COURT FILE NO.: CR-18-70000324-0000

DATE: 20190920

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KADAH DEMATAS AND CHRISTOPHER LUCAS

Defendants

Monica Gharabaway, for the Her Majesty the Queen

Christian Pearce, for the Defendant, Kadah Dematas R. Joseph Louch, for the Defendant, Christopher Lucas

HEARD: March 4, 5, 6, 7, 8, 11, 12, 14, 18, 20, 21, 22, May 27, 28 and 30, 2019

REASONS FOR JUDGMENT

ALLEN J.

BACKGROUND

[1] Kadah Dematas and Christopher Lucas were arrested on 11 charges related to a home invasion and shooting of an occupant in an apartment unit which occurred in the early morning hours of December 31, 2016. The incident took place at 5 Wakunda Dr., unit 612, a residence located in a medium rise apartment building in a Toronto Community Housing Corporation (“TCHC”) complex which is also comprised of rows of townhouse units. Mr. Dematas was arrested on December 3, 2017 and Mr. Lucas on February 28, 2017.

[2] The two accused are charged in relation to shooting the complainant Adam Cummings. They were jointly charged on an 11~~-~~count indictment with:

• count 1 attempted murder,

• count 2 discharge firearm with intent,

• count 3 aggravated assault,

• count 4 assault with a weapon,

• count 5 robbery with a firearm,

• count 6 use of firearm while committing indictable offence,

• count 7 unlawful possession of loaded restricted firearm without being holder of authorization or licence permitting possession at that place,

• count 8 unlawful possession of a firearm without being the holder of a licence permitting possession,

• count 9 unlawful possession of a firearm knowingly being without a licence, and

• count 10 careless use of a firearm.

[3] Mr. Dematas and Mr. Lucas were also charged at count 11 with possession of a firearm knowing it was obtained through the commission of crime. The Crown seeks dismissals on that charge on the basis there is no reasonable prospect of conviction. I will grant acquittals on that charge.

[4] This is a straight identification case. The question is whether Mr. Dematas and Mr. Lucas were two of three males involved in the incident that led to Mr. Cummings being shot.

APPLICATIONS

Directed Verdict

[5] Both defence brought applications for directed verdicts in relation to charges on the indictment. By decision R. v. Dematas and Lucas, 2019 ONSC 1777 (Ont. S.C.J.) I granted directed verdicts in favour of both accused only on count 1 on the indictment, attempted murder.

Lost Evidence Application

[6] One body of evidence in this case is found in video surveillance recordings in the housing complex that captures areas before and after the shooting. The Dematas defence brought an application to stay Mr. Dematas’ charges under s. 24(1) of the Charter of Rights on the basis his rights under 7 of the Charter were violated by the failure of the police to seize video recordings of the south stairwell at 5 Wakunda.

[7] The expiry date for the surveillance at issue had long passed when the Dematas defence sought its disclosure. So the lesser remedies to a stay such a disclosure order or an adjournment are not available since the surveillance is no longer in existence.

[8] The Dematas defence bases the application on the evidence of a witness the police interviewed after the shooting. Maurice Paris, a security guard on duty during the evening of the shooting, testified that while on his patrol he observed two black males, one in a pink jacket, running down the stairs from the 6^th^ floor of the building after the shooting. He viewed a recording of that stairwell with the police in the complex’s management office after his observation.

[9] The Dematas defence connects the male in the pink jacket to a male in a light brown ¾ length coat who was seen on surveillance entering 5 Wakunda just before the shooting. The defence arrives at the argument that these are one and the same person and takes the position that the police paid no heed to the man in the light brown ¾ length coat when reviewing the surveillance. The significance of this evidence will become evident as the story of what happened in the early morning hours of December 31^st^ is recounted.

[10] The Dematas defence submits the violation arises from the “unacceptable negligence” of the police such that it would be contrary to the interests of justice if the prosecution were allowed to proceed. The police conduct, according to the Dematas defence, constitutes an abuse of process and a stay of proceedings is the only appropriate remedy.

[11] The Supreme Court of Canada and the Ontario Court of Appeal provide guidance on the order of proceeding when a lost evidence application has been brought. The Court of Appeal observed that the extent of the prejudice could not be measured without hearing all the relevant evidence, the nature of which would make it clear whether the prejudice was real or minimal: [R. v. B. (D.J.) (1993), 16 C.R.R. (2d) 381, at p. 382, (Ont. C.A.); R. v. La, [1997] 2 S.C.R. 680 (S.C.C.), at para. 27, (S.C.C.)].

[12] I therefore considered the application after hearing the evidence adduced at trial. I decided the application after the Dematas defence was complete. Mr. Lucas did not call a defence. As will be seen, I denied the application to stay the proceedings and went on to decide the trial proper.

TRIAL EVIDENCE

The Occupant Witnesses’ Evidence

[13] Three black males made their way to 5 Wakunda, unit 612 and rushed in. The exact time of their entry is not in evidence. Times are critical in this case in establishing the identity of the three males. I will jump ahead in the evidence here to establish an approximate time that the three males entered the unit.

[14] As will be seen two witnesses in the apartment, Mr. Rogers and Mr. Ellison, indicated that the assailants left the apartment minutes after they arrived after the shooting. Mr. Rogers’ evidence is that he called 911 about five minutes after the shooting. Officer Loomans testified he received the radio call at 1:12 a.m. and he and his escort arrived at the scene at 1:13 a.m. This means that the males entered unit 612 at about 1:07 a.m.

[15] The apartment is a small bachelor unit with a small living room, a kitchen area and a bathroom. The bathroom is immediately in front of the entrance as one enters the apartment. In the unit at the time were Dave Ellison, the lessee of the apartment, his friend Ken Rogers and the complainant, Adam Cummings.

[16] Both Mr. Ellison and Mr. Rogers were in the living room watching television, one sitting on a couch and the other on a futon when the three males entered the apartment. Mr. Cummings had gone into the bathroom. Mr. Rogers answered the door and three black males rushed in. He testified that one of the males who was wearing all dark clothing was pointing a firearm when they entered. He testified that two of the men went towards the bathroom and one in a black and white sweat suit went to the living room.

[17] Mr. Rogers testified that one of the males dressed in a black and white sweat suit ordered him and Mr. Rogers to go to the couch and lie face down. Mr. Ellison confirmed that that male was wearing a black and white sweat suit. Mr. Ellison testified that male told him, “Don’t move. We’re not here to bump you. Don’t touch your phone.” Mr. Ellison had his cellphone right beside him and said his impression was that the male did not want him to call for help.

[18] Mr. Rogers testified the male in the black and white sweat suit took his cellphone from him but returned it to him. Mr. Rogers said one of the other males, he did not know which one, told the male in the black and white sweat suit, who stayed with both men, to give Mr. Rogers’ cellphone back to him. Mr. Rogers testified that the other male said that they (the men who entered the apartment) were not after him and Mr. Ellison.

[19] Both witnesses testified that the male in the black and white sweat suit stayed with them in the living room. Mr. Rogers said that male was carrying a firearm which he pointed at them. Mr. Ellison said he did not see that male’s hands or a firearm. Mr. Rogers heard two other voices. He saw a second male with short dread locks wearing a beige jacket, which Mr. Rogers described as a short beige bomber-style jacket with a hood. That male did not have anything in his hands when he entered. Mr. Rogers heard but did not see the third male. Both witnesses testified the second and third males went toward the bathroom. Mr. Ellison said he did not get a look at the other two males.

[20] There is no description of the clothes worn by the third male. There is no indication of the presence of a male in a short hoodless maroon jacket.

[21] Mr. Rogers testified one of the males pushed the bathroom door open. He heard Mr. Cummings say, “No.” Both witnesses heard the males say, “Give me the money.” Mr. Cummings replied, “What money? I don’t know what you are talking about.” Immediately after the demand for money the witnesses heard one gunshot. The three men ran together out of the unit. The witnesses testified that the period of time between the entry and departure was just a few minutes. Mr. Rogers estimated about five minutes. The males took nothing from Mr. Ellison or Mr. Rogers.

The Complainant Adam Cummings’ Evidence

[22] Mr. Cummings confirmed he was in the bathroom when the three males entered the unit. He heard the knock on the door and heard Mr. Rogers answer the door. He heard commotion which made him open the bathroom door. He was seated on the toilet “doing his business.” He saw the three males rush into the unit. He heard their voices.

[23] Mr. Cummings testified the male came to the bathroom door and pointed a firearm at him. He testified that he could not see the man with the firearm because he was sitting on the toilet with his head down. All he could say is that the male was black and had on a brown jacket and gloves. Mr. Cummings said the firearm was out and being pointed when the three males entered the apartment. He said the male with the brown jacket shouted in a rough tone, “Where is the money!”

