Court File and Parties

COURT FILE NO.: CR-18-10000294 DATE: 20190614 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Emile Carrington for the Crown

- and -

ANDREW DOUGLAS Steven Stauffer and Kate Zadorozhnya for Mr. Douglas

HEARD: April 8, 9, 11, 12, 15, 16 and 18, 2019.

REASONS FOR JUDGMENT

CORRICK J.

Introduction

[1] On March 19, 2013, sometime after 10:00 p.m., three armed men entered Richard Kruk’s apartment at 299 Glenlake Avenue to steal money and drugs. During the robbery, Mr. Kruk escaped into the hallway, where one of the intruders shot him in the left ribcage area with a shotgun. One of the other intruders fired a 9 mm. handgun at Mr. Kruk, but missed him. The round went through the door of the adjacent apartment, where it ultimately lodged in the cushion of a sofa in that apartment. Although Mr. Kruk suffered life-threatening injuries, he survived.

[2] Mr. Kruk said that two of the men were black and the third, who carried the shotgun, was Hispanic or of middle-eastern descent. He was unable to describe the two black men, as his attention had been focused on the third man who had trained the shotgun on him. It is alleged that Andrew Douglas was one of the black men.

[3] Mr. Douglas was charged with robbing Richard Kruk while using a firearm contrary to s. 344(1) of the Criminal Code, aggravated assault contrary to s. 268(2) of the Criminal Code, and discharging a firearm at Richard Kruk with intent to wound, maim, disfigure or endanger his life contrary to s. 244(1) of the Criminal Code. He was tried by me without a jury.

[4] The trial was efficiently conducted by Crown and defence counsel, and I thank them for that. They agreed on many of the facts, which shortened the trial. The narrow issue in the trial is whether the Crown has proven the identity of Mr. Douglas as one of Mr. Kruk’s assailants beyond a reasonable doubt.

[5] The Crown’s case against Mr. Douglas is entirely circumstantial.

The Evidence

[6] The victim of the robbery, Mr. Kruk, did not testify. His evidence was the subject of an agreed statement of facts. It was as follows.

[7] On March 19, 2013, sometime after 10:00 p.m., three armed men, dressed in dark clothing, entered his apartment, #3107, at 299 Glenlake Avenue. Two of the men were black, and were armed with handguns. The third man was Hispanic or of middle-eastern descent, and was armed with a shotgun. All three men trained their firearms on him.

[8] The man with the shotgun ordered Mr. Kruk to his knees and demanded to know the location of his safe. When one of the men went into the bedroom to try to open the safe, Mr. Kruk was able to escape into the hallway. While standing in the hallway, he was shot with the shotgun. One of the men fired a 9 mm. handgun at Mr. Kruk, but missed him. That round went through the door of the adjacent apartment, where it ultimately lodged in the cushion of a sofa.

[9] Mr. Kruk sustained life-threatening injuries, but survived.

[10] Mr. Kruk was unable to describe the two black men, as his attention had been focused on the third man who had trained the shotgun on him. He has never identified Mr. Douglas as one of his assailants, although he was shown a photo lineup that included a photo of Mr. Douglas.

[11] At 10:27 p.m., on March 19, 2013, Officer Walker responded to a radio call regarding the sound of gun shots heard at 299 Glenlake Avenue. He and his partner were close by in their squad car, and made their way to the area travelling west on Bloor Street and north on Oakmount Road. While travelling northbound on Oakmount, Officer Walker noticed a red Mazda parked at a 45° angle on the east side of Oakmount between 50 and 100 feet south of Glenlake. It caught Officer Walker’s attention because of its odd position in the street. He thought that the car was running because the tail lights were on. The in-car camera video, Exhibit 4, shows the red Mazda sticking out from the other cars parked at the curb on the east side of Oakmount.

[12] According to the Crown, the red Mazda played a significant role in these offences. It is Mr. Carrington’s theory that after the shooting, Mr. Kruk’s assailants fled on foot to the Mazda, which was being driven by Mr. Taha. They got into the car, and were driven away.

[13] When Officer Walker arrived on the 31st floor of 299 Glenlake, Mr. Kruk was being attended to by other officers. He noticed a bullet hole in the door of apartment 3108, and the blood trail on the carpet leading to Mr. Kruk, and surmised that the shooting had happened outside of apartment 3107.

