COURT FILE NO.: CR-194/17 DATE: 20180131

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MATTHEW WEIR

Jim Cruess, for the Crown

Susan Pennypacker, for the Accused

HEARD: November 20-24 and December 20, 2017

REASONS FOR JUDGMENT

garton j.

[1] The accused, Matthew Weir, age 37, is charged in count 1 of the indictment with discharging a restricted or prohibited firearm, namely, a handgun, while being reckless as to the life or safety of others, contrary to s. 244.2(3)(a) of the Criminal Code. He is also charged with four other firearm offences relating to the same incident: use of firearm in a careless manner contrary to s. 86(3)(a); possession of a loaded prohibited or restricted firearm contrary to s. 95(2)(a); possession of a firearm knowing that he was not the holder of a licence under which he may possess it, contrary to s. 92(3); and possession of a firearm without being a holder of a licence under which he may possess it, contrary to s. 91(3)(a).

[2] On December 20, 2017, I found Mr. Weir guilty on all counts in the indictment, with reasons to follow. These are those reasons.

OVERVIEW

[3] The incident that gave rise to these charges was recorded by surveillance cameras. It is alleged that at 6:15 a.m. on May 29, 2016, Mr. Weir twice discharged a handgun in the air as he walked down a driveway between 24 and 26 Densley Avenue in the area of Keele Street and Lawrence Avenue West in Toronto. 26 Densley Avenue was the location of an after-hours party, which was held in a recording studio at the back of the building. 24 Densley Avenue is the address of the Faith United Ministries church.

[4] All references to video surveillance footage that are precise to the second occurred on the morning of May 29, 2016.

[5] The surveillance footage shows Mr. Weir and five of his associates arriving at the after-hours party around 5:00 a.m. They entered 26 Densley via the back door on the north side of the building, which opens onto a parking lot. Mr. Weir left the party at 6:11:50. He interacted with several people in the parking lot for a few minutes, and then started walking south down the driveway toward Densley Avenue. He was wearing a black and grey t-shirt and three-quarter-length maroon-coloured shorts, and had a red plastic cup in his left hand.

[6] The surveillance footage shows that as Mr. Weir was walking down the driveway, he reached into his shorts with his right hand and pulled out a black or dark-coloured object. The Crown alleges that this object was a handgun and that Mr. Weir retrieved it from his waistband. At 6:15:11, Mr. Weir raised his right arm over his head while still holding the object. Almost instantaneously, a number of people ducked and started to run. Two seconds later, at 6:15:13, Mr. Weir again raised his right arm over his head, and brought it back down. People continued to scatter.

[7] Three young women who had arrived together at the after-hours party around 5:00 a.m. were in the driveway at the time of the alleged discharge of the gun. One of them, Sureya Yusuf, who was described as inebriated by an officer who later arrived at the scene, appears not to notice the commotion around her after Mr. Weir raised his arm in the air. She was either limping or stumbling, and continued to walk south toward Densley Avenue. One of the males associated with Mr. Weir walked back toward Ms. Yusuf, threw a drink in her face, and then pushed her.

[8] Another of the three women, Bilan Farah, was the only person of those seen in the surveillance footage who testified at this trial. Ms. Farah testified that she ran for cover when she heard gunshots. The video surveillance shows Ms. Farrah running between two vehicles after Mr. Weir raised his right arm in the air. Shortly thereafter, Ms. Farah is seen in the video attempting to intervene and break up the altercation between Ms. Yusuf and the male who assaulted her.

[9] Ms. Farrah identified the third woman in the video as Mulki Ali. Ms. Ali started to run south or in the direction of Mr. Weir when Mr. Weir raised his arm in the air the first time. However, after he raised it the second time, Ms. Ali sharply reversed course and began to run north or away from Mr. Weir.

[10] Surveillance from another camera shows an individual in red shorts and a head scarf sitting on the lawn in front of the church at 24 Densley Avenue. At 6:15:13, when Mr. Weir raised his arm in the air the second time, this individual got up and ran across the street, away from Mr. Weir’s location.

[11] The same camera shows Mr. Weir as he crossed Densley Avenue and headed toward his Honda Accord, which was parked in front of a building on the south side of the street. Before entering the vehicle, Mr. Weir turned in such a way that his back was to the camera. He appears to adjust something at the waistline of his pants. He then got into the car. His five associates, including the male who had assaulted Ms. Yusuf, also got into the car, and Mr. Weir drove away.

[12] Ms. Yusuf called 911 to report the assault. She also mentioned having heard gunshots. Police Constable Dropuljic (“Dropuljic”) and his partner, Police Constable Pathak (“Pathak”), arrived on scene at 6:40 a.m. They spoke to Ms. Yusuf, Ms. Farrah and Ms. Ali, who were waiting for them in front of the church at 24 Densley. Pathak took a statement from Ms. Farah, which he recorded in his memo book between 8:04 and 8:16 a.m.

[13] Police located a nine millimetre Luger-caliber cartridge casing in the area where Mr. Weir raised his arm the second time. Karen Dann, who was qualified to give expert opinion evidence in the areas of firearm operation, and forensic firearm and ammunition examination and comparison, testified that the casing was capable of being fired from a semi-automatic handgun. Only one shell casing was found.

[14] On June 12, 2016, at around 9:00 p.m., Detective Constable Sgroi (“Sgroi”) and his partner observed Mr. Weir driving his Honda on Lawrence Avenue West. They followed him into the parking lot of a plaza on the southeast corner of Lawrence Avenue West and Keele Street, parked directly behind him, and executed his arrest. Mr. Weir was wearing the same shorts that he had been wearing on May 29, 2016. Sgroi turned Mr. Weir over to Police Constable Sikorski for transportation to 12 Division.

[15] At the time of his arrest, Mr. Weir was in possession of a single screen smart phone. The phone is visible on the surveillance video of the booking process at 12 Division. The position of the defence is that this phone was most likely the object that Mr. Weir was holding in his right hand when he raised his arm over his head two times while walking down the driveway.

[16] Search warrants for Mr. Weir’s residence and his vehicle were executed shortly after 9:00 p.m. on June 12, 2016. No firearm or ammunition was located as a result of those searches.

WITNESSES

[17] The Crown called the following witnesses:

1. Detective Constable Steven Sgroi. The surveillance footage from six cameras – three from 24 Densley and three from 26 Densley – was played during his testimony;

2. Bilan Farah;

3. Police Constable Joseph Dropuljic who, along with his partner, Pathak, were the first officers to arrive on scene;

4. Police Constable Piara Dhaliwal, who was the Scenes of Crime Officer. He arrived on scene at 8:00 a.m., took photographs, and seized the cartridge casing that Dropuljic was guarding;

5. Police Constable Peter Sikorski, who took custody of Mr. Weir following his arrest on June 12, 2016. He seized the smart phone and other items in Mr. Weir’s personal possession, and transported him to 12 Division.

6. Detective Constable Adam Morris (“Morris”), who conducted a DVD-recorded interview of Ms. Farah at 12 Division, commencing at 9:10 a.m. on May 29, 2016; and

7. Karen Dann, who is employed at the Centre of Forensic Sciences and was qualified to give expert opinion evidence with respect to the cartridge casing and the operation of semi-automatic handguns.

[18] No evidence was called on behalf of Mr. Weir.

THE VIDEO SURVEILLANCE EVIDENCE

[19] The surveillance cameras attached to 26 Densley Avenue included the following:

The camera designated as Channel 1 was positioned at the back or on the north side of 26 Densley, near the northwest corner of the building. It pointed in a northeast direction, providing a view of the parking lot or open area off the rear entrance.

The camera designated as Channel 2 was just below the camera designated as Channel 1. It pointed in a more easterly direction, and provided a partial view of the back door where people entered in order to attend the after-hours party. Photographs 17 and 18 in Exhibit 7 show the exact location of the cameras designated as Channels 1 and 2.

The camera designated as Channel 3 was located at the front or on the south side of 26 Densley, and was mounted on an overhang above a window. (See Exhibit 7, photograph 6). This camera faced downward and to the west or toward 24 Densley Avenue. People walking in a southerly direction along the driveway between 24 and 26 Densley were in the range of this camera as they emerged from between the two buildings.

[20] The three surveillance cameras attached to the church at 24 Densley Avenue were as follows:

The camera designated as Channel 4 faced northeast and shows the mouth of the driveway as one enters it from Densley Avenue. On May 29, 2016, this channel’s view down the driveway was substantially obstructed by the presence of a large parked truck. The Channel 4 images are somewhat blurry and not as good a quality as those from the other cameras.

The camera designated as Channel 5 was located at the front of the church and was facing southwest. It captured the front lawn of the church, Densley Avenue, the buildings across the street and the area where Mr. Weir’s vehicle was parked.

The camera designated as Channel 7 faced southeast, and showed the driveway between 24 and 26 Densley Avenue.

[21] The times noted on the footage of the cameras at 26 Densley Avenue are 26 seconds ahead of the cameras located on the church at 24 Densley Avenue.

OVERVIEW OF THE POSITIONS OF COUNSEL

[22] The position of the Crown is that the totality of the evidence establishes that Mr. Weir pulled a handgun from his waistband, pointed it in the air, and fired two shots. This entire sequence of events is seen on the surveillance footage from Channel 7. Crown counsel, Mr. Cruess, submits that when this video is evaluated in the context of other evidence, including: (i) people’s reactions each time that Mr. Weir raised his arm in the air; (ii) the presence of the spent shell casing at the scene; and (iii) evidence relating to the operation of handguns as applied to Mr. Weir’s conduct, the Crown has established beyond a reasonable doubt that Mr. Weir committed the offences with which he has been charged. The Crown submits that Ms. Farah’s testimony that the point in the surveillance footage showing her running between two parked cars was the point when she heard two gunshots only reinforces this conclusion.

[23] The position of the defence is that the primary areas of evidence on which the Crown relies suffer from significant weaknesses. Defence counsel, Ms. Pennypacker, pointed to parts of the video surveillance that are not that clear, and cautioned against placing undue emphasis on any one particular split second in the footage. It was submitted that the court must be very cautious before drawing inferences from the reactions of people seen in the video, particularly in light of the fact that not everyone reacted to what the Crown alleges was the discharge of a firearm by Mr. Weir. With the exception of Ms. Farah, no one seen in the video surveillance was identified, interviewed, or called as a witness.

[24] Defence counsel noted a 25-second gap in the Channel 7 video surveillance following the assault on Ms. Yusuf. It was submitted that this gap is particularly significant when considering Ms. Farah’s evidence. Ms. Farah claimed to have no current recollection of the incident. As a result, parts of her statement given to police at the scene, her interview at the police station, and portions of her testimony at the preliminary inquiry, were admitted as past recollection recorded. In all of these instances, Ms. Farah stated that she heard gunshots after the assault on Ms. Yusuf. If this were, in fact, the case, then whatever Mr. Weir was doing when he raised his right arm over his head, which was before the assault on Ms. Yusuf, did not involve the discharge of a firearm.

[25] The defence submits that the evidence with respect to the cartridge casing is problematic in many respects. According to Ms. Dann, the casing could have been fired from either a semi-automatic or fully automatic pistol, rifle, or submachine gun. It also cannot be said with any certainty when or how the casing was deposited at the scene, or who first located it. The scene was not secured for a significant amount of time after the police arrived. There is no forensic evidence linking Mr. Weir to the casing. No second casing was found at the scene. In addition, the police did not locate a firearm or any ammunition during their search of Mr. Weir’s residence and car.

[26] In summary, the position of the defence is that the frailties of each aspect of the evidence upon which the Crown relies do not gain strength when considered together. Consequently, the Crown has failed to meet its burden of proof. In this way, the present case is akin to that in R. v. Dodd, 2015 ONCA 286, 322 C.C.C. (3d) 429..

EVIDENCE

Testimony of Detective Constable Sgroi

[27] I will begin with a review of the video surveillance evidence, which was adduced through the testimony of Detective Constable Sgroi. Sgroi’s comments regarding the video were limited to describing people, their actions, and events as opposed to providing his own interpretation of those actions or events.

[28] For convenience, I have referred to the five males seen interacting with Mr. Weir in the surveillance video as his “associates.” However, none of these males has been identified or was called as a witness, and there is no evidence as to what Mr. Weir’s relationship may have been with them. All that is known about them is that they and Mr. Weir arrived at the party at 26 Densley Avenue at more or less the same time; they all remained and interacted with various people in the parking lot for a few minutes after leaving the party; and at 6:15 a.m. they were all in the driveway and walking in the direction of Mr. Weir’s parked car when Mr. Weir allegedly discharged the two gunshots in the air. The five males then got into Mr. Weir’s car, which was parked south of Densley Avenue, and Mr. Weir drove off.

[29] It is apparent from the surveillance camera at the entrance of the apartment building at 720 Trethewey Drive, where Mr. Weir resided, that he dropped off the five males prior to arriving home that morning. The surveillance footage shows Mr. Weir pulling into the parking lot at 6:28 a.m. and entering the building alone at 6:30 a.m. None of the males who were in his car are seen entering the building.

[30] Since the names of Mr. Weir’s associates that night are not known, Sgroi identified them by describing the clothes that they were wearing. Those descriptions were as follows:

i) Male in blue shirt and white shorts;

ii) Male wearing a hoodie and blue jeans. This is the male who assaulted Ms. Yusuf prior to getting into Mr. Weir’s car;

iii) Male in black shirt and pants;

iv) Male in orange shirt; and

v) Male in white t-shirt with satchel.

Video Surveillance of the Arrival of Mr. Weir and Others at the After-hours Party

[31] The May 29, 2016 surveillance footage from Channels 7, 1, and 2 show, respectively, Mr. Weir and his associates walking down the driveway toward the back entrance of 26 Densley Avenue, reaching the parking lot there, and going through the back door to get to the party:

• Channel 7: Mr. Weir and three other males are seen walking together toward the back entrance at 4:56 a.m. When the male wearing a hoodie and blue jeans stops to take a drink from a bottle, a fifth male catches up to him, and they continue down the driveway toward the back door.

• Channel 1: At 4:57:35, Mr. Weir and the other five males are seen in the parking lot outside the back entrance of 26 Densley Avenue. Mr. Weir is holding a cell phone in his left hand.

