Court File and Parties
COURT FILE NO.: CR-19-40000714-0000 DATE: 2020-02-28 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN, Applicant – and – DUSHANE PEART, Respondent
Counsel: David Wright, for the Crown Marcus Bornfreund, for the Respondent
HEARD: November 12, 22, 25, 26, 28, December 2, 3, 4, 5, 2019
Reasons for Judgement
B.P. O’MARRA J.
Overview
[1] At approximately 9:10 p.m. on July 29, 2017 two men exchanged gunfire near 26 Driftwood Avenue in Toronto. This area is a series of low-level townhouses separated by numerous laneways. Both of the shooters were young black men. One was dressed in white clothes, top and bottom. The other wore a white top, light blue jeans, red shoes, and carried a black satchel. Neither of the shooters were struck by bullets. A man at the scene named Morrinton Allen was wounded by a shot. He was driven to the hospital by Dushane Peart.
[2] The shooting incident was captured on several video cameras from various angles in the immediate area. It was not possible to identify the face of either shooter from any of the videos.
[3] The Crown alleged that Dushane Peart was the man in white who was one of the shooters. The case was circumstantial. Dushane Peart did not testify. He had no obligation to do so or to prove anything.
[4] On December 5, 2019 I found Dushane Peart guilty of possession of a loaded firearm. I dismissed a mistrial application brought by the defence. These are my Reasons.
The Trial
[5] This trial unfolded in a somewhat convoluted manner. It commenced with a multiple count indictment against Ricardo Francis and Dushane Peart. Both accused were in custody. The Crown alleged that they were the two shooters in the incident of July 29, 2017. Ricardo Francis also faced separate firearm and drug offences with an offence date of August 8, 2017. The joint trial was scheduled to proceed with a jury. Counsel for Ricardo Francis had filed pretrial Charter applications including challenges to the latest provisions of the Criminal Code relating to jury selection. Counsel for Dushane Peart did not file any pretrial applications and indicated from the outset that his client would re-elect trial by judge alone if the Crown would consent. It was agreed that Peart and his counsel need not be present for the pretrial applications related to Francis.
[6] On November 22, 2019 I made rulings related to Ricardo Francis. The Crown then withdrew the counts against him related to the shooting incident on July 29, 2017. He then re-elected trial by judge alone on the charges related to August 8, 2017. He was later found guilty on those charges.
[7] The Crown then presented a new two count indictment alleging possession and discharge of a firearm against Dushane Peart related to the shooting incident on July 29, 2017. The parties agreed that the trial would proceed without a jury. Unfortunately, from that point throughout the trial there was very poor communication between counsel and mutual recriminations.
[8] Counsel for Dushane Peart requested a short adjournment to prepare for a voir dire related to a pre-arrest statement by his client to police shortly after the shooting. That was granted on consent. Counsel for Dushane Peart also made clear then and throughout the trial that there were no admissions.
[9] The voir dire proceeded with two police witnesses on November 25 and 26, 2019. Counsel for Dushane Peart then requested an adjournment until November 28, 2019 to prepare his submissions on the voir dire. On that date counsel for Dushane Peart advised the court that he no longer contested the admissibility of the pre-arrest statement of his client. He also agreed that the evidence on the voir dire would be evidence on the trial proper. The pre-arrest interview of Dushane Peart was as follows:
At 10:47 p.m., while standing outside his residence, Mr. Peart provided Officer Irving the following information:
Irving: What happened? Peart: I heard shots. I see my boy running. We all ran. Then I drove him. Irving: Did you see who shot him? Peart: No. Irving: What’s your friend’s name? Peart: Morrinton. Irving: Last name? Peart: Don’t know. Irving: Did Morrinton tell you who shot him. Peart: No. Irving: What did you talk about in the car? Peart: Nothing. Irving: Who was in the car? Peart: Me, him and his mom. Irving: Where did it happen? Peart: Where you guys blocked off. Irving: Is there anything else you know that can help us? Peart: No.
[10] Mr. Peart then asked Officer Irving about his car and if the police were going to keep it and, if so, for how long. Officer Irving told him the police may keep the car but was not sure for how long. Mr. Peart said he had to work and needed it.
[11] Mr. Peart agreed to show the car to the police and walked there with his mother and other family members. Officer Irving looked inside the car and saw no signs of blood or a weapon. Mr. Peart said the victim sat in the front seat and he gave a t-shirt to sit on which the victim kept.
[12] Mr. Peart asked if he could go home with his family and Officer Irving said yes. Mr. Peart left the officers and walked away with his family members.
[13] The critical issue start to finish in this trial was whether the Crown could prove beyond a reasonable doubt that Dushane Peart was one of the two shooters as shown in the videos of the event.