[14] He testified that there was a stairwell door across from apartment 3107 that led to the back entrance of the apartment building. If one proceeded eastbound from the back entrance through a parking lot, Officer Walker testified that one would be, “almost a dead straight shot across from where that red Mazda” was.

[15] James Gauthier’s evidence was also the subject of an agreed statement of facts. He lived at the corner of Glenlake and Oakmount on March 19, 2013. That night, he noticed many police officers driving by in his neighbourhood. He then noticed a red Mazda pull up on Oakmount and stop. It was idling in the middle of the street with its lights on.

[16] Mr. Gauthier saw two men running east from the back of 299 Glenlake Avenue. They got into the back of the red Mazda through the driver’s side door, which had been opened from the inside. The Mazda then proceeded north on Oakmount and east on Glenlake.

[17] The Mazda proceeded south on Keele Street in the curb lane. Two witnesses saw the Mazda make a sudden u-turn in front of a bus that was also heading south in the centre lane. The Mazda collided with the bus, and left the scene. It proceeded north on Keele Street and turned right on Glenlake Avenue. Marcel Grilo, one of the witnesses, followed the Mazda in his car after witnessing the collision. The Mazda stopped after turning on to Glenlake. Two people got out of the car and fled north. A third person got out of the driver’s side of the car and fled south.

[18] At 10:33 p.m., Officer Wacker saw the red Mazda stopped on the west side of Indian Grove, just south of Glenlake. Mr. Taha was standing outside of the driver’s door. Officer Wacker arrested him for failing to remain at the scene of an accident and for further investigation into the shooting of Mr. Kruk. The red Mazda was seized by police, and was later searched pursuant to a search warrant.

[19] Christine Slanker testified that on March 19, 2013, she lived on the east side of Indian Grove south of Glenlake. At approximately 10:30 p.m., she was on her porch having a cigarette when she saw three men jogging down the street. They were not together, but rather passed her house one after another. They were looking up the street as if someone might be following them.

[20] Two of the men had brown skin, and one was Hispanic-looking. It was an agreed fact that Ms. Slanker had previously identified Russell Bullock at his preliminary hearing and trial as the Hispanic-looking man she had seen that night.

[21] One of the men removed his jacket when he was standing in front of Ms. Slanker’s house, which she thought was odd because it was quite a cold night.

The Police Investigation

[22] That night, police searched the immediate area around Glenlake and Indian Grove, where the red Mazda had stopped. The following items were found strewn in the vicinity.

1. Grey and black Jansport backpack, which contained 2 - 12 gauge shotgun shells
2. Black toque
3. Black North Face jacket
4. Grey North Face nylon jacket
5. Black glove

[23] The two jackets were found discarded in some bushes. The backpack was found on the south sidewalk of Glenlake. All of the items were found in close proximity to each other.

[24] On April 1, 2013, Stephanie Nadler found a sawed-off shotgun near a shed in the back yard of her house at 262 Indian Grove. The shotgun contained a discharged shotgun shell. Ms. Nadler’s house is just north of Glenlake, within one block of where the red Mazda had stopped on March 19. Ms. Nadler did not know how long the firearm had been there because she had not looked in the area where it was found for months. A laneway runs behind the back yard of her house. There is an entrance to that laneway on the north side of Glenlake, across the street from where the backpack was located.

[25] After the Mazda was seized, and a search warrant obtained, Officer Head searched it at the Forensic Identification Services garage. He recovered numerous items, including the following:

1. Blue Jays ball cap from the floor behind the driver’s seat.
2. Scarf on the passenger side of the rear seat.
3. Black leather wallet on the passenger side of the rear seat. It contained $90 in Canadian currency, a business card from Bell and an ultrasound image dated February 5, 2013. The name printed on the ultrasound image was Elizabeth Hatton. It is an admitted fact that Mr. Douglas is the father of a child born to Elizabeth Hatton in 2013. The child was in utero on March 19, 2013.
4. A bottle of Nestea in the centre console.
5. Three cell phones from the centre console. All of the phones were plugged into charging receptacles.

The Forensic Evidence

[26] The items of clothing recovered from the Glenlake and Indian Grove area and the items recovered from the Mazda were submitted to the Centre of Forensic Sciences to be tested for the presence of DNA and gunshot residue.

Gunshot Residue

[27] The report of Robert Gerard, a forensic scientist in the chemistry section of the Centre of Forensic Sciences, dated April 4, 2013, was admitted on consent of the parties.

