Court File and Parties
Court File No.: CR-17-0000504 Date: 2019-05-24 Ontario Superior Court of Justice
B E T W E E N:
Her Majesty the Queen Craig Brannagan for the Crown
- and -
Randi Wasylyk Tyler Smith for Ms. Wasylyk
Heard: March 4, 5, 7, 12 and 13, 2019.
Reasons for Judgment
Corrick J.
Overview
[1] On August 20, 2016, Daniel Green and Randi Wasylyk went to the Square Boy restaurant on Danforth Avenue to get something to eat. Moments after they sat to eat their food, Mr. Green insisted that they leave. They walked south on Jones Avenue. Mr. Green expressed concern that a group of people he saw near Danforth Avenue were following them. Soon after, Mr. Green discharged a firearm at one of the men in the group, striking him in the right leg.
[2] Ten minutes later, police observed Mr. Green and Ms. Wasylyk walking through a school parking lot not far from the site of the shooting. Police approached them and seized a satchel from Ms. Wasylyk’s shoulder, which was found to contain the firearm used in the shooting earlier. It was loaded with one round of ammunition in the chamber.
[3] As a result, Ms. Wasylyk is charged with unlawful possession of a loaded prohibited firearm contrary to s. 95(1) of the Criminal Code, unlawful possession of a firearm contrary to s. 92(1) of the Criminal Code, and accessory after the fact to the offence of discharging a firearm contrary to s. 463(b) of the Criminal Code. She was tried by me without a jury.
Trial Process
[4] The trial was very efficiently and competently conducted by Mr. Brannagan, Crown counsel, and Mr. Smith, defence counsel. It proceeded as a blended voir dire and trial. Counsel first litigated whether the court should exclude the evidence of the firearm as a result of the violation of Ms. Wasylyk’s rights under the Charter. On March 12, 2019, I dismissed Ms. Wasylyk’s application and ruled the evidence of the firearm admissible.
[5] Counsel agreed that the evidence adduced on the voir dire would be evidence on the trial.
[6] The Crown called two civilian witnesses and the three police officers who were involved in the arrest of Mr. Green and Ms. Wasylyk. Ms. Wasylyk and Mr. Green testified for the defence.
The Issues
[7] The issues to be determined on the trial are narrow. The first is whether the Crown has proven beyond a reasonable doubt that Ms. Wasylyk knew that there was a firearm in the bag she was carrying or was wilfully blind to that fact. The second is whether the Crown has proven beyond a reasonable doubt that Ms. Wasylyk intended to possess the firearm for the purpose of assisting Mr. Green to escape police.
Admitted and Non-Contested Facts
[8] The following facts were admitted at trial. The firearm seized from the bag Ms. Wasylyk was carrying was the firearm that was discharged at Danforth and Jones Avenues. The three fired cartridge cases and two damaged fired bullets recovered by the police near the scene of the shooting were fired by that firearm.
[9] The firearm is a prohibited firearm as defined in s. 84 of the Criminal Code, and Ms. Wasylyk did not have an authorization, licence, or registration certificate for the firearm.
[10] Although not formally admitted, it was not contested that on July 20, 2017, Mr. Green was convicted of a number of charges arising from the August 20 shooting, including discharging a firearm with intent to wound.
[11] It was also not contested that Ms. Wasylyk was carrying a bag on her shoulder that contained the firearm when she was arrested.
The Evidence
[12] Two civilian witnesses testified about events leading up to and following the shooting. Jason Jannetta testified that he and his wife went to the Square Boy restaurant on August 20, 2016 at approximately 10:40 p.m. While in line to order food, a man entered the restaurant and confronted another man, who was with a group of friends. The man who had entered had a dark bag across his chest. He had his hand in the bag. Mr. Jannetta had an uneasy feeling about the situation, and immediately left the restaurant with his wife. The man with the bag left behind Mr. Jannetta, followed by the man he had confronted and his friends.
