Her Majesty the Queen v. Sentoree Kamara, Shierine Shkais and Shaquille Woodcock

COURT FILE NO.: CR-18-50000416-0000 DATE: 20190712 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - SENTOREE KAMARA, SHIERINE SHKAIS and SHAQUILLE WOODCOCK

Counsel: P. Travers and H. Freeman for the Crown G.C. Holder and M.C. Wong for Sentoree Kamara T. Ounapuu for Shierine Shkais L. Rados for Shaquille Woodcock

HEARD: June 10, 11, 12, 13, 14, 17, 20, 21, 24, 25, 2019

Croll J.

REASONS FOR JUDGMENT

Introduction

[1] Sentoree Kamara, Shierine Shkais and Shaquille Woodcock are charged with various firearm-related offences.

[2] Sentoree Kamara is charged as follows:

Count 1: That she, between the 2nd day of September and the 3rd day of September in the year 2017, in the City of Toronto, did possess a restricted firearm, to wit: a Glock handgun, without being the holder of a licence and a registration certificate under which she may possess it, contrary to section 91(3)(a) of the Criminal Code, R.S.C. 1985, c. C-46.

Count 4: That she, between the 2nd day of September and the 3rd day of September in the year 2017, in the City of Toronto, did possess a restricted firearm, to wit: a Glock handgun, knowing that she was not the holder of a licence and a registration certificate for the firearm, contrary to section 92(3)(b) of the Criminal Code.

Count 7: That she, between the 2nd day of September and the 3rd day of September in the year 2017, in the City of Toronto, did carry and handle a restricted weapon, to wit: a Glock handgun, without reasonable precautions for the safety of other persons, contrary to section 86(3)(a) of the Criminal Code.

[3] Shierine Shkais is charged as follows:

Count 2: That she, between the 2nd day of September and the 3rd day of September in the year 2017, in the City of Toronto, did possess a restricted firearm, to wit: a Glock handgun, without being the holder of a licence and a registration certificate under which she may possess it, contrary to section 91(3)(a) of the Criminal Code.

Count 5: That she, between the 2nd day of September and the 3rd day of September in the year 2017, in the City of Toronto, did possess a restricted firearm, to wit: a Glock handgun, knowing that she was not the holder of a licence and a registration certificate for the firearm, contrary to section 92(3)(b) of the Criminal Code.

Count 8: That she, between the 2nd day of September and the 3rd day of September in the year 2017, in the City of Toronto, did carry and handle a restricted weapon, to wit: a Glock handgun, without reasonable precautions for the safety of other persons, contrary to section 86(3)(a) of the Criminal Code.

[4] Shaquille Woodcock is charged as follows:

Count 3: That he, between the 2nd day of September and the 3rd day of September in the year 2017, in the City of Toronto, did possess a restricted firearm, to wit: a Glock handgun, without being the holder of a licence and a registration certificate under which he may possess it, contrary to section 91(3)(a) of the Criminal Code.

Count 6: That he, between the 2nd day of September and the 3rd day of September in the year 2017, in the City of Toronto, did possess a restricted firearm, to wit: a Glock handgun, knowing that he was not the holder of a licence and a registration certificate for the firearm, contrary to section 92(3)(b) of the Criminal Code.

Count 9: That he, between the 2nd day of September and the 3rd day of September in the year 2017, in the City of Toronto, did carry and handle a restricted weapon, to wit: a Glock handgun, without reasonable precautions for the safety of other persons, contrary to section 86(3)(a) of the Criminal Code.

Count 10: That he, between the 2nd day of September and the 3rd day of September in the year 2017, in the City of Toronto, did discharge a firearm at a place, knowing that or being reckless as to whether another person was present at the place, contrary to section 244.2(3)(a) of the Criminal Code.

Background

[5] On the evening of Saturday September 2, 2017, Toronto Police responded to emergency calls at around 10:56 p.m. for a shooting that took place in the area of 15 Martha Eaton Way in Toronto.

[6] The evidence establishes that there were two scenes of criminal activity, namely the lobby of the apartment building at 15 Martha Eaton Way and the parking lot area outside, at the rear of the building.

[7] A number of cartridge casings and projectiles were found at the two scenes. There was agreement as to the ballistic evidence that was found and analyzed. This agreement, which is set out in Exhibit 16, states, among other things, that the Centre of Forensic Sciences concluded that a minimum of four firearms were represented by the evidence submitted by the police.

[8] Police attended at the scene to investigate. While on scene, they reviewed building video surveillance from outside and inside both 15 Martha Eaton Way and its neighbouring apartment building, 25 Martha Eaton Way. Police also copied the video surveillance and reviewed it at the 12 Division station located across the street.

[9] Through their early investigation, the police had some reason to believe that a firearm may have been brought into 25 Martha Eaton Way.

Expert Opinion Evidence—Characteristics of an Armed Person

[10] Detective Scott Ferguson has worked as the Provincial Coordinator of the Criminal Intelligence Service Ontario (“CISO”) – Firearms Tracing Enforcement (“FATE”) since 2011. Detective Ferguson has been primarily involved with Firearms Enforcement for the past 13 years of his 28-year career with the Toronto Police Service. He has been involved in the investigation of a number of criminal organizations involved with the trafficking and use of firearms.

[11] Since 2006, Detective Ferguson has been responsible for training every Toronto Police recruit in “characteristics of an armed person”. The training is approximately 2 ½ hours in length. He has also lectured at the Toronto Police Firearms Investigators Course.

[12] Detective Ferguson has extensive experience dealing with and observing individuals carrying firearms, and has provided testimony as an expert on “characteristics of an armed person” in five Superior Court trials.