• Channel 2: By 4:59 a.m., Mr. Weir and his five associates have all entered the after-hours club at 26 Densley Avenue.

[32] The arrival of Ms. Farah, Ms. Yusuf, and Ms. Ali at 26 Densley Avenue was also captured by the surveillance cameras:

• Channel 7: At 4:57:59, the three women are seen walking down the driveway toward the building’s back entrance. Ms. Yusuf is limping. Ms. Ali, who is on her right, and Ms. Farah, who is to her left, are assisting her.

• Channel 2: Ms. Ali and Ms. Farah enter 26 Densley through the back door at 5:01:06. One of Mr. Weir’s associates – the man in the white t-shirt with the satchel – is also seen in the parking lot at this time.

[33] There were no surveillance cameras operating inside the club where the after-hours party took place.

Exiting the Club

[34] At 6:09:23, an individual wearing a white tank top and red shorts, with a scarf wrapped around his head, exits the club. This male is later seen sitting on the front lawn of the church at 24 Densley Avenue. At 6:15:13, which is the time that the Crown alleges Mr. Weir discharged the second bullet from a handgun, this individual got up and ran across Densley Avenue and away from Mr. Weir’s location.

[35] At 6:09:36, the male wearing the hoodie and blue jeans exited the club.

[36] At 6:10:21, Ms. Ali enters the screen of Channel 2. She is standing in the parking lot and holding a red cup in her hand.

[37] At 6:11:05, the male in the blue shirt and white shorts, and the male in the white t-shirt with the satchel exit the club.

[38] At 6:11:50, Mr. Weir exits the club. He is holding a red cup and green bottle in his left hand, but quickly transfers the red cup to his right hand. At 6:11:56, Mr. Weir takes a swig from the bottle as he walks out of range of Channel 2.

Events in the Parking Lot

[39] There is some overlap in the range covered by Channels 1 and 2.

[40] Channel 1, at 6:07:11, shows the male in the orange shirt standing at the rear of a parked truck in the parking lot. At 6:11:02, the male in the blue shirt and white shorts walks over to him, and then walks past him and out of range of the camera. At 6:11:52, Mr. Weir walks over to the back of the truck. By that time, the male in the orange shirt is out of range of the camera, but the male in the blue shirt and white shorts comes back into range and joins Mr. Weir. The two men appear to be talking to each other. Mr. Weir takes another few drinks from the bottle he is holding, puts the bottle on a ledge at the back of the truck, and transfers the red cup into his left hand. He and the man in the blue shirt then walk to the left of the screen and are out of range of the camera. The male in the orange shirt is again visible at the top left of the screen. The male in the black shirt and pants, and the male in the white t-shirt with the satchel are standing in what appears to be the middle of the parking lot.

[41] At 6:13:03, the male in the hoodie, followed by Ms. Ali, enters the screen from the left. Ms. Ali moves quickly toward him, speaks to him and then turns to go. However, she then turns around and points her finger at him. She appears somewhat agitated, and speaks to both him and the male in the black shirt. She and the male in the black shirt walk toward the back of the parked truck, but Ms. Ali then returns to where the male in the hoodie is standing with the male in the white t-shirt with the satchel, and another male. She and the male in the hoodie then engage in what appears to be an animated conversation, with both of them gesturing with their arms. At 6:13:32, Ms. Ali walks back toward the truck where the male in the black shirt is located. That male then returns to where the male in the hoodie is standing. Ms. Ali walks to the left and goes off screen.

[42] At 6:13:31, Ms. Yusuf appears at the top left of the screen. She is standing by the back of the parked truck and appears somewhat unsteady on her feet. Mr. Weir then appears on screen to her right and slightly behind her. He places his left arm over Ms. Yusuf’s left shoulder, while holding the red cup in his right hand. Ms. Yusuf appears to try to move forward or pull away from Mr. Weir. The male in the blue shirt and white shorts takes the red cup from Mr. Weir’s hand, which enables Mr. Weir to place his right arm over Ms. Yusuf’s right shoulder. At this time, which was 6:13:44, Mr. Weir was behind Ms. Yusuf. His legs were apart and he was leaning down or over her, with his arms around her shoulders and partly over her arms. Ms. Yusuf moves her arms outward, from the elbows, with her palms open, on three or four occasions. She then takes a step back from Mr. Weir, and adjusts the left shoulder of her sweater. Ms. Farah appears on screen at this point, and is standing behind Ms. Yusuf and Mr. Weir. As Ms. Yusuf walks in front of Mr. Weir, moving to the left side of the screen, Mr. Weir bends down, as though he is going to try to lift her up. Ms. Yusuf backs away and pushes his left shoulder with her right arm. As she turns her back to him, Mr. Weir leans over and puts his arms around her waist, again as though he is going to try to lift her. Ms. Yusuf backs away. As she moves out of the range of the camera, Mr. Weir is seen moving his arms up and down in the air in a lifting motion. He goes off screen at 6:14:16 according to the time recorded on the Channel 1 footage, or 6:13:50 if adjusted to accord with the Channel 7 time. At that point, his five associates are all standing in the parking lot. By 6:14:49, or by 6:14:23 according to the times recorded on Channel 7, they have also moved out of the range of Channel 1. A few seconds later, they enter the range of Channel 7.

Channel 7: The Parties Walk South along the Driveway toward Densley Avenue

Mr. Weir’s movements

[43] At 6:14:58, or about a minute after he went out of the range of Channel 1, Mr. Weir entered the range of Channel 7 as he walked south along the driveway between 24 and 26 Densley Avenue. He was holding the red cup in his left hand.

[44] Commencing at 6:15:00, Mr. Weir’s right arm is bent at the elbow at a 90-degree angle in front of his body. His head is tilted downward or facing his hand, which appears to be in a “half-fist” position. A tiny black line protruding from the front of his hand is visible. In the next frame, a white dot can be seen above his hand. His right hand then moves down to the right side of his body, at which point a portion of his shirt is lifted up as he continues walking. Mr. Weir’s motions are consistent with his having put an object in the right pocket of his shorts. Crown counsel submits that the object was a cell phone. Defence counsel submits that the object was something smaller than a cell phone, such as a scrap of paper or a piece of gum.

[45] At 6:15:02, as Mr. Weir continued walking south, his right arm was briefly bent at a 90-degree angle in front of him. He then reached to the waist area of his shorts. His shirt is pulled up but then falls back down as he pulls out an object. His arm was then extended out from his body and bent at the elbow. His head is tilted downward at an angle, and he appears to be looking at whatever is in his hand. Part of that object protrudes from the top of his hand, or above the area of his thumb and the knuckle of his index finger. The part of the object that is visible appears to be cylindrical in shape. The back end or the part closest to his torso is somewhat thicker. The object is dark in colour, possibly black.

[46] Mr. Weir continues walking and looking at the object. Initially, his wrist was in line with his arm. However, at 6:15:05, he twisted his wrist up and inward.

[47] At 6:15:09, Mr. Weir lowered his arm momentarily. At 6:15:11, while continuing to walk south, he raised his arm over his head while holding the elongated object in his hand. His arm and wrist moved to the right. He then briefly lowered his arm to his side.

[48] At 6:15:13, Mr. Weir again raised his right arm over his head, while at the same time twisting his torso to the right, so that he was actually facing backward or north toward the Channel 7 camera. His arm and wrist again moved to his right. He then lowered his arm while continuing to walk south.

[49] The first time that Mr. Weir raised and lowered his right arm, he was passing by a grey door on the west side of 26 Densley. The second time that he raised and lowered his arm, he was passing by the two windows just south of that door. The shell casing found at the scene was located on the ground in the area under the second window. (See Exhibit 7, photographs 2 and 3, where the location of the casing is marked with a white piece of paper.)

The location and actions of Ms. Farah, Ms. Yusuf, Ms. Ali, and Mr. Weir’s associates, as he walked south along the driveway

[50] When Mr. Weir first appears on Channel 7 at 6:14:58, the male in the blue shirt and white shorts was just a couple of feet behind him and to his right. The male in the black shirt and the male in the orange shirt appear on screen at 6:15:03, and are walking side by side. They are about 15 feet behind Mr. Weir and the male in the blue shirt. They are followed by the male in the hoodie, who appears on screen at 6:15:06. The male in the hoodie turns around and appears to say something to Ms. Yusuf and Ms. Ali, who are behind him and who appear on screen at 6:15:11. The male in the white shirt with the satchel is to the right of the two woman and slightly behind them. Ms. Farah is slightly behind Ms. Yusuf and Ms. Ali.

[51] As described above, Mr. Weir raised his arm in the air at 6:15:11. A split second later, as Mr. Weir’s arm and wrist moved or broke to the right while still in the air, the male in the black shirt ducked his head, hunched over, and brought his hands up to his chest. Ms. Ali and the male in the white t-shirt with the satchel reacted in the same way, hunching over and bringing their arms to their chests. The male in the blue shirt and white shorts, whose head is turned toward Mr. Weir and who is the person closest to him, did not display any reaction. Nor did the male in the hoodie. There was also no reaction from Ms. Yusuf.

[52] At 6:15:12, Ms. Ali started running south or in the direction of Mr. Weir. The male in the black shirt was still somewhat hunched over. The male in the white t-shirt with the satchel started running toward the front of a white van that was parked on the west side of the driveway and facing north.

[53] At 6:15:13, after Mr. Weir’s arm and wrist moved to the right after raising his arm for the second time, Ms. Ali sharply changed direction and began to run north or away from Mr. Weir. Like the male in the white shirt with the satchel, she ran in front of the parked white van. By that time, the male in the white t-shirt was between the white van and the east wall of 24 Densley. He lifted up his shirt, looked at his abdomen, and then repeated the same action a second time. (The Crown’s theory is that this male was checking to see if he had been shot.) By that point, Ms. Ali was also in the space between the white van and 24 Densley Avenue.

[54] At 6:15:24, the male in the white t-shirt with the satchel started walking south between the white van and the east wall of 24 Densley. He continued past a black SUV, which was parked behind the van and facing south. At 6:15:36, he walked in front of the SUV and continued down the driveway toward Densley Avenue. Ms. Ali initially followed him but then walked between the white van and the SUV toward Ms. Yusuf and the male in the hoodie, who had just thrown a drink in Ms. Yusuf’s face and pushed her.

[55] Ms. Farah came into the range of Channel 7 at 6:15:12, at which time she was running toward the space between the white van and the black SUV. She stayed there until 6:15:32, when she emerged to intervene in the dispute between Ms. Yusuf and the male in the hoodie.

[56] The man in the orange shirt is not visible on the video when Mr. Weir raises his arm in the air at 6:15:11 and again at 6:15:13, as the camera’s view of him is obstructed by the white van. The van was to this male’s right as he proceeded south along the driveway. However, I note that when he comes back into view at 6:15:15, he emerges from the area at the rear southwest corner of the van. In other words, it is apparent that he did not continue walking in a straight path alongside the van after Mr. Weir raised his arm in the air, but must have veered to his right, ending up behind the van.

[57] While Ms. Ali, Ms. Farah, and the man in the white t-shirt were running, Ms. Yusuf continued walking south toward Densley Avenue. She appears to be limping slightly. At 6:15:25, the male in the hoodie, who was ahead of her, turned around and started walking back toward her. At 6:15:32, he threw his drink in her face, pushed her, and then threw his red cup at her. The male in the orange shirt, Ms. Farah, and Ms. Ali, intervened in the ensuing shoving match between Ms. Yusuf and the male in the hoodie.

[58] Mr. Weir is last seen on Channel 7 at 16:15:23, as he neared the end of the driveway and then headed in a southwest direction toward his car, which was parked in a lot on the south side of Densley. However, he was within the range of Channel 3 from 6:15:19 to 6:15:30 (times adjusted to accord with the church cameras) as he emerged from the driveway and walked toward his car. His right hand appears to be empty at this time. He was holding the red cup in his left hand. He is followed, sequentially. by the male in the blue shirt and white shorts, the male in the black shirt, the male in the white t-shirt with the satchel, the male with the hoodie, and the male in the orange shirt.

[59] Mr. Weir is also seen on Channel 5, starting at 6:15:34, as he headed toward his vehicle. Prior to that, however, the Channel 4 camera, which faced northeast, captured his movements in the driveway just after he had raised his arm in the air for the second time.

Channel 4

[60] Channels 4 and 7 provide different angles or views of the driveway. Channel 7 faced southeast and was closer to the north end of the driveway. Channel 4 faced northeast, and was closer to the south end of the driveway. Channel 4’s view of the driveway was somewhat obstructed at the relevant time by a Ryder truck.

[61] Mr. Weir came into the range of Channel 4 at 6:15:14, or just one second after he had raised his right arm in the air for the second time, as seen on Channel 7. He was still in the vicinity of the two windows mentioned earlier, where the spent shell casing was later located. Mr. Weir continued walking south. Although the Channel 4 images are somewhat blurry, Mr. Weir’s right hand, starting at 6:15:16, can be clearly seen coming up to the front of his body and going to the centre of his waistband. His shirt was lifted up or raised just as he walked out of the range of the camera at 6:15:20.

[62] Channel 4 also shows Mr. Weir’s associates briefly as they reached the end of the driveway and followed him to his car. The male in the blue shirt and white shorts is seen walking a few feet behind him at 6:15:19. He is followed by the male in the black shirt and the male in the white t-shirt with the satchel, who come into the camera’s range at 6:15:24 and 6:15:44, respectively.

[63] At 6:16:10, the male in the hoodie, the male in the orange shirt, Ms. Yusuf, Ms. Farah, and a male in a white t-shirt come into view. This appears to be toward the end of the dispute between Ms. Yusuf and the male in the hoodie, which can also be seen from a distance on Channel 7. At 6:16:18, the male in the hoodie and the male in the orange shirt turn and walk away, heading in a direction that will take them to Mr. Weir’s car. They are out of Channel 4’s range by 6:16:23.

[64] Ms. Farah, Ms. Yusuf, and a male in a white t-shirt remain standing or milling about in the area near the four windows on the west side of 26 Densley. At 6:16:33, Ms. Ali walks into view. At 6:16:55, Ms. Yusuf, Ms. Farah, and Ms. Ali walk out of view of the camera as they head toward the front yard of the church. However, like Mr. Weir and his associates, their movements are caught by Channels 3 and 5 as they exit the mouth of the driveway and walk west toward 24 Densley Avenue.

