidence that he also recognized this male from his own memory of having seen him and observing him for several minutes just a few days beforehand.

[109] The notes that DC Leung used to refresh his memory were notes that he wrote on July 31, 2015; a week after he made his observations and he then prepared a will say a few days later. In cross-examination he was taken to the ICAD report which sets out the information he reported to police on July 23, 2015. There it is reported that he said that the male was 5’10” tall. I do not see that difference in height as significant particularly given that DC Leung wrote his notes a few days after his observations whereas the ICAD records what he reported at the time he saw the male.

[110] DC Leung admitted that there is no reference to a tattoo that Mr. Kabanga has on his neck in the ICAD report of July 23, 2015, his notes or his will say. DC Leung was scheduled to testify at the preliminary inquiry but he was not called as a witness and had no conversation with anyone in preparation for the preliminary inquiry. He testified that he remembered seeing this tattoo on July 31, 2015 for the first time in a prep session with an officer on July 25, 2018. DC Leung denied being shown photographs of Mr. Kabanga or this tattoo at any time. He testified that he recalled seeing it when this person who identified himself as Mr. Kabanga attended at the front desk.

[111] The fact DC Leung did not notice the tattoo on Mr. Kabanga’s neck on July 23, 2015 is concerning but overall I found the officer’s evidence to be credible. He did not try to suggest that he had seen the tattoo on July 23, 2015 and that he had forgotten to note it. As I have said, this tattoo is not that visible. There is no dispute that it was Mr. Kabanga who attended at 55 Division and asked for DC Grantham. In this case DC Leung did not know who was vacuuming his car but he testified that he realized this male was Mr. Kabanga when he recognized Mr. Kabanga on July 31st, having seen him six days earlier,

[112] Considering the reliability of this identification evidence, and the factors in R. v. Powell, 2007 4024 (ON SC), I begin with the fact that although DC Leung did not know Mr. Kabanga, he spent a few minutes carefully watching the male on July 23rd. At that time it was sunny and he was only 20’ away and he saw the male from a few different angles. This was not just a fleeting glance. I appreciate that DC Leung’s description is somewhat generic but he was not shown any other photographs of Mr. Kabanga; rather he recognized him when Mr. Kabanga came to 55 Division. There is no evidence that DC Leung’s identification of Mr. Kabanga was influenced by anyone else.

[113] For these reasons I accept the evidence of DC Leung and find that DC Leung saw Mr. Kabanga vacuuming his Vehicle on July 23rd which means I also have direct evidence that Mr. Kabanga was driving his Vehicle on that day.

Was Mr. Kabanga’s Vehicle being driven by others in July 2015?

[114] The purpose of Mr. Fink’s evidence, on behalf of the Defence, was to establish that during a period when Mr. Kabanga was in custody, which was admitted to be between August 5, 2014 and July 11, 2015, parking tickets were issued to a vehicle with a license plate E11HFL in the period August 19, 2014 to July 12, 2015. The Defence submitted that this evidence established that Mr. Kabanga permitted another person or persons to drive his Vehicle when he was in custody. Apparently Mr. Kabanga was released from custody on July 11, 2015 and I have found that his Vehicle was towed on July 12, 2015 and that he picked it up on the 13th of July.

[115] For some reason that I was not made aware of, Mr. Fink saw the actual parking tickets but he did not have them with him to produce in evidence. He testified that he oversaw Mr. Wong, co-counsel with Mr. Holder for Mr. Kabanga, input the violation numbers from those tickets to do a search on the City of Toronto’s website. A screen shot was then taken of the search results and this is what was tendered through Mr. Fink. As a result, to the extent that the actual parking tickets identified a type of vehicle, I do not have that information. I know from the parking tickets produced by the Crown that are in evidence, that the make and/or model of the vehicle is typically written on a parking ticket. Given there is no doubt that the Defence had access to the actual parking tickets that were issued, which would likely have told me the model or make of the vehicle that the license plate was attached to, Ms. Laine submitted that an inference can be drawn from this failure to adduce the best evidence on this point.

[116] Ms. Laine submitted that the Crown does not concede the accuracy of the information contained in the screen shots as true - but for the fact that the tickets were issued. It is her position that without the actual parking tickets and given the other evidence that I do have of various license plates on Mr. Kabanga’s Vehicle at different time, it cannot be said that because the license plate E11HFL incurred parking tickets while Mr. Kabanga was incarcerated that that means that he allowed others to use his Vehicle. The evidence is clear that the license plate on Mr. Kabanga’s Vehicle was switched at some point from the E11HFL plate that was on the Vehicle when it was towed to JP Towing and the BNJK309 plate that was on the car when it was seized. Furthermore, we know from Officer Ingley’s evidence that on August 3rd, 2014 Mr. Kabanga’s Vehicle had a plate number E09FWN and that DC Hubbard found a different license plate in the trunk of Mr. Kabanga’s Vehicle.

[117] In other words, Ms. Laine submitted that the evidence tendered by the Defence does not prove that during this period license plate E11HFL was affixed to Mr. Kabanga’s Vehicle and that Mr. Kabanga was letting someone else drive his Vehicle or that his Vehicle was even moved while he was incarcerated. She argued that at best, the evidence tendered by the Defence does nothing more to establish that others had access to Mr. Kabanga's license plate during the period of a year when he was in custody. Ms. Laine also submitted that between December 15 and June 27, 2015, the tickets show that the license plate incurred offences all in the direct area of the Louvain Address and that this does not, without more information, demonstrate that the Vehicle even moved. It is her position that very little weight can be put on these tickets.

[118] Mr. Holder relied extensively on this evidence in support of his position that because Mr. Kabanga had permitted someone else to drive his Vehicle while he was incarcerated that the Crown had not established and I could not rule out that others were permitted to use his Vehicle when he was not in custody, and in particular at the time of the shooting incident.

[119] It is true that some of the sequential tickets issued to plate E11HFL show the same address in which case it is true that the vehicle did not move from one day to the next. The real issue however is whether or not I can find that this plate was in fact on Mr. Kabanga’s Vehicle and as such was being driven while he was in custody. Although Ms. Laine makes a valid point, I am not prepared to draw an adverse inference from the fact the actual parking tickets were not produced. I also find that it would make no sense for someone to take a license plate registered to Mr. Kabanga’s Vehicle and affix it to another vehicle. I am therefore prepared to find that another person or persons were driving Mr. Kabanga’s Vehicle while he was in custody. This is really not surprising in the circumstances as he clearly could not use his Vehicle while he was incarcerated.