[13] Mr. Jannetta saw the man with the bag and the group walk west on Danforth Avenue and south on Jones Avenue. The man with the bag appeared to be alone.
[14] When Mr. Jannetta stopped his car at a red light at Jones and Danforth Avenues, he heard multiple gun shots, and saw the group of individuals running north on Jones Avenue. Some of them had things in their hands. Mr. Jannetta believed that they were armed. One of the individuals was dragging his leg. His pant leg was covered in blood. Mr. Jannetta got out of his car and rendered first aid. He did not see who had fired the shots.
[15] Mark Mills testified that on August 20, 2016 at approximately 10:30 p.m., he was walking south on Jones Avenue, close to Danforth Avenue, behind a black man and a white woman. The man was walking on the curb side of the sidewalk. Mr. Mills was quite close to the pair because he was trying to go around them because he was walking quickly. When he was less than half a metre behind them, the man turned around and fired a handgun two or three times north toward Danforth Avenue.
[16] Mr. Mills continued walking quickly southbound on Jones Avenue. When he turned to look north, he did not see the man or the woman. He did not know if they had stayed together or separated after the shooting.
[17] The evidence of the police officers is, for the most part, detailed in my ruling on Ms. Wasylyk’s application to exclude evidence. [^1] I do not intend to repeat it here. However, Officers Amah and Hardie gave evidence that was not relevant to the application, but is relevant to the trial. This evidence relates to utterances Ms. Wasylyk is alleged to have made and to her reaction upon being approached by the officers.
[18] Officer Amah testified that Ms. Wasylyk made certain utterances when he approached her in the parking lot. He testified that he asked her, “What is in the bag.” She pulled away and replied, “No, you can’t have it.” He then asked her, “What is in that bag,” and she replied, “Nothing.” At this point, he grabbed the bottom of the bag, felt a heavy object and ripped the bag off of her shoulder.
[19] Officer Hardie testified that Ms. Wasylyk became protective of the bag when she and Officer Amah approached her. Ms. Wasylyk moved her body to the left to try to hide the bag and grabbed the strap of the bag with her left hand.
[20] Two witnesses testified for the defence – Ms. Wasylyk and Daniel Green. Their accounts of the events of August 20, 2016 are essentially consistent.
[21] Ms. Wasylyk testified as follows. At the time of these events, she lived with her mother, sister and 11-year-old son at 30 Blake Street in Toronto. Although she met Mr. Green in 2006, she had lost touch with him for a number of years. They reconnected in June 2015 after she discovered that one of her classmates was Mr. Green’s twin sister. She and Mr. Green exchanged texts and phone calls sporadically. They arranged to get together on August 20, 2016 to get something to eat at Square Boys restaurant on Danforth Avenue.
[22] Sometime between 8:00 and 9:00 p.m., Mr. Green met Ms. Wasylyk in the complex where she lived, and they walked up to the restaurant, which was ten or fifteen minutes away. After waiting in line to order and get their food, they sat outside on the patio to eat. Shortly thereafter, a group of individuals walked into the restaurant. Mr. Green asked Ms. Wasylyk if she knew them. She replied that she did not. Moments later, Mr. Green went into the restaurant. He returned to their table and announced to Ms. Wasylyk in a stern voice that they had to leave. He did not say why.
[23] They walked west on Danforth and south on Jones Avenue. Mr. Green was very angry and tense. He was walking very fast and Ms. Wasylyk could not keep up to him. When she ultimately caught up to him, Mr. Green began looking north on Jones Avenue. At one point, he said, “why are they following us.” Ms. Wasylyk looked back and recognized the group of people from the restaurant. She became frightened and quickened her pace until she was ahead of Mr. Green. She heard some very loud noises that she believed were gun shots. She did not know if she was being shot at, who was shooting or the direction from which the shots came. She froze from fright.