[28] Mr. Gerard tested samples of debris collected from the black North Face jacket, the grey nylon North Face jacket, and the black glove. He detected five gunshot residue particles, each containing all three elements – lead, barium and antimony – on the samples from the black North Face jacket. He detected three particles containing all three elements on the samples taken from the grey nylon North Face jacket. No gunshot residue particles were detected on the black glove.

[29] Certain limitations must be borne in mind when assessing the results of gunshot residue testing. The presence of gunshot residue particles may be the result of discharging a firearm, being in proximity to a firearm when it is discharged, handling a firearm or a fired cartridge case, or contact with another surface bearing gunshot residue particles. Transference of gunshot residue particles can occur at any time after a firearm is discharged.

DNA Results

[30] James Sloots, a forensic scientist in the biology section of the Centre of Forensic Sciences, tested a number of items recovered from the Glenlake and Indian Grove scene and from the Mazda for the presence of DNA. His qualifications as an expert were not contested, and the five reports he prepared were admitted on consent of the parties. He also testified.

[31] DNA profiles were produced from the various items and compared with DNA samples from Andrew Douglas, Russell Bullock and Fathe Ahmed. Mr. Sloots concluded that Mr. Douglas could not be excluded as the source of the DNA from the grey nylon North Face jacket, the scarf found on the rear set of the Mazda, and the baseball cap found on the floor behind the driver’s seat of the Mazda. A minor contributor of DNA was detected on the grey nylon jacket and baseball cap, but the major contributor was Mr. Douglas. The probability that another person unrelated to Mr. Douglas would share the DNA profile detected on these items was infinitesimally small – 1 in 16 quintillion for the grey nylon jacket, 1 in 86 million for the scarf, and 1 in 1.6 trillion for the baseball cap.

[32] Mr. Sloots explained that the major contributor of DNA on an item is the person who has deposited the most DNA on that item. He would expect that the habitual wearer of a jacket or cap would deposit the most DNA on the item. However, it is not impossible that an occasional wearer could be the major contributor of DNA. His analysis could not determine who wore the item last or when the DNA was deposited.

[33] Mr. Sloots also concluded that Mr. Bullock could not be excluded as the contributor of the DNA found on the black North Face jacket and that Mr. Ahmed could not be excluded as the contributor of the DNA found on the black glove and the bottle of Nestea.

Cell Phones

[34] Three cellular telephones were seized from the Mazda, and one was seized from Mr. Taha’s person when he was arrested. One of the phones found in the Mazda is admitted to be associated with Russell Bullock. Kheria Tahir is the subscriber of a second phone found in the Mazda. Upon his arrest, Mr. Taha asked Officer Abramovitz to place a telephone call to Kheria Tahir, his mother, at 647-784-0675.

[35] The subscriber of the third phone seized from the Mazda was Troy Jackson. The telephone number associated with it was 647-852-5350. Business records from the Employment and Social Services Division of the City of Toronto admitted on consent indicate that Mr. Douglas provided that telephone number as his contact number when he applied for assistance on November 2, 2012, approximately four months before the robbery.

[36] The cell phone found on Mr. Taha’s person when he was arrested was associated with the number 416-823-8057 and a subscriber named as Mike Brown. When he was arrested, Mr. Taha told police that it was his phone. He later testified that it was Mr. Ahmed’s phone.

Mohamed Taha’s Evidence

[37] On March 24 and 25, 2015, Mr. Taha testified in his own defence before Justice A. O’Marra. He was being tried on three charges arising from the events on March 19, 2013 –accessory after the fact to robbery, dangerous driving, and fail to remain at the scene of an accident. Following a contested voir dire, I ruled that a transcript of his evidence was admissible in this trial under the principled exception to the hearsay rule, as necessary and reliable.

[38] Mr. Taha testified as follows. On March 19, 2013 at approximately 8:30 or 8:45 p.m., he left a friend’s house to go to his mother’s house. On the way he stopped at McDonald’s at Queen and Church Streets to get something to eat. He parked his rental car, a red Mazda, and walked to McDonald’s. En route, he met Fathe Ahmed, a friend from school, who told him that he was going to a party. Mr. Ahmed asked Mr. Taha to drive him to buy some weed. He told Mr. Taha that he was in a hurry, and promised to buy him some food and give him money for gas after he got his weed. Mr. Taha agreed.