[24] The male pointed the nozzle of the gun at Mr. Cummings’ forehead and poked him on the forehead three times. When Mr. Cummings said he did not have the money, the male asked repeatedly where the money is. Mr. Cummings testified he grabbed the nozzle of the firearm after the third hit pulling it down towards his neck. That is when the firearm discharged on the side of his neck. Mr. Cummings said there was one loud sound and his legs went numb. He could not get up. Seconds later the males fled without taking anything from Mr. Cummings. He could not provide detailed descriptions of any of the males.

[25] Mr. Cummings testified that he thought the men who came into the apartment were after him for selling drugs in the housing complex a location he said was other drug dealers’ drug territory. They were after drug money.

[26] Mr. Rogers called 911 he estimated about five minutes after the men entered. Mr. Cummings was admitted to Sunnybrook Hospital where he remained for 18 days. His medical records reveal that he underwent surgery for an injury to his neck. The bullet remains lodged in his upper back.

Surveillance Evidence Focussing on Three Males

Layout of 5 Wakunda

[27] The investigation involved Toronto Police reviewing surveillance of the Wakunda housing complex to observe the movements of persons thought to be suspects in the shooting at 5 Wakunda, unit 612. The surveillance obtained for the investigation covers the period from about 12:30 a.m. to 4:00 a.m. on December 31, 2016.

[28] The building at 5 Wakunda has 11 storeys and is located on the southeast corner of the complex. The building contains a front entrance and stairwell exits on the north and south sides of the building. Entering the building through the side doors requires climbing steps to the second floor. From the second floor one looks down on a courtyard. On the second floor a walkway runs the length of the courtyard. There are two side-by-side elevators on the second floor. Unit 612 is two apartments away from the south stairwell on the sixth floor.

Three Males’ Entry into 5 Wakunda

[29] Select portions of surveillance were copied to DVDs. One DVD, focussing on 5 Wakunda, covers, the period from about 12:45 a.m. to 1:15 a.m. The DVD was turned over to Officer Ghazarian. Officer Ghazarian did not receive a briefing on the shooting at the police station until 5:50 p.m. on December 31^st^. He was advised that three black males one in a black and white sweat suit and another in a grey sweat suit were seen entering 5 Wakunda and fleeing from an exit from 7 Wakunda who were thought to have been involved in the shooting. With that information as a context Officer Ghazarian reviewed the surveillance and noted his observations.

[30] Officer Ghazarian gave evidence about what he observed when he reviewed the surveillance. The first observation of note captures a vehicle at the curb on a road just east of 5 Wakunda. At about 12:50 a.m., five black male occupants of the vehicle exit onto the road.

[31] Seconds later one of the males, wearing a grey sweat suit, walks south along the walkway leading to the north stairwell entrance to 5 Wakunda. Mr. Lucas admits that he is the male in the grey sweat suit. A few seconds later a black male wearing a short maroon jacket without a hood follows Mr. Lucas into the north stairwell entrance. After several further seconds, a third black male wearing a black and white sweat suit also enters the north stairwell entrance. The male in the black and white sweat suit is carrying a black satchel over his shoulder. The remaining two males walk north away from 5 Wakunda and leave the view of the camera.

[32] The three males who enter the north stairwell entrance are seen next on a walkway outside 11 Wakunda which leads to the second floor entrance to 5 Wakunda. Officer Ghazarian testified that there are surveillance cameras in the south stairway and exit from 7 Wakunda where the same three males were seen exiting.

[33] Mr. Lucas is the first male who enters the walkway and is wearing a grey sweat suit, carrying a cellphone. Seconds later, the other two males, one wearing a black and white sweat suit and carrying a black satchel and the male in the maroon jacket are seen entering the 11 Wakunda walkway.

[34] At 12:50:12 a.m., the three males next walk along the 11 Wakunda walkway towards the second storey entrance of 5 Wakunda. Inside that door is a walkway that leads to the left to the south stairwell that leads to the second floor apartment units. The door is locked. Mr. Lucas is the first to walk toward and enter that door at about 12:50:47 a.m. He apparently uses a key fob to open the door and uses his sleeve on the handle to open the door. Mr. Lucas enters alone and the door closes behind him.

[35] At about 12:51:27 a.m. the other two males, one in a black and white sweat suit and the other in the maroon jacket walk to the door and wait outside the entrance apparently without a key fob to enter. One of the males appears to be using a cellphone. There is a lag in time of about two minutes as the two males try to open the door. At about 12:53:53 a.m. the other two males are let into the entrance by an unknown person.

Three Males’ Exit 5 Wakunda

[36] The shooting occurred at about 1:07 a.m. and about four minutes later, at about 1:11:18 a.m., the surveillance captures the three males, who entered the second storey, leave from the ground floor out of the south stairwell exit of 7 Wakunda. The three males who exit are the one in the black and white sweat suit, the one in the grey sweat suit and the male in the short maroon jacket. The male in the light brown ¾ length coat referred to earlier is not one of those three males.

[37] At about 1:11:30 a.m. the three males one in a black and white sweat suit carrying a black satchel and another in a grey sweat suit are captured running west away from 5 Wakunda to the parking lot at 9 Wakunda and at 1:13:15 a.m. jump a fence leading through the parking lot at 40 Wakunda to the townhouses at 30 and 32 Wakunda.

[38] The three males were Mr. Lucas, the second unidentified male, and the male in the black and white sweat suit.

30 and 32 Wakunda

[39] At about 1:14:38 a.m., the same three men are seen running along a sidewalk that leads to the inside courtyard of 30 – 32 Wakunda Place. At about 1:15:50 a.m., the male in the black and white sweat suit is captured at a dumpster and appears to remove something from his side. He then walks away from the dumpster.

[40] At about 3:00 a.m. Officer Weber was informed of a male loitering around a dumpster. At 3:05 a.m. the officer seized a black Nike shoulder bag with a white “swoosh” label on the side. Inside he found a handgun with wood and plastic accents on its side.

[41] At 1:14:48 a.m. the three males enter 30 Wakunda, unit 8. The three males enter the front entrance of 32 Wakunda, unit 8 at about 1:16:41 a.m. and leave at about 1:53:43 a.m. The same three males appear to be wearing different clothing than they wore when they entered.

Evidence on Male in Light Brown ¾ Length Coat

Surveillance Evidence of Male in Light Brown ¾ Length Coat

[42] On cross-examination, Officer Ghazarian was shown video footage depicting another black male moving about in the housing complex. He was asked questions about a black male carrying a white shopping bag and takeout drink cup in his right hand. He was wearing a light brown ¾ length coat, dark pants and black shoes. The officer testified he did not recall seeing the surveillance footage depicting the male in the light brown ¾ length coat when he reviewed that footage on December 31^st^ at the complex’s management office. But he was able to say when reviewing the footage that he did not see that male make contact with the other three males.

[43] Keeping in mind that the shooting occurred at about 1:07 a.m., the surveillance shows that at 1:00:10 a.m., the black male wearing a light brown ¾ length coat, carrying a white plastic bag and takeout cup, exits with another male from the front door of 32 Wakunda, unit 8 and walks down the roadway behind the townhouses. This is about 16 minutes before the three males enter 32 Wakunda, unit 8.

[44] At 1:02:31 a.m., the man in the light brown ¾ length coat appears on the south stairwell and on the walkway on the second storey level of 11 Wakunda. This is the same walkway where the three black males were seen at about 12:50:12 a.m., 12 minutes earlier, walking on route to the door leading to the second floor of 5 Wakunda. The male in the light brown ¾ length coat enters the door to the second floor of 5 Wakunda at 1:03:13 a.m. This is about four minutes before the shooting.

[45] At 1:54:51 a.m., the male in the light brown ¾ length coat carrying the shopping bag walks along the walkway behind the townhouse parking lot and enters 30 Wakunda, unit 8. This is about 20 minutes after the three males enter that address.

The ITO Evidence on Male in Light Brown Bomber Jacket

[46] Officer Ghazarian and Det. Caracciolo testified that before they were involved with the search of 32 Wakunda, unit 8, they were not informed that a witness, Mr. Rogers, had given a statement that one of the three males that entered 5 Wakunda was wearing a light brown bomber jacket. A light brown jacket was not one of the items listed in Appendix A to the search warrant to be seized.

[47] Officers Ghazarian and Caracciolo testified that when they came on duty around 3:30 a.m. - 4:00 a.m. on December 31^st^ they were advised that three black men seen on video surveillance entering and leaving 5 Wakunda were suspects in the shooting. Their attention was not drawn to a man in a ¾ length light brown coat. Officer Ghazarian testified that when he reviewed the surveillance he did not take note of a male in a ¾ length light brown coat because he was focussed on the movements of the three suspects.

[48] A brown jacket was mentioned in the ITO at paragraph 26. There is reference in the ITO to a black male with little dreads past his eyes, wearing a short bomber style jacket. Neither officer saw the description of that male in the ITO.

The Presence of Light Brown ¾ Length Coat at 32 Wakunda

[49] There was a photo taken during the search of 32 Wakunda, unit 8 that shows a light brown ¾ length coat. The coat was situated on a chair in an upstairs bedroom Det. Caracciolo had searched. A black running shoe is also seen in the photo that the Dematas defence says is similar to the black shoes with a silver piece near the laces worn in the surveillance by the male in the light brown ¾ length coat. Det. Caracciolo testified he searched the room where the light brown ¾ length coat was situated but he did not recall seeing that item.