[24] Mr. Green grabbed Ms. Wasylyk’s arm, told her she could not just stand there, and pulled her toward a side street. She ran down a side street to an alleyway, which she knew would ultimately lead her home. When she reached the end of Cavell Avenue, Mr. Green was standing there. He asked her where she had been. He was agitated, tense and angry. He put a bag he was carrying over her shoulder, removed a shirt from it and put it on. As he did that, she saw a police car drive slowly by. Mr. Green grabbed her hand, and they walked toward the police car. At that same instant, the police approached them. Officer Hardie held her left arm while the other three officers dealt with Mr. Green.
[25] Officer Amah ripped the bag off of her shoulder and announced that he had found the firearm. That was when she learned that there was a firearm in the bag.
[26] Daniel Green testified. He is currently serving a nine-year prison sentence for a number of offences related to the shooting on August 20, 2016, including discharging a firearm with intent to wound. He has a lengthy criminal record for offences related to his use and possession of firearms.
[27] He recounted the relevant events consistent with Ms. Wasylyk’s evidence. He first met Ms. Wasylyk nine years earlier but they had fallen out of touch because he had spent much of that time in prison. He got in touch with Ms. Wasylyk through his sister, who went to college with Ms. Wasylyk. They communicated with each other sporadically but had not seen each other until this evening in August.
[28] He was not familiar with the neighbourhood where Ms. Wasylyk lived as he grew up in Ajax and lived in Scarborough. He recalls meeting Ms. Wasylyk on Danforth Avenue near Pape Avenue that night at approximately 10:00 p.m. They walked to the restaurant together. He did not meet Ms. Wasylyk at her house because he did not know where she lived.
[29] They sat on the patio of the restaurant to eat their food. He went inside to throw something in the garbage when he got into an argument with a group of people. When he left the restaurant, he told Ms. Wasylyk in an aggressive tone, “Let’s go.” He had been shot in September 2015, and wanted to avoid a confrontation.
[30] As they walked south on Jones Avenue, he looked back toward Danforth Avenue a number of times. He saw the group of individuals he had argued with in the restaurant. He said something aloud such as, “why are they following me.” Some of the individuals had guns in their hands. He turned around, started to walk north toward the group and fired three or four shots at them. One man fell, and the others fled.
[31] He immediately ran. He ran between houses and hopped fences before arriving at a school parking lot. Almost immediately, he saw Ms. Wasylyk walking on a path that led to the parking lot. When they met, he removed a t-shirt from the bag he was carrying across his chest, and put the bag on Ms. Wasylyk’s shoulder. He put the t-shirt on over the shirt he was wearing in an effort to disguise himself. He testified that he had only wanted Ms. Wasylyk to hold the bag while he put on the t-shirt, but once he saw the police car, he grabbed Ms. Wasylyk’s hand, and walked toward the police car, leaving the bag on her shoulder. He thought that walking hand in hand with Ms. Wasylyk would divert suspicion away from him. He also thought it was unlikely that the police would search Ms. Wasylyk.
[32] Mr. Green denied asking Ms. Wasylyk to carry the bag for him. He denied telling her that he had fired the shots on Jones Avenue or that he had a firearm in the bag.
Positions of the Parties
[33] The facts of this case are largely agreed upon by counsel. Ms. Wasylyk was carrying the bag that contained the firearm used in the shooting at Jones and Danforth Avenues ten minutes before her arrest.
[34] Mr. Brannagan, on behalf of the Crown, submits that Ms. Wasylyk’s evidence that she did not know that Mr. Green discharged the firearm on Jones Avenue, or that the firearm was in the bag that she was carrying is not believable or capable of raising a reasonable doubt. Ms. Wasylyk’s and Mr. Green’s evidence that they just happened to meet up near the entrance to the Blake/Boultbee area is too coincidental, and defies logic and human experience.