[65] As noted earlier, there is a 25-second gap in the Channel 7 video clips between 6:16:28 (clip #1551), and 6:16:53 (clip #1659). Ms. Farah, Ms. Yusuf, and Ms. Ali are still within range of Channel 7 when clip 1551 ends at 6:16:28 – they are at the end of the driveway at that point, and past the area where Mr. Weir had raised his arm in the air the first time. The next video clip does not commence until 6:16:53, or 25 seconds later (clip #1659). By that time, Ms. Farah, Ms. Yusuf and Ms. Ali are no longer in range of the camera.

[66] It was suggested to Ms. Farah in cross-examination that the gunshots that caused her to run for cover could have occurred during this 25-second gap – in other words, that she may have been correct when she stated to Officer Pathak at the scene, and Detective Constable Morris later that day, as well as during her testimony at the preliminary hearing, that she heard the gunshots after Ms. Yusuf was assaulted. However, as noted above, Ms. Farah is seen on Channel 4 during this “gap period”, starting at 6:16:10 and ending at 6:16:55. At no point during that period is Ms. Farah seen running for cover or reacting in a startled manner.

[67] Ms. Farah, Ms. Yusuf, and Ms. Ali are also seen on Channel 3 during the Channel 7 “gap period.” The following times have been adjusted to accord with the times on Channels 4, 5, and 7. At 6:16:52, Channel 3 shows Ms. Yusuf walking west in the direction of the church. At 6:16:55, Ms. Farah and Ms. Ali appear on screen as they follow her. The three women step onto the church property at 6:17:03.

[68] Channel 5 shows Ms. Yusuf walking along the front sidewalk of the church, commencing at 6:17:04. Ms. Farah and Ms. Ali appear on screen a few seconds later. The three women remained at the front of the church as they waited for the police to arrive.

[69] In summary, at no point during the video surveillance is Ms. Farah seen running other than at 6:15:12, when the Channel 7 footage shows her running for cover between two vehicles parked in the driveway.

[70] The Channel 7 surveillance clip #1551 shows a male in a white t-shirt and khaki pants walking south along the driveway at 6:15:53. He approached the commotion at the end of the driveway, where the male in the hoodie and Ms. Yusuf were still involved in a dispute, and Ms. Farah and the male in the orange shirt were attempting to intervene. The male in the white t-shirt and khaki pants had nothing in his hands at this time. By 6:16:55, or at the outset of the Channel 7 surveillance clip #1659, the people at the end of the driveway are gone, and the male in the white t-shirt and khaki pants is walking north or back toward the rear of 26 Densley. He and two other males are partly obscured by the parked white truck. At 6:16:56, when the man in the white t-shirt and khaki pants is in the area of the parked black SUV, he bends down as though he is picking up something from the ground. He takes a couple of steps, which takes him closer to the white truck. At 6:16:59, he bends down a second time, again as though he is picking up something from the ground. He then stops, turns around, looks south or toward Densley Avenue for a few seconds, and continues walking north. When he emerges from behind the white truck and comes into full view of the camera, he is carrying a red cup that appears to have a white piece of paper in it. There also appears to be something dark sticking out of the middle of the cup.

[71] Crown counsel suggested in his submissions that the male in the white t-shirt may have picked up a spent cartridge casing, which the Crown submits was ejected from the handgun that Mr. Weir allegedly discharged when he raised his arm in the air the first time.

Channel 5

[72] As already stated, the surveillance from Channel 5, at 6:15:11, shows the male in red shorts and a white t-shirt sitting under a sign on the front lawn of the church at 24 Densley Avenue. At 6:15:13, which is when Mr. Weir raised his arm in the air the second time, this male got up and ran across the street and in the opposite direction from Mr. Weir’s location.

[73] At 6:15:14, a woman wearing black clothing comes into view on the Channel 5 screen. She was not running but was walking at a fairly good pace as she proceeded west along the south side of Densley. She slowed down and paused at 6:15:29 as she looked back across the street in a northeasterly direction toward Mr. Weir’s location. She then continued walking and disappeared around the corner of a building just as Mr. Weir appeared on screen, at 6:15:34.

[74] The surveillance video shows Mr. Weir looking down toward his right hand. He approached the driver’s side of his vehicle, but stood outside it for a second or two with his back to the camera before getting into the driver’s seat. The male in the blue shirt and white shorts entered the car on the rear passenger’s side, followed by the male in the black shirt, who got into the front passenger seat. After the male in the white t-shirt with the satchel got into the car, Mr. Weir drove onto Densley Avenue. He stopped in order to let the male with the hoodie and the male in the orange shirt enter the back seat, and then drove off in a westerly direction at 6:16:43.

Channel 7 Footage of Driveway after Mr. Weir Raised his Arm in the Air the Second Time at 6:15:13

[75] A series of the surveillance clips from Channel 7 after Mr. Weir had raised his arm in the air the second time cover the period between 6:15:13 and 6:29:57, or approximately 15 minutes. Sgroi testified that the pedestrians and vehicles seen in these clips are consistent with those shown on Channel 4 during the same time period. In addition to clip #1458 (6:15:13 to 6:15:45), and clip #1551 (6:15:48 to 6:16:28), which have already been reviewed, these surveillance clips show the following:

1. 6:16:57 to 6:17:30: This clip shows the male in the white t-shirt and khaki pants as he stops and bends over on two occasions to pick up something from the ground. He is with two other males, one of whom is dressed in a black and red polo shirt and red shorts.

2. 6:18:31 to 6:18:56: This clip shows two women walking north toward the back of 26 Densley.

3. 6:18:57 to 6:19:13: In this clip, a male is seen walking south. He approaches the black SUV that is parked in the driveway, and produces his keys. The clip ends before he enters the vehicle.

4. 6:21:25 to 6:21:48: The black SUV is no longer at the scene. The two women who had been walking north are now walking south toward Densley Avenue.

5. 6:22:26 to 6:22:49: A male wearing a long-sleeved white shirt and pants and carrying a cell phone walks south along the driveway.

6. 6:28:43 to 6:29:00: An SUV is driven south and turns left onto Densley Avenue.

7. 6:28:43 to 6:29:00: Another SUV is driven south and turns right onto Densley Avenue.

8. 6:29:57: In this one-second clip, two males, each wearing a blue shirt and khaki pants, turn into the driveway and walk north.

[76] Sgroi noted that the casing was found fairly close to or within inches of the wall of 26 Densley Avenue. The vehicles seen in the surveillance footage do not appear to get that close to the wall as they drive by. The only pedestrians who appeared to have come close to where the casing was later located were the male wearing the red and black polo shirt and red shorts, and Ms. Ali, who was in that general area during the confrontation between Ms. Yusuf and the male in the hoodie.

[77] No video surveillance was adduced with respect to the period of time between the end of the above-listed series of clips and the locating of the casing by police.

Characteristics of an Armed Person

[78] In cross-examination, Sgroi was questioned about the characteristics that a person who is carrying a firearm may sometimes display, and for which officers are trained to keep a lookout. These include wearing baggy clothing; a noticeable bulge in a person’s clothing; the appearance of something weighted or heavy in their clothing; adjusting their clothing; a “security tap,” in which the person taps their belt or pocket area; and walking or running while keeping one arm stationary and pressed to their side in order to secure the firearm. Sgroi emphasized, however, that an armed individual may not necessarily display any of these characteristics.

[79] In re-examination, Sgroi testified that certain camera angles may make it difficult to determine whether an individual is displaying characteristic of an armed person, such as a bulge in their jacket, particularly if the camera is above and some distance from the individual, the person has his back to the camera, or there is only a partial view of the front of his body.

[80] Sgroi testified that pulling out an object from one’s waistband that is the size and shape of the object seen in the surveillance footage in this case would fall into the category of characteristics of an armed individual. He noted that when Mr. Weir indexed his waist area with his hand, his shirt came up. At that point, a dark linear object coming from the waist area is visible, although Mr. Weir’s hand is obscured by his body.

[81] Sgroi noted that Mr. Weir initially held the object down and away from him while his head was tilted in the direction of the object, suggesting that he was looking at it. Based on his training and experience, Sgroi was of the view that these actions are consistent with an armed individual flicking off the gun safety. He explained that when a person grips the handle of a gun, their thumb is on one side and their fingers are on the other side. The safety latch would normally be where the person’s thumb is located. Flicking the safety latch down allows the gun to be fired.

[82] Sgroi also testified that another characteristic of an armed person is recoil after a firearm has been discharged. He noted that Mr. Weir’s right wrist and arm “broke” or moved to the right after he raised his arm over his head, which is consistent with recoil from a firearm.

Testimony of Bilan Farah

[83] Bilan Farah, age 18, was just shy of her seventeenth birthday at the time of this incident. She was a reluctant witness who, at the outset of her testimony, made it clear that she did not want to be in court.

[84] Ms. Farah identified herself as Abyan Nuux to Officers Dropuljic and Pathak at the scene, and used the same name when interviewed later that morning by Detective Constable Morris at the police station. She also provided a false date of birth to the officers. She explained that she lied to the police about her name and age because she had been drinking and was afraid that she would get into trouble because she was underage.

[85] Ms. Farah testified that on May 28, 2016, she attended at Ms. Yusuf’s house around 9:00 or 10:00 p.m. She, Ms. Yusuf, and Ms. Ali “hung out” there for awhile, and then went to another girl’s home in the area of Jane and Wilson Avenue. Ms. Farah initially testified that the three of them went directly from there to the after-hours’ party at 26 Densley Avenue, where they met some guys. They arrived in the early hours of the morning. The party was upstairs in a big room, where alcohol was being sold.

[86] As already noted, the Channel 7 surveillance video shows Ms. Farah, Ms. Yusuf, and Ms. Ali walking down the driveway on May 29 at 4:58 a.m. and heading toward the back entrance of 26 Densley Avenue. Ms. Farah identified herself and the other two women when shown this video. She explained that Ms. Yusuf was limping as a result of having injured her leg when they were at the front of the building. Ms. Farah and Ms. Ali were on either side of her and supporting her as she walked.

[87] During her testimony, Ms. Farah was also shown the Channel 7 surveillance video at 6:15:12, when she is seen running to the area between the white truck and the black SUV parked in the driveway. When asked why she was running, Ms. Farah testified: “I’m running because I heard some gun shots.” She did not recall how many shots she heard. When asked why she ran behind the truck, she stated that she thought that it was the safest place to be at that point.

[88] Ms. Farah testified that at first she did not know where the gunshots were coming from: “When a gunshot happens, you don’t know what direction it’s coming from, right? Until you see that where everyone, there’s one side everyone’s running to.” She testified that she came to believe that the gunshots were coming from in front of her. She recalled that no one was hit by a bullet.

[89] Ms. Farah was also shown the surveillance footage commencing at 6:15:38, when the male in the hoodie threw the drink in Ms. Yusuf’s face and pushed her. Ms. Farah identified herself as one of the people who intervened and broke up the fight. She recalled that the male in the hoodie went one way and “we went a different way,” which the surveillance video confirms.

[90] When asked if there was only one time that she heard gunshots that night, Ms. Farah testified as follows:

Gunshots did happen that night, yeah, but I don’t remember why, how and the only thing I do remember and from looking at the screen is me running. I don’t know, remember, how many times it happened.

[91] Ms. Farah recalled providing a DVD-recorded statement to the police at 9:10 a.m., or about three hours after these events, but took the position that it would not refresh her memory and that she has no current recollection of the incident. However, she acknowledged telling the truth when she spoke to the police, and that she told them “then and there what I remembered and what happened.”

[92] Ms. Farah took a similar position with respect to the evidence that she gave at the preliminary inquiry in March 2017. She stated that she told the truth when she testified at the inquiry, but that she has no current recollection of the events and that reading her earlier testimony would not refresh her memory.

[93] Crown counsel, who had initially sought leave under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, to cross-examine Ms. Farah regarding prior statements made by her to the police and during her testimony at the preliminary hearing, converted his application to adduce those statements as past recollection recorded. That application was ultimately allowed.

[94] Ms. Farah’s prior statements and evidence that were admitted as past recollection recorded included the following.

Statements Made re Attending an After-hours Club on Ray Avenue Prior to Going to 26 Densley Avenue

[95] Ms. Farah told the police that prior to attending 26 Densley Avenue in the early hours of May 29, 2016, she, Ms. Yusuf, and Ms. Ali went to an after-hours club on Ray Avenue in the area of Jane and Weston Road. Although she does not currently recall attending this club, Ms. Farah reiterated that she told the police the truth and that she would not have made this up “out of nowhere.”

[96] Ms. Farah told the police that she and her two friends met three boys at the club on Ray Avenue. One of these males was a friend of either Ms. Yusuf or Ms. Ali, and invited them to go to 26 Densley, where he promised to buy them some drinks. He was the male who later threw the drink in Ms. Yusuf’s face and assaulted her in the driveway.

[97] Ms. Farah claimed to have no current memory of what these three males looked like. However, she provided a fairly detailed description of them when she spoke to Morris on the morning of May 29, 2016. For example, she described the male who later assaulted Ms. Yusuf as follows: black male, about 120 pounds, hair in ponytail braids, looked Jamaican, wearing a black and grey hoodie and blue jeans. The video surveillance confirms the accuracy of this description.

[98] During her evidence in chief, Ms. Farah was shown the Channel 7 surveillance video at 6:15:12, and asked whether she had ever seen the male in the white t-shirt with the satchel, or the male in the hoodie prior to attending at 26 Densley Avenue. She stated that she did not remember, but that she had probably seen the man in the white t-shirt earlier that day at the club on Ray Avenue. She acknowledged telling the police on May 29, 2016, that this individual was wearing a white t-shirt and black jeans, and that he was carrying a side bag. Again, the surveillance video from 24 and 26 Densley Avenue confirms the accuracy of this description.