[14] The presentation and result of the Crown’s case against Ricardo Francis on the shooting incident unfortunately led to confusion and miscommunication between counsel on the trial of Dushane Peart. On the case against Ricardo Francis, the Crown originally sought to prove identity through the process as outlined in R. v. Leaney, [1989] 2 S.C.R. 393. The Crown later abandoned that process. The Crown then sought to prove identity through the process as set out in R. v. Nikolovski, [1996] 3 S.C.R. 1197. That route was also later abandoned, and the Crown withdrew the charges against Ricardo Francis related to the shooting incident.
[15] The Crown’s case against Dushane Peart proceeded with officers who retrieved items at the crime scene and at the residence of the accused. The latter included ammunition that did not match items found at the crime scene and a pair of white pants. There was no cross-examination of these Crown witnesses. The defence admitted that Dushane Peart did not possess certification to possess a restricted firearm.
[16] The trial became enmeshed in confusion and barbs between counsel when the Crown proposed to play the videos of the shooting. It was agreed that the face of Dushane Peart could not be discerned from the videos. Counsel for Dushane Peart submitted that the Crown had told him that there would not be an attempt to prove identity based on Leaney or Nikolovski principles.
[17] I asked Crown counsel to outline how he proposed to prove identity. He replied that Dushane Peart’s mother had previously identified her son from viewing the videos and could be called to testify. He said he also might call Morrinton Allen, the man who was shot, who had known Dushane Peart for many years. The Crown also referred to the pre-arrest statement of Dushane Peart that placed him at the scene of the shootout. Crown counsel made rather confusing submissions as to whether he sought resort to the principles in Leaney or Nikolovski to prove identity.
[18] Counsel for Dushane Peart submitted that he had been misled and prejudiced by the conflicting and confusing routes that Crown counsel sought to rely on. The Crown asked for a brief adjournment to clarify his position. Over vehement defence objection I permitted the adjournment but directed Crown counsel to prepare and serve written materials clarifying his position. I made clear that I would permit the defence time to consider and respond to the Crown position. The defence referred to “intense and real prejudice” resulting from the way the case was being presented by the Crown. He submitted that he may need to seek “other remedies”.
[19] After a brief adjournment the Crown advised that he would not be calling a witness to identify the accused from the videos (the Leaney process). The Crown would proceed under Nikolovski to have the court identify the accused on the videos. The Crown referred to the case as “circumstantial”. I directed the Crown to prepare an application clearly setting out his position for review by counsel and the court.
[20] The Crown filed materials that referred to the Nikolovski process. Counsel for the accused protested that the Crown had misled him earlier by declaring that neither Nikolovski or Leaney would be invoked. He argued that the court should consider a mistrial since he had re-elected, made admissions, and declined cross-examination of most witnesses based on the miscommunication from the Crown position. However, he also said he had “half a mind” to simply let the case proceed based on the evidence presented and issues related to identification. The Crown countered that this was a circumstantial case with “a minor Nikolovski aspect”. I advised counsel that I would defer a decision on the mistrial application and would hear submissions on that later in the process if counsel chose to do so. The accused was in custody and a new trial would prolong that pre-trial custody.
[21] Counsel for Dushane Peart was agreeable to defer the issue of a mistrial pending a possible renewed application later in the trial. Counsel stood by the admissions he had made, including that Morrinton Allen had been shot and was taken to the hospital from the scene by the accused. I advised both counsel that the trial was still very viable in the sense of affording a fair trial to both sides. I made clear I would afford either side time to consider their positions as I had already done throughout the trial.
[22] At the close of the Crown’s case the defence counsel declared he would not call any evidence. He also declared that if the accused was proven to be a shooter there would be submissions related to self-defence. The Crown then submitted that the first shot fired by the accused may have been in self-defence but the second shot was not. The Crown then asked to defer submissions related to self-defence to the next day. Defence counsel declared that he did not require further time to prepare and was “ready to go”. There was no mention of a mistrial. I adjourned submissions to the next day. Counsel for the accused thanked me when I advised that I would render judgement within a day of final submissions.
[23] The next day the Crown declared it was no longer proceeding on the count related to use of the firearm. That count would have involved the self defence issue. That left only the count of possession of the firearm. Counsel for Dushane Peart said he was ready to proceed. There was no mention of a mistrial.
[24] When counsel for Dushane Peart rose to make his final submissions the evidence was complete and he had heard the final submission of the Crown. He vigorously challenged the circumstantial evidence against his client. He submitted that the guilt of his client was not the only rational conclusion that could be drawn based on the totality of the evidence. He made no mention of a mistrial. Counsel clearly and reasonably chose to attack the strength of the Crown’s case and seek a judgement on the merits rather than seek a mistrial and start the trial over on another day.