[39] They walked to Mr. Taha’s car. As Mr. Taha started his car, he saw Mr. Ahmed standing outside of his car talking on the telephone. Once Mr. Ahmed got into the car, he asked Mr. Taha to wait for one of his friends to join them. A person unknown to Mr. Taha joined them shortly afterward and got into the rear seat of Mr. Taha’s car. Mr. Taha later learned through the court process that the person was Russell Bullock.

[40] Mr. Ahmed then asked Mr. Taha to pick up another friend near Church and Front Streets. He agreed. When Mr. Taha stopped his car where directed by Mr. Ahmed, he saw a man he recognized from the community centre approaching his car. He later learned that the man’s name was Andrew Douglas. Mr. Douglas got into the rear seat of the car.

[41] Mr. Taha identified Mr. Bullock in the courtroom, and identified Mr. Ahmed and Mr. Douglas from photographs.

[42] Mr. Ahmed directed Mr. Taha to drive to Spadina and Bloor. When they arrived in that area, Mr. Ahmed told him to continue driving west. He continued to direct Mr. Taha until they stopped on a side street running north off of Bloor Street, west of Keele Street. Mr. Ahmed asked Mr. Taha to wait for him while he went to get his weed. Mr. Bullock and Mr. Douglas plugged their cell phones into the charging cables Mr. Taha had in the Mazda, and left with Mr. Ahmed.

[43] Mr. Taha attempted to park his car at the curb but was unable to do so because the spot was too tight. He left the car jutting out into the street, turned off the engine, and waited for the men to return. He texted some friends on his phone, surfed the internet, and listened to the radio.

[44] A short time later, he saw Mr. Ahmed running toward the Mazda in a panic. He got into the front passenger seat and said, “Let’s get the fuck out of here quickly.” As he was leaving, Mr. Taha saw Mr. Douglas running toward his car, followed by Mr. Bullock. The two men got into the rear of the Mazda. Right away, Mr. Douglas accused Mr. Ahmed of leaving him behind. Mr. Ahmed replied that they were going to go around the building and wait for him. They were arguing amongst themselves and directing Mr. Taha to, “Drive, drive, drive normally.” According to Mr. Taha, the mood in the car was very uncomfortable.

[45] As he drove southbound on Keele Street, Mr. Taha saw a police cruiser enter the intersection. Someone in the back seat said, “They are blocking the road.” Shocked, he turned around and saw a shotgun pointed upwards between Mr. Douglas and Mr. Bullock. He began shaking uncontrollably, and when someone shouted, “Turn,” he turned and struck a TTC bus.

[46] He continued to hear “Go, go, go, drive, drive.” He drove northbound on Keele and was told to turn right at the first street. He stopped because the car was not operating properly. He heard one of the rear doors open. Someone yelled at him to continue driving. He did so for a short distance, but found it too difficult to continue, so he stopped and parked. The other men fled.

[47] After a few moments, he got out of his car. He was approached by a police officer and arrested.

[48] Mr. Taha testified that he had no idea that the three passengers in his car were armed or were going to rob someone. After he saw the shotgun in his car, he was terrified, and simply followed the instructions of the men.

Positions of the Parties

[49] Counsel agree on the following. Three men robbed Mr. Kruk. All three men were armed. The Hispanic-looking man was Russell Bullock. He was armed with a shotgun; the other two were armed with handguns. Mr. Bullock ordered Mr. Kruk to his knees and demanded to know where Mr. Kruk’s safe was. When one of the other men went into the bedroom to locate the safe, Mr. Kruk escaped into the hallway. Mr. Bullock shot Mr. Kruk in the left ribcage area with the shotgun when he was just outside of his apartment. Mr. Kruk suffered serious injuries that endangered his life.

[50] The Crown’s theory is that Mr. Taha drove Messrs. Bullock, Douglas and Ahmed to the area of 299 Glenlake Avenue. While Mr. Taha waited in the car, the three men went to Mr. Kruk’s apartment, and robbed him at gun point. When Mr. Kruk attempted to flee, Mr. Bullock shot him in the back. One of the other men fired a shot that missed Mr. Kruk, but went through the door of the adjacent apartment.

[51] The three men fled out the back door of the building, and returned to the red Mazda. Mr. Taha drove away. He drove south on Keele Street, where he collided with a bus while he was making a u-turn. Despite the collision, he continued driving north on Keele Street, turning right on Glenlake. At this point, the three men fled the car and began discarding things that could connect them to the robbery. Mr. Taha stopped his car on Indian Grove and stood by it until he was arrested.