Other Persons Arrested

[50] A youth, JCL, Brandon Graham and Alpay Tayyor, three black males, were arrested. Mr. Graham and JCL were located in 32 Wakunda, unit 8 where the light brown ¾ length coat was situated and Mr. Tayyor was found in 30 Wakunda, unit 8. Mr. Tayyor was released after an investigation of 30 Wakunda. Mr. Graham was charged with firearms offences and subsequently all charges against Mr. Graham were withdrawn.

[51] Through its questioning of Officer Ghazarian, the Dematas defence attempted to establish that the male in the light brown ¾ length coat was one of the three males involved in the shooting. Officer Ghazarian was asked if he could recognize the male in the light brown ¾ length coat.

[52] The defence put to Officer Ghazarian that Mr. Graham is the male seen in the surveillance wearing the light brown ¾ length coat entering the door to 5 Wakunda and the person in the brown jacket who shot Mr. Cummings.

[53] Officer Ghazarian first asserted that the male was not Mr. Graham. To decide Officer Ghazarian’s capacity to identify that male I conducted a brief Leaney hearing to look at the reliability of Officer Ghazarian’s contention.

[54] Before a person can claim to recognize a person they must establish that they had prior opportunity to personally observe the person and become acquainted with them. Recognition simply means that the witness’s evidence is based in part on his or her dealings with the person before the incidents in question occurred: [R. v. Leaney, [1989] 2 S.C.R. 393 (S.C.C.)].

[55] Officer Ghazarian testified that as a community police officer he had attended the Wakunda housing complex approximately 50 times during which he had about 12 encounters with Mr. Graham over the several years he had been a community officer. He said he met him not necessarily in relation to criminal investigations and has known him by name. He would have conversations with him about day-to-day things. He was shown a booking photo from December 31^st^ and Officer Ghazarian was able to identify the male as Mr. Graham.

[56] The Dematas defence showed Officer Ghazarian the surveillance images of the black male wearing the light ¾ length brown coat. While his first contention was that the male in the surveillance was not Mr. Graham, when shown a portion of the surveillance, he equivocated somewhat saying that the quality of the image is not sufficiently clear to allow him to make a positive identification.

[57] I believe Officer Ghazarian had sufficient experience to recognize Mr. Graham if he saw him. But he was not absolutely sure whether the male in the light brown ¾ length coat shown in the surveillance is or is not Mr. Graham.

Items Seized on Search of 5 Wakunda, the Dumpster and 30 Wakunda

[58] At about 1:16 a.m., a search warrant was executed on 5 Wakunda, unit 612. Officer Catenaccio located a firearm magazine on the floor of unit 612 just before the entry to the bathroom. He found seven live bullets in the magazine.

[59] As noted earlier, Officer Weber was detailed to search the dumpster located between 20 and 30 Wakunda, the dumpster where the male in the black and white sweat suit had been seen earlier. The officer found a black Nike brand shoulder bag with a white Nike “swoosh” on it. In the shoulder bag the officer located a black Blue Line Solution 22 calibre handgun with brown accents on the handle. The magazine chamber was empty. There was also a 22 calibre spent cartridge casing in the black shoulder bag.

[60] Officer Hoffman testified as an expert on the classification, identification and functioning of firearms and ammunition. He testified that the firearm was comprised of a combination of two types of firearms, a metal pellet or airsoft firearm and a 22 calibre Blue Line Solution~~s ~~firearm.

[61] Officer Hoffman opined that the firearm was structured to function as a semi-automatic weapon. However, upon test firing it he found it to operate as a one-shot weapon. He testified that the ammunition seized is compatible with the firearm.

[62] At about 6:20 p.m., a search warrant was executed on 30 and 32 Wakunda. No items of evidentiary value were found at 30 Wakunda. Important evidence was seized from 32 Wakunda.

[63] Officer Ghazarian who acted as exhibits officer, and Officer Johnston, searched the basement of 32 Wakunda. There they seized a blue Jays t-shirt and dark jeans.

[64] Officer Ghazarian was shown a photo of the items in one of the bedrooms which depicts among other things a chair with clothing on it including a light brown ¾ length coat. Officer Ghazarian stated that the coat looks similar to that worn by the male in the surveillance. A light brown ¾ length coat was not brought to his attention before the search so he did not seize it from 32 Wakunda, unit 8.

[65] Det. Caracciolo was the supervising officer on the investigation. He searched an upstairs bedroom where he seized a Ziploc baggie containing 20 rounds of live 22 calibre ammunition. A green garbage bag tied with a tight knot was located in the closet. It contained a grey Roots brand hooded sweat shirt and grey Roots sweat pants, a black and white Crooks and Castle brand top and pants of a sweat suit. Det. Caracciolo was not told of the evidence about a black male in a light brown ¾ length coat being in the vicinity of the crime near the relevant time.

Forensics

DNA

[66] On March 18, 2018, DNA warrants were executed on Mr. Lucas and Mr. Dematas. Officer Wu took blood samples from the two accused. The samples were transferred to the Centre for Forensic Services (“the CFS”) for DNA analysis.

[67] Sarah Johnston from the CFS testified as an expert on body fluid identification and DNA analysis and interpretation. She performed analyses on the black and white Crooks and Castle hooded sweater, a blue t-shirt, a grey hooded sweater, jeans and grey sweat pants. Blood containing male DNA was detected on each of those items.

[68] Tests on areas of the black and white Crooks and Castle sweater revealed the presence of blood. DNA analysis established that Mr. Dematas was the major donor of the DNA and that the probability that a randomly selected individual unrelated to him would share the DNA is 1 in 47 quadrillion. Mr. Dematas also could not be excluded as a major donor of DNA taken from the back collar of the black and white Crooks and Castle sweater.

[69] Tests on a blood stain on a napkin located in a pocket of the black and white sweat shirt along with live bullets contained DNA from which Mr. Dematas cannot be excluded. The random match probability is 1 in 47 quadrillion.

[70] Tests on the grey Roots sweat shirt revealed blood on that garment. DNA analysis established that Mr. Lucas was the major donor of the DNA and that the probability that a randomly selected individual unrelated to him would share the DNA is 1 in 1 quadrillion. A test was also done on the inner waist band of the grey Roots sweat pants and Mr. Lucas could not be excluded as the major donor.

[71] DNA tests were also performed on the gun slide on the firearm, the handle and on the top of the magazine. There was insufficient DNA on the top of the magazine.

[72] A swab was taken of a brown chunk of substance on the front of the slide which tested as having a single source donor. Mr. Cummings could not be excluded as the donor. The DNA was uploaded to a DNA database and the results came back as a match with Mr. Cummings. The result of the analysis of the DNA on the handle of the firearm was that Mr. Dematas could not be excluded as the donor.

Gunshot Residue

[73] Elspeth Lindsay testified as an expert on gunshot residue (“GSR”) analysis. GSR consists of particles of metal and metal compounds undetectable by the naked eye emitted when a firearm is discharged. The residue must contain each of the three elements, lead, barium and antimony, which elements come mainly from ammunition primers. One particle is sufficient for analysis.

[74] GSR can be found on the person who fired the firearm, on persons in close proximity when the firearm is discharged and on persons who make contact with an object bearing GSR. GSR can also be located on an object that makes contact with another object that contains GSR. In Ms. Lindsay’s opinion the presence of GSR does not necessarily mean that a person with GSR on them discharged the firearm.

[75] Ms. Lindsay tested the following items: the black and white Crooks and Castle hooded sweater, a blue Toronto Blue Jays t-shirt, a grey Roots hooded sweater and a pair of grey Roots sweat pants. The tests are performed by using tape to lift samples from the items. No GSR was found on the black and white Crooks and Castle hooded sweat shirt. GSR was found on the Toronto Blue Jays t-shirt, the grey Roots hooded sweater, the grey Roots sweat pants and the Levis blue jeans.

DEFENCE THEORY OF ALTERNATE SUSPECTS

The Male in the Light Brown ¾ Length Coat

[76] The Dematas defence alleges tunnel vision by the police. It raises the spectre of one, possibly two, alternate suspects who it contends were involved in the shooting. There is the black male in the light brown ¾ length coat and the black male in the pink jacket. In the end it appeared the defence was saying that the man in the light brown ¾ length coat and the man in the pink jacket were the same person, Mr. Graham. The defence theory is that Mr. Graham was the shooter and the suggestion from this is that charges should not have been withdrawn against him.

[77] As I outlined earlier, the surveillance shows that at 1:00:10 a.m., the black male wearing a light brown ¾ length coat exits with another male from the front door of 32 Wakunda, unit 8 and walks down the roadway behind the townhouses. This was about 16 minutes before the three males enter 32 Wakunda, unit 8. At 1:02:31 a.m., the man in the light brown ¾ length coat appears on the south stairwell on the walkway on the second storey level of 11 Wakunda, the same walkway the three males were seen walking along about 12 minutes earlier. The male in the light brown ¾ length coat enters the door to the second floor of 5 Wakunda about 12 minutes after the three males entered that door.

