R. v. Hannaford, 2020 ONSC 1388

COURT FILE NO.: CR-19-9597

DATE: 2020-03-06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JOSHUA HANNAFORD

Applicant/Accused

Michael B. Carnegie, Counsel for the Respondent

Sarah Malik, Counsel for the Applicant/Accused

Heard: February 10 – 28, 2020 in Kitchener

The HonouRABLe Mr. Justice T. SKARICA

REASONS FOR JUDGMENT

OVERVIEW

[1] On Saturday March 31, 2018 there was a break in into a rural home in Hamilton. When the owner of the home discovered the break in, he reported to the police that his company van and two rifles, amongst other items, were stolen. Later that day the stolen company van was located by Waterloo Police on a rural road in Cambridge. The accused abandoned the stolen van, after a short police car chase, on a muddy field, adjacent to a bush line near Hwy 401.

[2] The accused fled into the bush carrying a black bag.

[3] Sgt. Dorling later observed the accused proceeding parallel to the highway with one hand inside his waistband. Commands were made for the accused to show his hands, but the accused disregarded the commands. Sgt. Dorling saw something black extending from the subject’s handgrip and interpreted it as a firearm. The accused was seen to interact with his black bag. At one point the accused looked towards Sgt. Dorling stating words to the effect “want to die”. Sgt. Dorling discharged his firearm six times in the direction of the accused. The subject was shot one time in the back of his thigh. The accused was transported to hospital for non life threatening injuries.

[4] A black handled folding knife was located near the prone accused’s location along with the black bag containing stolen property.

[5] The accused argues that the force used in the course of his arrest was excessive, unnecessary and beyond the powers granted to the police by the Criminal Code. The accused argues that his s.7, 12 Charter rights were violated and seeks to have all his charges stayed in accordance with s. 24(1) of the Charter.

ISSUES

[6] Were the accused’s Charter rights pursuant to s.7 and s.12 of the Charter violated?

[7] If yes, what is the appropriate remedy?

[8] If no, what offences in the indictment is the accused guilty of?

SUMMARY OF THE TRIAL EVIDENCE

ROCCO FAZZARI

[9] Mr. Fazzari lives at 1633 Westover Road, Flamborough, with his wife.

[10] On Saturday, March 31, 2018 he left the home with his wife in his Ford Ranger pick-up at 9:30 a.m. When Mr. Fazzari returned home at about 1:00 p.m. the back-porch door was open and the basement light was on.

[11] Mr. Fazzari went to get a tool from his company vehicle – a Dodge Caravan with Schindler Elevator logos on it. The company car was missing. The keys to this vehicle were usually kept just inside the porch at the back of the house. The keys were missing as well. Mr. Fazzari kept a wallet which contained $3,000 cash plus identification in the company car under the driver seat. On March 31, 2018, he left the wallet under the driver’s seat. Mr. Fazzari went into the basement and noticed that two rifles were missing and the gun cabinet was open. In the gun cabinet was a case of .22 shells and empty 9 mm cartridges. Mr. Fazzari’s wife called the police while Mr. Fazzari phoned his boss so that his boss could locate the vehicle via a GPS system included in the company car.

[12] When police arrived, Mr. Fazzari gave the police his cell phone so that they could talk to his boss regarding the vehicle’s location.

[13] Mr. Fazzari told the police the following items were missing:

1. The company car.
2. Two rifles that were in the basement – a .17 cal NRL long gun and a .303 rifle.
3. A couple of cross-bows.
4. A wallet with $3,000 cash and identification.

[14] Mr. Fazzari identified the missing items where the police found them after recovering the company car.

[15] Mr. Fazzari only got back some of the $3,000 in his wallet and the police have the two rifles, plus some ammunition that would not fit into the stolen rifles. This ammunition was stolen from Mr. Fazzari, from his gun cabinet in the basement. In slide 13 of Exhibit 1, Mr. Fazzari’s wallet is on the front dash. That is not where he left it. In slide 16 of Exhibit 1, the glovebox on the passenger side is open. It was not open in the morning. Mr. Fazzari recognizes his two rifles in the van in slide 17 of Exhibit 1. Up to March 31, 2018, he never had his rifles in his company car. He testified he was sure about that. The ammunition seen in slide 17 of Exhibit 1 came from his gun cabinet in the basement. He never put the empty 9 mm shells in the van. He is positive the 9 mm case was in the gun cabinet.

[16] Mr. Fazzari identified a number of items that were found by the police in the vehicle that did not belong to Mr. Fazzari and were not in the company car in the morning.

[17] In cross-examination, Mr. Fazzari confirmed that he later discovered that his two cross-bows were stored at his son’s house and were not missing.

[18] The porch door has been found opened one or two times before. Mr. Fazzari indicated that he sometimes leaves his keys in the car.

[19] Mr. Fazzari testified that he did not tell the police that there was no ammunition missing that would fit into the missing rifles. Mr. Fazzari did not tell the police that there were no magazines missing that would fit into either missing rifle. Mr. Fazzari did not tell the police that any ammunition was missing.

[20] In re-examination, Mr. Fazzari testified that he had ammunition and magazines that would fit into the rifles. These items were still in the house and were not stolen. A magazine was in a drawer and other ammunition that would fit into the rifle was in a lock box. The police didn’t ask about this ammunition and he didn’t mention it.

JASON WOYTAZ

[21] Officer Woytaz is a Waterloo police officer with eight years experience.

[22] Officer Woytaz was on duty on the afternoon shift on Saturday, March 31, 2018.

[23] At 3:20 p.m., he was in his cruiser when he received a message regarding a stolen vehicle being tracked by GPS in the Waterloo Region. In Exhibit 2, Tab 1 at page 2 and Exhibit 3, there is a printout of the message Officer Woytaz received over CAD in his cruiser. CAD stands for Computer Aided Dispatch.

[24] The Exhibit 3 printout indicates “re Break and Enter, stolen guns, stolen auto”. The auto is described as “2011 Dodge Caravan FV WHI SCHINDLER EVEVATORS” on the side. The message indicates two rifles were stolen as well as ammo. The printout ends with the warning, “USE CAUTION AS FIREARMS AND AMMO” WAS STOLEN.

[25] Officer Woytaz received information that the van was near the dead-end of Old Mill Road, just south of Hwy. 401. Officer Woytaz is familiar with the area and parked at New Dundee Road, on the north side of the 401, at 4:03 p.m. Trees partially obstructed Officer Woytaz’ location. Officer Woytaz observed what appeared to be a white male, wearing a black baseball hat and black jacket, exit from the driver side front door. The male went to the back of the van and after briefly losing sight of him, Officer Woytaz saw the man go back into the van in the driver’s door. This occurred from 4:03 to 4:13 p.m. The van drove down Old Mill Road but a short time later, reversed back into his line of sight. Officer Woytaz heard units coming down Old Mill Road. The stolen van went off Old Mill Road and went onto a field across from a residence. Officer Woytaz lost sight of the vehicle and saw it again hours later when the van was in the field.

[26] At 4:23 p.m., Officer Woytaz went down New Dundee Road and parked at Whistle Bear Road. He crossed over the 401 and learned police had a visual of the person near the side of the 401.

[27] In cross-examination, Officer Woytaz confirmed he didn’t observe the suspect holding a rifle. Officer Woytaz didn’t observe the suspect holding anything.

CRAIG SCOTT

[28] Craig Scott has been a police officer with the Waterloo Regional Police Service for 20 years.

[29] On Saturday, March 31, 2018, he was on uniform duty and was in his police cruiser when at 3:20 p.m. he heard over the radio that police were to be on the lookout for a stolen vehicle with possibly two firearms and ammo. At 3:24 p.m. Officer Scott was assigned to the investigation.

[30] At 3:52 p.m., dispatch advised that GPS was showing the vehicle’s location at the dead-end of Old Mill Road.

[31] At 4:05 p.m. Officer Scott attended Old Mill Road from Dickie Settlement Road. He was the first officer at the scene on Old Mill Road. He could see the stolen van 300-400 metres away. Stg. Thomas told Officer Scott to hold 15 metres from the intersection on Old Mill Road. Officer Woytaz, over the radio, advised the vehicle moved forward and reversed for a short distance.

[32] Officer Woytaz’ transmission detailed someone on the driver’s side wearing a baseball hat. A couple of minutes later, Sgt. Thomas and Constable Koonsakda arrived in their cruiser. Constable Dionne arrived in his cruiser and Constable Deschatelets arrived in his cruiser. Officer Scott discussed employing stop sticks – a vehicle deflation device in the area of where they were. All officers were aware of the possibility of firearms in the vehicle. Due to officer safety concerns, there was no sense of urgency and no reason to engage with the vehicle at that time as there was not a lot of concealment available for the officers.

[33] At about 4:10 p.m., the stolen van drove slowly towards the officers but stopped 50 feet away. The van did a u-turn and proceeded in the opposite direction, moving away from the police. Officer Scott joined Officer Dionne in his SUV and instructed Dionne to follow the stolen van. Sgt. Thomas also followed in another vehicle. The van and officers were travelling at 30-40 km/hr.

[34] The van left the roadway between two houses and drove across three muddy fields. The police followed slowly behind, maintaining visual contact with the vehicle.

[35] The stolen van drove along the dotted line in Exhibit 5 until it stopped in field number 3.

[36] Someone exited the driver’s side of the road and then ran to the front of the van and then ran into the bush area to the left of field number 3 in Exhibit 5. The suspect was carrying a black duffel bag in his hand. The duffel bag was smaller than a hockey bag and nothing was protruding from it.

[37] Officer Scott lost sight of the suspect when he ran to the opposite side of the van.

[38] Officer Scott’s priority was to secure the van, due to the firearms information. Officer Scott wasn’t aware of other persons in the van. Officer Scott’s opinion was that it was not safe to pursue the suspect in a dark wooded area and the suspect had a bag. There was an unknown risk of officers being shot. In Exhibit 1, Slides 3-5, there are tracks in muddy field number 3 which shows the travel direction of the van.

[39] Exhibit 2, Tab 3 is a reproduction of communication recordings that occurred between the officers and dispatch during the investigation. Significant highlights from Tab 3 are as follows:

Page 11 - 3:54:11 p.m. – The dispatch refers to stolen 9-17s (9-17 refers to a call regarding offensive weapons including firearms and/or other weapons) in a white stolen mini-van.