[120] Copies of records from A Towing Ltd. were also entered into evidence by Mr. Holder subject to argument by the Crown that they were not admissible because there was no accompanying affidavit to attest to the fact that these documents were business records. These records also refer to the plate; E11HFL and state that the vehicle towed on September 22, 2014 was a silver Pontiac Grand Prix. If I accept the admissibility of these documents they show that the vehicle, which appears to be Mr. Kabanga’s Vehicle, was released to the owner of the vehicle reported to be Jordan Kabanga-Muanza at the Louvain Address on September 23, 2014. Counsel agreed that even if these documents are admissible they would not prove that it was Mr. Jordan Kabanga-Muanza who the vehicle was released to although it would be some evidence of that. It is also evidence that someone else had access to the Vehicle during this period as these records to identify what I would conclude is a reference to the Vehicle.

[121] It is true that these records from A Towing Ltd. were not properly proven by Mr. Holder as I have no covering affidavit confirming they are business records. Although Ms. Laine pointed this out, she did not ask that someone could attend court so that she could cross-examine on these records. These records on their fact are screen shots and I am not concerned about their authenticity as I was advised by both counsel that the delay in getting them so they could be entered into evidence was because a legal department was vetting them. I assume that was legal counsel for TPS because on the face of these documents, they set out information from the Vehicle Impound System, not documents from A Towing Ltd. I am therefore prepared to accept that these documents are authentic and can be relied upon. These documents simply provide further evidence that some other person or persons were driving Mr. Kabanga’s Vehicle.

[122] Ms. Laine submitted that even if I accept that someone else was driving Mr. Kabanga’s Vehicle, the evidence at its highest demonstrates that during the time when he was in in custody he allowed one or more other person to drive his vehicle. She submitted that this does not equate to the suggestion made by Mr. Holder that the Vehicle could be used by whomever during the relevant time period after Mr. Kabanga was out of custody and that this proposition is speculative without evidence before this Court on this issue. She argued that Mr. Kabanga bore an evidential burden (not a persuasive burden) to provide evidence of this and that allowing this defence to be considered in the absence of an evidential foundation for it would invite decisions unsupported by the evidence and get in the way of a fair trial and true verdict. She submitted that this defence did not have an air of reality and that I had a positive duty to not consider it.

[123] As I have already stated, para. 36 of Villaroman is clear that an inference is not rendered “speculative” by the mere fact that it arises from a lack of evidence. At para. 35 the court states that requiring proven facts to support explanations other than guilt wrongly puts an obligation on a defendant to prove facts. It follows that despite any lack of evidence I must consider other reasonable possibilities that are inconsistent with guilt. Although the Crown does not need to "negative every possible conjecture, no matter how irrational or fanciful,” I must consider “other reasonable possibilities” that are based on logic and experience applied to the evidence or the absence of evidence, not on speculation: Villaroman, at para. 37 The court goes on to observe at para. 38 that the trier of fact must consider 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.

[124] In my view, even if I disregard this evidence tendered by the Defence of the parking tickets and tow record because of the admissibility issues raised by the Crown, there is no obligation on Mr. Kabanga to prove that no one else had access to his Vehicle or that no one else was permitted to drive his Vehicle at the time of the shooting incident. I have not been able to determine that Mr. Kabanga was the only person who drove his Vehicle in the relevant time period in that I have found that DC Rinkoff could have been mistaken. The person he saw driving Mr. Kabanga’s Vehicle could have been a family member who looks like Mr. Kabanga.

[125] In my view the Defence theory is not speculative just because it arises from a lack of evidence. I do know from the evidence that Mr. Kabanga has a brother and in any event the concept that someone would allow someone else to borrow and drive his Vehicle is not in my view an unreasonable inference; it is not irrational or fanciful. There was nothing special or unique about the Vehicle and save for the fact that the Firearm may have been stored in the Vehicle, there is no reason to conclude that Mr. Kabanga would not allow others to drive his Vehicle. As Mr. Holder pointed out, there is no evidence that the Firearm was being stored in the Vehicle and that it was in the Vehicle throughout the relevant period. Even presuming that the Firearm was being stored in the Vehicle, that would not necessarily mean as a matter of human experience that Mr. Kabanga did not allow close and trusted family members and/or friends to borrow his Vehicle and that they would have known that the Firearm was in the Vehicle. Whomever was driving Mr. Kabanga Vehicle at the time of the shooting incident, clearly knew where the Firearm was hidden and whether the driver was Mr. Kabanga or another, the driver clearly did not take any steps to keep the location of the Firearm secret. Furthermore, this is not a case where I have direct evidence that Mr. Kabanga was the driver of his Vehicle at the time of the shooting incident and he was not found in actual possession of the Vehicle at the time that it was seized.

[126] I did not permit Ms. Laine to call evidence in reply to establish that Jordan Kabanga-Muanza owned a vehicle during some of the time that Mr. Kabanga was in custody. I gave brief reasons for that decision orally. Even if I had permitted that evidence it would not have made a difference to my determination of the question of whether or not there is a reasonable inference that someone else was driving Mr. Kabanga’s Vehicle while he was in custody.

[127] For these reasons I find that there is a reasonable inference on the evidence that Mr. Kabanga may have allowed others to drive his Vehicle during the relevant time period, even when he was not in custody, and in particular whether or not the Firearm was stored in the Vehicle at the time.

Was it Mr. Kabanga who reported to police that his Vehicle had been stolen?

[128] I have already reviewed the evidence from Ms. Pratt and Officer Curtis about the telephone conversations they had on July 26, 2015 with a caller who identified himself as Jessy Muanza and reported to them that his vehicle had been stolen.

[129] The Crown asserts that it was Mr. Kabanga who reported his vehicle had been stolen to police and that this report was false. Mr. Holder did not admit that this caller was Mr. Kabanga, although he did not seriously contest that either as he placed reliance on this report to police in support of his position that Mr. Kabanga’s Vehicle had in fact been stolen. I note that the evidence of Ms. Pratt and Officer Curtis would be inadmissible hearsay if the caller was not Mr. Kabanga, in which case there would be no evidence to support this theory of the Defence save for the fact there was a stolen license plate on the Vehicle.

[130] I agree with Ms. Laine that there is no logical motive that anyone in the universe would want to obtain all of the detailed information provided to police in order to make a stolen vehicle report other than Mr. Kabanga. The caller not only self-identified as Mr. Kabanga; he also gave Mr. Kabanga’s correct date of birth. Furthermore, all of the information provided with respect to JP Towing, most significantly the tow number, was correct. I have already referred to the Brown decision on this issue of self-identification, which applies to this evidence as well. I have found that it was Mr. Kabanga who picked up his Vehicle and he would be the person in possession of tow number and able to provide the number to Officer Curtis. Given the detail provided by the caller I have no difficulty in concluding that this caller was in fact Mr. Kabanga. This conclusion is also corroborated by the fact that Mr. Kabana attended at 55 Division on July 31, 2015, to report his Vehicle as stolen.