[13] Detective Ferguson’s evidence relates only to Mr. Woodcock and Ms. Kamara.

[14] Following a voir dire held at the beginning of the trial, Detective Ferguson was qualified to give expert evidence about the general characteristics of an armed person.

[15] The Crown also sought to have Detective Ferguson qualified as an expert to give opinion evidence about the general characteristics of an armed person specifically with respect to the video surveillance images. The defence initially objected to the admissibility of this expanded scope of Detective Ferguson’s expertise.

[16] I held that no determination could be made about the admissibility of Detective Ferguson’s evidence about the observations on the video until this evidence was heard. Counsel were advised that if I determined that Detective Ferguson’s opinion evidence with reference to the video surveillance images was not admissible, it would be disregarded.

[17] A second voir dire was held, during which Detective Ferguson offered his opinion evidence about his observations on the video. At the conclusion of that evidence, the defence conceded that Detective Ferguson’s expert opinion evidence about the characteristics of an armed person with reference to the video surveillance images was admissible on the trial proper.

Evidence

[18] With respect to Ms. Kamara and Mr. Woodcock, this case is largely rooted in the video surveillance, Detective Ferguson’s opinion evidence that Ms. Kamara and Mr. Woodcock displayed characteristics of an armed person, and the expert opinion evidence of Dr. Elspeth Lindsay, who was qualified as an expert in the analysis and interpretation of gunshot residue.

[19] There is no video surveillance that captures the shooting, the shooters or where the firearms might have been kept.

[20] The police evidence was that they observed the characteristics of an armed person with respect to both Ms. Kamara and Mr. Woodcock as they watched the surveillance videos that night. It was this observation that led to the securing and searching of units 613 and 2413 at 25 Martha Eaton Way, and the detention and arrest of each of Ms. Kamara, Ms. Shkais and Mr. Woodcock.

[21] The video evidence shows a group of people running away from 15 Martha Eaton Way towards the side entrance of 25 Martha Eaton Way at around 10:52 p.m. on September 2, 2017. Mr. Woodcock, who was wearing a grey hoody sweatshirt and a blue baseball hat, is part of the group shown on the video. It is also the case that men identified as Kevin Oduro, O'Shane Mitchell and Jesse Gayle are part of the group seen on the video moving towards 25 Martha Eaton Way at this time.

[22] Among other things, the video evidence shows Mr. Woodcock entering 25 Martha Eaton Way, and walking down the hallway of the 6th floor toward his residence, unit 613, and entering the unit at approximately 10:53 p.m. on September 2nd.

[23] Just before 2:00 a.m. on September 3, 2017, PC Steven Sgroi was watching real time video surveillance in the security office at 25 Martha Eaton Way. The video surveillance shows a female wearing grey striped leggings and a pink Roots top on the 24th floor of 25 Martha Eaton Way. This woman appears to be on her cell phone and have blonde hair. It is admitted that this woman is Ms. Kamara.

[24] Ms. Kamara is seen taking the elevator to the 6th floor at around 1:56 a.m. and walking to the stairwell beside unit 613. Moments later, Mr. Woodcock is seen to leave unit 613 and enter the stairwell. About a minute later, the video shows Ms. Kamara and Mr. Woodcock leaving the stairwell. Mr. Woodcock re-enters unit 613, and Ms. Kamara walks down the hallway towards the elevator and returns to the 24th floor.

[25] The police were continuing to watch live video surveillance. Shortly after 4:00 a.m., they saw four people leaving unit 2413: two men in hoodies and a man and a woman.

[26] The men in the hoodies who left unit 2413 took the elevator to the 6th floor, where they were greeted by Mr. Woodcock outside unit 613, and then all three went into the unit. The man and the woman who left unit 2413 continued down to the lobby.

[27] Given the pressing concern about a firearm and the imminent loss of evidence, the police made the decision to hold and secure both units 613 and 2413 prior to obtaining a search warrant.

[28] The man and woman detained by PC Joshua Heineman in the lobby of 25 Martha Eaton Way after they left the elevator were Ms. Shkais and Kevin Oduro. This encounter is captured on the building surveillance video, and Ms. Shkais is carrying a large multi-coloured purse.

[29] Both Ms. Shkais and Mr. Oduro were handcuffed and placed together in the back seat of PC Richard Ruiz’s scout car. PC Ruiz placed Ms. Shkais’ purse on the front seat of the car. Ms. Shkais was visibly ill. She had fallen to the floor when detained in the lobby by PC Heineman and she vomited while sitting in the scout car. Detective Jennifer Cash also interacted with Ms. Shkais that evening. Her notes indicate that Ms. Shkais was upset, and that Ms. Shkais told her she was having issues breathing. In short, Detective Cash’s notes confirm what is apparent on the video, that Ms. Shkais was not feeling well.

[30] An ambulance soon arrived to attend to Ms. Shkais. PC Ruiz gave Ms. Shkais’ purse to PC Jenna Gillespie, who was in the back of the ambulance with Ms. Shkais. PC Gillespie asked Ms. Shkais if she had her health card, and searched the purse, both for identification and to ensure that there was no weapon. Within the purse was a black leather satchel bag, and within the satchel bag was a handgun. It is agreed that this is the same black satchel that Mr. Oduro is seen wearing on the video taken at 15 Martha Eaton Way when a group is moving a table in the lobby earlier in the evening, and the same black satchel that Mr. Oduro is seen wearing on the video when he was part of the group that moved to 25 Martha Eaton Way after the shooting.