Ms. Farah’s Observation of a Shell Casing at the Scene

[99] Ms. Farah could not recall whether or not she saw a shell casing at the scene of the shooting. However, she acknowledged testifying as follows at the preliminary inquiry:

Q. But I’m asking you, yourself, did you see anything? Did you see any bullets, for example?

A. After they picked it up, I remember I seen it when they were putting it in the evidence bag.

[100] Ms. Farah testified that she was telling the truth at the inquiry. Although she has no current recollection of seeing a shell casing, she “probably had memory of it then, cause it was on a shorter time. Now there’s a longer period in time and I don’t remember.” In cross-examination, she stated that she could not say at this point whether the police put the casing into a box or a bag.

[101] Ms. Farah acknowledged telling Morris that although she did not see anyone holding a gun, she heard the gunshots. She recognized that they were gunshots because “obviously it was loud and we seen the bullet.”

Ms. Farah’s Statement re the Number of Gunshots that were Fired

[102] Ms. Farah did not recall how many gunshots were fired. However, at the preliminary inquiry, she testified:

Q. Okay, and how many gunshots did you hear?

A. Um, I think it was two.

[103] Again, Ms. Farah agreed that she was telling the truth at the inquiry, that she was sober when she gave her evidence, and attributed her lack of current memory to the passage of time.

[104] During cross-examination, Ms. Farah was questioned about her repeated references during her evidence-in-chief to her “intoxicated statement.” Ms. Farah insisted that she was drunk when she spoke to Morris at 12 Division.

[105] When asked how she behaves when she is drunk, Ms. Farah testified that she slurs her words, is uncoordinated, stumbles, says “crazy stuff’ and is rude to her friends. She stated that it is easy for others to recognize when she is drunk.

[106] Ms. Farah testified that she, Ms. Yusuf, and Ms. Ali consumed a 26-ounce bottle of Crown Royal during the two-hour period when they were at Ms. Yusuf’s home. Ms. Farah testified that she was “still good at that point,” and was aware of what she was doing. She and the other girls arrived at their friend’s house at Jane and Wilson Avenue about 9:00 p.m., and continued to drink. Ms. Farah testified that she consumed about one-and-a-half glasses of vodka at that residence.

[107] Ms. Farah believed that she, Ms. Yusuf and Ms. Ali arrived at the after-hours club on Ray Avenue at around midnight, and that they remained there until they left for 26 Densley Avenue. Since she claimed to have no current recollection of being at the club on Ray Avenue, she could not attest to how much alcohol she may have consumed there.

[108] Ms. Farah agreed that the surveillance video shows that upon her arrival at 26 Densley Avenue at 5:00 a.m., she was not stumbling but was walking normally and was actually able to support or assist Ms. Yusuf as they made their way down the driveway. Ms. Farah then took the position that she does not always stumble around or display obvious signs of impairment when drunk. She testified that she is sometimes able to “hold it together”, and sometimes an event may occur that quickly sobers her up. She noted that she was “probably scared as hell” when she heard gunshots after leaving the after-hours club at 26 Densley Avenue.

[109] Ms. Farah agreed that the surveillance video shows that she had no trouble walking over to the church at 6:17 a.m. She called someone on her cell phone – she could not remember who – and appeared calm as she stood watching Ms. Yusuf and Ms. Ali engage in an animated conversation. She testified that she has no recollection of what they were talking about, but it appears that Ms. Yusuf was upset about having had alcohol spilled on her.

[110] Ms. Farah agreed that she provided the police with a lot of details in her DVD-recorded statement. She maintained, however, that she currently has no recollection of those details because she was “so drunk” when she made the statement.

[111] In her statement, Ms. Farah appears quite composed. When advised about the consequences of giving a false statement, she asked Detective Constable Morris for clarification. Her speech was not slurred and she responded appropriately to the questions asked of her. Her responses made sense. Despite these indications of sobriety, Ms. Farah insisted that she was drunk at the time.

[112] When asked by Morris about her alcohol consumption that night, Ms. Farah stated that she had not had anything to drink, and described herself as “actually so sober.” She testified that she lied about her drinking because she did not want to get into trouble. She also told the officers that she was very tired, as she had not slept in two days. There is no question that Ms. Farah was probably quite tired as she had been up all night.

[113] In cross-examination, it was suggested to Ms. Farah that since she has no current recollection of events on May 29, 2016, she is simply guessing as to what happened by watching the video or interpreting the actions of various people seen in the video. Thus, she cannot say with any certainty that gunshots were fired at the time that people are seen crouching and ducking down. Ms. Farah responded: “Well, realistically, … it does look like it though. … There’s people running. Why else are people going to run?”

[114] Ms. Farah provided a statement to Officer Pathak, who spoke to her at the scene between 8:04 and 8:16 a.m. She agreed that she attempted to be as accurate as possible in describing events to him. She agreed that she told him that the male in the hoodie threw his drink at Ms. Yusuf, that she then heard gunshots, and that everyone started to run. Ms. Farah testified that this sequence of events was the truth as she knew it to be at the time, but that she was also drunk when she made the statement. When it was suggested to her that she would not have lied to Pathak, Ms. Farah stated: “Okay, but it’s not even about lying or not.” She also stated, “But for right now, if it’s not true or not, I can’t – like, it can’t be held against me, ‘cause I don’t know.”

[115] Ms. Farah described the same sequence of events in her recorded statement to Morris later that morning. She stated that after the male in the hoodie threw the drink in Ms. Yusuf’s face and pushed her, Ms. Yusuf tried to grab him and Ms. Farah intervened. It was while she was dealing with this situation that she heard the gunshots and everyone started to run:

So [Ms. Yusuf’s] trying to grab him and move him, so she’s trying to throw punches but he’s holding her hand, and then I came automatically and I’m trying to push him off of her like, so I grabbed him and I’m saying, “Why are you hitting a girl?” And he’s saying, “Oh, she brought it upon herself.” And then as I was dealing with that situation, I heard two shots go off so everybody ran away. And then they were, as they were walking away, they were laughing, him and his group of friends. And then a black Honda car pulled up and they went in and they left. And then [Ms. Yusuf] went over to … the front of the um, so the studio’s like at the back, she walked up to the front of the church. She stood there. She called the police.

[116] At the preliminary inquiry, which was nine months later, Ms. Farah repeated the same order of events as described by her to Pathak and Morris on May 29, 2016:

What I remember is my friend had an altercation with one of the guys. He spilled liquor in her eyes and then shots went off.

[117] When asked if her testimony at the preliminary inquiry was true, Ms. Farah stated: “I was talking from my heart, coming what I believe – yes, so obviously, yes,” and “From what I believed then, then yes, it was [true].” She later added the following explanation:

Okay, so yes, how I said it, it did not happen. But realistically, I’m not supposed to know it from A to Z how it happened, and everything. Yeah, I did mix it up a little bit and that is to tell you that I was not in the right state of mind, cause if I was to see it right now, then I know how it goes. … So in my heart, at that time, I was believing that was the truth cause that’s the story.

[118] In cross-examination, Ms. Farah testified that she came to doubt the accuracy of her statements to the police and her testimony at the preliminary inquiry regarding the order of events after she viewed the Channel 7 video footage, which shows her and others running and ducking before the male in the hoodie assaulted Ms. Yusuf. Defence counsel then pointed out to her the 25-second gap in the Channel 7 video, and suggested that her statements to police and prior testimony may well be the correct version:

Q. When I tell you that there’s a gap in the video …

A. Yeah.

Q. … does that help you be more confident about the accuracy of the original story that you gave to police? First the drink and then you hear the gunshots while you’re dealing with your friend?

A. Yes.

[119] In re-examination, Crown counsel, in addressing the 25-second gap in the Channel 7 video, which was between 6:16:28 and 6:16:53, played some of the footage from Channel 5. In particular, Channel 5 shows Mr. Weir’s Honda starting to leave the scene at 6:16:28, which is the start of the gap in the Channel 7 coverage. The car has left the scene by 6:16:48. Ms. Farah agreed that no one during this period of time is seen running. She also agreed that Channel 7 shows that she, Ms. Yusuf, and Ms. Ali crossed over to the church property at 6:17:02. Crown counsel then asked Ms. Farah whether, in light of the Channel 5 and 7 surveillance videos, she still had any doubt that the point when she is seen running between the two parked vehicles in the driveway – that is, at 6:15:11 on the Channel 7 footage – was when she heard the gunshots. Ms. Farah answered that she did not.

[120] As noted earlier, Channel 4, which was not played during Ms. Farah’s testimony, covers the entire Channel 7 “gap period.” At no point during the period from 6:16:10 to 6:16:55 is anyone, including Ms. Farah, observed to be running. The only time that Ms. Farah or anyone else is seen ducking and running is when Mr. Weir raised his arm in the air while walking down the driveway at 6:15:11 and 6:15:13.

Testimony of Detective Constable Adam Morris

[121] Detective Constable Morris testified that he and Detective Constable Hryhorsky met Ms. Farah at the front desk at 12 Division on the morning of May 29, 2016, and introduced themselves. He came to within about three feet of her. He did not detect any smell of alcohol on her breath. There was nothing about Ms. Farah’s conduct or behaviour that morning that led him to believe that she was intoxicated. Had he suspected that she was intoxicated, he would not have conducted the interview, which commenced at 9:10 a.m. and ended at 9:23 a.m. Ms. Farah’s answers were responsive to all of his questions.

Testimony of Police Constable Dropuljic

[122] Police Constable Dropuljic received the radio call regarding gunshots in the area of 24 Densley Avenue at 6:35 a.m., and arrived on scene with his partner, Pathak, at 6:40 a.m. They were met by Ms. Yusuf, Ms. Farah, and Ms. Ali, who were standing in front of the Faith United Ministries church.

[123] Dropuljic testified that Ms. Yusuf was clearly under the influence of alcohol. He smelled alcohol on her breath. She was slurring her words, unsteady on her feet, and generally uncooperative. She was screaming at the officers, and ordering them to “go do something.” Dropuljic responded that he first needed some information. Ms. Yusuf then told him about having been assaulted by the male who threw the drink in her face, about having heard the gunshots, and that the male, along with several other males, drove away in a black vehicle.

[124] Dropuljic and Pathak spoke to the 3 women for about 15 to 20 minutes. They then began noting down the licence plates of various vehicles parked in the driveway between 24 and 26 Densley Avenue, and to search for shell casings. Dropuljic estimated that it was about 25 minutes after their arrival on scene that a shell casing was located in the driveway and below a window on the east side of 26 Densley. There are four windows running along the west side of the building at that location. The casing was below the third window that a person would pass if they were walking north and toward the back of the building.

[125] Dropuljic did not note the time that the casing was located. He also could not say who first located it. It was not necessarily he who found it. It could have been pointed out to him by someone else. He did not recall Ms. Yusuf mentioning anything about having seen a casing. However, if she or one of the other women had mentioned it to him, he would have followed up on it. He had no note of such a conversation, and could not now recall whether such a conversation had led to the discovery of the casing.

[126] Dropuljic testified that after the casing was discovered, a white piece of paper was place near it to mark its location. The area was then taped off to preserve the scene.

[127] Dropuljic testified that when he and Pathak first arrived on scene, and while they were speaking to Ms. Yusuf, Ms. Farah, and Ms. Ali, there were a lot of people – about 12 to 15 – who came from the back of the building at 26 Densley and walked down the driveway. This continued even after the police had taped off the scene, although most people had left by that point.

Testimony of Police Constable Piara Dhaliwal

[128] Police Constable Dhaliwal arrived on scene at 8:00 a.m. for the purpose of taking photographs of the scene (Exhibit 7, photographs 1-23) and seizing the casing. At the time of Dhaliwal’s arrival, Dropuljic was guarding the casing and the police tape was up. Other than one woman, there were no civilians on scene at that time. Dhaliwal had no interaction with the woman.

[129] Dhaliwal seized the casing and placed it in an exhibits box at 8:30 a.m. for later submission to Forensic Identification Services. He also seized video surveillance footage from three cameras at 26 Densley Avenue.

[130] Dhaliwal noted that the open end of the casing was perfectly cylindrical as opposed to being warped or misshapen. It was clean. He did not note any scratches on it. It was not old, rusty or crushed. Based on these observations, he was of the view that the casing had not been in the driveway for weeks or even days. However, in cross-examination, he acknowledged that he was not qualified to opine on how long the casing had been there. He could not say whether it had been fired at the scene or at some other location. Given its round shape, it was capable of rolling on the ground if it had been kicked.

[131] When questioned about the presence of some dirt on the casing, as seen in Exhibit 7, photograph 13, Dhaliwal explained that he had flipped the casing over at this point, exposing the side that had been touching the ground. He agreed that some scratches are visible on the casing from this angle. He circled that area of the photograph with a pen.

[132] Dhaliwal understood that a search of the area had already been conducted by the time he arrived on scene. He did not conduct a further search. He testified, however, that if he had noticed any items of evidentiary value as he was photographing the scene, he would have made a note of them. He did not see any bullets or any indication of bullet damage to the buildings at 24 or 26 Densley Avenue.

Testimony of Karen Dann

[133] Karen Dann was qualified to give opinion evidence in the area of firearm operation, forensic firearm and ammunition examination, and comparison.

[134] Ms. Dann testified that although handguns can be fired using two hands, they have been designed by manufacturers to be discharged using only one hand.

[135] Handguns may be divided into two categories: revolvers and semi-automatic pistols. The majority of revolvers have a cylinder containing chambers that can hold a cartridge. When the trigger is squeezed, the cylinder rotates and aligns one of the chambers with the barrel in order to allow it to be discharged. The fired cartridge case remains within the cylinder.

[136] In semi-automatic pistols, the cartridges are stored in a magazine which, when loaded, is inserted into the handle or pistol grip for discharge. Unlike revolvers, the majority of semi-automatic pistols eject the cartridge cases after discharge.

[137] Ms. Dann referred to the Criminal Code with respect to the definitions of prohibited and restricted weapons. She testified that a long gun that has been modified by cutting down the barrel, or cutting down the butt stock so that it appears to be more of a pistol-shaped type of firearm, is a prohibited firearm.

[138] Basically, all handguns are either prohibited or restricted firearms, unless they fall into the category of an antique firearm, which generally date back to the early 1800s. Ms. Dann testified that it is not likely that an antique handgun would look like the semi-automatic handguns depicted in her PowerPoint presentation. However, an antique firearm could be modified to change its appearance. Such modifications would cause it to be classified as a prohibited device.