Was Mr. Kabanga’s report to police that his Vehicle was stolen fabricated?

[131] Mr. Holder argued that based on the report to police I should find that Mr. Kabanga’s Vehicle was stolen and that the person who stole the Vehicle put a stolen license plate on the Vehicle because Mr. Kabanga’s plate was not authorized to circulate. Mr. Holder relies on the fact that the caller, whom I have found to be Mr. Kabanga, reported that when he picked up the Vehicle from JP Towing the license plate was no good and that he had to push the Vehicle to a nearby parking lot. Mr. Holder submitted that based on this statement to police, I should find that Mr. Kabanga’s Vehicle was stolen sometime between July 13 and 19, 2015 and he argued that there is no evidence that Mr. Kabanga drove his Vehicle in that time frame or afterwards. He relies on the evidence I will come to that the license plate BNJK 309, which was on the Vehicle when it was seized, was reported missing as of July 18, 2015, which is consistent with it being stolen and put on Mr. Kabanga’s Vehicle.

[132] The Crown alleges that Mr. Kabanga’s report that his Vehicle was stolen and that he did not have possession of his Vehicle during the time period when the shooting incident occurred, was fabricated. The Crown asserts that in making a false stolen vehicle report, Mr. Kabanga was trying to distance himself from the crime that he participated in, and to avoid suspicion by the police which the Crown submits is demonstrative of his involvement in the alleged attempted murder on July 20, 2015. The Crown agrees that license plate BNJK 309 was a stolen plate but submits that this is also circumstantial evidence of the Vehicle's and Mr. Kabanga’s involvement in the shooting incident.

[133] It is well-established that words or conduct by a defendant after an offence may provide circumstantial evidence of a fact in issue. In the context of lies as post-offence conduct, our courts have repeatedly drawn a distinction between statements made by a defendant that are simply disbelieved and deliberate lies in the nature of fabrications or concoctions.

[134] The courts have stipulated the need for "independent evidence of fabrication". That evidence is separate and apart from the evidence that supports the case for the Crown, which if accepted would cause rejection of the accused's statement as unworthy of belief. As Doherty J.A., helpfully explained at para. 24 of R. v. Paul, 2009 ONCA 443, 249 O.A.C. 200, leave to appeal refused [2009] S.C.C.A. No. 450:

The reference in O'Connor and many cases that have followed it to "independent evidence" of fabrication is intended to emphasize that a finding of fabrication does not flow automatically from a finding that the statement should be rejected as false. There must be something more in the evidence that reasonably justifies the further inference that the false statement was deliberately made for the purpose of concealing the accused's involvement in the offence: … [emphasis added].

[135] Mr. Holder referred me to the more recent decision of the Court of Appeal, R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, where at para. 38 the court also revisited the well-established principles in R. v. O’Connor, 2002 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.) dealing with the distinction between an exculpatory statement that is disbelieved and one that is found to have been fabricated or concocted to avoid culpability. The court stated, at para. 38:

A statement which is merely disbelieved is not evidence that strengthens the Crown’s case. However, if the Crown can establish, through extrinsic or independent evidence, that an exculpatory statement was fabricated or concocted to conceal involvement in the offence, the statement evidence can be capable of supporting an inference of guilt [emphasis added].

[136] I turn then to the question of whether or not Mr. Kabanga’s report to police was in fact fabricated. Having found that the person who called 55 Division was in fact Mr. Kabanga, the principles set out in the Supreme Court of Canada decision R. v. W.(D.) 1991 93 (SCC), [1991] 1 S.C.R. 742 apply to his statements to Ms. Pratt and Officer Curtis. This is the case even though Mr. Kabanga did not testify: see R. v. B.D. 2011 ONCA 51, 266 C.C.C. (3d) 197.

[137] There is no doubt, based on the photographs taken by DC Hubbard, that at the time police seized Mr. Kabanga’s Vehicle, the license plate on the front of the Vehicle, BNJK309, was held on by two large oversized silver washers. I accept DC Grantham’s evidence that he had seen this before in cases where the license plate had been removed by force, leaving two large holes in the plate, requiring larger washers to affix it to a vehicle. This suggests the license plate was stolen. This inference is corroborated by the information DC Grantham received when he ran the plate as according to a report from the Ontario Ministry of Transportation, this plate had the status of “missing” and had been removed from a green 2004 Ford Explorer, registered to a person named Rocio on July 18, 2015.

[138] On the basis of this evidence then I find that this license plate was stolen by someone and put on Mr. Kabanga’s vehicle sometime between July 18, just two days before the shooting incident and July 25, 2015 when the vehicle was seized. We know from the JP towing business records that the vehicle they impounded on July 12, 2015 had a different license plate; E11 HFL.

[139] In an Agreed Statement of Facts it is agreed that that license plate BNJK309 incurred parking infractions on July 19, 21, and 24, 2015. In each case the parking tickets indicate that the vehicle that incurred the ticket was a Pontiac. Furthermore, the addresses where these parking tickets were issued are 2.6 km; more or less, from the Louvain Address. From this evidence, it can easily be inferred that the Vehicle was in use during this time period. As of July 2015, the last parking ticket for this license plate was on October 26, 2014 at which time the plate was attached to a Ford.

[140] All of this evidence also corroborates my finding that this plate was stolen and based on the parking tickets it is clear that as of July 19th at least it was affixed to Mr. Kabanga’s Vehicle. This is significant as this is the day before the shooting incident.

[141] In addition, my finding that Mr. Kabanga used his RBC card to access his account at various ATMs between July 15th and the 18th, which card was found on the back seat of the Vehicle when it was seized and that he was wearing the watch found in his Vehicle during some of those visits is inconsistent with Mr. Kabanga’s report to police that his Vehicle was stolen and that he had not accessed it since July 13, 2015, when he picked it up from JP Towing. In addition I have found that he was vacuuming his Vehicle on July 23, 2015.

[142] I have also found that at the very least, DC Rinkoff saw someone whom he believed to be Mr. Kabanga driving Mr. Kabanga’s Vehicle on July 21, 2015. The odds of someone who looked as much like Mr. Kabanga that he could be honestly mistaken by DC Rinkoff to be him, in a plaza close to where Mr. Kabanga was living, being a person who had stolen his Vehicle would be a very unlikely coincidence. The improbability of this coincidence is overwhelming.

[143] I also agree with Ms. Laine’s submission that it does not make logical sense that one would notice that your car was stolen, but delay the reporting of it to police for days. This in itself casts suspicion on Mr. Kabanga’s stolen vehicle report.

[144] Based on all of these findings it was clearly not possible that Mr. Kabanga’s Vehicle was stolen as he reported to police. This is extrinsic evidence that establishes that Mr. Kabanga’s report to police was false and deliberately fabricated.