[31] This firearm was sent to the Toronto Firearms Investigation and Analysis Unit of the Toronto Police, where it was examined and analyzed by a trained expert examiner of weapons. It is agreed that the firearm found is a Glock Model 17 Luger 9 mm calibre semi-automatic handgun (“Glock”), with the serial number UMS130. This handgun was operable and classified as a restricted firearm as defined in section 84 of the Criminal Code. It was also agreed that an S&B 9 x 19 cartridge casing seized by police from the north side of the visitor parking lot at 15 Martha Eaton Way on September 3, 2017 was sent to the Centre of Forensic Sciences where it was examined by Amanda Myslik, a forensic scientist with expertise in firearms and tool marks. She identified this cartridge casing, within the limits of practical certainty, as having been fired by the Glock with serial number UMS130.

[32] While Ms. Shkais and Mr. Oduro were being detained, police officers undertook entry of both units 613 and 2413 in order to secure them prior to the issuance of the search warrants.

[33] At 5:00 a.m., the police made a forced entry into unit 613. Six people were found inside and detained: Shaquille Woodcock; Lawrence Woodcock, the father of Shaquille Woodcock; Tyrell Scott, age 10; Shane Reid; O'Shane Mitchell and Maxine Woodcock. PC Sgroi who participated in the forced entry had had prior dealings with both Mr. Reid and Mr. Mitchell, and each man was arrested.

[34] At 6:45 a.m. Shaquille Woodcock was arrested for possession of a firearm.

[35] The search warrants were authorized at 6:56 a.m.

[36] When the search of unit 613 was effected, the police seized, among other things, a blue and white Dodgers hat and a grey hoody sweatshirt with a white Nike logo. This was the clothing that Mr. Woodcock had been seen wearing earlier that evening. Some cash and identification in the name of Mr. Woodcock was also seized. No guns, drugs or contraband were seized from unit 613.

[37] There was an entry to unit 2413 at around 5:10 a.m. It was not a forced entry, as PC Joe MacLean had obtained a key to the unit. The occupants in unit 2413 at the time were Ms. Kamara; Teniqua Chambers; Martika Mattis; Ahmed Shkais and a child.

[38] No contraband was found when the search warrant was executed in unit 2413. However, based on earlier video surveillance, the police determined that Ms. Kamara was arrestable for unauthorized possession of a firearm. Ms. Kamara was arrested at approximately 8:12 a.m.

GSR Evidence

[39] As stated, Dr. Elspeth Lindsay of the Centre of Forensic Sciences was qualified as an expert in the analysis and interpretation of gunshot residue (“GSR”).

[40] In general, Dr. Lindsay stated that people not exposed to firearms or discharged ammunition components are not expected to have GSR particles on their hands or clothing, and that finding GSR particles on a person is not proof that that person discharged a firearm.

[41] Dr. Lindsay acknowledged that if GSR is found on a person’s clothing, it can mean either that the person discharged a firearm, that the person was near to a person who discharged a firearm, or that a person handled a firearm. She noted that the number of GSR particles found does not indicate which activity led to the deposit of GSR.

[42] Dr. Lindsay also explained transference of GSR. Her evidence was that if a person touches an object with GSR particles on it precisely where the particles are located, those GSR particles can be transferred to the person touching, and in turn, possibly transferred to another object. Similarly, if an object with GSR particles touches another object, there may be transference of the particles.

Shaquille Woodcock

[43] Mr. Woodcock gave evidence on his own behalf.

[44] Mr. Woodcock was raised at unit 613, 25 Martha Eaton Way. He left home to work in Alberta for a few years and was living back at 25 Martha Eaton Way in September 2017.

[45] Mr. Woodcock has a criminal record. It consists of five convictions in Alberta for failures to comply with a recognizance, in the period from May 2013 to October 2014.

[46] In September 2017, Mr. Woodcock was working in construction through a temp agency. He was also selling weed or marijuana on the side. He stated that he sold marijuana to people in his neighbourhood, including to Ms. Kamara. His evidence was that there was probably more than two ounces of marijuana in his room on September 2nd, 2017.

[47] It was Mr. Woodcock’s evidence that at around 6:00 p.m. on September 2nd, he had taken his 9 year-old nephew, Tyrell Scott, to a birthday party in the party room at 15 Martha Eaton Way. Tyrell is the son of Mr. Woodcock’s sister. The party was to celebrate the first birthday of Tyrell’s young cousin, the daughter of Shanelle Ricketts.

[48] It was Mr. Woodcock’s evidence that after the party, he helped with moving a table from the party room to Ms. Ricketts’ car, a blue Land Rover, which was in the parking lot of 15 Martha Eaton Way. This assistance is captured on the video surveillance. Kevin Oduro, O’Shane Mitchell and Shane Reid are also seen on that video, and at a point Mr. Reid is helping Mr. Woodcock carry the table. These are men that Mr. Woodcock has known since childhood.

[49] According to Mr. Woodcock, as he was putting the party table into the back of the Land Rover, he joked with Ms. Ricketts that he was taking the mickey of Jack Daniels from the back as compensation for his hard work cleaning up after the party. He stated that he put this bottle into the front pocket of his hoody sweatshirt.

[50] Mr. Woodcock stated that right after he took the bottle, he heard the sound of a gunshot from a distance. According to Mr. Woodcock, he grabbed his nephew and dove down to the concrete. He stated that he was lying in the fetal position in the area between the blue Land Rover and white van shown in the parking lot photos. Mr. Woodcock’s evidence was that the first shot sounded like it came from the area of the parking roundabout in front of 15 Martha Eaton Way. He then stated that he heard another shot closer, from about a foot away.