[78] As noted earlier, the search at about 6:20 p.m. of 32 Wakunda, unit 8 turned up a light brown ¾ length coat. The coat was situated on a chair in an upstairs bedroom.

The Male in the Pink Jacket

[79] The Dematas defence called Maurice Paris. He is 62 years of age and suffers health and mobility issues. He has been in Canada since 1982 and speaks Haitian Creole. He testified in English with a pronounced accent. But he could be adequately understood. He testified from his home with the agreement of the defence and court and the assistance of the officer in charge, Officer Hayford.

[80] Mr. Paris was on duty as a security guard at the housing complex on December 30^st^ from 7:00 p.m. He provided an unsworn statement to the police in the early morning hours of December 31^st^ about what he observed after the shooting.

[81] Mr. Paris stated to police that at 1:20 a.m., and at trial he said 1:30 a.m., he began walking through 5 Wakunda on his rounds. He accepted that the time he told the police would be more accurate. This was about 20 minutes after the shooting.

[82] Mr. Paris stated that while on his rounds he went to the 6^th^ floor where he observed a young black male standing near the back stairway door of the 6^th^ floor. Mr. Paris described that male as black, about age 25, a rasta with long hair, wearing a pink jacket with the hood on top of his head. He could not see all of his hair. But he could see the ends of his hair sticking out of the hood. Mr. Paris testified he had previously seen that male wearing the pink jacket.

[83] Mr. Paris testified that when the male saw him he opened the front of his pants and put something inside his pants. He did not see what he pushed into his pants. He said the male then turned around and ran down the stairs. He said the black male was with another person who he could not see.

[84] Mr. Paris testified that from his experience 5 Wakunda was a place where many people were selling drugs like marijuana and he thought what he observed on the 6^th^ floor stairwell was related to drug activity. Unit 612 is two doors from the stairwell entrance. He had seen people buying and selling drugs near unit 612 so he thought the male in the pink jacket might have put drugs down his pants. This is consistent with Mr. Cummings’ evidence about drug dealing in the complex. Mr. Paris testified he had seen that black male on four or five previous occasions and had spoken to him.

[85] After his observation on the 6^th^ floor stairwell Mr. Paris went to the complex’s management office to view video surveillance while TCHC workers and the police were there. The police played the portion of the video that showed two men running down the south stairwell at 5 Wakunda. Mr. Paris pointed out to the officers the male in the pink jacket who he saw on the 6^th^ floor south stairwell of 5 Wakunda. He later went to the police station to give his statement.

[86] On January 2, 2017, three days after he gave his statement, Mr. Paris attended the police station again to do three photo lineups. From the third lineup Mr. Paris picked out photo #8, which turned out to be Mr. Graham. He indicated that is the person in the pink jacket who he encountered on the 6^th^ floor stairwell. At trial he stated he was certain it was Mr. Graham.

[87] Mr. Paris viewed the surveillance with the police and indicated he could not conclude whether the man he saw in the stairwell was the male captured in the surveillance. He was shown the man in the light brown ¾ length coat and Mr. Paris said he could not recognize him because he appeared to be covering his face.

[88] As noted above, it is the defence theory that the male in the light brown ¾ length coat and the male in the pink jacket are the same man, Mr. Graham and he is the person in the brown jacket who shot Mr. Cummings.

LOST EVIDENCE APPLICATION

The Evidence the Dematas Defence Relies Upon

[89] The Dematas defence position is that the police were unacceptably negligent in not seeking to seize the surveillance of the south stairwell of the male in the pink jacket observed by Mr. Paris. This conduct by the police in the defence’s view violated Mr. Dematas’ right to a full and fair defence and amounts to an abuse of process deserving of a stay of proceedings.

[90] The defence called several officers on the application to question them about why the surveillance recording of the south stairwell was not seized and disclosed to the defence. The defence questioned the officers on their knowledge of evidence of the male in the light brown ¾ length coat, Mr. Paris’ evidence and the existence of surveillance of the south stairwell of 5 Wakunda.

Det. Caracciolo

[91] Det. Caracciolo came on duty at 3:30 a.m. on December 31^st^. He was the most senior officer on the investigation who delegated tasks to other officers. He received information from Det. Chapman about the shooting, about three suspects entering and fleeing the scene. Det. Caracciolo also received information from Det. Chapman about the security guard bumping into a male fleeing the scene. There were no other details by Det. Chapman about this. He knew that Det. Chapman and Sgt. MacKinnon had taken statements from the civilian witnesses, including Mr. Paris.

[92] Det. Caracciolo assigned officers to their tasks including to review surveillance and witness statements. He testified that Det. Chapman did not tell him that the security guard had viewed surveillance of the male in the south stairwell and said he never learned of that surveillance recording subsequently. Det. Caracciolo never reviewed Officers Chapman’s and MacKinnon’s notes or the witness statement summaries. He had tasked Officer Ghazarian with those duties because he trusted Officer Ghazarian as a very competent officer with the ability to ensure that all relevant video surveillance was seized.

[93] Det. Caracciolo was aware that the security guard was to re-attend the police station to view a photo lineup in relation to the male he saw in the stairwell. Det. Caracciolo had learned that the male the security guard bumped into was Mr. Graham and that Mr. Graham had been taken from 32 Wakunda, unit 8 and arrested. He knew that his charges were immediately withdrawn and testified that Officer Hayford had determined that Mr. Graham was not involved in the shooting.

[94] Det. Caracciolo testified that being aware of the identification of Mr. Graham as the man in the stairwell after the shooting does not change his view about the correctness of the charges being withdrawn against Mr. Graham. The officer explained that just because someone is seen putting something down his pants does not mean he was involved in an attempted murder. Det. Caracciolo stated on cross-examination that if he had known of the video surveillance the security guard had seen, it would have been seized as relevant.

[95] However, Det. Caracciolo explained on re-examination that knowing that the incident in the stairwell happened 30 minutes after the shooting (the time Crown counsel put to him) and that the male did not match the description of a suspect and that the security guard believed he pushed drugs into his pants, these factors would give him less concern about the relevance of the surveillance. He stated that a shooting in a housing complex causes many people to run for a myriad of reasons not necessarily because they did something wrong.

Officer Ghazarian

[96] As noted above, Officer Ghazarian was tasked by Det. Caracciolo to take possession of the video surveillance from other officers. Officer Ghazarian indicated he watched the seized video surveillance in its entirety. He testified that there was no surveillance of the 6^th^ floor stairwell. He stated that he was not aware there had been a recording of that area and was not aware of Mr. Paris being a witness to a man in a pink jacket in that stairwell. There was no discussion in briefings about that potential suspect.

[97] Officer Ghazarian testified he came on duty at 4:00 a.m. on December 31^th^ and was told about three male suspects entering 5 Wakunda just before the shooting and leaving the 7 Wakunda exit just after the shooting. Again, he explained that was the reason he focussed on those males when he reviewed the surveillance. He said he was satisfied with the video recordings that he received depicting the three suspects because they were the suspects who were under investigation.

Officer Johnston

[98] Officer Johnston was called as the author and affiant on the ITOs. He started his shift on December 31^st^ at 5:50 a.m. and was assigned by Det. Caracciolo to prepare the ITOs on the three addresses. Officer Johnston stated that he did not read the statements from the civilian witnesses from 5 Wakunda who spoke of a brown jacket or from Mr. Paris who spoke of the pink jacket. He testified he read police memo notes, the general occurrence report and witness statement summaries prepared by, among others, Det. Chapman and Sgt. MacKinnon.

[99] Officer Johnston authored the appendices to the ITO including Appendix A which listed the clothing to be seized. He did not include a brown coat or jacket in the list. He received the list of clothing from Officer Belille’s notes and from Officer Ghazarian after he (Officer Ghazarian) reviewed the video surveillance.

[100] Officer Johnston testified that he recalled from reviewing the witness statement summaries that Mr. Rogers had mentioned that one of the suspects wore a brown coat and little dreads. He indicated that was the only reference to a suspect wearing a brown coat he received. He said Officer Ghazarian did not draw his attention to a male in a brown coat in the surveillance.

[101] The Dematas defence asked Officer Johnston why there is no mention of a brown coat in Appendix A. The officer responded that he did not include that information because the information he received from Officer Ghazarian from video surveillance and from Officer Belille’s notes did not indicate information about anyone wearing a brown coat.

[102] Officer Johnston also explained that he did not list a brown coat as an item to be seized because he did not have reasonable grounds to believe a brown coat would be found in 32 Wakunda, unit 8. The officer further stated that he did not know a person in a brown coat had gone into that address. Officer Johnston went on to say that mere information that a person in a brown coat was seen going into a building around the time of the shooting is an insufficient basis to establish reasonable grounds to believe a brown coat would be in the target address.