The initial dispatch refers to two rifles and some ammo. The dispatch continues and indicates that “possibly two rifles and unknown about another 9-17 in the vehicle”.

Page 14 – 4:00:24 p.m. – Dispatch makes the Waterloo officers aware again: “officer safety; there are two rifles, one cross-bow, firearms are not trigger locked”.

A cross-bow would qualify as a 9-17 item.

Page 26 – 4:17:08 p.m. – Sgt. Thomas requests K-9 assistance.

Page 27 - 4:17:51 p.m. – Sgt. Thomas advises the suspect vehicle is still mobile and they are in the field as well.

Page 27 - 4:18:40 p.m. - Sgt. Thomas advises that the accused is getting out of the suspect vehicle and the accused is running with a bag in hand into the bush. Just one person is seen so far. Dispatch conveys this information with a description: male, dark coloured top with grey sweatpants.

Officer Scott advises Sgt. Thomas over the radio that they are not going to chase the guy but are going to clear the van. Dispatch advises the suspect is headed toward the 401.

[40] Officer Scott testified that he observed no one else in the van and also observed that two guns were lying beside each other in the van. Accordingly, at page 29 of Exhibit 2, Tab 3, Officer Deschatelets advises dispatch that no one else is in the van and two rifles are in there. Dispatch relays this information.

[41] Officer Scott testified that he did a quick search of the vehicle and located the two rifles, a full package of .22 calibre rounds and a 9 mm box with empty rounds but two rows of five rounds each were missing – see slides 17, 22, 24, 26 of Exhibit 1. Officer Scott did not notice the two individual spent 9 mm rounds that can be seen in slide 18 and slide 20 of Exhibit 1. Officer Scott did not know what calibre the rifles were. 9 mm shells are common for pistols.

[42] At page 31, at the end of the 4:18:40 transmission, Officer Scott reports his findings to dispatch at lines 12 to 16:

MALE RADIO: 52C, just to update, two rifles in the van, couple boxes of open ammunition with rounds missing.

DISPATCH: 10-4. Open ammo, rounds missing.

Pages 32-34 – 4:24:25, 4:24:23 – The following transmissions describe the events just before, during and after shooting occurs:

DISPATCH: We’re ---

SOUTH-S31: … the vehicle was bailed in a bush almost straight across from where New Dundee Road comes down and curves parallel to highway. So if we can keep an eye on that bush on the south side of the highway, that’d be appreciated.

DISPATCH: We’re not patched yet. We are doing a patching shortly. OPP is heading it up.

SOUTH-S31: Oh, okay.

DISPATCH: It was good though.

18-071731-162425 DIV2

DISPATCH: Headquarters (inaudible).

MALE RADIO: (inaudible). 401 westbound.

DISPATCH: Headquarters to all units, we’re now patched with the OPP. Headquarters to – headquarters to South S-31, do you want to let OPP know your update?

SOUTH-S31: Sure. I’ll try to remember what I said. The vehicle was bailed in the bush directly south of the 401, where New Dundee Road comes down and curves parallel to it or straight across the highway from there. The driver fled into the bush towards the – towards the highway from here.

MALE RADIO: I got him. He’s going out to the 40l.

DISPATCH: 10-4. On the 401.

FEMALE RADIO: (inaudible), which way on the 401?

DISPATCH: Headquarters to Central-S10, which way on the 401?

18-071731-162523 DIV2

MALE: Show me your hands. Don’t move. Put your hands in the air now.

18-071731-162535 DIV 2

FEMALE RADIO: (inaudible) westbound 401.

DISPATCH: 10-4. Westbound 401.

FEMALE RADIO: (inaudible) but I don’t see him.

FEMALE RADIO: (inaudible) to continue going straight back.

FEMALE RADIO: He’s on the wrong air, he’s on north air.

K-9-2: K-9-2, where is his car?

MALE: Show me your fucking hands now. Now. You got ---

MALE: He’s not showing me his hands, HQ. Show me your fucking hands.

DISPATCH: 51, further up.

MALE: Show (inaudible). Show me your fucking hands now.

FEMALE RADIO: (inaudible), I think I see him.

MALE RADIO: Okay. He’s 401, going eastbound south ditch just west of Homer Watson. (inaudible) update, I’m going out there.

K-9-2: And we need a better address location, 51.

MALE RADIO: S62, shots fired. Male is down, 9-49. OPP are with me, get me an ambulance, please. He’s been shot in the leg.

DISPATCH: 10-4. Shots fired, male down, ambulance heading.

S31: S31 (inaudible).

S3: Yeah, copy. I’m trying to get a hold of a duty officer. S3 to headquarters, have we had any success there?

D1: D1 to HQ, I’ve been listening. I’m heading that way.

18-071731-162535 DIV2

No transmissions.

[43] Officer Scott testified that Sgt. Thomas tasked Constable Scott to stay with the van for continuity purposes. There was no discussion of pursuing the suspect at that time.

[44] Officer Scott’s notes were made about 20 minutes after the shooting. Regarding the lead up to the shooting, Officer Scott noted that there was a male voice stating, “I think I have him near 401”, “Show me your hands”, “He’s not showing me his hands”.

[45] Officer Scott heard four or five gunshots fired rapidly one after the other – the time from the first shot to the last shot was no more than 4 seconds – one per second more or less. Officer Scott stayed with the stolen van until 5:10 p.m.

[46] In cross-examination, Officer Scott indicated that K9 was contacted before Officer Scott stopped behind the van in the field.

[47] The male voice telling the accused to raise his hands was loud but not angry. The voice was fairly direct, stern and clear.

[48] The time between the first demand to the suspect to show hands and the first shot was about 10 seconds. Officer Scott recalls four or five shots but didn’t count them as they were in quick succession.

BEN KOONSAKDA

[49] Ben Koonsakda was a training officer partnered with Sgt. Thomas on March 31, 2018. Their call sign was 5-31 for Cambridge South Division.

[50] At approximately 3:20 p.m., Officer Koonsakda received information of a stolen Caravan with possible stolen rifles. This information came over the radio and also from CAD. They were given information that the van was at the end of Old Mill Road. They got there at 4:04 p.m.

[51] From then until the stolen van was abandoned on field number 3, Officer Koonsakda’s evidence is consistent with Officer Scott’s evidence. For example, Officer Koonsakda marked on the Exhibit 6 duplicate map of Old Mill Road, depicted at Exhibit 1, page 2 the following locations:

1. An “X” where Sgt. Thomas and him initially parked on Old Mill Road.
2. A square near the pond where the van stopped after approaching the officers blocking Old Mill Road.
3. A triangle where tracks were seen on the west side of Old Mill Road.
4. A dot where the van came to rest on field number 3.
5. A solid line where Sgt. Thomas’ cruiser went.

[52] These markings are similar to markings outlining similar evidence given by Officer Scott in Exhibit #5. Officer Koonsakda added this detail:

Officer Koonsakda drew out his firearm when the van proceeded toward them and stopped 100 metres away from them.

[53] The driver, upon leaving the driver seat, had both the driver’s door and driver side sliding door open. The driver, upon leaving the driver seat, was seen to be a male wearing grey sweat pants and a long sleeve sweater. The driver went back to the vehicle and grabbed a large duffle bag. The bag was full and looked heavy. The driver put the bag over his shoulder and went into the dense bush area.

[54] Officer Koonsakda remembers hearing the suspect went to Hwy. 401.

[55] Officer Koonsakda heard over the radio that an officer saw the suspect stating “I got the guy” “Show your fucking hands” “Show your fucking hands” “He’s not complying”. Officer Koonsakda, on April 1, 2018, assisted in transporting the accused from the Hamilton General Hospital. The accused told ambulance workers that he was in the stolen vehicle before he got shot. The accused said he drove up and he saw police officers with guns out and he fled the scene. The van got stuck in the mud and later he got shot.

[56] In cross-examination, Officer Koonsakda remembers that the duffle bag was large, but the size of the bag was not noted in his notebook. However, at the preliminary hearing the officer testified that the bag was large.

OFFICER MATHIEU DESCHATELETS

[57] Officer Deschatelets joined the Waterloo Police Service in 2014.

[58] On March 31, 2018 he was in uniform working the 6:00 a.m. to 4:00 p. m. shift. At 3:22 p.m. he was dispatched to 55 Middleton, Cambridge, regarding a stolen vehicle with two rifles, ammo and possibly a cross-bow. At 3:52 p.m. he was provided with a new location – the vehicle’s GPS was showing the van was at a dead-end on Old Mill Road. The events at Old Mill Road, as described by Officer Deschatelets, is similar to the version provided by Officers Scott and Koonsakda.

[59] Additional details, as testified to by Officer Deschatelets, are as follows:

1. When Officer Deschatelets arrived at Old Mill Road, at least two other cruisers were already there. They discussed possible tactics, including a tire deflation device and a road block. Officer Deschatelets had his Carbine rifle in his hands even though he could not see the stolen vehicle.
2. When the stolen van approached the officers, it stopped 10-15 metres away and then did a U-turn and drove away from them. Officer Deschatelets had his Carbine in his hands and got into the passenger seat in Officer Scott’s SUV.
3. Officer Deschatelets next saw the van after following tracks into the second field off Old Mill Road. The van stopped in the southwest corner of the field and he saw a person running away from the vehicle into the bush line. The person appeared to have a black bag on their right side. It was a dark coloured bag which the person was carrying with one hand on his right side. There was nothing protruding from the bag. The man disappeared into the dense forested area.
4. Officer Scott stopped his cruiser 15 feet from the van. Officer Deschatelets called out for other people to come out of the van. No one came out. Officer Deschatelets still had the Carbine in his hands.
5. There was no one else in the van. Officer Scott said he saw two rifles and said that over the radio. Scott mentioned that he saw an open box of ammunition. No cross-bow was found and it could be an outstanding weapon.

[60] Officer Deschatelets testified that the mention of an open box of ammunition is significant as that finding creates the potential for an outstanding weapon with ammunition.

[61] At p. 31 of Exhibit 2, Tab 3, Officer Deschatelets identified officers involved in the radio transmission in relation to the finding of rifles and open ammunition as follows:

MALE RADIO: Identified as the voice of Officer Scott:

“52 C, just to update, two rifles in the van, couple boxes of open ammunition with rounds missing”.