[51] Mr. Woodcock testified that he did not know who was firing the gun. His evidence was that when he got up, he heard screams and saw everyone running all over. He stated that as he got up, Mr. Oduro was also in the area between the blue Land Rover and the white van. Mr. Woodcock stated that he saw an object in Mr. Oduro’s hands and it appeared to him that Mr. Oduro was putting the object into his side bag.

[52] Mr. Woodcock testified that he ran to safety with his nephew; that he helped his nephew and some girls climb over the fence separating the parking lot at 15 Martha Eaton Way from 25 Martha Eaton Way; that he and his nephew moved quickly towards 25 Martha Eaton Way and that they re-entered 25 Martha Eaton Way through the side door. His evidence was that he still had the mickey of liquor in his hoody pocket, and that his keys and cell phone were in his pants pocket.

[53] Mr. Woodcock stated that once in unit 613, he put the mickey in the refrigerator, went into his room, and threw his hoody sweatshirt and blue hat on to the top of a shopping bag.

[54] According to Mr. Woodcock, he then received a phone call from Ms. Kamara. He left unit 613 to meet her in the nearby 6th floor stairwell to sell her $20 worth of weed. After a brief encounter with Ms. Kamara in the stairwell, Mr. Woodcock returned to his room in unit 613. This encounter is captured on video surveillance and took place at around 2:00 a.m.

[55] Mr. Woodcock’s evidence was that in those early morning hours, he also received a phone call from Shane Reid, who wanted to come over to Mr. Woodcock’s. According to Mr. Woodcock, he told Mr. Reid that he could not come, as his parents were home and his father was very strict. However, his evidence was that Shane Reid and O’Shane Mitchell called him from the hallway, he stepped out and ultimately let them in for only half an hour, ostensibly to charge their phones. This encounter is captured on the video and occurred just after 4:00 a.m.

[56] According to Mr. Woodcock, the police made their forced entry into unit 613 very soon thereafter. Mr. Reid and Mr. Mitchell were found in Mr. Woodcock’s room when the police entered.

[57] Mr. Woodcock testified that he never saw a gun that evening. He denied being a shooter that evening; denied that he knew anything about the shooting or the firearm; denied that he saw Kevin Oduro fire a gun that night; and denied that he saw a car driving away after the gunshots were fired.

Theory of the Crown

[58] The Crown theory is that Mr. Woodcock was one of the shooters that night; that he brought the gun into unit 613 at 25 Martha Eaton Way after the shooting; that he transferred it to Ms. Kamara in the 6th floor stairwell and that Ms. Kamara took the gun back up to unit 2413. The gun was then found in the purse of Ms. Shkais after she left unit 2413.

[59] Given this theory, I will begin with Mr. Woodcock.

Mr. Woodcock

[60] There is no issue that Mr. Woodcock was near the blue Land Rover when shots were fired. There is, as well, no issue that he returned to 25 Martha Eaton Way after the shooting. The questions, of course, are whether Mr. Woodcock was carrying the gun, and whether he had fired it in the parking lot.

[61] The Crown submits that when Mr. Woodcock is observed in the video returning to 25 Martha Eaton Way, and in the hallway video that follows as he is returning to unit 613, he is seen to display the characteristics of armed person.

[62] The Crown points to a swinging motion in Mr. Woodcock’s hoody sweatshirt as he is walking back to the entrance area of 25 Martha Eaton Way with his nephew. The Crown submits that this swinging or pendulum motion is indicative of a weighted object in the pocket of Mr. Woodcock’s hoody, and that the bottle of Jack Daniels that Mr. Woodcock says he was carrying would not be heavy enough to create such a swinging motion.

[63] The Crown submits that as Mr. Woodcock is seen to enter through the side door of 25 Martha Eaton Way, a protrusion is visible in his hoody pocket and that Mr. Woodcock makes multiple security taps against his pocket. According to Detective Ferguson, a security tap is the touching or brushing of a concealed weapon that both criminals and the police engage in to ensure that the firearm is there.

[64] The Crown further submits that in the video surveillance of Mr. Woodcock as he is walking down the 6th floor hallway, Mr. Woodcock is holding his right arm tight to his body, and that his right hand is holding his front waist area, covering his hoody sweatshirt. The Crown position is that the straight right arm is indicative of an armed person, as it is held that way in order to keep the firearm in place. The Crown notes the difference between the tight, stationary position of Mr. Woodcock’s right arm, compared to that of his left arm that appears to be swinging freely. The lack of swinging is apparent when Mr. Woodcock’s arm movement is compared to that of his nephew Tyrell. The Crown, in particular, draws attention to still images of Mr. Woodcock in this hallway where it submits that an L-shaped outline of a gun can be seen in the hoody pocket. The Crown position is that the L-shaped outline does not reflect the shape of the Jack Daniels bottle.

[65] It was the evidence of Dr. Lindsay that in total, 65 GSR particles were found on the hoody sweatshirt that Mr. Woodcock had been wearing that evening and which was seized from his apartment. Two of these particles were found in the inside hoody pocket.

[66] The Crown position is that when the observations of Mr. Woodcock that night are considered along with the GSR evidence, the only reasonable inferences to be drawn are that Mr. Woodcock was in possession of a firearm that night and that he discharged the firearm in the parking lot.