[52] Crown counsel submits that if he has proven that Mr. Douglas participated in the robbery of Mr. Kruk, Mr. Douglas is guilty of all three offences charged. He is guilty of the robbery as a principal or as a party in that he aided the principal in committing the robbery. He is guilty of the aggravated assault and the discharge of the firearm as a party pursuant to s. 21(1)(b) or s. 21(2).

[53] Defence counsel submits that the circumstantial evidence is insufficient to prove beyond a reasonable doubt that Mr. Douglas was involved in the robbery. It simply connects him to the Mazda, and not to the robbery. The evidence of Mr. Taha is too unreliable and incredible for the court to safely rely upon. In short, although suspicious, the evidence falls short of proof beyond a reasonable doubt.

Applicable Legal Principles

[54] My analysis of the evidence in this trial is governed by fundamental principles that apply to all criminal trials.

[55] The first is the presumption of innocence. This presumption has been with Mr. Douglas throughout the trial and remains with him unless and until Crown counsel satisfies the court beyond a reasonable doubt that he is guilty of the crimes charged. It also means that Mr. Douglas does not have to prove that he is innocent of these crimes.

[56] The second is that the Crown bears the burden of proving Mr. Douglas’ guilt beyond a reasonable doubt. This standard is a very high one. It is not enough for me to believe that Mr. Douglas 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 his 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.

[57] 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 inference to be drawn from all of the evidence is that Mr. Douglas is guilty. Inferences consistent with innocence do not have to arise from proven facts. They can arise from an absence of evidence. If there are reasonable inferences other than guilt, the Crown will not have established his guilt beyond a reasonable doubt: R. v. Villaroman, 2016 SCC 33, at paras. 35 – 36.

[58] 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.

Analysis

Assessment of Mr. Taha’s Evidence

[59] Mr. Stauffer argues that Mr. Taha is not credible and I cannot rely on the evidence he gave at his own trial. He lied to the police and he lied to Justice O’Marra in an attempt to demonstrate that he was used by Mr. Ahmed and his friends, and had no prior knowledge of any plan to rob Mr. Kruk.

[60] Mr. Stauffer argues that Mr. Taha was well aware of the robbery and was part of its plan. This explains why Mr. Taha parked the Mazda in a manner that allowed for a quick escape, why he left the car running, and why the rear door to the Mazda was opened from the inside as the men approached the car, as Mr. Gauthier testified.

[61] Furthermore, he argues that, contrary to Mr. Taha’s evidence that he did not know Mr. Douglas’ name and had only seen him a few times, the two men were in regular contact. He points to the phone records filed in this trial as Exhibit 36, which show that between March 11, 2013 and March 19, 2013, 30 telephone calls were made between a number associated to Mr. Douglas (647-852-5350), and 416-823-8057, the number of the cell phone found on Mr. Taha’s person when he was arrested.

[62] When he was arrested, Mr. Taha told the police that the phone found on his person was his. Later, he told police that he had two cell phones. The second one was located in the Mazda. At his trial, he testified that he owned only one phone. The phone found on his person was not his; it was Mr. Ahmed’s. He testified that he claimed the phone as his own because Mr. Ahmed was the only one of the three men who knew him, and he was terrified that something might “come back” to him or his family if he did not claim ownership of the phone.

[63] Other evidence supports Mr. Taha’s assertion that the phone with the number 416-823-8057 did not belong to him. Mr. Taha testified that the phone with the number 647-707-0104, registered to his mother, was his phone. This number is listed as Mr. Taha’s home phone number on the car rental document found in the Mazda’s glove box. His cell phone number on the car rental document is listed as 647-784-0675, the phone number Mr. Taha provided to Officer Abramovitz when he asked him to call his mother.

[64] In addition, the phone records for 647-707-0104 (the phone Mr. Taha testified was his) for the time period March 11 to March 19, 2013, show 33 contacts with the number 416-823-8057, the phone the defence argues belongs to Mr. Taha. Of those 33 contacts, 27 were telephone calls, ranging in duration from four to 73 seconds. The records also show seven contacts between this phone and 647-784-0675, the number the Crown submits is associated with Mr. Taha’s mother.

[65] Of course, it is possible that Mr. Taha used two cell phones. However, it is not likely that he would call himself 33 times in eight days, and stay connected for up to 73 seconds.