[145] Having found that Mr. Kabanga’s report of his Vehicle being stolen was fabricated, I must consider what if any significance I should give to this finding. The Crown relies on the timing of the alleged theft of the Vehicle because in making his report of his stolen Vehicle to police, Mr. Kabanga told police that he last saw his Vehicle on July 14th, several days before the shooting incident. Ms. Laine submitted that it is significant that Mr. Kabanga did not suggest it was just recently stolen, which she argues might be more consistent with an attempt to distance himself from the firearms possession charges, if I find that Mr. Kabanga knew that the Firearm was in his Vehicle. Instead, Mr. Kabanga gave a date of when he no longer had control over his Vehicle that was before the shooting incident.

[146] I find that it is likely that by the time Mr. Kabanga called police on July 26, 2015, that he would have realized that his Vehicle had been seized by police as it had been parked near his residence and of course it was gone. I agree with Ms. Laine that the fact I have found that Mr. Kabanga’s report to police that his Vehicle was stolen was fabricated, is circumstantial evidence that Mr. Kabanga knew the Firearm was in his Vehicle and that he made this fabricated report to distance himself from the Firearm. Whether or not Mr. Kabanga was specifically attempting to distance himself from the shooting incident, which occurred in the early morning hours of the 20th of July, 2015, which is the position of the Crown, is an issue I will come to.

Did the driver of Mr. Kabanga’s Vehicle at the time of the shooting incident, provide the Firearm to the shooter?

[147] The question of whether the driver of Mr. Kabanga’s Vehicle at the time of the shooting incident provided the Firearm to the shooter is of course very relevant to the attempt murder charges if I find that Mr. Kabanga was driving his Vehicle at that time; an issue I will come to. In any event the question of whether or not the Firearm was hidden in the location where DC Hubbard found it at the time of the shooting incident is important as it may shed some light on whether or not Mr. Kabanga was aware the Firearm was hidden in his Vehicle.

[148] Mr. Holder submitted that it cannot be determined that the Firearm used in the shooting incident was in Mr. Kabanga’s Vehicle the whole time after that incident. That is true and is something that I must consider. The fact that I have found that it was Mr. Kabanga’s Vehicle that was used in the shooting incident and given that the Firearm used in that incident was found by DC Hubbard in his Vehicle does not rule out the possibility that the shooter brought the Firearm used in the shooting incident and also had access to Mr. Kabanga’s vehicle to leave it there at a later time. However, based on the Boultbee Videos and the fact that the driver and the passenger can be seen moving around inside the Vehicle, and more significantly that the driver’s door opened and closed briefly, which would have been necessary to access the Firearm if it was hidden where it was found by DC Hubbard. I find that this is where the Firearm used in the shooting incident was hidden at the time of the shooting incident. The evidence is clear that whether or not the Panel was on the end of the dashboard, that the cavity behind the dashboard where the Firearm was found could not be accessed without opening the driver’s door. I cannot think of any other reason why the driver’s door would have opened and closed briefly without the driver getting out of the Vehicle. Given that fact and given that the Firearm found in that very location by DC Hubbard was the Firearm used in the shooting incident, I find that whomever was driving Mr. Kabanga’s Vehicle at the time of the shooting incident provided the Firearm to the shooter after opening the car door briefly to retrieve the Firearm.

[149] Mr. Holder submitted that there is no evidence in the Boultbee Videos of the Firearm being put back into the location where it was later found by DC Hubbard. That is true as the driver’s door does not open again after the shooting and the Vehicle left the scene quickly. However, at that point the driver and shooter would not want to delay their departure from the scene and so that is not surprising. Clearly the Firearm was put back in the area where it was found by DC Hubbard at some point after the shooting incident and before the Vehicle was seized by DC Grantham since that is where it was found by DC Hubbard.

How and when did the Panel fall on the floor of the Vehicle?

[150] The issue of whether or not the Panel was already on the floor of the Vehicle or whether or not it was dislodged while the Vehicle was being towed or when DC Hubbard opened the driver side door of the Vehicle is important. At the time I ruled on the Section 8 Application I believed that this was an issue that I could not determine but on further reflection I have changed my mind.

[151] I have already reviewed the evidence of PC Ingley who testified that he “pried” the Panel off with his hands. DC Hubbard testified that the Panel was held in place by three plastic clips that had a little lip on them and that there were corresponding slots in the dashboard that they fit into so that they would snap in place; what he described as sort of a “pressure fit”. He also said that this Panel was not designed to be taken off and replaced but that someone who knew how to do so could by applying force to the back edge of the Panel to overcome the resistance of the plastic and pop it loose. That of course was what PC Ingley did when he examined the Vehicle.

[152] Given this evidence and given that the Vehicle would have been towed with the driver’s door shut, and given that there is a slight indent in the door to accommodate the Panel to ensure there is no gap between the end of the dashboard and the driver’s door when the door is closed, in my view it is not possible or at least extremely unlikely that the Panel became loose and fell either during transit or by DC Hubbard opening the door. On this basis alone it seems to me that it is most likely that the Panel was on the floor the entire time from when it was first located by DC Grantham. This would allow for ready access to the Firearm as was the case when the driver’s door of the Vehicle opened briefly just before the passenger got out of the Vehicle during the shooting incident.

[153] My conclusion in this regard is reinforced by the way the Panel is lying on the floor mat. Simply put, it looks like it was placed on the floor mat. It is lying with the side that would face the door up and it is a few inches inside the doorframe, which is not a position in my view that makes sense if it simply fell from its position, in which case it would likely have either fallen out of the Vehicle when the door was opened, given the outward movement of the door, or it would have at least fallen closer to the threshold of the door. This in my view is not a matter that requires any expert evidence; as the Crown submitted it is based on reasonable inferences from the well-known law of gravity.

[154] What I do not know is whether or not the Panel was always kept on the floor of the Vehicle or not. I expect that is not likely the case given the Firearm could be seen when the driver’s door was opened, but certainly I find that it was in this position at the time that the Vehicle was seized.

The Law - Constructive Possession

[155] The position of the Crown is that it is reasonable to infer, based on all of the evidence, that the Firearm was being stored in Mr. Kabanga’s vehicle and that it belonged to him. The Crown alleges that Mr. Kabanga was in constructive possession of the Firearm on July 25, 2015, pursuant to s. 4 (3)(a)(ii) of the Criminal Code and that Mr. Kabanga had both knowledge and control over the Firearm. In the alternative, if I am not satisfied that Mr. Kabanga was the principal in terms of possession of the Firearm at the relevant time, the Crown’s position is that he was a joint party to the possession of the Firearm pursuant to s. 4(3)(a)(i) of the Criminal Code.