[67] In advancing its theory, the Crown urges me to reject the evidence of Mr. Woodcock. In particular, the Crown submits that Mr. Woodcock’s version of events that night is too scripted and convenient to be credible. Among other issues, the Crown submits that

i. If Mr. Woodcock had been merely a bystander to the shooting, he would have spoken to his family or friends about it;

ii. The glass liquor bottle would have broken at some point, either when Mr. Woodcock dove to the ground immediately upon hearing the first shot, when he helped others climb the fence, or when he himself climbed the fence to return to 25 Martha Eaton Way after the shooting;

iii. Mr. Woodcock and Ms. Kamara were in the stairwell longer than was necessary to complete a simple hand-to-hand drug transaction; and

iv. Mr. Woodcock’s evidence about Mr. Reid and Mr. Mitchell wanting to charge their cell phones does not make sense, given that they had previously been in unit 2413 where they could have charged their phones, and that no phone belonging to Mr. Reid or Mr. Mitchell was found in the search of unit 613.

Analysis

[68] Where one or more elements of an offence relies largely on circumstantial evidence, an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits (see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000; also R. v. Gill, 2017 ONSC 3558). As stated in Villaroman, the issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. That said, circumstantial evidence is not to be evaluated piece by piece, but rather, the evidence is to be considered as a whole and assessed cumulatively (see R. v. Ukwuaba, 2015 ONSC 2953).

[69] This caution that circumstantial evidence is not to be assessed in a piecemeal fashion, but rather must be assessed cumulatively, was also set out by the Ontario Court of Appeal in R. v. Wu, 2017 ONCA 620, where the Court stated, at para. 15:

It is also important to note that where evidence is circumstantial, the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact. It does not apply piecemeal to individual items of evidence. Here, having regard to the manner in which the case was put to us by the appellant, the words of this Court in R. v. Uhrig, 2012 ONCA 470, at para. 13 are particularly apt:

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] 2 S.C.R. 345, at p. 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: Cote v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.

[70] In assessing all the evidence, I note the following:

i. Mr. Woodcock’s evidence that he was moving the party table just prior to the shooting is consistent with what is seen on the video of the lobby of 15 Martha Eaton Way. In that video, there is no bulge or other protrusion seen in his clothing that could be indicative of a characteristic of an armed person. Detective Ferguson testified that when he reviewed the lobby video in court, he did not observe Mr. Woodcock to display any characteristics of an armed person. That said, Detective Ferguson noted that there were people in front of Mr. Woodcock obstructing his observation, and he had not had the opportunity to review the lobby video frame by frame as he had done with other videos prior to testifying. While I appreciate the provisos to Detective Ferguson’s evidence, I have had the opportunity to review this video evidence and see no obvious protrusion. There is no issue that Mr. Woodcock was moving the table moments before the shooting.

ii. Mr. Woodcock did not carry any knapsack or other type of bag in which a gun could be concealed from the lobby of 15 Martha Eaton Way to the parking lot. This is in contrast to the observations made of Kevin Oduro who was carrying a black satchel. Detective Ferguson testified that satchels are often used to conceal handguns. The gun was found in Mr. Oduro’s black satchel. Accordingly, it is possible that Mr. Oduro used the gun that night and kept it in his satchel.

iii. According to Detective Ferguson, both Shane Reid and O'Shane Mitchell who were seen in the lobby video of 15 Martha Eaton Way prior to the shooting displayed some characteristics of an armed person. These men were later both seen to leave unit 2413 at 25 Martha Eaton Way. As such, it is possible that one of those men brought a gun into unit 2413.

iv. After the shooting, on the return of the group to 25 Martha Eaton Way, Mr. Oduro wore his hood over his head, whereas he was not wearing his hood earlier in the lobby of 15 Martha Eaton Way. Further, whereas Mr. Woodcock entered 25 Martha Eaton Way, Mr. Oduro and another male, also with his hood up, backtracked towards the scene. According to Detective Ferguson, these two men displayed characteristics of an armed person when observed on the video surveillance after the shooting. That Mr. Oduro went back to the scene is confirmed by the blue coloured Mickey Mouse bag, which held party supplies. Mr. Oduro was seen carrying the bag when he returned to 25 Martha Eaton Way after the shooting, but the bag was later found on scene in the parking lot of 15 Martha Eaton Way.

v. The Crown submits that Mr. Woodcock should have been able to see who fired a gun nearby to him, given the parking lot lighting. While there was some artificial light in the parking lot, the shooting took place in the evening and there was some reduced visibility.

vi. The Crown suggests that Mr. Woodcock’s pace leaving the parking lot scene would have been faster if he was not involved in the shooting. In other words, he was not running because he knew the shooting, and the danger, was over. I am not persuaded that this is necessarily the case. In contrast, it may be the case that the shooter’s pace would have been faster, given his or her desire to flee the scene.

vii. There is no footage of Kevin Oduro, Shane Reid or O'Shane Mitchell from within 25 Martha Eaton Way, and as such, no opportunity to compare their movements to that of Mr. Woodcock, and no opportunity to assess whether they were later displaying characteristics of an armed person.

viii. There were no observations of who entered unit 2413 after the shooting, except for Ms. Kamara returning from the stairwell encounter. This leaves the possibility that Mr. Reid or Mr. Mitchell, who were later seen to exit unit 2413, could have brought the firearm into that unit.

ix. Detective Ferguson did not identify an L-shaped object in the pocket of Mr. Woodcock’s hoody sweatshirt when he was at the corner on the 6th floor hallway with the precision that the Crown suggests is obvious. Detective Ferguson described what he observed as a sharp shape and stated that Mr. Woodcock placed his left hand over it, doing a security tap.