[25] The identification of Dushane Peart as one of the two men involved in the shootout on July 29, 2017 fell to be decided based on the combined circumstantial evidence. This is not a Nikolovski scenario where he can be identified by the videos alone. The court must apply the principles set out in R. v. Villaroman, 2016 SCC 33, 1 S.C.R. 1000, as to whether identity has been proven beyond a reasonable doubt.
[26] A key portion of the videos show shots fired by the man in the white top, light blue jeans, red shoes, and carrying a black satchel. The Crown submits that man was Ricardo Francis. Those initial shots were followed by Morrinton Allen being struck and fleeing on foot. He is accompanied by a man dressed in white, top and bottom. The man in white fires shots back at the man who fired the first shots. The man in white then flees on foot with Morrinton Allen. The fourth man in this critical portion of the videos is dressed entirely in black and has a prominent and full beard. Dushane Peart is clearly not the fourth man.
[27] When Dushane Peart met the police after the shooting he was clean shaven and dressed entirely in black. Over ninety minutes had passed since the shooting. Dushane Peart clearly had plenty of time to change his clothing. He told the police that he was at the scene, heard the shots, saw “my boy [Morrinton Allen] running. We all ran. Then I drove him [to the hospital]”. The pre-arrest statement of Dushane Peart put himself into the picture. While it did not contain any admissions related to a firearm it connected him in time and place to Morrinton Allen and the first shooter. The firearm was not recovered by police.
[28] Dushane Peart did not testify and had no obligation to do so or to prove anything. I have considered the principles as set out in R. v. W.(D.), [1991] 1 S.C.R. 742 in regard to the pre-arrest statement of Dushane Peart. The principles underlying W.D. are not confined merely to cases where the accused testifies or his or her evidence conflicts with that of a Crown witness. R. v. D.(B.), 2011 ONCA 51. The statement of Dushane Peart was not an explicit denial. He was not asked what he was wearing at the time of the shooting, or whether he held or fired a handgun during the incident. His statement includes comments that are literally accurate but do not address one way or the other whether he held a handgun or fired any shots. He was interviewed as a witness shortly after the event and long before any videos of the incident were retrieved and viewed by police. Dushane Peart’s pre-arrest statement alone or in conjunction with the video evidence does not leave this court with a reasonable doubt. It puts him into the picture.
[29] Based on the combination of his pre-arrest statement and the critical portion of the videos I am satisfied beyond a reasonable doubt based on a process of elimination that Dushane Peart was the man in white who returned fire after the original shots by the first shooter. I am satisfied beyond a reasonable doubt that this is the only rational inference that can be drawn from the combined circumstantial evidence.
[30] After counsel had completed their final submissions, I reserved judgement to the next day. Counsel for Dushane Peart did not mention a mistrial before court was adjourned. The next day I delivered my judgement that the charge of possession of a loaded handgun had been proven beyond a reasonable doubt.
[31] Counsel for Dushane Peart then applied for a mistrial. He repeated his concerns from earlier in the trial that the defence had made tactical decisions and been prejudiced by the shifting and at times incoherent presentation of the Crown’s case. I reserved for a brief time on the application after submissions were complete.
[32] The granting of a mistrial is a discretionary remedy. R. v. A.G., 2015 ONCA 159, 124 O.R. (3d) 758, at para. 51. Counsel for Dushane Peart first raised the issue in the course of the Crown’s case in chief. He claimed that his client had re-elected for trial by judge alone and asked few if any questions of witnesses in cross-examination based on a shifting and incoherent presentation by the Crown. I deferred a ruling at that time pending a renewal of the application as the trial proceeded. Counsel agreed to that.
[33] Counsel for Dushane Peart had indicated a desire to re-elect mode of trial before any evidence was presented. Notwithstanding some confusion in the presentation of the Crown’s case it became clear that the case fell to be decided based on a combination of the pre-arrest statement of Dushane Peart and the videos of the shootout. The other viva voce evidence related to non-controversial matters such as sketches of the scene, continuity of the videos and recovery of objects at the scene and elsewhere.
[34] By the end of the Crown’s case counsel for Dushane Peart was ready, willing, and anxious to attack the circumstantial case against Dushane Peart. That was a reasonable tactical decision. In his final submissions counsel for Dushane Peart made no mention of a mistrial. I am satisfied that in the end there was no prejudice to the defence in the way the case unfolded. Counsel did not renew his mistrial application until after I had rendered judgement that the charge had been proven. Assuming I still retained authority to grant a mistrial at that stage I am not satisfied that the ends of justice required that one be granted.
[35] In the result, Dushane Peart was found guilty of possession of a loaded handgun.