[156] The Crown relies upon a number of cases in support of her position. Some deal with the substantive law and others are specific to the issue of possession of a firearm. None of those cases are factually identical to the case at bar, but they do assist in that they demonstrate how courts have grappled with circumstantial evidence in similar situations.

[157] A good summary of the substantive law is found in R. v. Pham (2005), 2005 44671 (ON CA), 77 O.R. (3d) 401 (C.A.) at paras. 14-18, aff'd 2006 SCC 26, [2006] 1 S.C.R. 940. In Pham the Court of Appeal held at para. 15, that in order to constitute constructive possession, there must be knowledge which extends beyond mere “quiescent knowledge and disclosed some measure of control over the item to be possessed.” In that case the defendant's home was used as a drug trafficking centre; there were items containing drugs in plain view in the residence; women's clothing items were found in the home and the defendant's passport and other items with her name on it were found in the bedroom where the drugs were found. Based on all of that evidence, the court found that there was circumstantial evidence of the defendant’s knowledge in and participation in the trafficking activity, even though others were present in the home as well.

[158] The court in Pham at para. 17, referred to the decision of Watt J. (as he then was) in R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) aff’d on this point (1988) 31 O.A.C. 244 (C.A.) where he dealt with the element of knowledge as follows:

There is no direct evidence of the applicant’s knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and; the applicants apparent occupation of the premises may serve to found an inference of the requisite knowledge.

[159] At para. 18, the court referred to Re: Chambers and the Queen (1985), 1985 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.) for the proposition that the court may draw “appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug.”

[160] At para. 30, the court in Pham reminded trial judges that we are not expected to:

treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof especially for inferences consistent with guilt, but it does not demand certainty.

[161] In R. v. Munif, 2009 BCCA 451, the trial judge found that the defendant had access and control of the apartment that was being used as a drug-trafficking hub because he had the key. The trial judge concluded that the only reasonable inference to be drawn from the evidence was that the defendant was a party to the illegal drug enterprise that was being run from the residence. On appeal the court held at para. 13, that it was open to the trial judge, on the evidence before her, to draw the inferences that she did, which included that it would have been impossible for the defendant not to have knowledge of the large quantities of drugs and drug paraphernalia scattered in the common areas, and that given the quantity of drugs and cash in the residence the common sense inference was that only a trusted member of the illegal operation would be given such free access to the residence.

[162] The same principles apply to the owner of a vehicle who generally has authority to control both access to the car and any uses of the car, as opposed to a mere passenger or occupant of a car who generally lacks such authority, see R. v. Bonilla-Perez, 2014 ONSC 2031 at para. 46.

[163] In R. v. Humphrey, 2011 ONSC 3024, 237 C.R.R. (2d) 109, Justice Code dealt with the alleged possession by the defendant of three guns found in the car he was leasing and driving with two other passengers. Code J. stated at para. 144, that if the defendant had knowledge of any of the guns it could easily be inferred that the defendant had allowed his passengers to store and transport the guns in his car, which would be sufficient to make out the element of control. In light of that conclusion, Code J. found that the only real issue was whether the Crown had proven the element of knowledge. In that case the defendant testified and provided an exculpatory account which Code J. found could reasonably be true in that the guns were hidden and were not visible to the defendant while seated in the driver’s seat and there was no forensic evidence linking the defendant to any of the guns. Justice Code found that in all of the circumstances the Crown has not proven knowledge beyond a reasonable doubt.

[164] In the case of R. v. Davis-Harriot 2010 ONCA 161, 74 C.R. (6th) 316, we do not have any detail about the evidence before the trial judge. On appeal the court found that a trier of fact would necessarily have concluded that the appellant knew the gun was in the back seat and that he was in possession of the gun given that the appellant was the owner of the car, he was the only occupant in the car, the gun was under the appellant’s coat, on the backseat, and there was no evidence that could support any inference that was inconsistent with the appellant’s guilt and he did not testify.

[165] In R. v. Ali, 2008 ONCA 741, the appellant was apprehended as he was driving his car and a gun was located under the driver’s seat in a way that would give the driver easy access. The trial judge’s finding that the appellant had knowledge of the firearm was based on several factors: the gun was located under the driver’s seat; the appellant was the only person who drove the car on the day and evening prior to, and the day of his arrest and the finding of the gun; the household routine was that the appellant was the primary driver; and the "inherent improbability of another person secreting the weapon under the drivers' seat in light of the nature of the item and its ready visibility from the rear seat and window of the vehicle” (at para. 4). On appeal, the court held at para. 6 that the trial judge was cognizant of the fact that the Crown’s proof of knowledge was entirely dependent on the cumulative force of the circumstantial evidence. The court found that the trial judge did not shift the burden to the appellant and that the inference drawn of knowledge was reasonably open to her on the evidence taken as a whole.

[166] In R. v. Huard, 2009 BCSC 1010, the police received a call reporting the sighting of a firearm in a car associated with the defendant. They located the vehicle, which was unoccupied with keys in the ignition. They found a wallet with items relating to the defendant and the vehicle was registered in the defendant’s name. The defendant had been seen in the car a few days beforehand, but in that instance he was the passenger. The trial judge found that the defendant was the de facto owner and despite the evidence that other persons drove the car on occasion, the trial judge held at para. 18 that:

the only reasonable conclusion I can draw from the whole of the evidence, including the fact that the accused had possession and control of the car, the nature of the personal possessions of the car, the documents of personal identification located in the car, is that the accused knowingly had control of the firearm on September 2, 2008. In my view, any other explanation as to how the firearm came to be in the trunk of the Chrysler vehicle is mere speculation.

[167] The trial judge went on to note at para. 19 that the nature of the property in question was important to this analysis: “[a] handgun with a significant amount of ammunition is a valuable commodity. It is also notoriously known that it is unlawful to possess such a weapon. I do not think it reasonable to conclude that the accused would not have been aware of the presence of the handgun in the trunk of his car.”

[168] In the same vein, in Bonilla-Perez, supra, Justice Code held at para. 51:

It is a common sense inference that people generally know what is in their car, especially when the object in question has some real value, when it is ready for use, when it is at least partially visible, and when it is within reach, as in the case at bar. It is also a common sense inference that other parties generally do not hide their valuables in someone else's car, unless they know and trust the owner of the car to look after the valuables for them.

[169] On this reasoning, Code J. found that the inference was overwhelming that the defendant knew the loaded gun was in the back seat of his car. As a result, he was either a principal or a party to possession of the gun. He held that the only theory, consistent with the defendant’s innocence was that some third party secretly hid his/her loaded handgun in his car, without his knowledge. Code J. held, at para. 51 that this theory was entirely speculative and not a reasonably possible inference based on the evidence.