x. There are inherent limitations in assessing how one carries items in his or her pockets. While the Crown points to security taps by Mr. Woodcock as indicative of the characteristics of an armed person, he is also seen on video to tap his sweatpants pockets, and there is no suggestion that the firearm was in his pockets.

xi. While the Crown points out that on the 6th floor hallway, Mr. Woodcock’s right arm was not swinging, but held close to his side in the manner of an armed person, it is also the case that Mr. Woodcock was holding his keys in his right hand. The holding of the keys may also explain the restricted movement in Mr. Woodcock’s right arm.

xii. The Crown submits that a firearm would move differently in a hoody pocket than a liquor bottle, which weighs less than the firearm. While this may be the case, the difference in movement and how it affects a bulge or protrusion, on its own is too vague or inexact to be meaningful.

xiii. The evidence of Detective Ferguson about Mr. Woodcock (and Ms. Kamara) must be considered in the context by which information about this case was first provided to him. Both Mr. Woodcock and Ms. Kamara were singled out for selection by virtue of the footage provided, the accompanying CCTV stills, and superimposed red circling on those stills. Such circling could be understood as highlighting Mr. Woodcock and Ms. Kamara for selection as armed persons. While Detective Ferguson testified that the synopsis and still photographs that he received did not impact his opinion, in my view, the risk of inadvertent tainting cannot be disregarded.

xiv. There is circumstantial evidence to support Mr. Woodcock’s evidence that he was in the stairwell to sell marijuana to Ms. Kamara. A quantity of marijuana was found in his room in unit 613; and marijuana-themed trays with debris on top, consistent with marijuana specks, were found in unit 2413, the unit from which Ms. Kamara left and the unit to which she returned.

xv. The Crown suggests that it is incredible that Mr. Woodcock did not discuss the shooting with anyone after it occurred; in particular, his father, his sister, Mr. Reid or Mr. Mitchell. In my view, while his failure to discuss the shooting may belie any moral or civic obligation, it is not unbelievable. Mr. Woodcock explained that his father was strict, and he did not want to worry his sister. With respect to discussing the shooting with his associates, Mr. Woodcock’s evidence was “if you know, you know; if you don’t know, you don’t want to know”. Again, while not the response of a model citizen, given the context, I am not persuaded that his failure to discuss the shooting goes to Mr. Woodcock’s credibility.

xvi. The fact that the Jack Daniels bottle did not break does not mean that Mr. Woodcock was untruthful when he stated that he held a Jack Daniels bottle in the pocket of his hoody sweatshirt, as suggested by the Crown. The bottle plausibly could have been cushioned between his sweatshirt pocket and his nephew, whom he covered when they went to the ground.

xvii. The fact that Mr. Woodcock did not voluntarily drop the bottle during the mayhem does not mean that Mr. Woodcock was untruthful. Other bystanders who apparently hopped the fence and ran to 25 Martha Eaton Way were also seen to be carrying items of little value.

xviii. According to Dr. Lindsay, the GSR residue found on the back of Mr. Woodcock’s sweatshirt is consistent with his evidence that he was down in a fetal position, on his backside with his right side exposed.

xix. Dr. Lindsay testified that bystanders to a shooting may actually end up with more GSR than shooters themselves. She acknowledged that by her own tests conducted in-house at the Centre of Forensic Sciences, a shooter might receive only a single particle on his hands. Accordingly, the presence of GSR on Mr. Woodcock may be consistent with having been a bystander to a shooting.

xx. Mr. Oduro’s sweatshirt was tested for GSR and a single particle was found. Dr. Lindsay referred to findings that range from one particle to a thousand particles. The difference between a single particle on Mr. Oduro’s sweater and 63 particles on Mr. Woodcock’s must be measured within this wide range. Further, Dr. Lindsay’s evidence was that GSR deposited on clothes can be rapidly lost if a person continues to wear them while performing tasks over the course of several hours. It was Mr. Woodcock’s evidence that he took off his sweatshirt as soon as he got home and placed it on the top of the shopping bag. When Mr. Woodcock is seen to leave the apartment later to meet Ms. Kamara, he is not wearing the sweatshirt. In contrast, whenever Mr. Oduro is captured on video throughout the evening, he appears to be wearing the same black hoody sweatshirt upon which the GSR particle was found. It is plausible that there originally were more GSR particles on his sweatshirt, but that they were displaced with movement.

xxi. Dr. Lindsay acknowledged that if a person’s hands were exposed to GSR on a shooting and that person put his hands into his hoody pocket, GSR could then be transferred to, and found, in the pocket.

[71] Overall, the Crown case against Mr. Woodcock rests largely on the inferences to be drawn from the evidence of characteristics of an armed person, the evidence relating to the GSR found on his clothing, and the Crown’s submission that Mr. Woodcock’s version of events cannot be believed. In particular, the Crown submits that the evidence of Mr. Woodcock about carrying a bottle in the pocket of his hoody sweatshirt and selling marijuana in the stairwell describes a series of events that defies coincidence. The Crown submits that the only reasonable inferences that can be drawn is that Mr. Woodcock is guilty of the offences charged.

[72] With respect, I do not agree.

[73] As discussed, Detective Ferguson’s evidence was that at various relevant points in time that evening, Mr. Woodcock had an object in the front pocket of his hoody sweatshirt. Indeed, this is apparent on some of the video clips. However, as was the case in R. v. S.B., 2013 ONSC 3139, at para. 70, there is nothing in the video surveillance that assists in determining what that object was. In particular, the L-shape outline of what the Crown submits was a firearm in Mr. Woodcock’s pocket on the 6th floor hallway was not specifically identified by the expert evidence of Detective Ferguson. More importantly, while what the Crown points to could have been a gun, could have been is not enough.