Operation of a Semi-Automatic Pistol

[139] Ms. Dann testified that when the slide of a semi-automatic pistol is moved backward, it allows one of the cartridges to be inserted into the chamber. The rearward movement of the slide moves the hammer downward and into a cocked position. When the trigger is squeezed, the hammer is released and moves upward quickly, striking the rear of the firing pin. The firing pin then moves forward quickly, striking the base of the cartridge in the chamber, which leads to the discharge of the cartridge.

[140] The next step is unlocking. The burning of gun powder produces rapidly expanding gases that push the cartridge case rearward, which in turn pushes the slide rearward, opening the breach.

[141] The next step is extraction. As the slide is moving rearward, the extractor grabs the rim of the cartridge case and pulls it out of the pistol’s chamber. As the slide continues to move rearward, the cartridge case eventually comes into contact with the ejector, which pushes the cartridge case away from the pistol.

[142] The last step is re-cocking the hammer. As the slide continues to move rearward, it pushes the hammer down into the cocked position. The firearm is then ready to discharge another cartridge when the trigger is squeezed again.

The Thumb Safety

[143] The thumb safety on a firearm is designed to prevent accidental discharges. On the model of handgun shown in Ms. Dann’s PowerPoint presentation, the thumb safety, when in the upward position, locks the slide to the frame. When the thumb safety is in this position, the firearm cannot be fired.

[144] A thumb safety is usually on the left side of the firearm, and is located where the thumb of a right-handed user would be. The thumb safety can be moved or manipulated by using one hand. The majority of pistols are designed for right-handed users.

[145] Another type of safety mechanism for handguns is the decocking safety, which is on the slide or frame, and which allows the hammer to return to a position without accidentally causing the firearm to discharge. The cross-bolt or button safety, which is usually found on the trigger guard, prevents the trigger from being squeezed. Magazine safeties prevent a firearm from discharging unless a magazine is inserted inside the pistol.

[146] With semi-automatic pistols, the trigger must be squeezed every time in order for a bullet to be fired. However, with automatic pistols, one squeeze of the trigger will release a number of bullets, assuming that the magazine contains more than one bullet.

[147] In cross-examination, Ms. Dann testified that a firearm may be loaded with a cartridge before the thumb safety is engaged. Chambering a cartridge normally requires two hands – one hand on the handle of the firearm and one hand on the slide. After releasing the thumb safety, the user could then simply squeeze the trigger and discharge the cartridge. If there was no cartridge in the chamber at that time, the user would have to chamber a cartridge before discharging the firearm.

[148] Normally, in order for the first shot to be fired from a semi-automatic, it is necessary to chamber a cartridge manually. After that, one can fire by just pressing the trigger; no manual chambering of a cartridge is required thereafter.

[149] Ms. Dann testified that there is no way to determine from the casing in this case as to what kind of safety mechanism was on the firearm that ejected it upon discharge. Nor can she say when it was fired.

[150] Ms. Dann did not see any markings on the casing that would indicate that it had been reloaded or reused. There was only one firing pin depression on the head of the casing, which is consistent with it having been fired only once.

Ammunition

[151] There are two main types of ammunition: rim-fire cartridges and center-fire cartridges.

[152] In rim-fire cartridges, the primer or ignition source is located in the rim of the cartridge. The firing pin would therefore have to strike the rim as opposed to the centre of the cartridge in order for the firearm to discharge.

[153] In centre-fire cartridges, which are the most common types of cartridges, the primer is located in a separate self-contained unit in the centre of the base of the cartridge. The firing pin must strike the cartridge in the centre in order for the firearm to discharge.

[154] A cartridge is comprised of four main components: the bullet; gunpowder, which acts as a propellant; the cartridge case, which holds all the components together; and the primer, which is usually located at the base of the cartridge and which acts as the ignition source.

The Cartridge Casing Seized by Police

[155] Ms. Dann determined that the cartridge casing found in the driveway was a nine millimetre Luger-caliber fired cartridge case. As such, it could have been fired from any nine millimetre weapon. In cross-examination, she testified that she could not determine the type of bullet profile used, but could say that it would have been a 38 nominal calibre class bullet.

[156] The fact that it had been fired was evident from the circular indent on the head of the cartridge case, which is consistent with a firing pin impression.

[157] Microscopic inspection revealed a number of other markings related to breech face marks; that is, an ejector mark, an extractor mark, chamber marks, and magazine marks. These marks are consistent with the casing having been fired from a semi-automatic or fully automatic pistol, rifle, or submachine gun. Ms. Dann could not narrow the type of firearm to just a pistol, as all of these weapons use a magazine. Many rifles or submachine guns also fire nine millimetre Luger calibre cartridges.

[158] When shown a photograph of the casing taken at the scene, Ms. Dann noted a horizontal line running up the casing from the base. She testified that this mark was possibly a mark from the magazine. The fact that the casing was fired from a weapon that used a magazine indicates that it was not fired from a revolver.

[159] Ms. Dann testified that if one were to step on a casing, it would likely hold its shape. This, of course, would depend on the weight of the individual, and whether the person stomped or just lightly stepped on it.

[160] Cartridge casings will become scratched when in contact with various surfaces. If they are on the ground, they are often scratched up. Ms. Dann testified that when she received this particular casing, she did not have to do any major type of cleaning on it before examining it under the microscope. She may have cleaned off the head of the cartridge with acetone, but that is her standard practice for any item coming into her lab for examination.

[161] Ms. Dann testified that she expects to find scratches and some damage to cartridge casings. She usually does not make notes about such damage as it does not assist her in identifying the cartridge case. She will, however, make notes about such damage if it prevents her from determining whether or not chamber marks or magazine marks are present. In this case, as expected, there were some scratches on the casing. However, they did not impede her ability to identify both chamber marks and magazine marks. Neither the marks nor the scratches are of assistance in terms of determining when the casing was fired or deposited on the ground.

Ejection from Semi-Automatic Handguns

[162] The most common location for the ejection port on a handgun is on the right-hand side of the slide. However, the ejection port may also be on the top or on the left-hand side of the slide.

[163] When asked whether the location of the shooter could be determined by the location of a cartridge casing, assuming that the casing was not moved prior to its discovery, Ms. Dann stated that there are a number of factors that affect where it lands. These factors include whether the casing hit another object and was deflected. It would also depend on how and at what angle the shooter held the firearm. If the shooter twisted their torso to the right, a firearm with an ejection port on the right hand side would eject the casing to the shooter’s left.

[164] Firearms typically eject casings at least two feet away from the firearm. However, the distance will depend on whether the firearm is operating as designed or if it has been modified. Ms. Dann could not say what the maximum or normal ranges for ejection from a pistol would be.

Recoil

[165] Recoil is the movement of the shooter’s arm or hand after or during discharge of a firearm. The movement is related to the pressures that are built up during the discharging of that particular cartridge.

[166] Whether recoil is observed depends on a number of factors, such as the size or strength of the user. A stronger individual may not experience as much recoil as a less strong individual. A heavier pistol does not produce as much recoil. The calibre of bullet that a pistol is designed to discharge will also be a factor. It is not as simple as saying that a bigger calibre will always result in greater recoil, as there is a relationship between the calibre and the weight of the particular pistol. If you have a bigger calibre cartridge, but you have a very heavy pistol, there may not be a lot of recoil. However, if you have a very lightweight pistol with a big calibre cartridge, there may be more recoil during discharge.

[167] A nine millimetre handgun is an average sized calibre firearm. Again, it is dependent on the user. Some individuals firing a nine millimetre Luger firearm may show a lot of recoil, and others very little recoil.

Muzzle Flash

[168] Ms. Dann explained that muzzle flash does not occur every time that a firearm is discharged. It depends on a number of factors, including the type of ammunition that is fired, the specific characteristics of the firearm, and whether or not there are any muzzle attachments on the firearm. A flash suppressor or sound suppressor, or anything else that may be affixed around the muzzle would reduce muzzle flash.

[169] Even if there are no attachments, one may not observe muzzle flash when the firearm is discharged. The components of the gun powder and primer used in the ammunition may affect whether muzzle flash is visible. The colour of muzzle flash, for example, depends on the chemical composition of the gun powder and primer. The way in which those components interact with that particular firearm will affect whether muzzle flash is produced. Even if a firearm generates muzzle flash, you will not always see it each time that the firearm is discharged. Sometimes it occurs, and sometimes it does not.

[170] If the barrel of the firearm contains a lot of firearm discharge residue, there could be more muzzle flash. Sometimes different parts of the firearm allow for a greater buildup of gas pressure in the barrel, which causes more gas to be emitted, and which may lead to muzzle flash occurring.

[171] Ms. Dann also testified that muzzle flash can occur in the blink of an eye. Thus, an individual could easily miss seeing it. Muzzle flash is easier to see in dim or lower light settings than it is in very bright conditions.

[172] In cross-examination, Ms. Dann agreed that without knowing what firearm ejected the casing, it would be speculation on her part to say how far or what direction in relation to the firearm the casing was discharged. Similarly, she would need to know what type of firearm fired the casing in order to opine as to whether or not muzzle flash was likely to have occurred, and whether or not the firearm was likely to have recoil.

Consequences of Shooting a Gun in the Air

[173] Ms. Dann testified that based on her training, the shooting of a firearm into the air is not regarded as a safe practice. There is the danger that the bullet, upon falling back down to the ground, could strike an individual or object. The bullet could land in a very different spot from where it was fired, depending on the angle at which it was fired. Even a slight angle could cause the bullet to land in a very different area.

THE LAW: EVALUATING CIRCUMSTANTIAL EVIDENCE

[174] When the Crown relies on circumstantial evidence, the evidence must be evaluated as a whole rather than as individual pieces. It is the cumulative effect of the relevant circumstances that must be assessed in determining whether the Crown has met its burden.

[175] In R. v. Ukwuaba, 2015 ONSC 2953, [2015] O.J. No. 2349, at paras. 97-8, Hill J. summarized the approach to be taken in evaluating circumstantial evidence as follows:

In order to find guilt in a circumstantial evidence case, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.)., at paras 33-4. Inference must be carefully distinguished from conjecture or speculation. At all times, in assessing circumstantial evidence, a trier must be alert to explanation or contradiction or inference pointing toward innocence. The trier of fact must assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference to be draw while always having regard to the scope of inferential bridges or gaps the trier is invited to make.

Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively. With circumstantial evidence based on reasoning or inference-drawing through probability (R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64), a trier of fact’s application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (S.C.C.), at paras. 33-40, 47=8; R. v. Yousif, 2011 ABCA 12 (Alta. C.A.), at para. 5: B (Children), Re (20008), [2009] 1 A.C. 11 (U.K.H.L.), at paras. 5, 15, 70. …

[176] In Dodd, at para. 59, the Court quoted the following passage from R. v. Uhrig, 2012 ONCA 470, [2012] O.J. No. 3011, at para, 13, in setting out the analysis to be conducted in cases involving circumstantial evidence:

When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345 (S.C.C.), at 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: R. v. Côté (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p.76.

[177] In Dodd, the Court found that the evidence, when assessed as a whole, was not capable of supporting the inference that the appellant was present at the scene of two murders. Dodd is an example of a case in which the frailties of each aspect of the evidence did not gain strength when considered together. Consequently, the appellant’s convictions were quashed and acquittals entered.

[178] The position of the defence is that the present case is akin to Dodd. Ms. Pennypacker submits that the frailties in the various pieces of circumstantial evidence are such that even when the evidence is considered as a whole, the Crown has failed to establish beyond a reasonable doubt that Mr. Weir discharged a firearm.

[179] The position of the Crown is that the surveillance video evidence is of significant probative value in and of itself. It does not lie. It is both credible and reliable. When the surveillance footage is evaluated in light of the other bodies of evidence, including people’s reactions when Mr. Weir raised his arm in the air, the presence of the shell casing, and the expert evidence regarding the operation of handguns as applied to Mr. Weir’s conduct, the Crown has proved its case.

ANALYSIS AND FINDINGS

[180] The fundamental basis or heart of the Crown’s case is the Channel 7 surveillance footage. As observed by Molloy J. in R. v. Mohammed, [2009] O.J. No. 398, at para. 8, video footage of an event is an invaluable source of reliable information for a trier of fact, and is considered to be more reliable than eye witness testimony. It is also recognized that video can be frozen at spots to study specific frames more closely, and that still photos extracted from the video are admissible in evidence: R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, 111 C.C.C. (3d) 403 (S.C.C), at paras. 21-23 and 28-29.

Mr. Weir’s Interactions with Ms. Yusuf after Leaving the Club

[181] Channel 1 captured the movements of Mr. Weir and his five associates, as well as those of Ms. Ali, Ms. Yusuf, and Ms. Farah, when they were in the parking lot outside the club and before they moved into the range of Channel 7. In particular, Channel 1 shows certain interactions between Mr. Weir and Ms. Yusuf, which are described in these reasons at paras. 38 to 40.

[182] Defence counsel submits that Mr. Weir’s behaviour in the parking lot and during his interactions with Ms. Yusuf is inconsistent with the characteristics of an armed person, as described by Detective Constable Sgroi. Mr. Weir is not wearing overly baggy clothing, although his clothes could certainly not be described as tight-fitting. He is also not seen adjusting an object in the area of his waistband, or doing security pats to his belt or pockets.

[183] Defence counsel also suggested that when Mr. Weir “embraced” Ms. Yusuf from behind, the waistband area of his shorts, where he allegedly had a gun, would have been pressed against her. It was also suggested that as Ms. Yusuf moved her arms outward, she may have touched his right side. Ms. Pennypacker submits that Mr. Weir does not appear to be guarding the right side of his body, or guarding against the possibility that Ms. Yusuf might accidentally dislodge or find a firearm.

[184] In assessing the weight to be given to this evidence, I take into account that the time during which Mr. Weir appears on this portion of the video surveillance is relatively brief. I also bear in mind the evidence of Sgroi, who testified that some armed individuals do not display any characteristics of an armed person.

[185] In terms of the “embrace,” it does not appear to me that there was any contact between the back of Ms. Yusuf’s body and the front waist area of Mr. Weir’s shorts. Ms. Yusuf’s feet were at all times in front of Mr. Weir’s feet. Mr. Weir, who is taller than Ms. Yusuf, was standing behind her. His legs were apart, and he was leaning forward or over her, with his arms draped over her shoulders and partly over her arms. It also does not appear to me that Ms. Yusuf’s hand made contact with Mr. Weir’s right side. She had both palms out and was trying to move them. However the movement of her arms was partly restricted by the position of Mr. Weir’s arms and hands.