[66] I am satisfied that Mr. Ahmed, not Mr. Taha, is the owner of the cell phone found on Mr. Taha’s person when he was arrested. I am also satisfied that Mr. Taha’s cell phone was found in the Mazda.

[67] Mr. Taha’s evidence must be carefully scrutinized and viewed with caution. He was not cross-examined by anyone representing Mr. Douglas’ interests. He lied to the police about the phone found on his person. He also lied when he told the police that no one else was in his car that night. He did not tell the police that he had driven Mr. Ahmed and his friends to the area to buy weed. Mr. Taha’s credibility is certainly suspect.

[68] However, Mr. Taha’s evidence is confirmed by other evidence. His evidence that he drove Messrs. Douglas, Bullock and Ahmed to the area of 299 Glenlake is confirmed by the following: ▪ Forensic evidence that Mr. Douglas could not be excluded as the source of the DNA found on a baseball cap and scarf in the rear seat of the Mazda, and that Mr. Ahmed could not be excluded as the source of the DNA taken from a Nestea bottle found in the centre console between the driver’s seat and front passenger seat. ▪ A cellular telephone that I find to be Mr. Douglas’, as well as one registered to Mr. Bullock, are found charging in the centre console area of the Mazda. ▪ A wallet containing an ultrasound picture of Mr. Douglas’ unborn child was found in the rear seat of the Mazda. ▪ Mr. Taha was found in possession of Mr. Ahmed’s cell phone when he was arrested.

[69] The phone records also confirm some of the details of Mr. Taha’s evidence. His evidence that he was a friend of Mr. Ahmed but not the other two men is borne out by Mr. Taha’s phone records, which show 33 contacts between Mr. Ahmed and Mr. Taha between March 11 and 19, 2013, and no contacts with Mr. Bullock or Mr. Douglas.

[70] His evidence that Mr. Ahmed and Mr. Douglas were friends is confirmed by Mr. Douglas’ phone records, which show 30 contacts between the two men between March 11 and 19, 2013, including twelve contacts on March 19, 2013.

[71] The records also confirm Mr. Taha’s evidence that Mr. Ahmed was talking on his cell phone before he got into the Mazda.

[72] Finally, Mr. Taha’s phone records show that on March 19, 2013, he sent twelve text messages and received four on his phone between 22:22:56 and 22:28:07, which is consistent with his evidence that he sat in the Mazda texting his friends while he waited for the three men to return.

[73] This confirmatory evidence of many of the details of Mr. Taha’s evidence gives me confidence in the reliability of his testimony.

[74] In addition to the evidence I have already mentioned that confirms Mr. Taha’s evidence that he drove Mr. Douglas to the scene of the robbery, there is other circumstantial evidence linking Mr. Douglas to the robbery.

[75] The various pieces of clothing found in the immediate vicinity of the location where the Mazda stopped after striking the bus connect Mr. Douglas to both the robbery and to Messrs. Bullock and Ahmed.

[76] Mr. Douglas could not be excluded as the major contributor to the DNA found on the inside front and back neck of the grey nylon North Face jacket found strewn in some bushes close to the black North Face jacket, upon which Mr. Bullock’s DNA was found, and a black glove, upon which Mr. Ahmed’s DNA was found.

[77] Mr. Sloots testified that the habitual wearer of the jacket would be the major contributor of DNA found on the jacket, although he agreed that it is possible that an occasional wearer of the jacket could be the major contributor.

[78] Gunshot residue was also found on both the grey nylon jacket and the black North Face jacket.

[79] A backpack containing two red shotgun shells was also found near the jackets and the glove. The red shotgun shells resemble the discharged shotgun shell found in the shotgun located nearby, in the back yard of 262 Indian Grove on April 1, 2013, thirteen days after the robbery.

[80] I find that the two jackets, black glove, backpack and shotgun were discarded by the men who committed the robbery after they fled from the Mazda. I also find that the grey nylon jacket was worn and discarded by Mr. Douglas that night.

[81] Mr. Bullock was found to be the sole contributor of DNA to the black jacket. It was agreed by counsel that Mr. Bullock was the person who carried the shotgun and who shot Mr. Kruk.

[82] The presence of his DNA and gunshot residue on the grey nylon jacket found strewn near Mr. Bullock’s jacket, together with the presence in the Mazda of a scarf and baseball cap with his DNA on them, a wallet with an ultrasound photograph of his unborn child, and his cell phone in the process of being charged, is compelling circumstantial evidence that Mr. Douglas was one of the people who robbed Mr. Kruk. But it is not the only evidence.