[74] As stated in S.B., at para. 74:

I will add, on the issue of Detective Ferguson's evidence generally that, while I appreciate that the characteristics of an armed person is a matter of importance for police officers to understand for the purposes of officer and public safety, the knowledge of those characteristics does not translate to proof, for evidentiary purposes, that a person is, in fact, armed. While an officer, equipped with the knowledge of the characteristics of an armed person, will govern his conduct accordingly and thus be in a much better position to protect himself and others, the opinion or presumption that a person may be armed does not equate to the reality that the person is armed. The law requires more than hunches or presumptions to establish a fact for evidentiary purposes.

[75] While circumstantial evidence must not be assessed in a piecemeal manner, the evidence about the characteristics of an armed person is the linchpin of the Crown’s case. Yet it does no more than give rise to a hunch or presumption. In my view, this hunch or presumption is not appreciably enhanced by the GSR evidence in this case, given its limited probative value, due to the randomness of how GSR may attach, and how it may be transferred.

[76] As well, the Crown’s evidence must also be considered, together with the evidence of Mr. Woodcock. It is well established by the rule in R. v. W.(D.), [1991] 1 S.C.R. 742 that if I believe Mr. Woodcock’s evidence that he did not commit the offences charged, I must find him not guilty. Even if I do not believe Mr. Woodcock’s evidence, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty. Even if Mr. Woodcock’s evidence does not leave me with a reasonable doubt of his guilt, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

[77] I share the Crown’s view that there are some elements of Mr. Woodcock’s evidence that appear to allow him to conveniently refute the Crown’s position. However, there is evidence to corroborate Mr. Woodcock’s evidence that he was selling marijuana to Ms. Kamara in the stairwell that night, namely the marijuana found in his room and the evidence of marijuana use found in unit 2413. As well, there are no characteristics of an armed person observed of Mr. Woodcock as he is moving the party table, moments before the shooting.

[78] In sum, on the evidence as a whole, it cannot be said that the only reasonable inference to be drawn from the evidence is that Mr Woodcock was in possession of the gun that night, or that Mr. Woodcock was the one to discharge the gun in the parking lot. As reviewed, there are other alternate suspects inherent in the Crown case. The Crown has not established the guilt of Mr. Woodcock beyond a reasonable doubt.

[79] Mr. Woodcock is not guilty of Counts 3, 6, 9 and 10.

Ms. Kamara

[80] The Crown’s case against Ms. Kamara begins with her receiving the firearm from Mr. Woodcock. Given that I have found Mr. Woodcock not guilty of possession of the firearm, it follows that there was no firearm to transfer to her in the stairwell. Ms. Kamara is also not guilty of the charges she faces.

[81] However, should I be found to be in error in determining that Mr. Woodcock was not guilty of possession of the firearm, and in the interests of completion, I will consider the evidence against Ms. Kamara.

[82] Similar to the case against Mr. Woodcock, the Crown case against Ms. Kamara is rooted in the video surveillance of her and the GSR evidence of Dr. Lindsay.

[83] Detective Ferguson’s conclusion, after reviewing the video surveillance, was that Ms. Kamara’s actions and physical behaviour, in totality, were consistent with the possession and concealment of a firearm. In particular, he noted that she was walking at a faster pace as she left the 6th floor stairwell then when she was walking towards it; that when she left the stairwell, she appeared to have an object protruding from the front right area of her sweatshirt, whereas when she was observed before she entered the stairwell, that area of her clothing appeared to be smooth.

[84] That said, Detective Ferguson acknowledged that a person speaking on a cell phone, as Ms. Kamara was when she was first seen walking down the hallway, would arguably walk more slowly than a person who was not on a cell phone. He also acknowledged that he could not determine if what he observed about Ms. Kamara were natural rolls in her sweater or protrusions. I have reviewed the video clips repeatedly and cannot make this determination. Further, in my view, the image quality of the videos does not allow for any distinction to be made between the outline of Ms. Kamara’s pocket before she entered the stairwell and after she left the stairwell.

[85] Detective Ferguson also made observations when Ms. Kamara was on the elevator returning to the 24th floor. Detective Ferguson testified that when Ms. Kamara entered the elevator to return to the 24th floor, he observed a protrusion in the right front of her waist area (under her sweatshirt). However, these observations were seen from a reflection on the elevator door, and as such, are subject to some distortion. Detective Ferguson further observed a distinct motion with Ms. Kamara’s right hand to the protrusion under her sweatshirt. In his opinion, this action was consistent with a security touch or adjustment. However, it is also the case that the perceived security tap could have been a check for keys or any other object, or simply a personal idiosyncrasy of Ms. Kamara.

[86] As was the case with Mr. Woodcock, Detective Ferguson was candid in his evidence that he could not opine definitively that Ms. Kamara was concealing a firearm.

[87] Dr. Lindsay testified that three GSR particles were found on the pink hooded sweater that Ms. Kamara was seen wearing. Two GSR particles were found on the right sleeve and one particle was found on the left sleeve.

[88] Dr. Lindsay acknowledged that she had concerns about possible GSR contamination when she watched Ms. Kamara’s booking video. In that video, a police officer was observed picking up the pink sweater, touching it with his bare hands, and putting it on a surface without placing it on top of clean paper in a police detachment. Dr. Lindsay’s evidence was that all these actions would give her concerns about an increased risk of GSR contamination. Dr. Lindsay indicated that in the literature, GSR is expected to be found in a police environment, and that while generally the number of particles is low, bigger numbers have also been observed. Moments later in the booking video, another officer was seen to remove Ms. Kamara’s headscarf and put it on top of the pink sweater. Again Dr. Lindsay expressed concern about contamination, especially, since it appeared to Dr. Lindsay that the police officer was wearing standard-issue police gloves and not disposable gloves. In this regard, Dr. Lindsay noted that police wear their standard-issue gloves when they prove their weapons safe at the start of a shift and there is no evidence as to how regularly they are laundered.