[170] Justice Code referred to the decision R. v. Husaini, 2013 ONSC 496 where at para. 180 (vi)(b) Justice Leach observed that:

Common sense indicates that no one would "store" a weapon, for future retrieval and use, in an inherently mobile storage unit such as a car, capable of relocating anywhere at any time, unless the person storing the gun was reasonably sure of being able to locate and access the car. That in turn makes it extremely probable, if not certain, that the person storing the gun would either have control of the car, or secure the permission and consent of the person who did have control of the car - thus giving rise to joint possession, if not constructive or attributed possession. In this case, that person was Mr. Husaini. (It is not simply a matter of Mr. Husaini having control over the car. His control over the car gives rise to an additional reasonable inference that he had control - and would have been regarded by his friends and acquaintances as having had control - over what would and would not be permitted inside the car.)

[171] Leach J. went on at para. 180 (vi)(c) to refer to the decision of the Ontario Court of Appeal; R. v. Balasuntharam, [1999] O.J. No. 4861 where at para. 2 the court held that “human experience tells us that property of this nature [an AK-47 rifle and ammunition] simply would not be the subject of unknowing possession.” Justice Leach stated that firearms are valuable and dangerous to those who seek to possess and use them and that it seemed entirely unlikely to her that one of the defendant’s friends would have secreted one or two of the fully loaded hand guns in the defendant’s vehicle without letting him know it was there. She held at para. 180( vi)(d) that:

Such a scenario necessarily contemplates that a person other than Mr. Husaini independently created, discovered and/or accessed the "natural void" in the vehicle's centre console, without Mr. Husaini's involvement, or without his letting them know it was there. This, I think, is another coincidence too far.

Analysis

Has the Crown proven beyond a reasonable doubt that Mr. Kabanga had possession and control over his vehicle at the time the Vehicle was seized?

[172] Mr. Kabanga was the registered owner of the Vehicle and that gave him control over whomever else, if anyone, could have access to or drive the Vehicle. I have found that there is a reasonable inference on the evidence that Mr. Kabanga may have allowed others to drive his Vehicle during the relevant time period and in particular whether or not the Firearm was stored in the Vehicle at the time. There is no question however, that Mr. Kabanga was driving his Vehicle in the relevant period of time. Based on my finding that he was the person who called Ms. Pratt and spoke to Officer Curtis, he was the person who was driving the Vehicle at the time it was towed to JP Towing given that he knew the details of where it was towed from, why it was towed and where it was towed to. I have also found that he was the person who attended at JP Towing on July 13th and to whom the Vehicle was released.

[173] In addition, my finding that Mr. Kabanga used his RBC card to access his account at various ATMs between July 15th and the 18th, which card was found on the back seat of the Vehicle when it was seized and that he was wearing the watch found in his Vehicle during some of those visits means that contrary to Mr. Kabanga’s report to police he did access his Vehicle after he picked it up from JP Towing on July 13, 2015.

[174] As already stated it is admitted that Mr. Kabanga’s account was also accessed via an ATM on July 23, 2015 at 9:50 am. We do not have any video surveillance for that date, but given my finding that Mr. Kabanga’s Vehicle was not stolen and given his RBC bank card was located back in his Vehicle on July 25th when it was seized, the only reasonable inference it that Mr. Kabanga accessed his Vehicle again on or after July 23, 2015 and left his RBC bank card on the back seat along with his watch. This is consistent with my finding that DC Leung observed Mr. Kabanga vacuuming his vehicle on July 23, 2015 at 3 pm. I also agree with the Crown’s submission that Mr. Kabanga would not relinquish control over his Vehicle with these items on the back seat of his Vehicle, at least not to anyone who was not a trusted family member or friend.

[175] I also agree with Ms. Laine, that someone who reports a car as stolen is clearly someone who is claiming to have had control over the car. In reporting his Vehicle stolen on July 26th to Ms. Pratt and Officer Curtis, the day after the Vehicle was seized by DC Grantham, Mr. Kabanga did not suggest that anyone else drove his Vehicle after he picked it up from JP Towing.

[176] Mr. Kabanga told Officer Curtis that he last had the keys to the Vehicle, that he did not know where they were, and that he may have left them in the Vehicle. It is extremely unlikely that Mr. Kabanga left the keys to the Vehicle in the Vehicle as DC Hubbard did not find them but again it suggests that Mr. Kabanga was asserting that he was the last person to drive the Vehicle. I appreciate that I have found that Mr. Kabanga’s report that his Vehicle was stolen was false but many of the other details he gave about JP Towing were true. In my view it is likely that Mr. Kabanga did in fact have the keys to his Vehicle; he was the owner of the Vehicle.

[177] My view in this regard is also based on the fact that the Vehicle had an alarm and that this alarm was engaged when the Vehicle was searched. The fact Mr. Kabanga’s Vehicle was equipped with an alarm suggests that Mr. Kabanga took added steps to control access to his Vehicle, by ensuring attempts to access his Vehicle would be deterred. As Ms. Laine submitted, I can take judicial notice of the fact that car alarms are typically engaged by use of the car keys. Even if the was not the case for this Vehicle, we know that the alarm was engaged even though the Vehicle was not locked. Given that it is likely that Mr. Kabanga did in fact have the keys to his Vehicle, that fact suggests that he was the last person to drive the Vehicle and that he engaged the alarm when he parked in front of 55 Winifred Avenue. This is corroborated by the fact that the Vehicle was parked a four-minute walk from his residence; the Louvain Address.

[178] Mr. Holder repeatedly asserted in his submissions that no fingerprints and specifically no DNA belonging to Mr. Kabanga was located inside the Vehicle. DC Hubbard did find Mr. Kabanga’s fingerprints on the exterior of the vehicle and gave evidence as to why it is difficult to find prints on some of the surfaces inside a vehicle. In any event the absence of fingerprints and DNA does not undermine my findings that Mr. Kabanga drove and accessed his Vehicle at various times between July 12 and July 23 at least and likely July 25th as well.

[179] Based on all of these findings of fact, I have concluded that the Crown has proven beyond a reasonable doubt that Mr. Kabanga had possession and control over his Vehicle at the time it was seized.

Has the Crown proven beyond a reasonable doubt that Mr. Kabanga had possession and control over the Firearm found in his Vehicle?

[180] As already stated, Mr. Holder submitted that it cannot be determined that the Firearm used in the shooting incident was in Mr. Kabanga’s Vehicle the whole time after the shooting incident. I accept that. I will consider the Firearm possession offences assuming only that the Firearm was supplied to the shooter and that it was where it was found in Mr. Kabanga’s Vehicle at the time it was seized.