DISPATCH: “10-4. Open ammo, rounds missing”

[At Exhibit 2, Tab 1 at 16:24:30 there is a CAD entry, “S52C – open ammo rounds missing”]

MALE RADIO: Identified as voice of Sgt. Dorling:

“That’s an issue. Is the duty officer aware of this?”

DISPATCH: “I’ll check. We’re making her aware right now”.

MALE RADIO: Identified as Sgt. Dorling with inaudible clarified:

“10-4. Call ERU out”. ERU is the Waterloo Tactical Unit.

[62] Officer Deschatelets listened to the audio recordings transcribed at pp.32-34. Starting with “I got him. He’s going out to the 401” at line 29 at the bottom of p.32 and ending at the male radio voice at lines 8 and 9 of p.34, stating, “S62, shots fired. Male is down, 9-49. OPP are with me, get me an ambulance, please. He’s been shot in the leg”, all the incoming voices to dispatch marked male, male radio belong to Sgt. Dorling except for the male radio voice at line 32 at p.33 and line 1 on p.34. The only other male voice in that segment is clearly marked K-9-2.

[63] With respect to Old Mill Road, Officer Deschatelets marked on Exhibit 7 – a duplicate of the same maps marked Exhibit 5, Exhibit 6 – where he parked (marked with an “X”), where the stolen vehicle stopped and turned after approaching the police (with a square), where the stolen vehicle left the road (with a triangle) and where the stolen vehicle was stopped (with a circle). Officer Deschatelets marked the “X”, square and circle in spots relatively close to the spots marked by Officer Scott in Exhibit 5 and Officer Koonsakda in Exhibit 6. The spot marked with a triangle in Exhibit 7, where the stolen vehicle left the road, is slightly north of similar markings in Exhibits 5 and 6.

[64] In cross-examination, Officer Deschatelets confirmed that K9 was contacted before their vehicle stopped in the field.

[65] At the preliminary hearing on February 12, 2019 at p.183, Officer Deschatelets testified:

Q. Okay. And when you say a few minutes, are we talking five minutes?

A. I have at 4:22 is when they marked that we – I had mentioned that no one else in the van, two rifles in the van. But it would have been 4:26 when it was heard on the radio that male was running along the 401.

Q. Okay. So 4:26 male running on the 401. And then soon after that, you personally hear gunshots. Can you try and make – remember as best as you can how fast the gunshots were relative to each other?

A. It was one after the other …

[66] Officer Deschatelets testified at this trial that he got those times from CAD entries. The CAD entry at 4:24:42 indicates, “S52C – open ammo, rounds missing”.

[67] The CAD entry at 4:26:30 indicates, “Central S10 – on 401 – male running”. The shooting, according to Exhibit 2, Tab 3 at pages 33-34, happened between 4:25:35 and 4:25:42.

[68] Officer Deschatelets testified that there is some short lag time between an officer reporting to Dispatch and a CAD entry being sent out.

[69] The CAD entries regarding a request for ambulance, and reports from S10 (Sgt. Dorling) regarding shots fired and the suspect being shot in the leg, appear in Exhibit 2, Tab 1 and the times of the CAD entries for these reports from Sgt. Dorling are time stamped from 4:27:04 to 4:28:34.

[70] Officer Deschatelets understood that possibly two rifles and a cross-bow had been reported missing.

[71] In re-examination, Officer Deschatelets testified that he recalls seeing a box of ammunition during his search of the van, but he can’t recall where it was.

BLAKE DIONNE

[72] Blake Dionne is a Waterloo Police Services officer who was on duty on March 31, 2018. He was advised to be on the lookout for a white stolen van with a Schindler Elevator marking on it. The van had been stolen in a Hamilton Break and Enter and two rifles and ammo had been stolen. The van had a GPS tracker in it and the GPS was showing the van was at 55 Middleton in Cambridge. Officer Dionne went to that location at 3:30 p.m. but the stolen van was not there. At 3:52 p.m. the van’s GPS was indicating the van was at Old Mill Road. Officer Dionne attended at Old Mill Road.

[73] Officer Dionne’s testimony regarding the events at Old Mill Road is substantially consistent with the trial evidence provided by officers Woytaz, Scott, Deschatelets, Koonsakda.

[74] Additional information provided by Officer Dionne includes the following:

1. Upon arrival at Old Mill Road, Officer Dionne employed his Carbine rifle and pointed it at the approaching stolen van.
2. After the stolen van approached the police at Old Mill Road and then turned away, Sgt. Thomas told officer Dionne to get in the back of Sgt. Thomas’ cruiser.
3. Sgt. Thomas drove on to a farmer’s field at 201 Old Mill Road. Officer Dionne was advised that the van was stuck on an adjacent field.
4. Officer Dionne pointed his Carbine rifle at the van. Officer Dionne saw a lone occupant running toward the bush. The fleeing individual had grey pants, dark top and was carrying a bag on his back. The individual was going westbound toward the 401. The individual was sprinting away.
5. Officer Dionne wanted to pursue the suspect, but Sgt. Thomas said no – Officer Dionne was to help secure the van and provide cover for an approach from the bush area.
6. Officer Deschetelets had his Carbine rifle deployed and Officer Koonsakda had his pistol out.
7. Officer Dionne heard S10 advise the suspect was running on Hwy. 401 and heard several commands for the suspect to show his hands. There was radio silence and Officer Dionne heard 4 gun shots, one after the other over 6-7 seconds.
8. Officer Dionne marked on Exhibit 8 (a map of Old Mill Road similar to Exhibits 5, 6, 7) where he parked his cruiser (with an “X”), where the stolen van’s furthest approach to the police was (with a square) and where the police entered the field (with a triangle) and where the van came to a rest (with a circle). These markings are similar to Exhibits 5 and 6 markings except the circle in Exhibit 8 is at the edge of field number 2, a little to the right of the van’s resting place in field number 3 in Exhibits 5 and 6.

[75] In cross-examination, Officer Dionne testified it was possible that the suspect was running with a bag in his hand.

[76] It was approximately five seconds from the last verbal command to the first shots.

BRUCE SIM

[77] Det. Sgt. Sim has been a police officer for 29 years and on March 31 – April 1, 2018 was an identification officer. With respect to this investigation he had four roles:

1. Taking photographs – see Exhibit 1 photos marked BAS (Bruce Allan Sim).
2. Fingerprints of surfaces.
3. Taking samples for testing.
4. Conducting a search of the stolen van.

[78] Regarding fingerprints, no suitable fingerprints were obtained. No fingerprints were taken from the rifles.

[79] Regarding the two rifles and ammunition, no ammo suitable for use in the two rifles was located in the stolen van. There was no trigger lock on the rifles or in the van.

[80] The rifles were test fired successfully and both rifles meet the definition of firearm in S.2 of the Criminal Code.

[81] The .22 calibre shot cartridges, located in the van, totalled 100 rounds and constituted a full container – see Exhibit 1, slide 21.

[82] The 9 mm ammo box had 40 spent cartridges; the container has capacity for 50 cartridges. Two loose cartridges were found near the 50 cartridge box – see Exhibit 1, slides 18-20, 22.

[83] Swabs, suitable for DNA analysis were taken from the following items:

1. Cigar tip located on console of van – see Exhibit 1, slides 15, 40 and 41.
2. From the rear of the vehicle – right handed glove with dimples – see Exhibit 1, slides 28, 30, 31 and 32.
3. From the rear of the vehicle – off white fabric gloves – see Exhibit 1, slides 28, 30, 31 and 32.
4. From the rear of the vehicle – New York Yankees baseball cap – see Exhibit 1, slides 28, 30, 31 and 32.
5. Swabs of cap and bolt cutters found in trunk – see Exhibit 1, slide 35.

[84] The swabs from items 1-4 above and the cap in item 5 were sent to the CFS. The results are included at Exhibit 1, slide 42. John Hannaford, the accused, could not be excluded as the source of the DNA profile from the cigar tip (found on the van console) and the N.Y. Yankees cap. The probability of this finding to be a coincidence is estimated to be greater than one in a trillion – see Exhibit 9 CFS report and Exhibit 1, slide 42.

[85] In cross-examination, Officer Sim confirmed that no identifiable fingerprints were found. Officer Sim did not check the ammunition or rifles for fingerprints.

DETECTIVE CONSTABLE JARDINE

[86] Officer Jardine searched the van also and catalogued 42 items. They are listed in Exhibit 10.

[87] On April 3, 2018 the items circled in Exhibit 10A were returned to Gary Tamming, an employee with Clark, a business in Caledonia.

[88] In cross-examination, Officer Jardine indicated that he gave no items to the SIU but on Monday, April 9, 2018 gave Exhibit 10, item #1 (DVR system) and item #23 (motor vehicle keys) to a Mr. J. Christie.

JEREMY BOWMAN

[89] Officer Bowman has been a police officer with the Waterloo Police Service for 6 years.

[90] On March 31, 2018 he was in uniform in a marked cruiser. At about 4:28 p.m. he heard a radio transmission regarding shots fired and he went to Hwy 401 to the crime scene. Officer Bowman was generally aware that the police were trying to locate a stolen van with possibly firearms in the stolen vehicle.

[91] Officer Bowman arrived at the crime scene at 4:31 p.m. Officer Bowman parked against the median on the westbound side of Hwy. 401. There were two Waterloo Region Police Service cruisers and two OPP cruisers parked on the eastbound side of Hwy 401.

[92] Officer Bowman ran across Hwy 401 and walked down a grassy ditch and saw a man down near the tree area – see the red circle near the gap in the trees in slide 56 of Exhibit 1. Officer Bowman put up the police tape seen in slides 50-52 in Exhibit 1.

[93] There were a number of police officers at the scene, including Officer Edwards and Sgt. Dorling from the Waterloo Police Service. Sgt. Dorling was in uniform and Sgt. Dorling walked past wearing blue gloves.

[94] Sgt. Dorling did not speak to Officer Bowman.

[95] Officer Bowman noted that the police had to step over a waist high fence to get to Mr. Hannaford. Officer Bowman got bolt cutters from Sgt. Thomas’ cruiser and cut the fence away – see slide 48 in Exhibit 1.

[96] Officer Bowman observed a black bag near the accused at markers 6 and 7 that can be seen at slides 48 and 49 of Exhibit 1.

[97] After Officer Bowman cut the fence, he moved his cruiser from westbound 401 to eastbound 401 near the crime scene. When he got back to the scene, fire, ambulance and a helicopter were there.