[186] Even if contact was made, this evidence is not particularly helpful with respect to the issue of whether Mr. Weir had a firearm on his person at the time. As Crown counsel submitted, Mr. Weir may not have been concerned about whether people knew that he was armed. It could also be argued that the reason that Ms. Yusuf stepped back or pulled away from Mr. Weir is that she had, in fact, felt a gun at his waistline. The weight to be given to her actions, of course, is coloured by the fact that she was intoxicated at the time. She may or may not have been reacting to having felt a gun at his waistline.

[187] Crown counsel also pointed out that based on the evidence, Mr. Weir might not have been armed at the time of his interactions with Ms. Yusuf. He noted that there was a period of about a minute between the time that he went out of the range of Channel 1 and the time that he appeared on Channel 7. During that period, all five of Mr. Weir’s associates were in the immediate vicinity. There was therefore the opportunity for one of them to give him a gun.

[188] In summary, the evidence of Mr. Weir’s behaviour in the parking lot as it relates to whether or not he was displaying the characteristics of an armed person ought not to be accorded much weight.

The Channel 7 Video Surveillance

[189] Mr. Weir first came into the range of Channel 7 at 6:14:58. At 6:15:00, he is seen looking down at a small object in his hand. The size of the object and the small black line seen protruding from the front of his hand suggest that he was holding his cell phone, which he then put into his pocket. That Mr. Weir was in possession of a cell phone that night is confirmed by the earlier Channel 1 footage, where he is seen holding the phone in his left hand and touching the screen with his right hand just before entering the club at 4:57:38. The phone seen in the Channel 1 footage appears to be the same style of phone that was in Mr. Weir’s possession at the time of his arrest and which is visible in the booking video.

[190] At 6:15:04, Mr. Weir reached into his waistband, and pulled out what the Crown alleges is a firearm. This object was larger and a different shape from the previous object he was holding. Having viewed the Channel 7 video multiple times, I agree with Crown counsel’s submission that Mr. Weir reached into and pulled out the object from the centre of his waistband as opposed to a pocket. As he did so, his shirt was lifted up almost to the middle of his chest, and then fell back down to its original position.

[191] The finding that Mr. Weir removed the object from the centre of his waistband is consistent with his actions captured by the Channel 4 video. Mr. Weir came into the range of Channel 4 at 6:15:14, or just one second after he had raised his right arm in the air for the second time. His right arm was now down. At 6:15:16, he moved his right hand to the centre of his waistband and adjusted something there. His shirt was raised up just as he walked off screen. When Mr. Weir came into the range of Channel 3 at 6:15:19 (time adjusted to accord with Channels 4 and 7), or three seconds later, his right hand was empty. The inference may be drawn that he returned the object that he had pointed in the air to where he had initially retrieved it – that is, from the waistband of his shorts. I note that it would be somewhat strange or unusual for someone to keep a cell phone in their waistband.

[192] The size and shape of the black or dark-coloured object that Mr. Weir removed from his waistband is consistent with the size and shape of a semi-automatic handgun, as seen in Ms. Dann’s PowerPoint presentation. What appears to be the barrel of a gun becomes more visible commencing at 6:15:05, when Mr. Weir twisted his wrist up and inward as he looked down at the object in his hand. (See slides 25, 33-52, and 58 of the Crown’s closing PowerPoint slides, as well as the two still photographs reproduced at paragraph 6 of the Crown’s written closing submissions). Mr. Weir’s hand is below the cylindrical portion of the object, or what appears to be the barrel of a handgun, with his fingers or knuckles wrapped around the handle or grip. The shape of the object is inconsistent with the shape of Mr. Weir’s smart phone, which did not have a kink or bend in it. He is certainly holding this object in a very different manner from the way he held his cell phone earlier that night. (See slide 58 of the Crown’s Closing PowerPoint slides).

[193] When Mr. Weir turned his wrist inward, the object that he was holding also turned somewhat inward toward his body. Mr. Weir held the object steady in that position as he looked down at it from 6:15:05 to 6:15:09 and as he continued walking down the driveway. Given the position in which he was holding the object, it appears that he was looking at the inner or left side of it. He continued to carry the red cup in his left hand.

[194] Mr. Weir’s handling of the object during this four-second interval is consistent with the actions of someone disengaging the thumb safety on a handgun. Ms. Dann explained that on the majority of semi-automatic handguns, the thumb safety is on a right-handed person’s thumb side of the handgun. That is the side of the object that Mr. Weir appeared to be looking at as he held it in his hand. Ms. Dann also testified that a person can disengage a thumb safety with one hand.

[195] I note that if Mr. Weir had been carrying a handgun in his waistband, it would make sense that he would have engaged the thumb safety as a safety precaution before placing it there.

[196] At the end of this four-second interval, Mr. Weir briefly dropped his right arm, and then immediately raised it over his head.

Recoil

[197] At 6:15:11, Mr. Weir’s arm was fully extended over his head. His arm then moved or, as Sgroi described it, “broke” to the right. (See slides 112-116 of the Crown’s closing PowerPoint slides). That same quick break of his wrist and arm was repeated when Mr. Weir raised his arm in the air a second time at 6:15:13.([See slides 123-135).

[198] This motion is consistent with Mr. Weir having experienced recoil when discharging a firearm. Ms. Dann defined recoil as the movement of a shooter’s arm or hand after or during discharge of a firearm. The movement is related to the pressures that are built up during the discharging of that particular cartridge. Whether recoil is observed depends on a number of factors, including the size and strength of the user, the calibre of the bullet, and the weight of the pistol.

People’s Reactions when Mr. Weir Raised his Arm in the Air at 6:15:11 and 6:15:13

[199] The Crown and defence counsel raised the issue as to how the court should approach and assess the behavioural reactions of civilians depicted on the surveillance footage when none of the individuals, with the exception of Ms. Farah, was called as a witness. Counsel referred to the following decisions where courts have considered the question of whether inferences from non-verbal conduct should be treated as hearsay: R. v. Baldree, 2013 SCC 35, 298 C.C.C. (3d) 425; R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399; R. v. B.(H.), 2016 ONCA 953; and R. v. McKinnon (1989), 33 O.C.A. 114 (Ont. C.A.).

[200] In Badgerow, at para. 128, the Court stated:

To the extent the issue has been considered in Canada, the cases have tended to regard non-assertive conduct as outside the scope of the hearsay rule. The cases are summarized in Professor Hamish Stewart, Halsbury’s Laws of Canada: Evidence, 1sted. (Markham, Ont.: LexisNexis, 2010, at para. HEV-83:

Hearsay by conduct. Conduct to the extent that it is premised on a belief about the truth of a fact. However, Canadian courts have been reluctant to accept this line of reasoning. The Ontario Court of Appeal has restricted the concept of hearsay by conduct to “actions or behaviour which are themselves means of expression, such as shrugs, headshakes or other gestures that are a substitute for or supplement to oral communications” [R. v. McKinnon (1989), 33 O.A.C.) 114 (C.A.), at para. 17. …

[201] In McKinnon, as cited in Badgerow, the accused argued that the Crown should not have been permitted to adduce evidence showing that his wife attended with the police at the location of the murder victim’s body. It was submitted that the evidence could have been relied upon as an implied assertion by his wife that “this is where the body is buried.” The Court rejected that argument, explaining that the wife’s attendance did not assert that police received the location of the body from her and no other source. The location of the body could have come from somewhere else if that evidence was evaluated in isolation. In other words, her presence was non-assertive conduct and not hearsay.

[202] In Badgerow, the accused was charged with murder. The Crown sought to adduce evidence from Bell Canada tracing the location of a phone booth where a 911 call was made. The caller gave details of the crime that only the killer was likely to have known. The call was traced to a payphone close to the accused’s workplace. The accused was not charged and prosecuted until many years later. By that time, the Crown no longer had available the witness who relayed that the call came from that particular place. Instead, the Crown sought to admit the evidence on the basis that other evidence proved the contents of the call – namely, the location of the phone booth that had been used by the 911 caller. Ultimately, the Court found that the evidence that the Crown sought to adduce asserted that “we have traced the call to [that location],” and that it constituted non-assertive hearsay by conduct. The Court, however, declined to state a general principle as to whether the inferences from non-verbal conduct should be treated as hearsay. At para. 134, the Court stated:

For the purposes of this case, it is unnecessary to state a general principle as to whether the inferences from non-verbal conduct should be treated as hearsay. I suggest, however, that a principled case-by-case approach may be appropriate, depending on the nature of the conduct, the presence or absence of hearsay dangers, and concerns with respect to trial fairness due to the inability to cross-examine the “declarant” or other witnesses. See Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham, Ont.: LexisNexis, 2009), at para. 6.55; [page 431] and Khelawon, at para. 93.

[203] B.(H.) offers some clarification of the Badgerow decision. In B.(H.), the accused was charged with the sexual assault of his step-daughter. The Crown sought to adduce demeanour evidence that the complainant’s mother was not surprised when the police informed her of the alleged sexual assault. The Crown sought to rely on this evidence as a basis for the inference that the mother previously knew about the abuse, and that was why she was not surprised.

[204] The Court first observed that the evidence at issue was obviously not assertive conduct because it was not akin to nodding or pointing: B.(H.), at para. 78-82. The Court then went on to explain why the evidence was not hearsay by non-assertive conduct. At paras. 83 to 86, the Court stated:

Nor was the demeanour evidence hearsay by non-assertive conduct.

The demeanour evidence, standing on its own, had relevance to the chronology and narrative of T revealing her allegations to the authorities. As a matter of logic and human experience, L’s reaction on being told of the allegations was relevant to whether she had prior knowledge of the allegations her daughter made. If L had prior knowledge of those allegations, that supported T’s credibility. Thus, in combination with other evidence, it was open to the Crown to ask the jury to draw an inference that L already knew of the abuse, consistent with T’s testimony. Simply because the Crown asked the jury to draw an inference from the demeanour evidence does not render that evidence an implied statement of belief adduced for the truth of its contents.

For the reasons revealed by defence counsel’s cross-examination of PC Kimens, the Crown’s desired inference was only one of many possible explanations for L’s lack of facial expression. PC Kimens readily agreed that people react to shocking news in different ways. L’s lack of expression cannot simply be reduced to an implied statement that she knew of the abuse, although that inference was available to the jury. Rather, there was a range of inferences that could be drawn from this aspect of the narrative.

It was open to the defence to argue, as it did, that L’s demeanour was inconsistent with prior knowledge of the abuse because: L was confronted in the middle of the night with allegations that were difficult to register; people react differently to surprising news; she was processing information that did not fit with her perception of the appellant, with whom she had been in a relationship for eight years; and she knew her daughter’s character.

[Emphasis added.]

[205] As Crown counsel observed, the distinction between the admissible demeanour evidence in B.(H.) and the evidence categorized as non-assertive hearsay by conduct in Badgerow, is the availability of multiple inferences from the item of evidence in the abstract. In Badgerow, only one inference existed from the evidence, even when considered independently from other evidence; namely, that the 911 call originated at the phone booth near the accused’s workplace. In contrast, the mother in B.(H.) could have reacted with no expression to the announcement regarding the alleged sexual assault on her daughter for any number of reasons. In the abstract, those were all possibilities. The conduct was therefore not hearsay.

[206] Where, as in B.(H.), there are multiple possible reasons for the non-assertive conduct, the conduct does not constitute hearsay because the trier of fact is entitled to accept or reject any of the explanations. It would not make any sense for non-assertive conduct to become hearsay by conduct depending on which of the available interpretations or inferences the trier of fact draws from the conduct. As Crown counsel put it at para. 38 of his factum, based on B.(H.), the Crown is entitled to submit, and the trier of fact is entitled to accept, that evidence which has multiple interpretations when evaluated in isolation has only one interpretation when evaluated along with all of the other circumstantial evidence. The fact that only one inference remains when the evidence is evaluated as a whole does not render demeanour evidence hearsay by conduct post hoc. If it did, all demeanour evidence would be hearsay by conduct.

[207] As in B.(H.), the conduct in the present case that was displayed by civilians who were not called as witnesses could be interpreted in multiple ways if evaluated in isolation. The inferences that the Crown seeks the court to draw are as follows:

a. Ms. Ali, the man in the white t-shirt with the satchel, and the man in the black t-shirt ducked their heads and raised their shoulders in reaction to Mr. Weir having discharged a handgun.

b. Some of Mr. Weir’s associates did not react because they were not surprised that Mr. Weir had a gun – that is, they had prior knowledge of the gun.

c. Ms. Ali and the man in the white t-shirt with the satchel were running for cover when they ran to locations that put a parked vehicle between them and Mr. Weir.

d. Ms. Ali turned around at 6:15:13 and ran away from Mr. Weir because Mr. Weir fired a second shot.

e. The man in the white t-shirt pulled up his shirt and examined his stomach because he was checking to see if he had been shot.

f. The man in red shorts who got up and ran across the street at 6:15:13, as seen on Channel 5, was running away from the shots that Mr. Weir had fired in the air.

[208] In the abstract, however, the conduct that underpins each of these inferences could lead to any number of inferences. For example, Ms. Ali and the other men could have individually run to pick up items off the ground. Ms. Ali could have changed directions because she had forgotten something. The man in the white t-shirt could have been looking at a stain on his shirt. The man in the red shorts just happened to get up and leave at the moment that Mr. Weir raised his arm in the air the second time.

[209] Defence counsel agrees that it is open to the court to find that there is some meaning to the reactions of various people as seen on the video. At the same time, however, she submits that it is also open to the court to find that there is some ambiguity in those reactions because of the differing reactions. As Ms. Pennypacker put it, one can’t simply draw a straight line and say, “Well, it must have been from [Mr. Weir having fired gunshots].” For example, there could have been a sound, which some individuals misperceived as gunshots, that startled them, or that they misperceived as threatening. They may have reacted in the way that they did, not as a result of having heard something but because of something that they saw. Defence counsel noted that the man in the white t-shirt with the satchel, after running to the area between the white van and east wall of 24 Densley Avenue, looked in a northerly direction, which could suggest that any sound that he may have heard had come from the north rather than from the south. The associates of Mr. Weir who did not react might not have heard or seen anything unusual as a result of their different locations along the driveway.