[181] Some of the findings I have just made on the issue of Mr. Kabanga’s possession and control over his Vehicle apply again to this issue. Mr. Kabanga was the registered owner of the Vehicle and that gave him control over the Vehicle and its contents, at least to the extent he was aware that the Firearm was in the Vehicle. Having found that Mr. Kabanga had possession and control over his Vehicle after he picked it up from JP Towing on July 13, 2015 until the time it was seized, in my view the only real issue is whether the Crown had proven the element of knowledge; did Mr. Kabanga know that the Firearm was in his Vehicle in the location found by DC Hubbard? In considering all of the evidence and the findings of fact that I have already made, I find that the only reasonable inference is that Mr. Kabanga knew that the Firearm was in his Vehicle and that the Crown has proven beyond a reasonable doubt that Mr. Kabanga was in possession and control of the Firearm. My reasons are as follows:

a. The Firearm was in Mr. Kabanga’s Vehicle at the time of the shooting incident and again on July 25, 2015 when the Vehicle was seized;

b. I have found that Mr. Kabanga had possession and control over his Vehicle after he picked it up from JP Towing on July 13, 2015 until the time it was seized;

c. Given Mr. Kabanga’s ownership and control over the Vehicle, it is common sense to assume that he would know what was contained in his Vehicle, given that he could regulate access to it

d. Although I have found that there is a reasonable inference that Mr. Kabanga may have allowed others to drive his Vehicle during the relevant time period, whether or not the Firearm was stored in the Vehicle at the time, I have found that he drove his Vehicle and/or accessed his Vehicle for the purpose of obtaining his RBC bank card and his watch on several occasions between July 13 and July 25, 2015, as detailed in the previous section of my reasons;

e. In this case, I have found that Mr. Kabanga had control over his Vehicle which gives rise to an additional reasonable inference that he had control - and would have been regarded by his family, friends and acquaintances as having had control - over what would and would not be permitted inside the car.

f. Mr. Kabanga had a car alarm on his Vehicle;

g. I have found that the Firearm was in the Vehicle in the place where DC Hubbard found it at the time of the shooting incident and that location gives the driver of the Vehicle ready access to it;

h. Having found that the Panel was on the floor of the Vehicle in front of the driver’s seat and that it had been placed there, leaving the opening at the end of the dashboard and the Firearm visible when the driver’s door was opened, the Firearm was in plain view and it is likely that as the owner of the Vehicle Mr. Kabanga was the one who decided when to leave the Panel off. In my view anyone else who had access to his Vehicle and was aware of the Firearm would need his permission to leave the Firearm so visible.

i. In any event even with the Panel covering the opening, thus concealing the Firearm out of sight, it was nevertheless in a place readily accessible to the driver of the Vehicle.

j. Handguns are valuable, dangerous and highly regulated commodities. They are not items that are casually possessed, nor are they items which are casually stored where they can be seen. As the Court of Appeal in Balasuntharam, supra recognized, when it comes to loaded firearms, human experience tells us that property of this nature simply would not be the subject of unknowing possession.

k. As Justice Leach observed in Husaini, supra, common sense indicates that no one would "store" a handgun, for future retrieval and use, in an inherently mobile storage unit such as a car unless the person storing the gun was reasonably sure of being able to locate and access the car. That in turn makes it extremely probable, if not certain, that the person storing the gun would either have control of the car, or secure the permission and consent of the person who did have control of the car - thus giving rise to joint possession, if not constructive or attributed possession.

l. It is extremely unlikely that one of Mr. Kabanga’s family members or friends would have secreted the loaded Firearm in his Vehicle without letting him know it was there;

m. We know from the evidence that this cavity inside the dashboard was used to hide an item a year earlier at a time when Mr. Kabanga was the owner of the Vehicle and he was either the driver or a passenger. Even though I did not find that he would have seen PC Ingley access this cavity behind the dashboard, clearly that area had been available to hide items for at least a year before the Firearm was found there. The idea that a person other than Mr. Kabanga independently created, discovered and/or accessed this cavity in his Vehicle’s dashboard without letting Mr. Kabanga know or Mr. Kabanga discovering this is a highly unlikely if not impossible coincidence.

n. The same reasoning Justice Code applied in Bonilla-Perez, supra, applies in this case. The overwhelming inferences from the evidence that Mr. Kabanga knew the loaded Firearm was in the cavity behind the dashboard on the driver’s side of the Vehicle. As a result, Mr. Kabanga was either a principal or a party to possession of the Firearm. In these circumstance, the only theory, consistent with Mr. Kabanga’s innocence is that some third party knew about this hidden cavity behind the dashboard, that had at least been used since the year before to hide items, that this person had access to Mr. Kabanga’s Vehicle and decided to use it to store the Firearm, left the Firearm in the Vehicle, activated the alarm to the Vehicle, all without Mr. Kabanga knowing. This is simply implausible. It defies coincidence that Mr. Kabanga would not know on two separate occasions that items were being hidden in this particular place in his Vehicle. Such a theory is entirely speculative and in my view is not a reasonably possible inference based on all of the evidence.

o. Finally, I have found that it is likely that by the time Mr. Kabanga called police on July 26, 2015, that he would have realized that his Vehicle had been seized by police and that his report to police that his Vehicle was stolen was fabricated,. This is additional circumstantial evidence that Mr. Kabanga knew the Firearm was in his Vehicle and that he made this fabricated report to distance himself from the Firearm.

p. The Crown also relies on the fact that a single winter glove was found hanging over the driver side door storage compartment, in the middle of July. She argues that this provides some context to the presence of the Firearm located just adjacent to the glove, presumably suggesting that whomever used the firearm would wear the glove to avoid fingerprints or DNA being transferred to the Firearm. Given that the glove was not tested for the presence of GSR I do not rely on this submission as it is just as likely that this glove was simply left in the Vehicle and that the other glove was lost over the course of the winter.

[182] In my view I do not have enough evidence to conclude that Mr. Kabanga alone was in possession of the Firearm, but having considered the cumulative effect of all the evidence, each item in relation to the others, and the evidence as a whole, I am satisfied that the Crown has proven beyond a reasonable doubt, that Mr. Kabanga either personally had the requisite possession, knowledge and control of the Firearm found in his Vehicle or that he was in joint possession of the Firearm with another.

[183] Mr. Kabanga is charged with several offences related to possession of a firearm and in particular Counts # 6, 7 and 8. Since there is no issue that the Firearm was a prohibited and restricted firearm, that it contained ammunition and that Mr. Kabanga did not have a license under which he might possess it, I find that the Crown has proven beyond a reasonable doubt that he is guilty of these offences. With respect to Counts # 4 and 5, given where the Firearm was being stored, and given that it was loaded, I am satisfied that the Firearm and the ammunition was clearly being stored in a careless manner and that Mr. Kabanga is also guilty of these charges. Furthermore, there is no dispute that the serial number on the Firearm had been defaced and so Mr. Kabanga is also guilty of Count #9. Finally, he was subject to a s. 109 order at the time and so I find that the Crown has proven beyond a reasonable doubt that Mr. Kabanga is also guilty of Count #10.