[98] At 4:42 p.m. paramedics arrived. The paramedics arranged to have Mr. Hannaford’s handcuffs moved to the front. Mr. Hannaford was in pain stating, “my leg, my leg, let me move my leg”.

[99] In cross-examination, Officer Bowman confirmed Mr. Hannaford was lying down on a small clearing with dense trees beyond where Mr. Hannaford was lying down. It is common to find items on the side of Hwy 401 and it didn’t surprise him to find a $20 bill.

KATRINA EDWARDS

[100] Katrina Edwards is a Waterloo Region police officer. She was working alone in her cruiser on March 31, 2018. She was advised by her supervising officer, Sgt. Dorling, at 4:14 p.m. to go to Homer Watson at the 401.

[101] As she drove there, she read the CAD reports detailing the police investigation regarding a stolen van containing two rifles, a cross-bow and ammo. Her call sign is C15A.

[102] She arrived at Homer Watson at 4:26 p.m. She had been given a description of a male suspect wearing a baseball hat, dark top and grey pants. As she was driving to Homer Watson, she heard, over the radio, Sgt. Dorling stating he had located the male and heard Sgt. Dorling repeatedly stating, “show your hands”.

[103] She increased her speed and activated her cruiser’s siren.

[104] From the content and stress in Sgt. Dorling’s voice, she had the impression of a situation involving serious bodily harm or death.

[105] The radio went silent and she started switching radio channels.

[106] She saw Sgt. Dorling’s cruiser on the eastbound side of Hwy 401 and Officer Edwards parked near the median on the westbound side of Hwy 401. As she exited her cruiser, she heard over the radio that shots were fired. She ran over the median and went across the eastbound lanes. There was an OPP officer also jumping over the median.

[107] Officer Edwards saw Stg. Dorling in the grass-bush area. Sgt. Dorling was finishing placing handcuffs on the suspect.

[108] Officer Edwards climbed over the four foot fencing and went toward Sgt. Dorling. Sgt. Dorling was visibly upset and said, “Fuck”. She calmed him down by saying “it’s ok”.

[109] The suspect was moving around a little bit from the pain. He was a white male wearing a baseball cap, light pants, dark top, sunglasses. There was blood coming from his right thigh. A tourniquet was applied to his right leg.

[110] Officer Edwards conducted a pat down search of the suspect for officer safety reasons.

[111] Inside the suspect’s inner grey sweater, was a layer of folded bills. She obtained a Bank of Montreal bank card signed Josh Hannaford. She asked him if he was Josh. The suspect answered “yes” and stated, “call my wife/my leg hurts”.

[112] It started to rain heavily and Officer Grieve brought a medical blanket to cover the suspect. Due to wind gusts, the blanket was held down by sticks. Officer Edwards assisted in removing the suspect’s handcuffs from the rear to the front to assist in the medical care being provided by EMS personnel.

[113] The suspect was prone lying on his stomach. His feet were toward the eastbound lanes of Hwy 401 and his head was more toward the bush area.

[114] Five feet from the suspect was a folded pocket knife. Officer Edwards observed it in the bush-grass area – see slide 79 of Exhibit 1. She believes someone told her there’s a knife there.

[115] There was a black laptop bag lying a couple of feet from the suspect, closer to his legs. She didn’t touch the bag. Nothing was protruding from it.

[116] An ORNGE helicopter landed and the suspect was transported by stretcher into the helicopter.

[117] Cruiser 707C was present when she arrived in the location depicted at slide 50 in Exhibit 1.

[118] The suspect, Hannaford, was in the area where the yellow markers are in slide 48 of Exhibit 1. Officer Edwards believes that the black bag was where markers 6 and 7 were placed as depicted in slides 48 and 49 in Exhibit 1.

[119] Slides 81 and 84 of Exhibit 1 show the Bank of Montreal card taken from Mr. Hannaford during the pat down search. Mr. Hannaford’s signature appears on the back of the bank card.

[120] Slide 80 of Exhibit 1 shows the black baseball cap. Mr. Hannaford had a black baseball hat on, but Officer Edwards does not remember the logo.

[121] In cross-examination, Officer Edwards confirmed that given the stress in his voice, she concluded that Sgt. Dorling was at risk of significant bodily harm.

[122] Sgt. Dorling does not swear on calls but swears on a day-to-day basis.

[123] When Officer Edwards heard Sgt. Dorling say fuck, he was not calm. She touched him and said, “it’s OK”.

[124] Officer Edwards never observed any firearms, cross-bows or any other weapons other than the knife she described.

[125] There was no glove attached to the knife. The black bag was 1-2 feet away from where the suspect was lying.

[126] Officer Edwards held the suspect’s right leg while the tourniquet was put on the suspect. She assumed the accused was under arrest as he was handcuffed. Officer Edwards didn’t hear any gun shots.

[127] The distance from the suspect’s feet and the fence is 10 feet or so.

[128] When she learned that shots had been fired, she was not sure if Sgt. Dorling was firing or whether he was being shot at.

[129] Regarding Exhibit 1, slide 78, the suspect’s stomach was between markers 12 and 9 where the blood is. The suspect’s feet were toward the highway between #3 and #10 markers. The suspect’s head was in the direction of the bushes.

[130] Officer Edwards indicated she doesn’t recall any trees in a 10 foot radius of where the suspect was lying. There were no bushes in the area where the suspect was – see Exhibit 1, slides 48 and 49.

[131] Officer Edwards can’t say if the trees had leaves or not. Officer Edwards did not touch the bag and saw no one touch it.

[132] On the police radio attached to the police uniform, there is a red button which, if pressed, leaves the radio on for about 30 seconds. She had no idea if that was pushed or not.

AMANDA GRIEVE

[133] Amanda Grieve is a Waterloo Region Police Service officer who was on duty on March 31, 2018. Her supervising officer on that day was Sgt. Dorling.

[134] At 4:10 p.m. she was dispatched to go to Old Mill Road and Dickie Settlement Road in Cambridge. Prior to that dispatch, she had received an alert that the Waterloo Region Police were searching for a stolen van – with a Schindler Elevators sign, which contained two stolen shotguns and another firearm which she believed was a handgun. She had received a 981 alert – see Exhibit 11.

[135] She later received information from dispatch that the vehicle was stuck in mud and two rifles were located in the van. Also found were ammo boxes and ammo in the boxes was missing.

[136] Sgt. Dorling advised he was westbound on Hwy 401 west of Homer Watson Blvd. Officer Grieve was re-routed to Princess Auto on New Dundee Road west of Homer Watson Blvd. She arrived there at 4:26 p.m.

[137] She heard on the police radio that the suspect was running on the 401 on the south side. Sgt. Dorling was heard on the radio stating he saw the male, and stated, “show me your hands” and then “he’s not showing me his hands”. Sgt. Dorling’s voice had a sense of urgency and he sounded fearful. She then heard Sgt. Dorling report that shots were fired, and the suspect had been shot in the leg. At some point, Sgt. Dorling asked for ERU to respond.

[138] Officer Grieve exited New Dundee Road, travelled eastbound to Homer Watson Blvd. and then proceeded westbound on Hwy 401. She saw cruisers with lights activated on the eastbound side. She parked behind an OPP cruiser parked near the median on westbound 401. She didn’t know who shot who and there was a sense of urgency. She went to the grassy area adjacent to eastbound 401 and saw Sgt. Dorling walk up a hill. She asked Sgt. Dorling if he was OK. Sgt. Dorling replied, “Fuck, I had dinner plans”. Officer Grieve’s opinion was that Sgt. Dorling was upset and pissed off. Officer Grieve saw Officer Edwards two metres from where the suspect was lying on the ground. There were no obstructions except for taller type grass. The suspect – a white male - had a tourniquet on his leg. There was lots of blood on his thigh and there was blood on the grass around his leg.

[139] Officer Edwards pointed to a purple glove. The glove was tied to the grass and there was a knife under the purple glove. The knife was approximately 2 metres from the suspect’s feet. The suspect’s feet were closer to the highway than his head – the suspect was lying at a slight angle to Hwy 401.

[140] There was a black bag also two metres from the suspect, but it was in an opposite direction to where the glove was. There was a cell phone beside the bag. The suspect was asking to have his foot turned over. He was in pain and was asking for his wife. Officer Edwards indicated the suspect’s name was Josh. Sgt. Thomas got a blanket from the OPP and the blanket was draped over Josh.

[141] Office Koonsakda got sticks and put sticks on the blanket to hold it in place.

[142] Josh told her, “Thank you, you saved my life”.

[143] Officer Grieve went to check on Sgt. Dorling. He invited her into his cruiser and a discussion ensued. They didn’t discuss the events in the field. She spoke to him about his family. Sgt. Dorling was shaken up and was easily distracted and changed subjects. Inspector Goodman arrived and he directed her to take Sgt. Dorling to Central Station at about 4:51 p.m.

[144] She arrived at Central Station at 5:06 p.m. and they walked to the Staff Sergeant’s office. Sgt. Dorling conversed easier at that time. She left Sgt. Dorling at Staff Sergeant Richards’ office and had no further interaction with Sgt. Dorling. She started to write her notes at 7:23 p.m.

[145] In cross-examination, Officer Grieve testified that her information was that the van was stolen, and the firearms were stolen, but she did not know if the firearms were in the van when it got stolen.

[146] At the preliminary hearing at pages 51-53, Officer Grieve testified that her recollection was that the information from the complainant was that two firearms and one cross-bow firearm had been in the van when it was stolen.

[147] The suspect was lying on the ground with his left side of his face on the ground. The suspect was lying on his left side and had a tourniquet on his right leg. The bag was not touching the suspect, and no one moved the bag. It was a business laptop bag.

[148] Officer Grieve made a note that Sgt. Dorling was in good spirits at the Staff Sergeant’s office. However, Officer Grieve testified that Sgt. Dorling was clearly shaken up in the cruiser. Officer Grieve was referred to p. 88 of her preliminary hearing testimony where she stated:

A. Yes. So I left the scene at 16:51, excuse me, with Sergeant Dorling in the passenger’s seat and we headed towards Central Division.

Q. Any, anything noteworthy that occurred on route towards Central Division?

A. We kept talking about making sure he was okay, oh, his family. I believe that he seemed that he was in shock, at that point.