[89] Further, again moments later, the booking video shows that an object from the counter in the booking area was placed on top of the sweater, generating some further concern for Dr. Lindsay about contamination, although her predominant concern was the apparent wearing of police-issued non-disposable gloves. In other words, Dr. Lindsay recognized the potential risk that the gloves could hold GSR particles, which could then be transferred to the pink sweater.

[90] Overall, after watching the booking video, Dr. Lindsay indicated that there would be substantial risk of contamination of the pink sweater, given that it did not appear that the police were wearing disposable gloves and that the sweater was handled multiple times within a police environment where the surface upon which the sweater was placed was not protected by clean paper.

[91] Also, of note was that the sweater was received by the Centre of Forensic Sciences in a plastic bag, whereas paper bags are recommended for transport, due to possible mould if a garment is wet. Dr. Lindsay also observed a photograph of unit 2413, where the pink sweater is on a chair close to a TPS jacket slung over the side of another chair. Dr. Lindsay acknowledged that if the TPS jacket was shaken, it could create airborne GSR that could get to the pink sweater, or if someone who had contact with the TPS jacket then leaned on the chair where the pink sweater was seen, there is potential for GSR transfer.

[92] Further, Mr. Oduro and Mr. Mitchell, who were seen leaving the shooting and returning to 25 Martha Eaton Way, had been in unit 2413, adding to the potential risk of GSR transference to the pink red hoodie.

[93] The concerns about the limitations in the evidence about the characteristics of an armed person that I expressed with respect to Mr. Woodcock apply as well to Ms. Kamara. That evidence must be considered, together with the evidence of Dr. Lindsay and the particular frailties relating to the GSR found on Ms. Kamara’s sweater, and the evidence of Mr. Woodcock that the stairwell exchange was a drug transaction, supported by trays consistent with marijuana use found in unit 2413.

[94] On the basis of all the evidence, it cannot be said that the only reasonable inference to be drawn is that Ms. Kamara was in possession of a firearm that night. The Crown has not established the guilt of Ms. Kamara beyond a reasonable doubt.

[95] Ms. Kamara is found not guilty of Counts 1, 4 and 7.

Ms. Shkais

[96] The circumstances surrounding Ms. Shkais are different than those of Mr. Woodcock and Ms. Kamara.

[97] The evidence establishes that Ms. Shkais had actual physical control of the black satchel in which the firearm was found. The satchel was found within the coloured purse she was carrying when detained.

[98] The photos filed indicate that there were relatively few items in Ms. Shkais’ purse besides the black satchel. There were keys, what appear to be two disposable lighters, a pink and white undergarment, and a card holding earrings as you would see in a store.

[99] There is no issue that Mr. Oduro had been seen carrying the black satchel at various points in the evening. He was riding in the elevator with Ms. Shkais down from the 24th floor. They were detained in the same police car.

[100] It is agreed that Ms. Shkais was not licensed to possess a firearm, nor did she possess a registration certificate to possess a firearm on September 2-3, 2017. The live issue is whether Ms. Shkais knew that what she possessed was a firearm.

[101] As stated, the purse was initially placed on the front seat of the police car. The police car in which Ms. Shkais and Mr. Oduro were placed was equipped with in-car camera video. Both Ms. Shkais and Mr. Oduro were cautioned that they were being recorded.

[102] At around 4:55:36 a.m. the in-car camera video shows Ms. Shkais leaning forward and speaking to Mr. Oduro. She says she is “cheesed”, and then asks Mr. Oduro three times “what is the minimum”. Mr. Oduro does not reply.

[103] PC Heineman and PC Gillespie both interacted with Ms. Shkais before her arrest and both testified that she repeatedly said she knew nothing about a shooting, and that she did not have a weapon. The defence asks me to consider this evidence and points me to the decision of the Ontario Court of Appeal in R. v. Chafe, 2019 ONCA 113, 53 C.R. (7th) 136. However, in Chafe the Court confirmed that evidence of an accused’s reaction to allegations is of limited, if any, probative value. In my view, this is the case whether the accused failed to make an unequivocal denial, as in Chafe, or insisted she had no knowledge of a shooting or a firearm, as Ms. Shkais did. What Ms. Shkais told the police in this case cannot on its own support an inference of innocence. (See R. v. B. (S. C.) (1997), 36 O.R. (3rd) 516 (C.A.).)

[104] In determining whether Ms. Shkais had the requisite knowledge to find she was in possession of the firearm, I note the following:

i. The weight of the firearm would have been noticeable to Ms. Shkais, given the relative light weight of the other items in her purse;

ii. More significantly, at the time Ms. Shkais asked Mr. Oduro repeatedly about the minimums, she had been told only that she was detained because of a shooting. At that time, Ms. Shkais had not been told that there was any suspicion she was in possession of a firearm.

[105] In my view, the only reasonable inference that can be drawn based on all the evidence is that Ms. Shkais knew that she was in possession of a firearm. To suggest that any other reasonable inferences about her knowledge can be drawn from the evidence is purely speculative.

[106] Ms. Shkais is found guilty of Counts 2, 5 and 8.

Croll J.

Released: July 12, 2019