[210] In summary, the position of the defence is that the particular facts of this case raise concerns about the inferences the Crown is asking the court to draw from people’s reactions, given the inconsistent reactions of individuals. Caution is required, given that these individuals were not available for cross-examination, and the fact that the one witness who was present at the time of the incident claims to have no current recollection of the event. Ms. Pennypacker submits that even if the reactions of individuals are considered as some circumstantial evidence that there was a startling noise or event when Mr. Weir raised his arm in the air at 6:15:11 and 6:15:13, it is questionable as to how much weight can be attributed to this evidence.

[211] The evidence with respect to people’s reactions when Mr. Weir raised his arm in the air, including the reaction of Ms. Farah, who was called as a witness, is set out below.

[212] At 6:15:11, when Mr. Weir raised his arm in the air for the first time, Ms. Ali and two of Mr. Weir’s associates – the male in the black t-shirt and the male in the white t-shirt with the satchel – immediately and simultaneously ducked their heads and hunched over. The male with the satchel ran for cover between the parked white van and the east wall of 24 Densley Avenue. Ms. Ali initially started to run forward or in the direction of Mr. Weir, but sharply reversed direction at 6:15:13, when Mr. Weir raised his arm in the air the second time. She ended up running to the same place where the male with the satchel took cover, that is, between the white van and the outside wall of 24 Densley. The male with the satchel pulled up his t-shirt and examined his stomach two times before he resumed walking south along the driveway.

[213] Ms. Farah is seen starting to run as she came into the range of Channel 7 at 6:15:12, and appeared to quicken her pace at 6:15:13 as she took cover between the white van and the black SUV. She remained there until 6:15:32, when she emerged to intervene in the dispute between Ms. Yusuf and the male in the hoodie. Ms. Farah testified that she ran between the two vehicles when she heard gunshots as that seemed to be the safest place to be at that point. Her statement to police and her testimony at the preliminary hearing that she heard two gunshots was admitted as past recollection recorded. Ms. Farah is not seen running at any other time on any of the surveillance videos.

[214] The fifth person who reacted when Mr. Weir raised his arm in the air was the man in the red shorts, who was sitting on the lawn in front of the church. At 6:15:13, which was the exact moment that Mr. Weir raised his arm in the air for the second time, this male got up and ran across the street, which was in the opposite direction from Mr. Weir’s location. Channel 5 shows him moving quite quickly, with his scarf flapping in the wind as he sprinted across Densley Avenue. He continued running west for some distance after crossing the street. He then stopped, looked around, briefly walked around the area, and then proceeded west and out of range of the camera at 6:16:18.

[215] Three people did not appear to react at all when Mr. Weir raised his arm in the air; namely, Ms. Yusuf, the male in the blue t-shirt and white shorts, and the male in the hoodie. The latter individual turned around, walked back to Ms. Yusuf, and assaulted her only seconds after Mr. Weir raised his arm in the air the second time. At 6:16:39, he, along with the male in the orange shirt, got into Mr. Weir’s car, and Mr. Weir drove off.

[216] The most likely or probable reason that Ms. Yusuf did not react to whatever caused others to duck and run was the fact that she was drunk. She was unsteady on her feet both when she arrived at the club and when she left it. She also appears to be intoxicated as she waited for the police in front of the church. When Officer Dropuljic arrived on scene at 6:40 a.m., he observed that Ms. Yusuf was unsteady on her feet, her speech was slurred, and he could smell alcohol on her breath. She was generally uncooperative. She was screaming at him and his partner, and ordering them to “go do something.”

[217] Crown counsel pointed out that the other two individuals who did not react when Mr. Weir raised his arm in the air – the male in the blue t-shirt and white shorts, and the male in the hoodie – were associates of Mr. Weir, and left the scene in his car. It was suggested that they may not have reacted to what the Crown submits were gunshots fired by Mr. Weir because they had prior knowledge of the gun. I note that the male in the blue t-shirt and white shorts, who was only a couple of feet behind Mr. Weir and to his right as they walked down the driveway, was certainly in a position to observe what Mr. Weir was holding in his hand. He appears to be looking in Mr. Weir’s direction starting at 6:15:04, when Mr. Weir removed the object from his waistband. There was nothing obstructing his view of that object as they continued walking south.

[218] Crown counsel also pointed out that another person who did not react in any way at 6:15:11 and 6:15:13 was Mr. Weir himself, which is consistent with his knowing what he was doing, that is, discharging a firearm in the air at those times.

[219] Defence counsel noted that the woman dressed in black clothing, who was across the street on the south side of Densley Avenue when she first appears on Channel 5 at 6:15:15, was not running or ducking. However, it is not known what her reaction may have been at 6:15:11 and 6:15:13, as she was not in the range of the camera at that point. Her exact location at those times is not known. What is known is that she was walking west, directly away from Mr. Weir, and in the same direction as the man in the red shorts. When she first appears on video, she is across the street from 26 Densley, so there was already a fair distance between her and the location where the Crown alleges that Mr. Weir discharged a gun. She continued walking west. Although she was not running, she could also not be said to be dawdling. At 6:15:29, she paused momentarily to look back in a northeasterly direction toward Mr. Weir’s location, and then disappeared around the corner of a building just before Mr. Weir appeared on screen at 6:15:34.

[220] Although it is not known whether the woman dressed in black clothing reacted at 6:15:11 or 6:15:13, her movements at 6:15:15 and thereafter, including walking away from Mr. Weir’s location, pausing briefly to look back in his direction, and then disappearing behind a building, are not necessarily inconsistent with the reaction of the man in the red shorts. The fact that she was walking, as opposed to running, may, in the circumstances, not be particularly significant, given that she was already on the other side of the street from Mr. Weir. And, as Sgroi indicated in his evidence, different people may react in different ways to the sound of gunshots. There is no universal reaction to this kind of thing.

[221] The reactions of (i) the man in the black t-shirt; (ii) Ms. Ali; and (iii) the man in the white t-shirt with the satchel, may not be that significant when viewed in isolation. However, this evidence gains considerable strength when viewed in the context of all of the evidence. At the very moment and within the split second that Mr. Weir raised his arm in the air and his arm moved to the right, three people in the driveway hunched over and ducked their heads. Ms. Ali and the man in the white t-shirt were about to start running. The perfect synchronization of their reactions at the precise moment that Mr. Weir raised his arm in the air while holding a gun-shaped object weighs against the suggestion that this was just a coincidence. I note that these individuals were not walking together: the man in the black t-shirt was a considerable distance ahead of the other two. Their reactions, therefore, appear to be independent of each other.

[222] The evidence of the reactions of these three individuals gains further strength by the fact that when Mr. Weir raised his arm in the air for the second time, Ms. Ali, who was running south, did a dramatic 180-degree turn and started to run in the opposite direction, away from Mr. Weir. And, at the same moment, the man in the red shorts, who was sitting on the front lawn of the church, got up and sprinted across the road, again in a direction away from Mr. Weir. In addition, there is the evidence of Ms. Farah, who is seen running for cover between two parked vehicles when Mr. Weir raised his arm in the air the first time.

[223] In my view, the evidence of the reactions of individuals when Mr. Weir raised his arm in the air while holding a gun-shaped object has significant weight, regardless of the fact that two associates of Mr. Weir appear not to be startled and failed to react. As observed earlier, the man in the white shorts and blue shirt would have had a clear view of the object that Mr. Weir removed from his waistband and held in his right hand as he walked down the driveway.

The Shell Casing Found in the Driveway

[224] During her submissions, defence counsel reviewed various problematic aspects of the shell casing evidence. She noted that the scene was not secured for some time after the arrival of the police. Dropuljic and his partner arrived on scene at 6:40 a.m., and spent the first 15 or 20 minutes speaking to Ms. Yusuf, Ms. Farah, and Ms. Ali. Dropuljic estimated that during that period about 12 to 15 people walked from the back of 26 Densley and along the driveway to Densley Avenue.

[225] Dropuljic testified that the casing was located about 25 minutes after his arrival, or about at 7:05 a.m. He was uncertain as to who actually found it or pointed it out to him. Once it was located, a white marker was placed beside it and police tape was put up to secure the area. He testified, however, that there was still some pedestrian traffic in the driveway even after the tape was in place.

[226] Dhaliwal testified that when he arrived on scene at 8:00 a.m., the police tape was up and Dropuljic was guarding the casing.

[227] The Channel 4 and 7 surveillance videos captured the pedestrian and vehicular traffic in the driveway between 6:15:13 (when Mr. Weir raised his arm in the air the second time) and 6:29:57 (which was ten minutes before Dropuljic arrived on scene). The surveillance clips #1458 and #1551 from Channel 7, which cover the period from 6:15:13 to 6:16:28, show the events already described in these reasons, including Mr. Weir’s raising of his right arm for the second time, the assault by the male in the hoodie on Ms. Yusuf, and the intervention in that altercation by Ms. Farah, the male in the orange shirt, and Ms. Ali. Clip #1551 also shows three other males walking along the driveway. There is no vehicular traffic during the period covered by these two clips.

[228] The other eight surveillance clips from Channel 7 show that during the remaining period of time, ending at 6:29:57, the traffic in the driveway consisted of eleven pedestrians and two SUVs, which drove down the driveway and turned either left or right at Densley Avenue. The black SUV parked in the driveway was also driven from the scene during this period, although the video of that event is not before the court as a result of a gap in the surveillance footage.

[229] Ms. Pennypacker noted that the shell casing is a small round object that could easily have been kicked or rolled from one place to another. It cannot be said with any certainty as to how long the casing had been in the driveway or how it was deposited at the scene. It was not rusty, which suggests that it had not been there for a long period of time. However, “long” is a relative term. Even if the casing had only been in the driveway for 24 hours, it would disqualify it from consideration in this case.

[230] Ms. Pennypacker pointed out that Ms. Dann could only say that the casing was ejected from either a semi-automatic or automatic handgun, rifle, or submachine gun. Without a firearm, Ms. Dann could only speculate as to how the shell casing was ejected. The police did not locate a firearm or any ammunition during their search of Mr. Weir’s residence and vehicle, and there is no forensic evidence linking Mr. Weir to the casing or possession or discharge of a firearm.

[231] Ms. Pennypacker also noted that no bullet or damage from a bullet was located in the area. However, the absence of a bullet or bullet damage is of little consequence. As Ms. Dann testified, a bullet fired in the air could land in a very different spot from where it was discharged. Even a slight angle could cause it to land in a very different area.

[232] Mr. Cruess acknowledges that the Crown cannot directly link the casing to a particular gun, since no gun was recovered. The Crown also cannot conclusively show that the shot must have been fired in a particular place based on the location of the casing. According to Ms. Dann’s evidence, there is no way to mathematically or scientifically prove that a casing found at location “X” means that the shooter must have been at location “Y.” However, Mr. Cruess submits that when all of the circumstances are viewed cumulatively, there is no reasonable prospect that the shell casing came from anywhere other than a handgun held by Mr. Weir.

[233] The circumstances that strengthen the probative value of the shell-casing evidence are as follows.

1. The shell casing ended up in the very area where Mr. Weir raised his arm in the air on the second occasion. The surveillance footage shows that Mr. Weir’s body was positioned at that time in such a way that a right- or top-ejecting handgun would eject a casing toward the wall of 26 Densley Avenue, which is where the casing was located by police. Mr. Weir’s torso was turned to the right, so that he was actually facing backward or north toward the Channel 7 camera. His right arm was turned in the same direction, behind his body and to the right. According to Ms. Dann, the most common location for the ejection port on a handgun is on the right-hand side of the slide, although top- and left-ejecting handguns are also manufactured.

2. The top of the shell casing was relatively clean and shiny. It was also perfectly cylindrical, from which it may be inferred that no vehicle had driven over it. (See Exhibit 7, photographs 9-14 taken by P.C. Dhaliwal.) In photograph #10, which Dhaliwal took before he touched or moved the casing, there appear to be only a few specks of loose gravel on the top of it, despite the presence of gravel on the ground. This suggests that if the casing was moved before the police seized it, it was not moved by much.

3. Less than an hour elapsed between 6:15:13, when Mr. Weir raised his arm in the air the second time, and the time when Dropuljic located the casing, which he estimated was about 25 minutes after his arrival, or about 7:05 a.m.

4. The casing was located within inches of the outside wall of 26 Densley Avenue. The Channel 7 video shows the traffic in the driveway between 6:15:13 and 6:30 a.m. Sgroi noted that Ms. Ali and a male in a black and red polo shirt and red shorts were the only people who appear to have come close enough to the wall such that they could have hypothetically disturbed or moved the casing during those 15 minutes. None of the vehicular traffic seen in that footage came that close to the wall.

5. The casing had been fired. According to Ms. Dann, it had been fired only once, as there was only one firing pin depression on the head of the casing. There was no evidence of it having been repacked or re-used.

6. The casing was a nine millimetre Luger-caliber casing which, according to Ms. Dann, is capable of being fired from any nine millimetre weapon, including a semi-automatic handgun. She also testified that the magazine marks on the casing indicate that it was fired from a weapon that employs a magazine. A semi-automatic handgun falls into that category.

7. The object in Mr. Weir’s hand was shaped like a semi-automatic handgun.

8. There is no evidence of any other incident where a gun was fired that evening.

[234] When all of these factors are taken into account, the probative value of the shell casing evidence is significantly strengthened in terms of establishing that the casing was discharged by a handgun held by Mr. Weir. When further circumstantial evidence is also taken into account, including the fact that people ran for cover each time that Mr. Weir raised his arm in the air and that no one is seen running at any other time on the surveillance footage, the probative force of this evidence becomes even stronger.

[235] In my view, the fact that the police did not locate a second cartridge casing is of little consequence. The evidence indicates that any number of things could have happened to a casing ejected from a handgun held by Mr. Weir when he raised his arm in the air the first time. A right-ejecting handgun would have ejected the casing in the direction of the black SUV, or possibly the area between the SUV and the white van, as seen at 6:15:11 on Channel 7. At 6:19:05, the owner of the SUV approached his vehicle and opened the driver’s door. By the start of the next video clip, he had already driven off. If the casing had landed on or was somehow lodged on the SUV, it would have been removed from the scene prior to the arrival of the police.