Q. What led you to that conclusion?

A. I, I felt as though he – we talked about personal stuff and he was – if I was in that situation, I, I would feel that I would, probably wouldn’t want to say very much or not want, want to talk about anything, at all. I would probably be processing what just happened, but he seemed to have a, normal conversation. He didn’t seem very stressed at that time, so I felt that he was still in shock, thinking, if I was in that situation, I think I would have maybe, oh, reacted a little differently …

[149] When Sgt. Dorling walked by her initially, he seemed less stressed than he was during the shooting incident.

[150] After the blanket was obtained, she reassured the suspect that EMS was coming, and he would be taken care of. The suspect looked scared and stated: “Thank you – you’re saving my life”.

[151] Officer Grieve could not identify any of the slides in Exhibit 1 other than stating the shooting scene looked similar.

[152] The suspect’s feet were the closest part of him to Hwy 401, which was about 30 metres away.

[153] In re-examination, Officer Grieve indicated she never spoke to the complainant. In compiling her notes, she used information from the 981 alert, CAD and radio transmissions along with her recollection of events.

LOUIS KERNOGHAN

[154] Officer Kernoghan is an OPP officer with 25 years experience and was an impressive witness.

[155] On March 31, 2018, Officer Kernoghan was on a day long shift from 6:00 a.m. to 8:00 p.m.

[156] Officer Kernoghan received information to be on the lookout for a white stolen van with firearms. After speaking to a Waterloo Police officer, Officer Kernoghan advised his dispatcher he was going to go to Old Mill Road to assist the Waterloo Police with the stolen van investigation.

[157] Officer Kernoghan arrived at Old Mill Road at 4:10 p.m. Officer Kernoghan got an update from Waterloo Police officers at Old Mill Road and decided, given the number of officers at Old Mill Road, that the investigation would be better served by Officer Kernoghan proceeding to Hwy 401 to do containment of the suspect. At 4:17 p.m., he left Old Mill Road, returned to the 401 and after proceeding westbound on Hwy 401 to Cedar Creek Road in order to access the eastbound 401, Officer Kernoghan parked his cruiser on the south shoulder of the eastbound 401. He positioned himself about a ½ km. behind a Waterloo Police cruiser parked on the south shoulder of eastbound 401, in an area just north of the roundabout on Old Mill Road.

[158] Officer Kernoghan got patched into the Waterloo Police Service radio. At 4:20 p.m. there was a message on the radio that the suspect left the stolen van on foot. Officer Kernoghan maintained his point of containment.

[159] At 4:26 p.m., Officer Kernoghan heard an officer on the radio uttering short sentences in a distressed tone. There were a few short sentences and then the voice stopped.

[160] Officer Kernoghan made the decision to move forward and parked behind the Waterloo Police Service cruiser at 4:27 p.m. He parked in the general area behind the Waterloo Police cruiser as depicted at slide 50 of Exhibit 1.

[161] Officer Kernoghan then saw a Waterloo police officer in the south ditch with a male on the ground. There is a 4 foot wire fence 20-25 metres south from the eastbound Hwy 401 shoulder and the Waterloo police officer was a further 5 metres south of the wire fence.

[162] The Waterloo police officer was in the progress of handcuffing the male on the ground who was laying on his stomach. The suspect’s feet were toward the 401.

[163] Officer Kernoghan ran into the south ditch toward the officer and crossed the fence with the help of OPP Officer Bedard, who arrived at the fence around the same time.

[164] The Waterloo officer was on the suspect’s right side just finishing handcuffing the suspect. Officer Kernoghan assisted the last stages of the handcuffing by placing his knee on the suspect’s back. Sgt. Dorling appeared at that time to turn his focus from the suspect to Officer Kernoghan. Not much was said.

[165] Officer Kernoghan observed what appeared to be blood on the suspect’s leg. He did not see any trauma. Sgt. Dorling said, “he’s been shot”. Officer Kernoghan asked Sgt. Dorling if he had a compression tourniquet. Sgt. Dorling said no. Officer Kernoghan provided Sgt. Dorling with a tourniquet and Sgt. Dorling put the tourniquet on the suspect. They decided to elevate the suspect’s leg. There was a black satchel type of bag nearby and Sgt. Dorling grabbed it. They rolled the suspect on his back and propped up his leg. The suspect was moaning and there was no conversation.

[166] Officer Kernoghan noted a cell phone nearby - see slide 80 of Exhibit 1 – but other than the black bag and cell phone, he did not notice any other items. The satchel black bag can be seen at slides 49 and 81 of Exhibit 1.

[167] In slide 48 of Exhibit 1, there is a silver blanket which came from Officer Kernoghan’s cruiser.

[168] Upon other Waterloo officers arriving, Officer Kernoghan returned to his cruiser and arranged for an ambulance. Officer Kernoghan also arranged to have Hwy 401 shut down so that the ORNGE helicopter could land and take the suspect to the hospital.

[169] In cross-examination, Officer Kernoghan provided details of the distressed voice on the radio as follows:

1. The words were speedier than normal.
2. The voice was louder than normal.
3. There was no anger in the voice.

[170] After hearing the distressed voice, Officer Kernoghan made the decision to drive toward the parked Waterloo cruiser as he felt there was a strong possibility someone might need help.

[171] Officer Kernoghan’s windows were rolled up and he didn’t hear any gunshots. It took 15-30 seconds at most to run to the suspect.

[172] The look on Sgt. Dorling’s face when Sgt. Dorling saw officer Kernoghan was one of relief.

[173] The suspect was in a little distress but was not confused or scared.

[174] There was nothing unusual about the suspect’s face.

[175] Officer Kernoghan saw a stain on the suspect’s right leg. It was raining very hard and Officer Kernoghan saw staining around the leg for about 6 inches down his leg. There was no pooling of blood – it was raining very hard. There was no trauma on the leg. Officer Kernoghan thought the suspect cut his leg on the fence. He only realized it was blood when Sgt. Dorling said the suspect was shot. The best practice was to apply a tourniquet and elevate the suspect’s leg and that is what they did.

[176] The bag was close and officer Kernoghan could not be certain if the bag was to the left or right side of the suspect. Officer Kernoghan maintained he could not be sure where the bag was exactly even after being directed to the following excerpt of the preliminary hearing at p.177:

Q. Okay. You’ve mentioned you did notice a bag. You can’t recall where that black bag was in terms of right or left, correct?

A. Right or left, of?

Q. Of the, the wounded leg?

A. It – you know, I can’t remember where it was but, I’m almost 100 percent sure it wasn’t to the left, because I was to the left …

Q. Okay.

A. … so ….

Q. It was on right, is your best ….

A. That’s, that’s – if, and if you’re looking for my opinion, that’s where I would place it, would be to the right, on Sergeant Dorling’s side.

Q. And you do explain that the bag is very close to the man on the ground.

A. It had to be very close.

[177] Officer Kernoghan did not see any weapons in the area – Sgt. Dorling’s pistol was holstered; he did not see any rifles, cross-bows or knives.

[178] Officer Kernoghan was at the scene where the suspect was for about 5 minutes. There may have been a female Waterloo police officer there, but he didn’t see one. Sgt. Dorling was still there when Officer Kernoghan left the scene.

[179] There were no bushes within a metre of where the suspect was laying. There is a bush line behind the suspect’s head and sporadic bushes. There was no obstruction of a bush in the vicinity of the suspect.

[180] When Officer Kernoghan was in his cruiser making ambulance arrangements, a Waterloo police officer came up and asked for a blanket which was provided to that Waterloo officer.

[181] The Crown, with the consent of the defence, filed the following Exhibits:

Exhibit 12 Probation Order – dated 2017/08/04 from Hamilton and in effect for 3 years in addition to jail sentence.

Exhibit 13 Weapons Prohibition Order – pursuant to S.110 CC – dated August 3, 2017 and in effect for 10 years.

Exhibit 14 Certificate of Driver Licence Suspension – status on March 31, 2018 – Driver’s Licence Suspended.

RICHARD DORLING

[182] Sgt. Dorling is an officer with the Waterloo Region Police Service.

[183] On March 31, 2018, he was in full uniform operating marked cruiser 707. He has the rank of sergeant and was in charge of the Kitchener platoon (Central Division). The South Division is Cambridge and North Division covers Waterloo. His call sign that day was Central S10 signifying he was the supervisor for Central Division that day. His shift that day was the 7:00 p.m. to 5:00 a.m. shift.

[184] Sgt. Dorling was near the end of his shift and was getting gas at the regional yards at Ottawa and Alpine in Kitchener. He was listening to his cruiser radio, which at the time was tuned in to the Central Division – Kitchener channel. The radio band for the other two divisions are on separate channels.

[185] The Central Dispatch at 3:55 p.m. requested Sgt. Dorling to transfer one of his Central Division officers to assist South Division in Cambridge and he gave this permission – see Exhibit 2B.

[186] Sgt. Dorling adjusted his radio to listen to the South Division, Cambridge channel. Sgt. Dorling left his portable radio on the Central Division – Kitchener channel.

[187] Sgt. Dorling received the information that is outlined in the CAD reports at Exhibit 2, pages 1-2 and following, regarding Sgt. Thomas, the Cambridge supervising officer, responding to a Hamilton Police Service assistance call regarding a stolen van which, through GPS, had been traced to Old Mill Road. The vehicle had been stolen from a Break and Enter and firearms as well as ammo had been stolen in the Hamilton Break and Enter.

[188] Sgt. Dorling was still at the Kitchener gas station and Sgt. Dorling decided to offer two Kitchener units to assist the Cambridge South Division units due to the seriousness of the situation – see Exhibit 2B transmission at 15:58:51.

[189] Sgt. Dorling was driving on Homer Watson Blvd. to the 401 when he heard the transmission at pages 10-11 at 15:54:11 that the van had two rifles, possibly another unknown offensive weapon (a 9-17) – see Exhibit 2, Tab 3 at pages 10-11.

[190] At 4:11 p.m., Sgt. Dorling requested his dispatcher to transfer his car radio to the Cambridge channel. Further, at 15:59:11 at page 14 of Exhibit 2, Tab 3, Sgt. Dorling confirms he is sending some of his units to South Division until he hears otherwise - see also Exhibit 2B.

[191] Sgt. Dorling’s experience is that on serious calls like this (i.e.: stolen vehicle with stolen firearms and ammo), officer safety is paramount and the more officers available, the better.