Has the Crown proven beyond a reasonable doubt that Mr. Kabanga was the driver of his Vehicle at the time of the shooting incident or that he was a party to that incident?

[184] I turn then to the most serious charges, Counts # 1-3 related to the use of the Firearm during the shooting incident. As Mr. Holder submitted there is no direct evidence that Mr. Kabanga was driving his Vehicle at the time of the shooting incident. There is no evidence about what the driver looked like as he or she cannot be seen in the Boultbee Videos. There is no evidence that the person who shot Mr. Costain was known to him and in fact he testified that he had no idea why someone would shoot at him and that he did not recognize the shooter. There is no evidence that connects the shooter to Mr. Kabanga other than the fact that the shooter was a passenger in his Vehicle. In sum Mr. Holder submitted that it cannot be ruled out that whoever was driving the Vehicle when Mr. Kabanga was in custody still had access to it and was driving it at the time of the shooting incident.

[185] In broad strokes, the Crown argued that Mr. Kabanga affixed a stolen license plate to his Vehicle just a day before the shooting incident and that this was an act of planning in an effort to avoid detection by the police. The Crown relies on two separate routes to establish that Mr. Kabanga was a party to the shooting. The Crown’s first position is that there is evidence upon which this Court could draw the reasonable inference that Mr. Kabanga was the driver of the Vehicle and the supplier of the Firearm and accordingly was present at the scene at the time of the shooting, and that this is sufficient evidence to find him culpable as a party to the attempted murder pursuant to s. 21(1)(b) of the Criminal Code.

[186] The alternative route to culpability that the Crown argues, in the event I am not satisfied beyond a reasonable doubt that Mr. Kabanga was present at the time of the shooting, is her position that there is evidence that is capable of supporting the inference that Mr. Kabanga was part of a common unlawful purpose with the shooter and driver and therefore is liable pursuant to s. 21(2). This reasoning rests largely on the argument the Crown made regarding possession of the Firearm that the Firearm was Mr. Kabanga’s and that he provided the Firearm, along with his Vehicle to another person in which case he was then complicit in a common unlawful purpose in that he ought to have known that the loaded Firearm could be used to commit a further offence, even though he himself didn't participate in it.

[187] As I have already found, the license plate on Mr. Kabanga’s Vehicle at the time it was seized was stolen and it is clear that as of July 19th at least, the day before the shooting incident, it was affixed to Mr. Kabanga’s Vehicle. Given that Mr. Kabanga’s Vehicle was the Vehicle used to bring the shooter to 10 Boultbee, a reasonable inference from this evidence is that this stolen plate was put on Mr. Kabanga’s Vehicle to ensure that his Vehicle could not be linked to the shooting in the event his Vehicle and license plate number was observed at the scene in order to avoid detection by witnesses or the police. I must say however that that does not explain why the stolen plate was not removed from the Vehicle after the shooting incident particularly as the fact the Vehicle had stolen plates might draw police attention to it.

[188] In any event the difficulty with this submission of the Crown is her position that it was Mr. Kabanga who affixed the stolen license plate to his Vehicle. I have no evidence to make such a finding and in my view it is just as conceivable that someone else who may have also used the Vehicle on occasion did so. I appreciate that it is highly unlikely that someone would do so without Mr. Kabanga’s knowledge and consent but that does not mean he necessarily knew the purpose. Having found that Mr. Kabanga was vacuuming his Vehicle on July 23, 2015, I find it likely that Mr. Kabanga knew that a stolen license plate was on his Vehicle at least by this date and of course it was still on the Vehicle two days later when it was seized.

[189] Given that I cannot conclude that it was Mr. Kabanga who put the stolen license plate on his Vehicle, I have come to the conclusion that the key factual issue to be determined is whether or not the Crown has proven that Mr. Kabanga was the driver of his Vehicle at the time of the shooting incident. To this question I have applied the burden of beyond a reasonable doubt as in my view this is the crux of the Crown’s case against Mr. Kabanga on the remaining charges. This is consistent with the position of the Crown.

[190] Given my earlier finding that there is a reasonable inference on the evidence that Mr. Kabanga may have allowed others to drive his Vehicle during the relevant time period and in particular whether or not the Firearm was stored in the Vehicle at the time I do not see how I could conclude that the Crown has proven beyond a reasonable doubt that he was the one driving his Vehicle at the time of the shooting incident and/or that he knowingly provided the Firearm to the passenger. Similarly in my view with respect to the Crown’s alternative argument, there is no evidence nor any reasonable inference from which I could find beyond a reasonable doubt that Mr. Kabanga provided the Firearm, along with his Vehicle to another person and that he ought to have known that the Firearm could be used to commit a further offence, even though he himself didn't participate in it.

[191] Having found that I cannot decide whether or not Mr. Kabanga was a principal or joint party with respect to possession of this Firearm, I cannot exclude the reasonable inference that someone else who had access to his Vehicle and the Firearm was the driver of the Vehicle at the time and provided the Firearm to the driver without Mr. Kabanga’s knowledge. Although I find that unlikely, the fact Mr. Kabanga was probably the driver of the Vehicle at the time is not enough to find guilt on these remaining charges.

[192] In coming to this conclusion I have considered whether or not Mr. Kabanga was specifically attempting to distance himself from the shooting incident, when he made the fabricated report to police that his Vehicle had been stolen. I agree with the Crown the fact he chose a date that predated the shooting incident to say that his Vehicle was stolen is some evidence of this but I find that this could not be the only reason why he gave this date. This particular date was part of Mr. Kabanga’s fabrication of why his Vehicle was stolen-it had no plates and he pushed it next door to JP Towing and so this could simply have been part of the fabricated story to distance himself from the Firearm that I have found he knew was in the Vehicle.

[193] For these reasons I am not able to conclude that the Crown has proven beyond a reasonable doubt that either Mr. Kabanga was at the scene of the shooting incident as the driver of his Vehicle or that he knowingly allowed another to take his Vehicle with the Firearm so that it could be used for an unlawful purpose. Having come to this conclusion it is not necessary for me to consider the other submissions of the parties as to whether or not the driver of the Vehicle at the time of the shooting incident would be guilty of these remaining offences.

Disposition

[194] Mr. Kabanga would you please stand.

[195] With respect to Counts #1, 2 and 3, I find you not guilty.

[196] With respect to Counts #4, 5, 6, 7, 8, 9, and 10, I find you guilty.

SPIES J.

Released: November 2, 2018

COURT FILE NO.: CR-16-700007110000

DATE: 20181102

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Crown

– and –

JESSY KABANGA-MUANZA

Defendant

REASONS FOR JUDGMENT