[83] There is also the evidence of Mr. Taha, which I accept for the reasons I have already outlined. He testified that Mr. Douglas left the Mazda with Messrs. Ahmed and Bullock, leaving his cell phone in the car, plugged in to charge. He also testified that Mr. Ahmed was the first to return to the Mazda, followed by Douglas and Bullock. This is consistent with Mr. Gauthier’s evidence that he saw two men run from behind 299 Glenlake Avenue and get into the Mazda. According to Mr. Taha, Mr. Douglas immediately began accusing Mr. Ahmed of intending to leave him behind, indicating that they had previously been together. All three men appeared frantic, and demanded that he drive. At one point, he saw a shotgun in the back seat between Mr. Bullock and Mr. Douglas. When he ultimately stopped the Mazda, Mr. Douglas fled with the other two men.

[84] Mr. Stauffer referred me to the decision of R. v. Mars, [2006] O.J. No. 472 in which the Court of Appeal overturned a conviction on the basis of an unreasonable verdict. In that case, the accused was convicted of a number of offences arising from a home invasion robbery. The sole issue in the case was identification. Neither victim was able to identify the accused. The sole evidence connecting the accused to the robbery was his fingerprint found on a pizza box that was used as a prop to gain entry into the victims’ apartment.

[85] The court held that the conviction was unreasonable because one could not infer from the fingerprint evidence alone when the accused had touched the pizza box, and in the absence of any evidence that the accused touched it at the relevant time and place, there was no evidence that connected the accused to the robbery.

[86] The case before me is quite different. There is certainly more forensic evidence than a single fingerprint that connects Mr. Douglas to the robbery. But more importantly, in Mars, the descriptions of the robbers provided by the witnesses were inconsistent with the accused’s description, and essentially exculpated the accused. This was a very important factor in the Court of Appeal’s decision to overturn the conviction. That is not a factor in this case.

[87] When viewed in isolation, the individual pieces of circumstantial evidence do not necessarily point to Mr. Douglas’ guilt. But when considered as a whole, the cumulative effect of each piece is strengthened. After considering all of the evidence as a whole, I am satisfied that it is not reasonably capable of supporting any inference other than that Mr. Douglas was one of the armed men present in the apartment when Mr. Kruk was robbed and shot on March 19, 2013.

The Offences Charged

Robbery

[88] For the reasons I have already stated, I am satisfied beyond a reasonable doubt that Mr. Douglas was one of the three armed men who entered Mr. Kruk’s apartment and demanded to know the location of his safe, intent on stealing from him. All three men trained firearms on Mr. Kruk. One of the men attempted to open the safe. I find that Mr. Douglas was either a co-principal or aider under s. 21(1), and I find him guilty of robbing Richard Kruk while using a firearm. (Count No. 1)

Aggravated Assault and Discharging a Firearm with Intent to Endanger Life

[89] The aggravated assault charge relates to the wounding of Mr. Kruk by the shotgun blast. It is not disputed that the injuries sustained by Mr. Kruk threatened his life.

[90] The discharge firearm charge relates to the discharge of the handgun through the door of the adjoining apartment.

[91] I am satisfied beyond a reasonable doubt that Mr. Douglas was a party to both of these offences under s. 21(2).

[92] I am satisfied that he, together with Mr. Bullock and another man, formed an intention in common to rob Mr. Kruk at gun point, and to assist each other in so doing. The men travelled together to Mr. Kruk’s apartment; they entered his apartment together; they were all armed with firearms, at least two of which were loaded; they all trained their firearms on Mr. Kruk; they fled together after Mr. Kruk was shot; and fled together from the Mazda when it stopped.

[93] It was objectively foreseeable that during this gun point robbery, Mr. Kruk would probably be shot if he tried to escape and be wounded as a result. It was also objectively foreseeable in these circumstances that one of the men would probably discharge a firearm.

[94] Mr. Douglas, as a party to a common unlawful purpose, is guilty of aggravated assault (Count 2), and discharging a firearm with intent to endanger life (Count 3).

Corrick J.

Released: June 14, 2019

COURT FILE NO.: CR-18-10000294 DATE: 20190614 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ANDREW DOUGLAS reasons for JUDGMENT Corrick J. Released: June 14, 2019