Sgt. MacKinnon

[103] Sgt. MacKinnon and Det. Chapman were the officers who took statements from the civilian witnesses. They began taking the statements at about 3:30 a.m. on December 31^st^. They interviewed Mr. Rogers, Mr. Ellison and Mr. Paris. Mr. Paris told the officers about seeing two males in the south stairwell, one with a pink jacket who pushed something down his pants. Notes were taken of that evidence.

General Principles on Lost Evidence

[104] An accused’s right to make full answer and defence is tied to their right to full and fair disclosure: [R. v. Stinchcombe, [1991] 3 S.C.R. 326 (S.C.C.)]. Various remedies are available for failure to disclose relevant unprivileged evidence, including adjournments, awards of costs against the Crown and stays of prosecution “in the clearest of cases”: R. v. La, at para. [66].

[105] The Dematas defence is seeking a stay of prosecution under s. 24(1) of the Charter based on the violation of his right to make full answer and defence as protected by s. 7 of the Charter. It is the defence’s position that the loss of the surveillance of the male in the south stairwell at 5 Wakunda, connected to the failure to investigate the male in the brown ¾ length coat, has resulted in a violation of the Crown’s and police’s obligation to preserve the fruits of the investigation: R. v. La, at para. [20].

[106] R. v. La sets down three criteria for determining whether a s. 7 violation has been committed by the loss of the evidence:

• There has been no unacceptable negligence.

• There is no abuse of process.

• The accused’s right to make full answer and defence has not been impaired.

Unacceptable Negligence

[107] It is the Crown’s onus on a balance of probabilities to satisfy the court all three criteria. If there is a loss or destruction of evidence then the Crown is required to explain this. If the explanation is satisfactory the Crown has discharged its obligation unless the circumstances giving rise to the loss or destruction are such that a remedy under the Charter is warranted: R. v. Stinchcombe, at para. [2]. Where the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence the duty to disclose has not been breached: R. v. La, at para. [20].

[108] The question to be determined in considering unacceptable negligence is whether the Crown or police took reasonable steps in the circumstances to preserve the evidence: R. v. La, at para. [21]. Evidence lost or destroyed as a result of ordinary human error or human frailty does not meet the standard of unacceptable negligence. Unacceptableness is a question of fact to be decided on the facts of the case.

[109] For the following reasons I find Crown counsel satisfied its burden to show on a balance of probabilities that the police’s conduct was not the result of unacceptable negligence.

[110] I do not think there is support for a finding of unacceptable negligence by the police in relation to not having seized the video surveillance of the man in the pink jacket in the south stairwell, the male who left the 6^th^ floor near unit 612 and ran down the stairs after stuffing something into his pants. There is no evidence that the police deliberately for some nefarious reason or otherwise did not seize the surveillance.

[111] At 3:30 a.m., when officers Chapman and MacKinnon began taking a statement from Mr. Paris, those officers were aware of the surveillance because they had been apprised of the fact that Mr. Paris had watched the surveillance in the complex’s management office.

[112] The critical fact here is that the observation in the stairwell by Mr. Paris occurred considerably after the shooting. The shooting happened at about 1:07 a.m. and Mr. Paris saw the male in the stairwell at about 1:20 a.m., some 13 minutes later. I do not agree with Crown counsel’s view that the observation was made 30 minutes after the shooting.

[113] The officers who were aware of the surveillance in issue would have known that the time frame of Mr. Paris’ observation was beyond the time that a person involved in the shooting would be fleeing the scene of a shooting in an apartment unit immediately next to the stairwell. In that context I find it is not unreasonable that those officers would not have drawn other officers’ attention to the video surveillance watched by Mr. Paris.

[114] Further, Mr. Paris testified with some certainty that the man he saw had on a pink jacket and was a rasta with long hair with a hood covering the top of his head. Eyewitness Mr. Rogers had described one of the three suspects who entered and fled 5 Wakunda as wearing a light brown bomber style jacket with a hairstyle he described as small dreads.

[115] It is not logical to conclude that the man in the pink jacket is the same man described by Mr. Rogers who entered unit 612 with two other males and shot Mr. Cummings. The further question that arises from the evidence is why would a person who had shot someone be right outside unit 612 13 minutes after the shooting? Surely the shooter would flee and not remain at the scene or return to the scene of the shooting where there would no doubt be police presence.

[116] The evidence from Mr. Rogers which differs from Mr. Paris’ description was provided in Mr. Rogers’ witness statement, in a civilian witness summary and was written into the ITOs. This would reasonably direct the attention of the officers, who were aware of Mr. Paris’ and Mr. Rogers’ statements, away from focussing on surveillance of a man in a pink jacket in the south stairwell who was recorded some 13 minutes after the shooting.

[117] Officer Ghazarian reviewed the entirety of the surveillance videos seized by other officers. He did not note the man in the light brown ¾ length coat that appeared in the surveillance of 5, 30 and 32 Wakunda. As noted above, Officer Ghazarian testified that when he arrived on duty he was informed that three suspects had rushed into 5 Wakunda, unit 612 and were involved in the shooting and that the three suspects had been seen entering 5 Wakunda shortly before the shooting and leaving shortly afterwards.

[118] I do not find it unreasonable that Officer Ghazarian’s attention when reviewing the surveillance videos was on the three suspects seen moving through the complex before and after the shooting. The shooting took place at about 1:07 a.m. and the male in the light brown ¾ length coat entered 5 Wakunda at 1:03 a.m. which is about 12 minutes after the three males’ entry into 5 Wakunda and about four minutes before three males entered unit 612.

[119] On the face of things, it may seem possible that the male in the light brown ¾ length brown coat met the male in the black and white sweat suit and the other male who entered unit 612 and entered with them and was the shooter. But the light brown ¾ length coat worn by the male in the surveillance is not a short light brown bomber style jacket as described by Mr. Rogers.

[120] It makes sense therefore that the officers who were aware of Mr. Rogers’ and Mr. Paris’ statements would not draw Officer Ghazarian’s or other officers’ attention to the male in the light brown ¾ length coat walking to 5 Wakunda and much less draw their attention to the male in the pink jacket observed 13 minutes after the shooting. I find it is not unreasonable in the circumstances that Officer Ghazarian did not seek to have the surveillance at issue seized or take note of the man in the light ¾ length brown coat.

[121] That is, Det. Chapman and Sgt. MacKinnon who conducted the civilian witness interviews would have been aware of the discrepancy between Mr. Rogers’ evidence about the brown bomber style jacket and the short dreads and Mr. Paris’ evidence about the pink jacket and the long hair. They would have been aware of the discrepancy in the descriptions of the light brown ¾ length coat and the light brown bomber style coat.

[122] Together with the timeframe issue with Mr. Paris’ observation it is not unreasonable that Det. Chapman and Sgt. MacKinnon would not have had as a priority to draw other officers’ attention to the surveillance at issue and Mr. Paris’ statement and the surveillance of the male in the light brown ¾ length coat.

[123] Officer Johnston did not include a light brown jacket in the list of items in Appendix A to the ITO to be seized. He was informed that a civilian eyewitness had described one of the suspects as wearing a brown bomber style jacket. I find it would have made sense for Officer Johnston to have listed a brown bomber jacket to be seized. He had seen reference to a light brown jacket in Mr. Rogers’ witness statement summary and mentioned it in the ITOs.

[124] I find Officer Johnston had reasonable and probable grounds to believe a brown jacket would be located in 30 or 32 Wakunda where the surveillance shows the men had entered. There was a basis for a brown jacket to be listed on Appendix A.

[125] Officer Johnston was involved with the officers in searching 32 Wakunda, unit 8. As it turns out there was a light brown ¾ length coat situated in that unit. Were a brown jacket to have been listed in Appendix A, it would likely have been seized. It may have happened after the fact that the coat on further investigation would be found by the police to be irrelevant for the reasons I have found it to be irrelevant. Although in the end Mr. Rogers’ description of the jacket was different from the one located at 32 Wakunda, to be cautious, that jacket might have been seized and later discounted if it was found not to be connected to the crime.

Conclusion on Lost Evidence Application

[126] In all the circumstances, I do not think the failure to list a brown jacket and the failure to seize it rises to the level of unacceptable negligence. At worst it was an oversight, the result of ordinary human error.

[127] Regarding the lost surveillance, again, it captures a male 13 minutes after the shooting who did not meet the hair and jacket descriptions of one of the suspects involved in the shooting. I do not find unacceptable negligence or any negligence at all in not seizing that surveillance as evidence. I cite a passage from R. v. La:

The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.

R. v. La, at para. [21]

[128] I find there was no failure in the Crown’s duty to disclose. I am satisfied the Crown has established on a balance of probabilities there was no unacceptable negligence in not preserving the surveillance at issue.

[129] It is important to point out as well that even were I to find that the male in the light brown ¾ length coat was the shooter, Mr. Dematas and Mr. Lucas would still be faced with potential joint liability for the offences. When it comes to joint liability in this case it matters not which male in which brown jacket did the shooting. In the end, I find the alternate suspects defence is nothing short of a smoke screen, an attempt to distract from Mr. Dematas’ involvement.