[192] At page 14 of Exhibit 2, Tab 3, Sgt. Thomas asks for a K-9 unit, which is a tactical decision and illustrates this is not an ordinary situation.

[193] At page 14 of Exhibit 2, Tab 3, dispatch advises again that there are officer safety concerns due to “there is 2 rifles, one cross-bow, firearms are not trigger locked”.

[194] At page 15 of Exhibit 2, Tab 3, dispatch advises that ammo was stolen along with the firearms.

[195] Sgt. Dorling testified that given that rifles were stolen, they were not trigger locked, and ammo was stolen as well, this was now an extremely serious police occurrence.

[196] At 16:08:49, Exhibit 2B indicates that Kitchener officers were being transferred into the South Division computer system.

[197] Sgt. Dorling understood that Sgt. Thomas was setting up on Old Mill Road and was undertaking to do a road block with a spike belt – a tire deflation device.

[198] Sgt. Dorling overheard on the radio the events occurring at Old Mill Road with the van driving down Old Mill Road and then reversing.

[199] Sgt. Dorling drove to the car pool lot at Hwy 401 and Homer Watson Blvd., but a cruiser was already there.

[200] Sgt. Dorling saw that Hwy 401 had no cruisers on it. Sgt. Dorling, with lights flashing, drove the wrong way down the ramp, drove westerly on the eastbound lane of the 401 and did a U-turn and parked on the southerly shoulder of the eastbound lanes of the 401. Sgt. Dorling drove to an area where he estimated where the stolen van would be to the south of him.

[201] At page 20 of Exhibit 2, Tab 3, Sgt. Thomas is discussing a technical plan.

[202] At page 21 of Exhibit 2, Tab 3, Sgt. Dorling advises dispatch at 16:09:09 that “Central S-10 is on south and I’m bringing more units”.

[203] At pages 24-25 of Exhibit 2, Tab 3, Sgt. Dorling heard the stolen van was driving off road towards Whistle Bear, which is a westerly direction. Sgt. Dorling believed that the stolen vehicle was travelling parallel to him.

[204] At. 4:20 p.m., Sgt. Dorling receives an update - that a lone male is running with a black bag into the bush where the car is – see Exhibit 2, Tab 3 at pages 27-28. The description given at Exhibit 2, Tab 3 at pages 21 and 28 is a white male, black baseball hat, dark coloured top with grey or tan sweatpants.

[205] Sgt. Dorling heard on the radio that the OPP were on the way.

[206] However, there were no other cruisers on the 401. Sgt. Dorling asks at page 28, Exhibit 2, Tab 3 at the communication labelled 16:18:40; “Bob, is he headed toward the 401?” Sgt Dorling, hears, as outlined at page 29 of Exhibit 2, Tab 3 that no one else is in the van and there are two rifles in the van.

[207] At page 30 of Exhibit 2, Tab 3, the K-9 officer advises that because of the firearms issue, the K-9 officer will need two officers with him/her instead of the usual one officer that is normally required. This is consistent with the one plus one rule that is implemented for officer safety reasons. This was requested due to the real possibility of the suspect possessing a loaded firearm.

[208] At page 31 of Exhibit 2, Tab 3, a description of the suspect is provided as a 30-40 year old white male – wearing dark coloured top, grey sweatpants and a black baseball hat. Officer Scott provides an update on the van – two rifles in the van, couple boxes of open ammunition with rounds missing.

[209] Sgt. Dorling responds on the radio at page 31, “That’s an issue. Is the duty officer aware of this?” Sgt. Dorling testified that he believed this was a major incident. The duty officer is the officer in charge of the Division.

[210] Sgt. Dorling felt that the missing rounds could be used in a firearm. Accordingly, Sgt. Dorling advised at page 31 of Exhibit 2, Tab 3, “Call ERU (Emergency Response Unit) out”. Sgt. Dorling made this comment as he believed that the missing rounds were loaded into a firearm and as well, no cross-bow had been recovered.

[211] Sgt. Dorling testified he remembered an earlier dispatch that two rifles had been stolen, plus an unknown 9-17 (weapon which could be a firearm). These earlier dispatches appear at Exhibit 2, Tab 3 at page 14, at 16:00:24 DIV2 and page 11 at 15:54:11 DIV2.

[212] Sgt. Dorling also recalled that ammo was missing as well. No details regarding the ammo had been provided.

[213] In his notes, Sgt. Dorling notes at 4.22, rifles were discovered, at 4:24 he is advised ammo is missing.

[214] Dispatch had also advised that the male was running with a bag into the bush – see page 28 of Exhibit 2, Tab 3.

[215] At page 29, Sgt. Thomas advises that the male was heading toward the highway, maybe a half kilometre from Princess Auto. Princess Auto was northeast of Sgt. Dorling’s location.

[216] All of a sudden, Sgt. Dorling saw a male fitting the suspect’s description come out of the bush. Sgt. Dorling had never seen a pedestrian in that area. Sgt. Dorling was still in his cruiser and he drove the cruiser to get closer to the suspect and parked his cruiser at the location where his cruiser 707-C is parked on slide 50 of Exhibit 1.

[217] Sgt. Dorling tried to radio what he saw in, but initially Sgt. Thomas was on the radio. However, Sgt. Dorling was able to radio from his car at 16:24:25 DIV2 that “I got him. He’s going out to the 401” – see Exhibit 2, Tab 3 at page 32, line 29.

[218] Sgt. Dorling put his portable radio on the wrong channel – Waterloo North Channel.

[219] The suspect had a black bag with a shoulder strap on his shoulder which went across his chest and the bag was at his left hip.

[220] Sgt. Dorling “guess estimate” is the suspect was 80 feet from him when he first saw him. The suspect came out where the yellow tape goes from the officer to the bush in slide 51, in Exhibit 1. The suspect was not running but was walking quickly. Sgt. Dorling got out of his cruiser to apprehend the suspect and walked to the suspect diagonally at a quick pace.

[221] Sgt. Dorling unholstered his firearm and issued the standard police challenge at the time, stating, “Police – don’t move”. Sgt. Dorling believed the suspect was armed. In danger were Sgt. Dorling, and any persons in the car pool lot east of the location and a subdivision to the west plus persons driving on Hwy 401.

[222] Sgt. Dorling repeatedly told the suspect to show his hands. Sgt. Dorling was pointing his firearm at the suspect with his right hand and was operating his portable radio with his left hand so that officers would hear what was happening. Sgt. Dorling’s first transmission was on North Air due to an error in putting on the Waterloo Channel – see Exhibit 2B.

[223] Sgt. Dorling fiddled with the channel and got on the South Division Channel. The suspect kept moving in a westerly direction. There was a wire fence and Sgt. Dorling was on the side nearest the highway and the suspect was on the other side of the fence. The suspect had his hand in his waist area and did not move his hand. Sgt. Dorling repeatedly told the suspect to put his hands in the air – see page 33 of Exhibit 2, Tab 3 and Exhibit 2B. The suspect did not comply and kept walking westbound along the fence line – see slide 63 in Exhibit 1 where there appears to be a pathway from where the suspect was arrested going westbound to the foreground of the photo in slide 63.

[224] The suspect got 20 feet from Sgt. Dorling. Sgt. Dorling could see the suspect holding a black handled object in his pants at his waist. Sgt. Dorling believed, based on the dispatch information and the suspect’s actions, that the suspect was holding a firearm.

[225] There’s a large thick bush that is at the furthermost westerly point of the suspect’s approach – see large bush at right side of slide 53 of Exhibit 1 and also at Exhibit 17.

[226] Sgt. Dorling lost sight of the suspect when the suspect went behind the large bush. The suspect was there for 5-10 seconds. Sgt. Dorling’s thought process was that the suspect was getting something out of the bag. Sgt. Dorling expected to get shot at.

[227] Sgt. Dorling moved in closer and the suspect started moving back east along the path he had come from.

[228] Sgt. Dorling continued to command the suspect to show his hands – see Exhibit 2, page 33, at a time when Sgt. Dorling had the right channel on his radio.

[229] The suspect made no response to Sgt. Dorling’s commands.

[230] The suspect made a turn to go southbound – Sgt. Dorling could see the back of the suspect and the right side of his body. The suspect’s right arm was hidden in the front of his body. The suspect turned and faced Sgt. Dorling. The suspect had his hand on the black handled item and said, “want to die”. Sgt. Dorling testified that it was his belief that the suspect stated, “I want to die”, and believed at that time that the suspect was going to shoot at Sgt. Dorling. Sgt. Dorling then discharged his firearm.

[231] Sgt. Dorling believed the suspect was armed with a firearm and was concerned that he was facing grievous bodily harm or death.

[232] Based on the Ontario use of force model, an officer, in response to serious bodily harm or death, is entitled to use his firearm to stop the threat. Sgt. Dorling discharged his firearm at the suspect to stop the threat. Sgt. Dorling did not want to fire his firearm. However, the suspect was a threat to officers on the other side of the bush and was a threat to the nearby community, and most importantly, when the suspect said, “want to die”, Sgt. Dorling thought the suspect was going to fire at the officer. Sgt. Dorling’s other possible tactical responses had limited range, i.e.:

1. baton – range – length of Sgt. Dorling’s arm;
2. taser (LEW) – range – 10-12 feet;
3. pepper spray – range – 8 feet.

[233] None of the above options were sufficient to stop the threat Sgt. Dorling was confronted with.

[234] Sgt. Dorling fired multiple times – at first, he didn’t know how many, but he fired six times. The final round struck the suspect in the right thigh and the suspect went down with his feet toward Hwy 401 and his head toward the bush area.

[235] Sgt. Dorling described the shooting as reactive shooting – it was consistent firing in the direction of the suspect with no time for careful aiming. When the suspect was turning to fire what Sgt. Dorling believed to be a firearm, Sgt. Dorling felt he was in peril of imminent bodily harm/death and he fired his firearm to stop this threat.

[236] After the suspect fell to the ground, Sgt. Dorling approached carefully from the left hand side of the suspect.

[237] Sgt. Dorling stepped over the fence and while pointing his firearm at the suspect, Sgt. Dorling ordered him to put his hands behind his back. The suspect did so, and Sgt. Dorling re-holstered his firearm and handcuffed the suspect.

[238] Two OPP officers arrived, one of them provided a tourniquet to Sgt. Dorling. Sgt. Dorling took out latex gloves and put the tourniquet on the suspect’s leg. The suspect was lying down on his belly and stated, “I wish you shot me in the head”. That was said after the suspect was handcuffed.