[35] Mr. Brannagan submits that Ms. Wasylyk knew that she and Mr. Green left the restaurant because Mr. Green had confronted the complainant in the restaurant. Ms. Wasylyk knew that Mr. Green discharged the firearm and they fled together. Mr. Green was attempting to evade police, and Ms. Wasylyk knowingly assisted him in that endeavour by carrying the bag that contained the firearm. Her attempt to shield the bag from the police officers when they approached her, and her utterances to Officer Amah support his position that Ms. Wasylyk knew that the firearm was in the bag.
[36] Mr. Smith, on behalf of Ms. Wasylyk, submits that the Crown has not established, to the requisite degree of certainty, that Ms. Wasylyk either knew that there was a firearm in the bag or that she was wilfully blind to its presence. He argued that the evidence presented by the defence is credible, and supports his submission that Ms. Wasylyk did not know that Mr. Green discharged the firearm, or that he carried a firearm in his bag. He further argued that the Crown has failed to prove beyond a reasonable doubt that Ms. Wasylyk intended to possess either the bag or the firearm.
[37] In the end, Mr. Smith submitted that Ms. Wasylyk’s guilt is not the only reasonable or rational inference that can be drawn from all of the circumstantial evidence led by the Crown.
Applicable Legal Principles
[38] My analysis of the evidence in this trial is governed by some fundamental principles that apply to all criminal trials.
[39] The first is the presumption of innocence. This presumption has been with Ms. Wasylyk throughout the trial and remains with her unless and until Crown counsel satisfies the court beyond a reasonable doubt that she is guilty of the crimes charged. It also means that Ms. Wasylyk does not have to prove that she is innocent of these crimes.
[40] The second is that the Crown bears the burden of proving Ms. Wasylyk’s guilt beyond a reasonable doubt. This standard is a very high one. It is not enough for me to believe that Ms. Wasylyk is probably guilty. Proof of probable guilt is not proof of guilt beyond a reasonable doubt. On the other hand, it does not require the Crown to establish her guilt with absolute certainty. Nevertheless, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242.
[41] In addition, in a case such as this where the Crown relies on circumstantial evidence to prove guilt, I must be satisfied that the only reasonable or rational inference to be drawn from all of the evidence is that Ms. Wasylyk is guilty. If there are reasonable inferences other than guilt, the Crown will not have established her guilt beyond a reasonable doubt: R. v. Villaroman, 2016 SCC 33, at para. 35.
[42] I am required to make my decision on the basis of the evidence as a whole. The standard of reasonable doubt does not apply to individual pieces of circumstantial evidence. I must determine whether the Crown has met its onus of proof of guilt beyond a reasonable doubt after considering the cumulative effect of all of the evidence: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361; R. v. Smith, 2016 ONCA 25, at paras. 81-82.
[43] The Crown’s case against Ms. Wasylyk rises and falls on proof beyond a reasonable doubt that she was in possession of the firearm. The law of possession is well established. The Crown must prove knowledge and control of the thing that the accused person is alleged to possess: R. v. Terrence, [1983] 1 S.C.R. 357. In this case, to establish knowledge, the Crown must prove beyond a reasonable doubt that Ms. Wasylyk knew or was wilfully blind to the fact that she was carrying a firearm in the bag that Mr. Green put on her shoulder. To establish control, the Crown must prove beyond a reasonable doubt that Ms. Wasylyk exercised control over the firearm, and that she intended to exercise control over it: R v. Farmer, 2014 ONCA 823, at paras. 33–34.
[44] This fact-driven case depends on my assessment of the reliability and credibility of the witnesses. I can accept some, none or all of the evidence of any witness. In addition, I am required to analyze the evidence in accordance with the approach set out by the Supreme Court of Canada in R. v. W.D. (1991), 63 C.C.C. (3d) 397. If I believe Ms. Wasylyk’s evidence, I must find her not guilty. Even if I do not believe her evidence, if it leaves me with a reasonable doubt, I must find her not guilty. Even if her evidence does not leave me with a reasonable doubt, I must find her not guilty unless I am satisfied beyond a reasonable doubt on the basis of all of the evidence that I accept that she is guilty.