[130] With the finding that there is no unacceptable negligence I need not determine whether there was abuse of process or a violation of the right to full answer and defence.

[131] I therefore dismiss the application for a stay of proceedings.

REASONS FOR DECISION ON TRIAL PROPER

General

[132] Neither Mr. Dematas nor Mr. Lucas gave evidence as is their constitutional right. This is clearly a circumstantial, identification case. A decision in this case whether Mr. Dematas and/or Mr. Lucas were two of the three males involved in the shooting of Mr. Cummings rests in the testimonial evidence of the complainant and two eyewitnesses, the relevant video surveillance and the forensic DNA and GSR evidence. It is in the interplay of those areas of evidence that a determination is made as to whether the Crown has proven beyond a reasonable doubt the guilt of Mr. Dematas and Mr. Lucas of the eight firearm offences and one count of aggravated assault.

Presence of Male in the Black and White Sweat Suit

[133] A black and white sweat suit can be traced on December 31^st^ through the evidence from 12:50 a.m. when five black males, one wearing a black and white sweat suit, emerged from a vehicle on the road outside of 5 Wakunda, to 6:20 p.m. when, among other items of clothes, the police seized a black and white sweat suit from 32 Wakunda. One of those males wore a grey sweat suit who Mr. Lucas admits is him.

[134] Between those two points in time the male in the black and white sweat suit, with the two other males, appears on surveillance before and after the entry into 5 Wakunda and are present in unit 612 during the shooting.

[135] Seconds after emerging from the vehicle the three males enter one after another through the south entrance to 11 Wakunda onto a walkway that leads to a door to the second floor of 5 Wakunda. Several seconds later the three males, first Mr. Lucas and then the other two, go into the entrance to 5 Wakunda. About 15 minutes later, at 1:07 a.m., the male in the black and white sweat suit and the other two males burst into unit 612.

[136] Once inside unit 612, the male in the black and white sweat suit stays in the living room with Mr. Rogers and Mr. Ellison issuing orders for them not to use their cellphones. Mr. Rogers’ evidence was that male was holding a firearm. Mr. Ellison testified he did not see that male’s hand and did not see him with a firearm.

[137] The male in the black and white sweat suit watched Mr. Rogers and Mr. Ellison while the male in the brown jacket held a firearm on Mr. Cummings in the washroom demanding money. The male in the black and white sweat suit was in the living room when the male in the brown jacket shot Mr. Cummings. About five minutes after entering the three males ran together out of unit 612.

[138] After the three males left unit 612, there are a series of sightings. When they were within the scope of the cameras the three males are observed moving together.

[139] At about 1:11:18 a.m. the three of them, including the male in the black and white sweat suit, are observed exiting the south stairwell exit of 7 Wakunda; at 1:11:30 a.m. running west away from 5 Wakunda to the parking lot at 9 Wakunda; and at 1:13:15 a.m. jumping a fence leading through the parking lot at 40 Wakunda to the townhouses at 30 and 32 Wakunda.

[140] At 1:14:45 a.m. the three males are seen inside the courtyard at 30 – 32 Wakunda; at 1:16:40 they enter 30 Wakunda, unit 8; at 1:16:47 a.m. they enter the front entrance of 32 Wakunda, unit 8; at 1:53:43 a.m. the three males exit 32 Wakunda, unit 8 appearing to be wearing different clothing than they wore when they entered.

[141] At 6:20 p.m. on December 31^st^ a search warrant was executed on 32 Wakunda, unit 8. Det. Caracciolo searched an upstairs bedroom and seized a green garbage bag in the closet which contained a grey Roots hoodie sweat shirt and grey Roots sweat pants, a black and white Crooks and Castle top and pants of a sweat suit.

Forensics and the Black and White Sweat Suit

[142] Sarah Johnson, an expert in body fluid identification and DNA analysis and interpretation analyzed the black and white Crooks and Castle hooded sweater, a blue t-shirt, a grey hooded sweater, jeans and grey sweat pants. Blood containing male DNA was detected on each of those items.

[143] Ms. Johnson’s conclusion on the black and white sweat suit established that Mr. Dematas was the major donor of the DNA on that item and that the probability that a randomly selected individual unrelated to him would share the DNA is 1 in 47 quadrillion. Mr. Dematas also could not be excluded as a major donor of DNA taken from the back collar of the black and white sweat shirt.

[144] Mr. Cummings’ DNA was found on the slide of the firearm and Mr. Dematas’ DNA was located on the firearm’s handle. The brown chunk of substance taken from the front of the slide of the firearm tested to contain Mr. Cummings DNA.

[145] Elspeth Lindsay testified as an expert on GSR analysis. GSR consists of particles of metal and metal compounds undetectable by the naked eye emitted when a firearm is discharged. She explained that GSR can be found on the person who fired the firearm, on persons in close proximity when the firearm is discharged and on persons who make contact with an object bearing GSR. GSR can also be located on an object that makes contact with another object that contains GSR. It was Ms. Lindsay’s opinion that the presence of GSR does not necessarily mean that a person with GSR on them discharged a firearm.

[146] Ms. Lindsay tested the black and white Crooks and Castle hooded sweat shirt. No GSR was found on that sweat shirt.

Mr. Lucas – The Male in the Grey Sweat Suit

[147] Mr. Lucas admits he was the male in the grey sweat suit seen with the other two men entering the door to the 5 Wakunda building at 12:50:47 a.m.

[148] Mr. Lucas denies being one of the three males who entered 5 Wakunda, unit 612 which I conclude was at about 1:07 a.m. The obvious suggestion is that he was elsewhere for about 20 minutes while the other two were in unit 612, until he ran out of the building with them.

[149] The Lucas defence argues Mr. Lucas was not present with the male in the black and white sweat suit when the male in the brown jacket shot Mr. Cummings. Mr. Lucas relies on the fact that there is no description of a male in a grey sweat suit being in unit 612 during the shooting. There is little evidence about that person except that he is a young black male. There is no evidence of a male in a maroon short hoodless jacket being present in 612, one of the three males who entered the 5 Wakunda building.

[150] The Lucas defence takes the position that it can be inferred from the circumstantial evidence that Mr. Lucas left the other two males behind after he entered into 5 Wakunda with a fob and let the door close behind him. He admits he joined up with the other two males 20 minutes later when they ran out of 7 Wakunda and went with them as they entered 30 and 32 Wakunda and was with them when they left 32 Wakunda at 1:53:43 a.m.

Forensics and the Grey Sweat Suit

[151] DNA evidence connects Mr. Lucas to the grey sweat suit seen on the surveillance and seized from 32 Wakunda. DNA analysis on a blood deposit on the grey sweat shirt and a DNA test on the grey sweat pants revealed Mr. Lucas to be the donor of the DNA. The probability that a randomly selected individual unrelated to him would share the DNA is 1 in 1 quadrillion.

[152] GSR was found on the grey Roots sweat pants and sweat shirt.

The Firearm Evidence

[153] The firearm can be traced on the surveillance through the movements of the three males through the housing complex. At about 1:16 a.m. a search warrant was executed on 5 Wakunda, unit 6. Officer Catenaccio located a firearm magazine on the floor just before the bathroom. He found seven live bullets in the magazine.

[154] At 1:14:45 a.m. the three males are inside the courtyard at 30 – 32 Wakunda. At 1:15:31 a.m., one of the three males, the male in the black and white sweat suit, walks to a dumpster in that area and appears to remove something from his side and then leaves the dumpster. At 1:16:40 the three males enter 30 Wakunda, unit 8.

[155] At 3:05 a.m. Officer Weber seizes a black Nike satchel with a white “swoosh” on it. Inside he found a black Blue Line Solution 22 calibre handgun with brown accents on the handle with an empty magazine chamber. There was also a 22 calibre spent cartridge casing in the black satchel.

[156] Officer Hoffman, an expert on firearms and ammunition testified that the casing found in the satchel, the magazine, the unspent 22 calibre bullets seized from unit 612, and the unspent 22 calibre bullets seized from 32 Wakunda are compatible with the 22 calibre handgun that was seized from the dumpster.

[157] The evidence shows that the firearm travelled in Mr. Dematas’ black satchel from unit 612, where the magazine and unspent ammunition for the firearm were left behind and travelled to the dumpster outside 32 Wakunda where Mr. Dematas is seen depositing what turns out to be his satchel outside the address where more unspent ammunition for the firearm is found.

Conclusion on Mr. Dematas

[158] For the following reasons I find Mr. Dematas was the male in the black and white sweat suit that was present in 5 Wakunda, unit 612 when Mr. Cummings was shot.

[159] The beginning of the string of evidence that connects Mr. Dematas to the crime is the entry of the male in the black and white sweat suit with the others into 5 Wakunda at 12:50:47 a.m. and the end of the string is the seizure from 32 Wakunda, unit 8 of the black and white sweat suit that on testing contained Mr. Dematas’ DNA. There was no GSR found.