[239] The suspect wanted to be on his back. Sgt. Dorling stated that he had ordered an ambulance – see Exhibit 2, Tab 3 at page 34. The suspect was bleeding in the area of his right leg. The suspect was asked to state his name, but he didn’t respond.

[240] Sgt. Dorling noticed a black handled knife to his right. He tied one of his latex gloves to mark the location so that no one would miss it or kick it – see slide 79 of Exhibit 1 near yellow marker #1.

[241] Sgt. Dorling undid the outer zippers of the black bag in slide 81 of Exhibit 1. There were no weapons in the bag, just some cell phones.

[242] Sgt. Dorling searched the suspect with a feel search. No weapons were found. There was a large amount of cash in a zipper pocket on the suspect and Sgt. Dorling put it back.

[243] The suspect asked to be rolled on his back. This was done and the suspect’s leg was elevated on the black bag.

[244] Constable Edwards arrived at one point.

[245] Sgt. Dorling returned to his cruiser for emotional reasons. He knew it was going to be a long night – he wasn’t going to be with his family. He asked Constable Grieve to sit with him.

[246] At page 36 of Exhibit 2, Tab 3, Sgt. Dorling radios in to dispatch at around 16:27:23, “gunshot wound to upper right thigh. I think I just shot him once”.

[247] Slide 61 of Exhibit 1 shows the sight line Sgt. Dorling had when he fired his pistol. Sgt. Dorling stood to the left of the yellow markers in slide 61 when he fired his pistol. Slide 62 shows the opposite angle of slide 61 and his cruiser can be seen in the background.

[248] Regarding Exhibit 1, slide 72 and Exhibit 18, Sgt. Dorling discharged his firearm at a point just beyond the fence line in an approximate straight line between his cruiser parked at Hwy 401 and the apprehension site marked by yellow markers. The place of discharge of Sgt. Dorling’s firearm is marked by a circle in Exhibit 18. Slides 94 and 95 of Exhibit 1 show all of Sgt. Dorling’s use of force options – Glock firearm, 2 x 15 rounds of bullets from his magazine, pepper spray, baton and his taser (CEW) and two CEW cartridges.

CROSS-EXAMINATION

[249] The suspect was not listening to Sgt. Dorling. The suspect was not complying with Sgt. Dorling’s commands. The suspect made no threatening comments. The suspect had his hands in his pants and that was a cause for concern.

[250] At no point did the suspect point a knife or a firearm at Sgt. Dorling.

[251] Sgt. Dorling was referred to his preliminary hearing testimony on February 26, 2019 at pages 107-108:

Q. And to be clear, it was you who had your firearm pointed at him in the entire time that you saw him, correct?

A. That’s correct.

Q. And at no point did he pull out a firearm or a knife towards you, correct?

A. He did not.

Q. And although he didn’t show his hands as you’re saying, at no point did he come towards you or say anything in a threatening manner towards you, correct?

A. Correct.

[252] When Sgt. Dorling first started shooting, the suspect turned away and was looking at the bushes.

[253] When the suspect got shot, Sgt. Dorling did not see an object fly away or be thrown away.

[254] The suspect was wearing a laptop size bag and the shoulder strap was in the way of handcuffing. The shoulder strap had to be unbuckled. Defence counsel suggested that Sgt. Dorling never touched a strap on the bag. Sgt. Dorling testified that he has a distinct memory of it. Defence counsel suggested that prior to Sgt. Dorling’s trial evidence, Sgt. Dorling has never mentioned it before. Sgt. Dorling was then referred to page 118 of his preliminary hearing where he testified as follows:

Q. Okay. All right. When you observe going back in terms of when Mr. Hannaford has fallen down after being shot and you go to arrest him, what do you remember where the bag is?

A. It’s right there with him. I remember it, it just being with him, and what I remember specifically is moving the bag to put it under his leg, again, ‘cause he said his leg hurt and he, and he wanted his, his leg elevated. So I know it’s there. I can’t – I don’t remember where it’s left side, right side, whatever. It’s there with him. That the best I can do.

Q. Okay. And you didn’t have to – and to the best of your recollection, did you cut any strap off across his body?

A. I don’t remember.

Q. Okay.

A. I, I wouldn’t – I would not have cut a strap because I hadn’t carried a knife with me.

Q. Okay. You didn’t ….

A. It could have been unclipped, I believe, from the pictures, but I don’t remember doing that.

Q. Just go with your recollection.

A. I don’t remember.

Q. Did you – do you remember even seeing a, a shoulder handle or anything of that sort across Mr. Hannaford’s body?

A. I don’t remember.

Q. And, to the best of your recollection did O.P.P. officers remove, remove anything from his body as far as a bag is concerned if it’s around him?

A. I don’t remember.

[255] Sgt. Dorling confirmed that he was charged shortly before the preliminary hearing. He has not reviewed any disclosure or read any media reports. When asked why he remembers detail today that he didn’t remember before, Sgt. Dorling remembers that the strap was in the way and it had to be unclipped.

[256] Sgt. Dorling is part of the Kitchener Central Division police force. Cambridge is not his area. He does not know how far Old Mill Road is from the apprehension area or how thick the bush is. Sgt. Dorling doesn’t know how often people frequent the bush.

[257] It took approximately 50 seconds from the time Sgt. Dorling first saw the suspect until the suspect’s arrest. From the moment Sgt. Dorling exited his cruiser, he is pointing his firearm at the suspect.

[258] Regarding slide 53 in Exhibit 1, Sgt. Dorling denies that he is 350-400 metres from where he first saw the suspect emerge from the bush to the large bush which was where the suspect turned back eastward. In Exhibit 17, it is about 40 feet from the bush to the end of the photo to the left.

[259] The suspect never ran – he walked quickly and kept his right hand in his pants buckle area. The suspect walked past Sg. Dorling and ignored him.

[260] Sgt. Dorling believed that the suspect was secreting a firearm in the front of his pants and found that prospect concerning and frightening.

[261] Sgt. Dorling denied he was “pissed off”. He was not calm but directed aggressive commands to the suspect to show his hands stating, “Show me your hands” and/or “Show me your fucking hands”.

[262] The scene is like a triangle with Sgt. Dorling at the apex and the suspect at the base walking east to west to the large bush and then turning around and walking west to east.

[263] Sgt. Dorling’s thought process, before he saw the suspect, was that the dispatcher had informed police units that there was a Break and Enter and a stolen van with two rifles, an unknown 9-17 offensive weapon, a cross-bow and ammo with rounds missing and that the stolen van got stuck in the mud and the suspect was seen running from the van with a bag in his hand. Based on this information, Sgt. Dorling believed that the suspect was armed in the bush with a firearm and this belief was formed before he saw the suspect. Sgt. Dorling had no information about the suspect’s name or history. He did not know what other Break & Enters he had committed. When he saw the suspect, Sgt. Dorling didn’t see a cross-bow. Sgt. Dorling concentrated on the suspect’s right hand and based his belief that the suspect had a firearm upon seeing a dark object in his right hand in front of his pants. Sgt. Dorling focused on the right hand which did not move and was holding a black object at the top of his pants. Sgt. Dorling lost sight of the suspect when the suspect went behind the large bush. The suspect then walked in an easterly direction. The suspect then turned his body around with his head looking over his shoulder at the officer. The suspect’s waist was directed at Sgt. Dorling. The suspect stated, “want to die”, which Sgt. Dorling interpreted the suspect wanted to die by some means. Sgt. Dorling then shot at the suspect. At the first trigger pull, he can see the front profile of the suspect. The suspect somehow turned and when he was struck, the suspect fell forward.

[264] It was suggested that the suspect was running westbound, saw the officer and turned back and never went behind the large bush. Sgt. Dorling did not agree with these suggestions. Sgt. Dorling doesn’t remember saying, “Motherfucker”. Sgt. Dorling denies that all the suspect said was, “I just want to go home”. Sgt. Dorling denied the suggestion that he was “pissed” off and then shot the suspect.

[265] At Exhibit 1, slide 65, there is a log in the photo. Sgt. Dorling denied the suggestion that the suspect turned around at that point.

[266] Sgt. Dorling did not know if anyone else was in the bush line area. It was his belief that no officers were pursuing as: (1) the officers were clearing the van; and (2) K-9 had not arrived and normally a perimeter is set up in advance of a K-9 pursuit.

[267] Sgt. Dorling has never pressed the emergency button on his portable radio in his career.

[268] It was suggested that Sgt. Dorling’s bullet struck the suspect’s leg from the rear and went to the front thigh.

[269] The following passages were read from the preliminary hearing at pages 101, 41-42 and 91.

[270] At preliminary hearing page 101:

A. Absolutely not. There was never ever the word home. I want to go home. He stated the words, “Want to die.”

Q. And then you shot in response to that?

A. That’s correct.

Q. And, this person’s still walking away from you when you shoot, is that correct?

A. He, he has turned away from me. Yes.

[271] At preliminary hearing pages 41-42:

Q. Okay. And, how is it that you’re able to discern then from your vantage point, sir, that the last round hit Mr. Hannaford? Was there something about what you saw that led you to that conclusion?

A. He falls down.

Q. Okay.

A. He falls forward.

[272] At preliminary hearing page 91:

Q. When Mr. Hannaford fell, to your recollection, did he fall – you’ve mentioned he fell on his stomach. Did he fall on his hand, as well?

A. I don’t, I don’t know. I can, I can just picture him falling forward.

[273] Sgt. Dorling denied the suggestion that it was his third shot that hit the suspect. Sgt. Dorling testified he stopped shooting when the threat was stopped.

[274] Sgt. Dorling is 100% certain it was the final round that struck the suspect. Sgt. Dorling denied the suggestion that he continued to shoot after the suspect fell down.

[275] Sgt. Dorling indicated it’s possible he would’ve shot a seventh time if the sixth shot missed.

[276] The suspect up to that point was not showing his hands and was not complying with the officer’s demands.

[277] Sgt. Dorling was aware that two rifles had been recovered. There was a possibility of a cross-bow and/or other 9-17’s (offensive weapons).

[278] Sgt. Dorling had no specifics regarding a knife and firearms.

[279] However, Sgt. Dorling believed that the suspect had a firearm due to background information, the one on one rule, the suspect holding an object in his hand near his pants waist, the hand staying there and not moving and the suspect not complying with his demands.