[236] Another possibility is that the casing was picked up by the male in the white t-shirt and khaki pants as he walked back along the driveway toward the rear entrance of 26 Densley Avenue. The video shows that initially this individual did not have anything in his hands. At 6:16:56, he bent down in the vicinity of the black SUV as though he were picking up something from the ground. The camera’s view of him at this point is partly obstructed by the white van. He took a couple of steps, which brought him closer to the van. He then bent down again, presumably to pick up another object. He then stopped, turned around, and looked south or toward Densley Avenue for a few seconds before continuing to walk north. When he emerged from behind the van, he was carrying a red cup that appears to have a white piece of paper in it. As noted by Sgroi, there also appears to be something darker sticking out of the middle of the cup.

[237] Crown counsel submitted that a third possibility is that the police simply missed the casing. He noted that Dropuljic and Dhaliwal only performed a visual search of the area. They did not use metal detectors.

[238] Given all of the circumstances, I find that no inference, one way or the other, may be drawn from the fact that a second casing was not found. The absence of such evidence obviously does not assist the Crown in proving that Mr. Weir discharged a firearm at 6:15:11. However, it also does not establish that Mr. Weir did not discharged a firearm at that time.

[239] I also find that the absence of muzzle flash when Mr. Weir raised his arm in the air is of little consequence in the context of all of the evidence, and given the fact that its presence depends on a multitude of factors. These include, among other things, the components of the ammunition used, the specific characteristics of the firearm, and whether there is residue present in the barrel of the gun. Even a firearm that produces muzzle flash will not necessarily produce it each and every time that it is discharged. The lighting conditions also affect whether muzzle flash is observed. It is easier to see in dim or lower lighting conditions.

The Evidence of Ms. Farah

[240] Ms. Farah was obviously a reluctant witness. She did not want to be in court. She did not want to testify. I note, however, that she did not demonstrate any animus toward Mr. Weir. As Crown counsel observed, it seemed as though she was trying not to testify against Mr. Weir, as opposed to trying to pin responsibility on him for anything untoward.

[241] Ms. Farah repeatedly claimed that she had no current recollection of this incident. However, it was apparent during her evidence-in-chief that she did, in fact, recall some events, and was not merely interpreting what she saw on the Channel 7 video. For example, prior to being shown the video of her arrival at 26 Densley with Ms. Ali and Ms. Yusuf, she recalled that Ms. Yusuf had injured her leg earlier that evening.

[242] During her evidence-in-chief, Ms. Farah was shown a portion of the video beginning at 6:15:11, when she started to run and then continued running until she reached the area between the white van and the black SUV. When asked why she was running, Ms. Farah responded more or less spontaneously, “I’m running because I heard some gun shots.” When asked why she ran to that particular location, she stated that she “thought it was the most safest at that point.” When asked what direction she thought the gunshots were coming from, she recalled that she initially thought they were coming from behind her, but then came to believe that they were coming from in front of her. She also recalled that no one got hit with a bullet. Ms. Farah did not recall how many shots were fired, but adopted as truthful her earlier statements to police and her testimony at the preliminary inquiry that she heard two shots.

[243] In cross-examination, it was suggested to Ms. Farah that since she has no current recollection of events on May 29, 2016, she cannot say with any certainty that the gunshots were fired at the point when people were ducking down and running, as they appear to be doing at 6:15:11 and 6:15:13, and which happen to be the times when Mr. Weir raised his arm in the air. Ms. Farah responded: “Well, realistically, … it does look like it though. … There’s people running. Why else are people going to run?”

[244] As for her earlier statements to police that the shots were fired after the assault on Ms. Yusuf, Ms. Farah explained that when she spoke to the police and testified at the preliminary inquiry, she told the truth as she believed it to be “in her heart” and at that time. She also stated that it was “not about lying” and that she had made a mistake – that “how I said it, it did not happen” and “yeah, I did mix it up a little bit and that is to tell you that I was not in the right state of mind, cause if I was to see it right now, then I know how it goes.”

[245] Defence counsel submits that Ms. Farah’s original account that she heard the gunshots after the assault on Ms. Yusuf is the more reliable version of events. Ms. Pennypacker noted that Ms. Farah recounted the same order of events on three separate occasions – first to Pathak at the scene, then to Morris at 12 Division three hours later, and finally during her testimony at the preliminary inquiry in March 2017. On each of these occasions, Ms. Farah stated that the male in the hoodie threw his drink in Ms. Yusuf’s face, which led to a physical altercation between them. She stated that she then intervened, and that it was as she was attempting to assist Ms. Yusuf that she heard the sound of gunshots. Ms. Pennypacker submits that Ms. Farah’s original account makes sense as it explains why she did not see a gun or the shooter: she was busy at the time dealing with Ms. Yusuf and the man in the hoodie. It was argued that if, as the Crown alleges, Mr. Weir had a gun in his hand and discharged it as he was walking down the driveway, Ms. Farah would have noticed it.

[246] In my view, the circumstances were such that it would be highly unlikely that Ms. Farah would have observed Mr. Weir holding the gun or discharging it. I note that she was at least three or four car lengths behind Mr. Weir, and there were a number of people between them. The male in the blue shirt and white shorts was behind Mr. Weir and to his right. The people behind him and ahead of Ms. Farah included the male in the black shirt, the male in the orange shirt, the male in the hoodie, Ms. Ali, Ms. Yusuf, and the male in the white t-shirt with the satchel. There was also a potential distraction going on at the time in the sense that the male in the hoodie kept turning around and appeared to be saying something to one or all of the three women – Ms. Ali, Ms. Yusuf and Ms. Farah – who were about 15 feet behind him. In addition, I note that Mr. Weir’s back was to Ms. Farah, and his right arm was over his head for only two seconds. It is hardly surprising in these circumstances that Ms. Farah would not have noticed a gun in his hand.

[247] In support of her position that Ms. Farah’s earlier account regarding the order of events is reliable, Ms. Pennypacker submitted that Ms. Farah was sober when she spoke to the police on May 29, 2016, and not intoxicated as she now claims. Ms. Farah appeared steady on her feet while standing in front of the church and waiting for the police. She was responsive to questions asked of her by Pathak at the scene and by Morris at the station. She did not slur her words or have any difficulty asking Morris for clarification regarding the legal parameters of providing a statement. Morris did not detect the smell of alcohol on her breath, and testified that he would not have conducted the interview if he believed that she was impaired. Defence counsel also noted that when Morris asked Ms. Farah if she had anything to drink that night, she denied having consumed any alcohol. Ms. Farah explained that she lied to the police because she was afraid of getting into trouble for drinking underage – she was only sixteen years old at the time. This was also her motivation in giving a false name to the police.

[248] Taking into account the length of time that Ms. Farah spent with her friends at two after-hours drinking establishments that evening, I find it highly unlikely that she did not consume any alcohol. However, I agree with defence counsel that Ms. Farah’s demeanour on the surveillance videos and Morris’ observations of her suggest that she was not nearly as drunk or affected by alcohol as she now claims.

[249] That said, there are a number of factors that support the Crown’s position that Ms. Farah simply made an honest mistake about the order of events when she spoke to the police. She was not deliberately lying but, as she testified before this court, simply mixed up the order “a little bit” because she was “not in the right state of mind.” First, Ms. Farah had consumed at least some alcohol over the course of that evening. Second, she was no doubt very tired, having been up all night. Third, the gunshots happened unexpectedly or out of the blue – Ms. Farah had no warning, as she did not see a gun or anyone holding a gun before she heard the shots. Fourth, everything happened very quickly. The male in the hoodie assaulted Ms. Yusuf only 21 seconds after Mr. Weir had raised his arm in the air the first time, and only 19 seconds after he had raised his arm in the air a second time. Fifth, hearing gun shots was obviously a very traumatic event. It was a chaotic situation in which Ms. Farah feared for her life. As she stated at one point in her testimony, she was “scared as hell.” In my view, she also quite rightly observed that given these circumstances, she could not be expected to get every detail correct: in explaining how she “mixed up” the order of events “a little bit,” she testified, “But realistically, I’m not supposed to know it from A to Z how it happened and everything.”

[250] Finally, the video footage itself, which is credible and reliable evidence, supports Ms. Farah’s testimony that the time when she heard the gunshots was the time when she is seen running for cover at 6:15:11 and 6:15:13. There is no point thereafter in any of the video surveillance where Ms. Farah, or anyone else, is seen to be running. Channels 7 and 4 and all the other surveillance videos show people simply milling about or walking at a normal pace. There is no indication of a second startling event or second set of gunshots that caused people to duck or run for cover.

[251] In cross-examination, defence counsel drew Ms. Farah’s attention to the 25-second gap in the Channel 7 video between 6:16:28 and 6:16:53, and queried whether that gap caused her to have more confidence in the accuracy of her original statements to the police that the gunshots took place after the assault on Ms. Yusuf. Ms. Farah responded “yes.” However, in re-examination, when the full context of the alleged gap was put to her, Ms. Farah testified that she had no doubt that the Channel 7 video at 6:15:11 and 6:15:13 depicted her reaction to gunshots.

[252] There was, in fact, no gap in the surveillance footage, as Channel 4 covers the entire “gap period” in the Channel 7 footage. Channel 3 covers part of that period. Channel 5 covers the period thereafter, as Mr. Weir and his associates walked to and got into his car, and Ms. Farah, Ms. Yusuf and Ms. Ali walked over to the church. The fact that there was no gap in the surveillance, and that no one is seen running or appearing to react to gunshots or any other startling event after 6:15:13, lends credibility and reliability to Ms. Farah’s evidence on re-examination. In essence, Ms. Farah was right without having had the benefit of watching the Channel 4 video.

[253] In summary, I find that Ms. Farah’s evidence that she was reacting to gunshots when she is seen running for cover at the moments when Mr. Weir raised his arm in the air, as seen on the video, and that there were two gunshots, is both credible and reliable.

CONCLUSION

[254] When all of the evidence in this case is considered as a whole, the only rational inference that can be drawn is that Mr. Weir pulled a handgun from his waistband, fired it twice in the air, and then returned it to his waistband before driving off with his associates. As Crown counsel submitted, in order for there to be another rational inference, there would have to be a remarkable series of coincidences, including the following:

• Mr. Weir pulled out a handgun-shaped dark object from his waistband.

• When Mr. Weir raised his right arm and pointed that handgun-shaped object in the air, Ms. Ali, Ms. Farah, and the male in the white t-shirt with the satchel, hunched their shoulders, ducked their heads, and ran for cover. A second associate of Mr. Weir – the male in the black shirt – hunched his shoulders and ducked his head.

• Those who ran for cover did so right after Mr. Weir’s right hand moved or broke to the right at 6:15:11.

• Ms. Ali, Ms. Farah, and the male in the white t-shirt continued to run for cover when Mr. Weir raised his hand and the gun-shaped object in the air a second time at 6:15:13. Ms. Ali happened to reverse her direction at that point, and ran in the opposite direction from where Mr. Weir was located.

• At that very instant, at 6:15:13, the man in the red shorts ran across Densley Avenue in the opposite direction from Mr. Weir.

• Mr. Weir’s right arm happened to break to the right on both occasions when he pointed the handgun-shaped object in the air, which is consistent with recoil after discharging a firearm.

• Ms. Farah testified that the times that Mr. Weir raised his arm in the air coincided with the times that she heard two gunshots and ran for cover.

• Mr. Weir’s associate in the white t-shirt pulled up his shirt to examine his stomach only seconds after Mr. Weir had twice pointed the gun-shaped object in the air. If the actions of this male are viewed in isolation, one might conclude that he could have been checking his stomach for any number of reasons. However, when viewed in the context of other evidence, there is a strong inference that he was checking to see if he had been shot. It was only five seconds after Mr. Weir had raised his arm in the air the second time that this individual first checked his stomach, by which time he had taken cover between the white van and the wall of 24 Densley. He appeared visibly concerned as he looked briefly toward Ms. Ali, and then checked his stomach again.

• A fired shell casing ended up in the driveway.

• Mr. Weir’s body and right arm were positioned at 6:15:13 in such a way that a top- or right-ejecting handgun would eject a casing to the area where the casing was found in the driveway.

• The casing is capable of being fired from a nine millimetre semi-automatic handgun.

• Magazine marks on the casing show that it was fired from a firearm with a magazine. Semi-automatic handguns use a magazine.

• The gun-shaped object in Mr. Weir’s hand is the same shape as a semi-automatic handgun.

• Mr. Weir tucked the gun-shaped object back into his waistband as he reached the end of the driveway.

[255] These events are not coincidences. Even if Ms. Farah’s evidence is not taken into account, the probability of a coincidental occurrence of all of these events is infinitesimal. The only rational conclusion in all of the circumstances is that Mr. Weir discharged a firearm at 6:15:11 and 6:15:13, as seen on the Channel 7 surveillance footage.

[256] I would add that although the Crown need not prove that Mr. Weir removed the thumb safety on the handgun before he raised his arm in the air, his actions between 6:15:05 and 6:15:09 are certainly consistent with his having done so. He bent his wrist in such a way that he would be able to see the left side of the object he was holding. Ms. Dann testified that on the majority of semi-automatic handguns, the thumb safety is on a right-handed person’s thumb side of the gun, which is the side of the object that Mr. Weir appeared to be looking at. He also held the object very steady as he was looking at it. He then lowered his arm briefly before raising it in the air. It would make sense that Mr. Weir, as a safety precaution, would have engaged the thumb safety before placing a gun in his waistband.

[257] After considering all of the evidence and submissions of counsel, I am satisfied beyond a reasonable doubt that Mr. Weir twice discharged a firearm as he proceeded south along the driveway. In discharging the firearm, Mr. Weir was reckless as to the life or safety of others. The Crown having met its burden, Mr. Weir is accordingly found guilty on count 1. Guilty verdicts are also registered with respect to the related offences set out in counts 2, 3, 4 and 5.

GARTON J.

Released: January 31, 2018

COURT FILE NO.: CR-194/17 DATE: 20180131

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MATTHEW WEIR

REASONS FOR Judgment

GARTON J.

Released: January 31, 2018