[160] The events between the beginning and end of the string show the path of the male in the black and white sweat suit with the others out of the 7 Wakunda entrance about four minutes after the shooting. That male is then seen running with the others towards 30/32 Wakunda and entering 32 Wakunda, unit 8 just over four minutes after the three males leave 5 Wakunda. He is observed with the others leaving 32 Wakunda, unit 8 about 47 minutes after they entered wearing what appear to be different clothing.

[161] The testing on clothing seized in 32 Wakunda and the firearm Mr. Dematas disposed of in the dumpster seal Mr. Dematas’ connection to the shooting scene.

[162] Mr. Dematas’ DNA found on the black and white sweat shirt connects Mr. Dematas to the male in the surveillance and the male inside unit 612. Mr. Cumming’s DNA found on the slide of the firearm which contained Mr. Dematas’ DNA on its handle also connects Mr. Dematas to the scene of the shooting.

[163] On that evidence, it can readily be inferred that Mr. Dematas was the male in the black and white sweat suit who was present during the shooting.

[164] The fact there was no GSR found on his clothing does not give me a reasonable doubt about his guilt. It is at best proof that he was not the person who fired the handgun. Mr. Rogers’ and Mr. Ellison’s evidence is that the male in the black and white sweat suit remained with them in the living room and was not near the shooting. In line with Ms. Lindsay’s opinion Mr. Dematas’ more distant proximity from the shooting can reasonably explain why no GSR was located on his clothing.

[165] In the result, I find that Mr. Dematas was present in unit 612 during the shooting.

Conclusion on Mr. Lucas

[166] Crown counsel takes the position that it is apparent from the evidence that Mr. Lucas was with the other two males when the shooting took place. He was with them when they entered 5 Wakunda and with them running out of 7 Wakunda. Crown counsel argues the fact he was running with the others points to guilt.

[167] Crown counsel submits Mr. Lucas did not part ways with the other two males after they left the scene of the shooting. He was with them when they entered 32 Wakunda and left with them all wearing different clothing. Crown counsel points to the GSR on the grey sweat shirt and sweat pants as connecting him to the scene of the shooting. It is Crown counsel’s position that Mr. Lucas was the person close to the bathroom with the male in the brown jacket and that explains why GSR was located on his clothing.

[168] The Lucas defence argues the evidence raises a reasonable doubt about Mr. Lucas being present for the shooting.

[169] The defence argues the evidence can support the inference that Mr. Lucas left the other two males behind and went his own way after he entered 5 Wakunda just over two minutes before them and the entrance door closed behind him. This combined with the 20 minutes that passed between him entering the building and leaving 7 Wakunda, the defence contends, supports the inference that Mr. Lucas was elsewhere during the shooting.

[170] This, the defence argues, is supported by the evidence of the eyewitnesses. Doubt as to Mr. Lucas’ presence in unit 612 during the shooting is raised by the fact that neither Mr. Rogers, Mr. Ellison nor Mr. Cummings testify to a male in a grey sweat suit being one of the three males who rushed into unit 612. They describe the male in a brown jacket who shot Mr. Cummings and a male in a black and white sweat suit who remained with them during the shooting.

[171] The defence further argues that the fact Mr. Lucas was running after the shooting with the other two men is not proof of guilt. There is another way to look at that evidence in the defence’s view. The defence looks to the reality that Mr. Lucas could reasonably be running for another reason other than that he was involved in the shooting. The defence cites Det. Caracciolo’s words that a shooting in a housing complex causes many people to run for a myriad of reasons not necessarily because they did something wrong.

[172] Regarding the GSR located on Mr. Lucas’ clothing, the defence relies on Ms. Lindsay’s opinion that GSR can be transferred from one object to another through contact between the objects. It was Mr. Lucas’ contact with other clothing in the green garbage bag that in the defence’s view explains the GSR on Mr. Lucas’ clothing. The defence takes the position that therefore the GSR on the grey sweat shirt and sweat pants is not indicative of Mr. Lucas being present at the scene of the shooting.

[173] I find for the following reasons that the evidence raises a reasonable doubt as to Mr. Lucas’ guilt for the offences charged.

[174] I look to the decision in R. v. Villaroman, [2016] 1 S.C.R. 1000 (S.C.C.) for guidance in assessing the circumstantial evidence in this case.

[175] The trier of fact is instructed that when evaluating circumstantial evidence they are required to determine whether there are reasonable inferences other than guilt that arise in the evidence. If such inferences do exist the Crown does not satisfy the standard of proof beyond a reasonable doubt.

[176] Gaps in the evidence may give rise to inferences other than guilt. But those inferences must be reasonable in the context of all the evidence and the absence of evidence to be viewed logically through the lens of human experience and common sense. The trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt.

[177] I find there are inferences pointing away from guilt that can be drawn from the total context of the evidence and the absence of evidence in this case.

[178] I find it can be reasonably inferred that Mr. Lucas separated himself from the other two males when he entered the 5 Wakunda building with a fob and did not wait for the others to enter. They did not have a fob and they had to wait over two minutes before an unknown person let them in.

[179] There is approximately 20 minutes between the time Mr. Lucas entered the building and when he ran with the other two males out of 7 Wakunda. There is no evidence of a person dressed like him in unit 612. I find a reasonable inference can be drawn from the gap in time and the absence of evidence of him being present in unit 612 that he could have been elsewhere when the three males entered the unit. This is not outside the realm of a reasonable possibility.

[180] There is no surveillance of a male in a light brown bomber jacket with Mr. Dematas and the other male before they entered 5 Wakunda. It therefore stands to reason that during the 20 minutes another male in a short brown bomber jacket could have joined Mr. Lucas and the other male, whose clothes are undescribed, when they invaded unit 612. This too is not outside the realm of reasonable possibility. The undescribed male might reasonably have been the male seen on the surveillance in the short maroon jacket.

[181] As for Mr. Lucas running with the other males after the shooting I agree there is an inference other than guilt that can explain that behaviour. It is reasonably possible he might have known about the shooting without having been involved and was running for that reason. Or he could have been running for another reason. Mr. Lucas could have been running simply because the other males were running.

[182] The expert evidence is clear that GSR can be transferred from one article of clothing to another. The presence of GSR on clothing does not prove the person wearing the clothing shot a firearm. There were several articles of clothing in the green garbage bag besides the grey sweat suit that contained GSR. The GSR on Mr. Lucas’ sweat suit does not necessarily point to guilt.

[183] However, unexplained, is why Mr. Lucas would change his clothes at 32 Wakunda if he were not involved in the shooting. The evidence does not provide an explanation for this. Also why did Mr. Lucas use his sleeve to open the door to 5 Wakunda? However, I ask, looking at the evidence on a whole and the inferences that can be reasonably drawn in other areas of the evidence and the absence of evidence, is the fact that Mr. Lucas changed his clothes after the shooting and used his sleeve to open a door sufficient to establish his guilt? I do not think so.

[184] On the totality of the evidence and absence of evidence I find I have reasonable doubt as to Mr. Lucas’ guilt on the charges. I am not required to be absolutely positive Mr. Lucas was not involved. And I am not. But the evidence gives me sufficient doubt that it would be dangerous to convict him in the circumstances.

[185] I therefore find Mr. Lucas not guilty of the firearm and aggravated assault charges.

The Law on Joint Liability - Parties to an Offence

[186] Mr. Dematas and Mr. Lucas were jointly charged on all counts. I have found Mr. Lucas not guilty. What is to be decided here is whether Mr. Dematas is liable as party to the criminal acts of the male in the brown jacket who shot Mr. Cummings.

[187] Under s. 21(1) of the Criminal Code a person is a party to an offence if they actually commit it, does or omits to do anything for the purpose of aiding any person to commit it, or abets (counsels) any person in committing it.

[188] Section 21(2) of the Criminal Code provides that two or more persons can be jointly liable as parties to an offence where they form a common intention to carry out an unlawful purpose and to assist each other in carrying out the common purpose and each of them knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose.

[189] To constitute a principal in a crime mere presence at the crime scene is not enough. There must be a common purpose, an intent to aid or encourage the persons who commit the crime and engage in either an actual aiding or encouraging or a readiness to aid and encourage them: [Preston v. the King, [1949] 156 (S.C.C.); R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881, at para. 9, (S.C.C.)]

[190] Crown counsel is of the view that Mr. Dematas was not simply present in the apartment. It is the Crown’s view that it can be inferred from the evidence that the three males who together burst into 5 Wakunda, unit 612 had a common purpose to commit an offence at gunpoint.

[191] I accept Crown counsel’s position that it could reasonably be inferred from the evidence that the three men had a common purpose. I look to the words and actions of the three men before and after entering the unit to find that they had a common intention, a common plan to commit an offence.