Analysis
[45] When I apply these principles to this case, I must find Ms. Wasylyk not guilty of these charges. Despite Mr. Brannagan’s compelling submissions, I am unable to reject the evidence of Ms. Wasylyk and Mr. Green. Their accounts of the events that night might reasonably be true. Their evidence leaves me with a reasonable doubt.
[46] Both Ms. Wasylyk and Mr. Green testified in a straightforward manner. Their accounts were internally consistent, coherent and mutually supportive. In addition, and importantly, their evidence was largely uncontradicted by the other evidence in the trial.
[47] There is no evidence that Ms. Wasylyk knew that Mr. Green had been involved in a confrontation inside the restaurant. She said that Mr. Green’s mood had changed when he returned to their table, and demanded that they leave. He left the restaurant, walking ahead of her, so quickly that she could not keep up with him. This is consistent with Mr. Jannetta’s evidence that Mr. Green appeared to be alone when he saw him leave the restaurant and walk west on Danforth Avenue toward Jones Avenue.
[48] Consistent with Mr. Green’s testimony, Mr. Jannetta saw the group of individuals from the restaurant chasing Mr. Green south on Jones Avenue.
[49] Mr. Mills testified that Ms. Wasylyk and Mr. Green were walking together just before the shooting. However, he did not see what Ms. Wasylyk did once the shooting began. He was unable to say whether they fled the scene together or separately.
[50] Officer Amah first observed Ms. Wasylyk and Mr. Green walking south through the school parking lot from a laneway off of Cavell Avenue, the location where Ms. Wasylyk testified she met up with Mr. Green. Officer Hardie testified that they were holding hands as Mr. Green testified.
[51] The police witnesses testified that Ms. Wasylyk and Mr. Green appeared nervous when they approached them. Mr. Brannagan submitted that this evidence, together with other evidence regarding Ms. Wasylyk’s reactions to the police, support his argument that Ms. Wasylyk knew that there was a firearm in the bag and was attempting to hide it in an effort to assist Mr. Green to evade police. I will consider that evidence now.
[52] Officer Amah testified that when he approached Ms. Wasylyk in the parking lot, he reached for the bag on her shoulder. She pulled away, and said, “You can’t have it.” He then asked her what was in the bag, and she replied, “Nothing.”
[53] Before an utterance made by an accused person to a police officer is admissible in evidence, the court must first determine whether it was made voluntarily. I do not intend to consider the voluntariness of Ms. Wasylyk’s utterances because I am not satisfied that she made them for the following reasons.
[54] First, Officer Amah testified that he recorded Ms. Wasylyk’s utterances verbatim in his notes when he returned to the police station at approximately 3:00 a.m., almost four hours after he had approached her in the parking lot. I do not accept that he recorded verbatim the words spoken by Ms. Wasylyk four hours earlier.
[55] Second, Ms. Wasylyk testified that she said nothing to the officers when they approached her.
[56] Third, Officer Hardie testified that Officer Amah asked Ms. Wasylyk several times what was in the bag, and Ms. Wasylyk did not respond.
[57] Finally, Officer Amah’s evidence was inconsistent with the evidence he gave on this point at the preliminary hearing. He testified at the preliminary hearing that Ms. Wasylyk did not respond to him when he asked her what was in the bag.
[58] For those reasons, I am not satisfied that Ms. Wasylyk said anything to Officer Amah when he approached her in the parking lot.
[59] Officer Hardie testified that Ms. Wasylyk became protective of the bag when she and Officer Amah approached her. According to Officer Hardie, Ms. Wasylyk took a stance to the left and put her left hand up as if to grab the strap of the bag. This is inconsistent with the evidence Officer Hardie gave at the preliminary hearing, when she said that she could not recall whether Ms. Wasylyk reached for the bag or the straps of the bag at any point. She agreed that she had not noted this detail in her notebook despite the fact that it was important. Officer Hardie testified that although she did not remember this detail at the preliminary hearing, despite being asked directly about it, she recalled it now, nearly two years later. I am not prepared to rely on this evidence.