[192] Mr. Dematas did not join the two other males at the bathroom door. He remained in the living room area to guard Mr. Ellison and Mr. Rogers. He stayed with them to make sure they did not call for help. From Mr. Dematas preventing Mr. Rogers and Mr. Ellison from interfering with the crime in progress the inference can be drawn that Mr. Dematas gave them orders for the purpose of assisting the male in the brown jacket to execute their common purpose of getting money from Mr. Cummings.

[193] Mr. Dematas told Mr. Ellison not to touch his cellphone. This gave Mr. Ellison the impression that he was trying to prevent him from calling for help. Mr. Dematas told Mr. Ellison, “Don’t move. We’re not here to bump you. Don’t touch your phone.” I find from Mr. Dematas’ actions and words that it could be reasonably inferred that Mr. Dematas knew why the three of them had rushed into the apartment.

[194] Mr. Dematas also told Mr. Rogers to lie on the couch face down and ordered him not to move. He took Mr. Rogers’ cellphone and returned it after one of the other two males ordered him to give the cellphone back. It could be reasonably inferred from the male who gave that order that the three of them were not after Mr. Rogers and Mr. Ellison, that that male knew why the three of them were at the apartment.

[195] There is another area of circumstantial evidence from which a common purpose could be inferred. Mr. Cummings and Mr. Rogers testified a firearm was carried into the apartment being pointed by the carrier. Mr. Rogers testified the male in the black and white sweat suit was pointing a firearm and Mr. Cummings said the male in the brown jacket was pointing a firearm when he came to the bathroom door.

[196] A common purpose to commit a crime could be reasonably inferred from the firearm being in plain view of the other intruders when they entered and they did nothing to deter the carrier of the firearm. From that evidence it could be inferred that each of the males knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose.

[197] I conclude there is evidence of a common purpose to commit a crime. I therefore find Mr. Dematas jointly liable for the crimes committed by the male who shot Mr. Cummings.

CONCLUSIONS ON THE OFFENCES CHARGED

Count 2 Discharge Firearm with Intent

[198] Section 244(1) of the Criminal Code states that every person who discharges a firearm at a person with the intent to wound, maim or disfigure or endanger life commits an offence.

[199] The evidence is clear that the shooter discharged the firearm. Mr. Cummings was wounded by a gunshot to the neck. The shooter’s intent to wound Mr. Cummings can be inferred from the evidence. He pointed a loaded firearm at Mr. Cummings and first struck Mr. Cummings three times in the head with the barrel. To avoid being shot in the head Mr. Cummings pulled the gun barrel towards his neck and the bullet discharged into his neck.

[200] There is evidence that shows that the shooter committed this crime. I find Mr. Dematas as a party to the offence is therefore guilty beyond a reasonable doubt of discharging a firearm with intent to wound Mr. Cummings.

Count 3 Aggravated Assault

[201] Section 268(2) of the Criminal Code provides every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. Under s. 265 of the Criminal Code a person commits an assault when that person without the consent of another person applies force intentionally to that other person, directly or indirectly.

[202] The mens rea for aggravated assault is objective foresight of bodily harm and does not require proof of an intent to harm. The mens rea for aggravated assault is the mens rea for assault plus objective foresight of the risk of bodily harm. An aspect of the actus reus is the endangerment of the complainant’s life.

[203] The mens rea and actus reus must coincide: [R. v. Godin, [1994] 2 S.C.R. 484 (S.C.C.) and R. v. Williams (2003), 2003 SCC 41, 176 C.C.C. (3d) 449 (S.C.C.)]. The offence of aggravated assault is made out where the accused endangered the life of the complainant and intentionally applied force without the complainant’s consent: [R. v. Curriere, [1995] 2 S.C.R. 371 (S.C.C.)].

[204] There is no dispute that Mr. Cummings was seriously wounded and that force was applied by a firearm. His medical records disclose that he was shot in the neck and required surgery and a period of hospitalization. There is also no dispute that Mr. Cummings did not consent to the force. Mr. Cummings’ evidence is that the man in the brown jacket shot him. The question is whether reasonable inferences can be drawn with respect to the mens rea and actus reus of the offence.

[205] There is evidence both direct and circumstantial from which reasonable inferences can be drawn that the shooter intentionally applied force to Mr. Cummings with the firearm. It would be objectively foreseeable by the shooter that bodily harm would come to Mr. Cummings as a consequence of him using a loaded firearm. A firearm is a dangerous weapon which in the context of a home invasion is generally used to harm or endanger life although the shooter need not have intended to harm Mr. Cummings.

[206] The evidence is clear that the shooter committed an aggravated assault on Mr. Cummings. I find Mr. Dematas as a party to the offence is therefore guilty beyond a reasonable doubt of aggravated assault.

Count 4 Assault with a Weapon

[207] Under s. 267(a) of the Criminal Code a person who in committing an assault carries or uses a weapon and causes bodily harm to the complainant is guilty of an indictable offence.

[208] The Ontario Court of Appeal in R. v. Richard holds that provided the instrument used by the accused in the course of the assault falls within the definition of weapon, then the offence is made out. It is not required that the weapon also caused injuries to the complainant: [R. v. Richard (1992), 72 C.C.C. (3d) 349 (Ont. C.A.)].

[209] There is no dispute that the instrument used by the shooter was a weapon as defined under the Criminal Code. Mr. Cummings’ evidence is that the shooter carried a loaded firearm to the bathroom, pointed it at him, struck him in the forehead with it and discharged a bullet into his neck injuring him.

[210] There is evidence both direct and circumstantial from which reasonable inferences can be drawn that the shooter intentionally applied force to Mr. Cummings with a weapon without Mr. Cummings’ consent. The three males invaded the apartment pointing a firearm and shouting and demanding money from Mr. Cummings. Mr. Cummings was not forthcoming with the money and he was shot.

[211] The evidence is clear that the shooter committed an assault with a weapon. I therefore find Mr. Dematas as a party to the offence guilty beyond a reasonable doubt of assault with a weapon.

Count 5 Robbery with a Weapon

[212] Section 344(1) of the Criminal Code provides every person who commits robbery if a restricted firearm or prohibited firearm is used in the commission of the offence.

[213] Officer Hoffman testified that the firearm was structured to be an automatic weapon. After he tested it he found that it actually operated as a single-shot weapon. I find this takes the firearm out of the category of an automatic weapon and into the category of a restricted weapon. The shooter therefore used a restricted weapon when he shot Mr. Cummings while demanding money.

[214] I find Mr. Dematas as a party to the offence guilty beyond a reasonable doubt of robbery with a weapon.

Count 6 Use a Firearm while Committing an Indictable Offence

[215] Section 85(1)(b) of the Criminal Code states every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm while attempting to commit an indictable offence.

[216] The three males entered unit 612 with the intent to use a firearm to rob Mr. Cummings. They entered shouting “Where is the money?” Robbery is an indictable offence under s. 343 of the Criminal Code. The shooter pointed the firearm at Mr. Cummings’ head.

[217] The evidence shows the shooter is liable for using a firearm in the commission of an indictable offence. I find Mr. Dematas as a party to the offence guilty beyond a reasonable doubt.

Counts 7, 8 and 9 Possession of a Loaded Restricted Firearm

[218] Mr. Dematas is charged under sections 95(1) (unauthorized possession), 91(1) (possession without licence) and 92(1) (knowingly not in possession of licence) of the Criminal Code in relation to a restricted firearm.

[219] The Blue Line Solution 22 calibre handgun meets the definition of a restricted firearm in that it did not operate as a prohibited semi-automatic firearm. As noted earlier, Officer Hoffman tested the firearm and found that, although it was supposed to function as a semi-automatic handgun, it actually functioned as a one-shot firearm. Not being a semi-automatic, the Blue Line Solution 22 calibre handgun, by definition in s. 84(1) of the Criminal Code, is a restricted firearm for the purposes of the charges at counts 7, 8 and 9 on the indictment.

[220] There is no dispute that the shooter had possession of the loaded restricted firearm. There is no evidence that anyone was registered, licensed or authorized to possess the firearm. It can be inferred that the shooter was aware he was not authorized or licensed to possess the firearm.

[221] I find Mr. Dematas guilty beyond a reasonable doubt as a party to the unlawful possession of a loaded restricted firearm.

Count 10 Careless Use of a Firearm

[222] Section 86(1) of the Criminal Code provides in part that every person who uses a restricted firearm without lawful excuse in a careless manner or without reasonable precautions for the safety of other persons commits an offence.

[223] There is no question that the shooter used a restricted firearm in a careless manner without regard to the safety of Mr. Cummings and ultimately shot him in the neck. I therefore find Mr. Dematas guilty beyond a reasonable doubt as a party to the offence of careless use of a restricted firearm.

VERDICTS

[224] I find Kadah Dematas guilty on counts 2, 3, 4, 5, 6, 7, 8, 9 and 10 on the indictment and convictions will be registered accordingly. I acquit Kadah Dematas on count 11 on the indictment and an acquittal will be registered accordingly.

[225] I find Christopher Lucas not guilty on counts 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 on the indictment and acquittals will be registered accordingly.

Allen J.

Released: September 20, 2019