[60] I accept the officers’ evidence that Ms. Wasylyk appeared nervous when four uniformed police officers approached her and Mr. Green from two different directions. I cannot conclude however, that her nervousness is necessarily evidence that she knew that there was a firearm in the bag.
[61] I found Ms. Wasylyk and Mr. Green to be credible witnesses. Mr. Green testified in a natural, spontaneous manner. Nothing in the manner in which he testified suggested evasion or fabrication.
[62] There was nothing about Ms. Wasylyk’s manner of testifying or the content of her evidence that suggested fabrication. She was vague about some details but she explained that Mr. Green’s sudden change in demeanour made her nervous. She was frightened by the group of individuals who were chasing them, and shocked after hearing the gun shots. These are reasonable explanations for her lack of memory of some specific details of the evening.
[63] Although Mr. Green corroborated all of the important details of Ms. Wasylyk’s evidence, there were certain inconsistencies in their evidence. Mr. Green remembered meeting Ms. Wasylyk on the Danforth. Ms. Wasylyk recalled meeting him outside of the building complex where she lived. Ms. Wasylyk testified that after the shooting, Mr. Green grabbed her arm and told her to run. Mr. Green testified that after he fired the shots, he just ran. Ms. Wasylyk recalled Mr. Green removing his satchel when they sat down to eat. Mr. Green testified that he never took it off.
[64] These inconsistencies do not cause me to doubt their credibility. I expect some inconsistencies in the evidence of two people recalling the same event two years after it occurred.
[65] I accept Mr. Brannagan’s submission that I am required to assess the evidence logically, and in light of human experience, to determine if it is reasonably capable of supporting an inference other than that Ms. Wasylyk is guilty. He argues that the defence evidence is not in “harmony with the preponderance of the probabilities” surrounding the circumstances that evening. [^2]
[66] However, I find that the account given by Ms. Wasylyk is plausible and could reasonably be true. She was terrified by the group of people she saw following them. She sped ahead of Mr. Green, while he walked north to shoot. It is reasonable that once she heard gun shots, she did not look back. The two of them were on the west side of Jones Avenue when the shooting occurred so it is reasonable that they would run in a westerly direction. Despite some degree of improbability in their evidence that they just happened to encounter each other in the school parking lot, it may be reasonably true, and I cannot reject it. That Mr. Green used Ms. Wasylyk for his own purposes without her knowledge once he saw the police car is more than plausible, and I find is probable.
[67] In the end, the defence evidence has raised a reasonable doubt that Ms. Wasylyk knew or was wilfully blind to the fact that there was a firearm in the bag that Mr. Green placed on her shoulder.
[68] But more than that, even if I were satisfied that Ms. Wasylyk knew that there was a firearm in the bag, I am not satisfied beyond a reasonable doubt that she intended to exercise control of the bag and its contents.
[69] I find that the bag was on Ms. Wasylyk’s shoulder for a very brief period of time. Mr. Green placed it there while he changed his shirt. He did not ask her. She did not agree to take it. As soon as he changed his shirt, he saw the police, grabbed Ms. Wasylyk’s hand and walked straight toward the police car. He testified that he purposely left the bag on Ms. Wasylyk’s shoulder, thinking that the police were less likely to search her. I am not satisfied that Ms. Wasylyk intended to exercise control over the bag and its contents.
Conclusion
[70] Despite Mr. Brannagan’s skilful and compelling argument, the evidence of Ms. Wasylyk and Mr. Green leaves me with a reasonable doubt. I am not able to reject their accounts after considering them in the context of all of the evidence.
[71] I therefore find Ms. Wasylyk not guilty of all counts.
Corrick J. Released: May 24, 2019