[280] Sgt. Dorling was not angry. He can’t recall saying “Motherfucker” and can’t say if the suspect was terrified. When the suspect came out of the bush, his hand remained at his waist.

[281] Sgt. Dorling, after shooting the suspect, stepped over the fence with his firearm in his hand. He holstered his gun and handcuffed the suspect who was lying on his stomach. The OPP came at that approximate time.

[282] When he searched the suspect, there were no weapons on his person. There was only a cell phone and cash, which Sgt. Dorling put back.

[283] Sgt. Dorling saw the knife later. Sgt. Dorling denied the suggestion the suspect never made any comments. Sgt. Dorling indicated the suspect stated, “I wished you had shot me in the head”. The suspect also indicated that the tourniquet was too tight. Sgt. Dorling assured him the ambulance had been called.

[284] Sgt. Dorling indicated it is possible, as he was leaving the scene, that he said, “Fuck, I had dinner plans”. Sgt. Dorling did have plans to have dinner with his family.

[285] When Sgt. Dorling discharged his firearm, the cartridges were discharged to his right. In Exhibit 2, Tab 3, at line 32 of page 33, Sgt. Dorling believes the speaker is an OPP officer stating that the suspect is going eastbound in the south ditch of the 401 near Homer Watson. This transmission occurs just before the shooting.

[286] In Exhibit 1, slide 78, the area of the apprehension site is shown. Sgt. Dorling assumes the suspect’s body was between yellow markers 9 and 12. The suspect was lying at an angle and his feet were at yellow marker 10 and his head was between yellow markers 2 and 8.

[287] In Exhibit 1, slide 79, beside yellow marker 1 is the knife as Sgt. Dorling found it. He tied a rubber glove on a stick next to it.

[288] Otherwise, Sgt. Dorling didn’t disturb any grass on or near the knife.

[289] Exhibit 1, slides 57 and 59 show where the six cartridges were located after ejection from his firearm. The gun ejects cartridges for around five feet away. Sgt. Dorling stood to the left of the cartridges shown in slide 57 of Exhibit 1.

RE-EXAMINATION

[290] When Sgt. Dorling shouted loudly, “Show your hands”, he was not pissed off but was trying to get the suspect’s attention.

[291] Sgt. Dorling’s thought process regarding not knowing how many break and enters the accused had committed was that Sgt. Dorling did not know what else had been stolen earlier. This firing of a seventh shot, if the sixth shot had missed the suspect, would depend on what the suspect was doing. If the suspect had put up his hands, Sgt. Dorling would not have fired further.

NICK KOOMANS

[292] Officer Koomans has been with the Waterloo Region Police Service for four years.

[293] On March 31, 2018 at 3:21 p.m. he received a 9-27 assist call from the Hamilton Police Service to locate a stolen 2011 white Dodge van with “Schindler Elevators” markings on the side. The van, firearms and ammo were stolen from a Break and Entry in Hamilton.

[294] The van had a GPS tracker which indicated that the van was at 55 Middleton in Cambridge.

[295] He attended at that location, which was in fact 52 Middleton. Eventually, Officer Koomans was able to obtain a security video which was entered as Exhibit 19. The video shows the stolen van entering the vacant parking lot at shortly before 2:00 p.m. and leaving shortly after 3:00 p.m.

[296] At 3:52 p.m., Officer Koomans was advised that the van’s GPS was showing the van at Old Mill Road. Officer Koomans attended that location.

[297] Other officers were there and Officer Koomans was asked to go to Whistle Bear Road just south of the 401. After hearing on the radio that shots had been fired, Officer Koomans attended the shooting scene. The suspect was seen lying on the ground making moaning noises. At 4:42 p.m., Sgt. Thomas told Officer Koomans he was not needed at the scene.

[298] In cross-examination, Officer Koomans indicated that when he arrived at the shooting scene, he saw the suspect lying on the ground, Sgt. Dorling, two OPP officers and another Waterloo police officer. Sgt. Thomas was not there.

[299] Sgt. Dorling was walking about the scene and had first aid gloves on. It was raining as Officer Koomans walked to the scene.

ROBERT THOMAS

[300] Sgt. Thomas was the supervising officer with approximately 29 years of experience, for the Cambridge – South Division on March 31, 2018. His call sign was 5-31. He was in uniform operating a marked SUV cruiser and was training Officer Ben Koonsakda.

[301] Earlier, the Hamilton Police Service sent out a written alert regarding a Break and Entry at Westover Road, Hamilton, where a van, three firearms and ammo were stolen.

[302] At 3:26 p.m. dispatch advised the stolen van was at 55 Middleton Road in Cambridge. Officers were dispatched to Middleton Road and discovered that the van had left that area. Dispatch advised that the van was at a new location on Old Mill Road in Cambridge. Officers were dispatched to go there.

[303] At about 4:10 p.m., Sgt. Thomas and Officer Koonsakda arrived at Old Mill Road. Officer Scott was already there, parked on the left and Sgt. Thomas parked on the right side. Sgt. Thomas marked on Exhibit 20, with an “X”, where he parked on Old Mill Road.

[304] Sgt. Thomas directed Officer Scott to place sticks between their vehicles as part of a road block funneling the van toward the road sticks.

[305] 4-5 cruisers then arrived, and a number of other officers attended, including Officers Koomans, Snyder, McKenna, Dionne and Deschatelets. Four of the officers deployed C-8 Carbine rifles.

[306] Officer Woytaz was on the other side of the 401 and advised over the radio the vehicle was backing up.

[307] Sgt. Thomas observed, with his binoculars, the vehicle, which was 300 meters away. The vehicle was at the end of Old Mill Road which is marked by dots on Exhibit 20.

[308] The plan was containment at that time in anticipation of getting the ERU involved.

[309] Initially, Sgt. Thomas was advised that neither K-9 or ERU were available.

[310] Within a short time, Sgt. Thomas observed the male driver of the stolen van get out the driver’s door, walk around the vehicle, get back in and then start driving the van towards them. The driver got to within 50 feet of the police, adjacent to the pond, and marked with a square on Exhibit 20.

[311] An officer yelled for the driver to get out of the van. Instead, the driver started to back up the van in reverse. When the van got out of view, Officer Scott and Sgt. Thomas drove to the crest of the hill with the officers with Carbine rifles walking on foot.

[312] They went about 100 feet when Officer Woytaz advised over the radio that the stolen van had driven off the roadway onto the field. The officers, who were walking, got into Officer Scott’s and Sgt. Thomas’ vehicles. Sgt. Thomas lost sight of the stolen van. After passing the last farmhouse on Sgt. Thomas’ left on Old Mill Road, Sgt. Thomas saw tracks on the field to his left and Sgt. Thomas followed those tracks. The point where those tracks first appear are marked by a triangle on Exhibit 20.

[313] Sgt. Thomas took the lead and once on the field, Sgt. Thomas saw the stolen van on an adjacent field. The van appeared to be stuck in the mud at the spot marked with a circle on Exhibit 20. Sgt. Thomas saw the driver get out of the van and run straight into the nearby bush, 30 feet from the van, and the driver went out of Sgt. Thomas’ sight. Sgt. Thomas believes the driver left the driver’s door open.

[314] The male had tan pants, black jacket, was wearing a black baseball hat and was carrying a black laptop bag. Sgt. Thomas looked for an opening in the tree line between the two fields and once he crossed over, Sgt. Thomas stopped his cruiser 20 to 30 feet behind the van. These tracks can be seen in slide 5 of Exhibit 1. Sgt. Thomas advised other officers of the details of the flight of the van and provided a description of the suspect, along with details of the driver running into the bush.

[315] Sgt. Thomas was informed by radio that officers from Central Division and the OPP had arrived on the 401 and were on the opposite side of the bush area.

[316] Sgt. Thomas and Officer Scott approached the van in order to clear it and determine if other persons were in the van.

[317] Sgt. Thomas and Officer Koonsakda approached the van from the driver’s side and Officer Scott approached from the passenger side. The officers on scene had their revolvers and C8 Carbine rifles deployed. Sgt. Thomas can’t recall if he deployed his revolver.

[318] No one was in the vehicle. Officer Scott advised he located a rifle in the van and Sgt. Thomas saw Officer Scott holding a rifle. Officers were directed to keep an eye on the bush area. Sgt. Thomas’ priority at that time was to keep containment to await the arrival of K-9. A K-9 dog is able to track a suspect directly and is better at tracking than police officers. Sgt. Thomas believes the clearing of the van and finding of firearms was broadcast over the radio.

[319] Sgt. Thomas reviewed the radio transmissions that appear in Exhibit 2 at Tab 3.

[320] Highlights of the transmissions include the following:

1. 15:52:04 Page 10 Sgt. Thomas asks if ERU is working. Dispatch relies, “Negative”
2. 15:54:11 Page 11 Dispatch issues an alert that a stolen vehicle contains possibly three 9-17s (weapons), officer safety. “Two rifles and one – some ammo”. The vehicle is described as a white minivan registered to an elevator company.
3. 15:54:11 Page 11 Dispatch provides further details. The stolen van is a 2011 Dodge Caravan with “Schindler Elevators” on the side. “Possibly two rifles and unknown about another 9-17 (weapon). Was involved in a 9-11 (Break and Enter) in Hamilton”. The GPS is showing that the stolen van is at the dead-end of Old Mill Road.
4. 15:59:11 Page 14 Sgt. Thomas asks, “is there a K-9 working, headquarters”. Dispatch checks and replies, “Negative?”
5. 16:00:24 Page 14 Dispatch advises units assisting in the 9-27 (assistance for Hamilton Police), “Making you aware again, officer safety; there is two rifles, one cross-bow, firearms are not trigger locked”. This results in a lot more unknowns regarding the firearms and means the suspect(s) would be more dangerous. Sgt. Thomas testified that a cross-bow was in and out of the conversation. He didn’t know if a cross-bow was involved.
6. 16:00:24 Page 15 A Central Division officer asks if the ammo is associated to that theft or just the 9-17. Dispatch replies, “Ammo as well”.
7. 16:07:32 Page 20 Sgt. Thomas advises that he is trying to come up with a tactical plan as to how to approach the stolen van.
8. 16:15:18 Page 25 Officer Woytaz advises the van is off-road travelling southwest south of Old Mill Road.
9. 16:17:08 Page 26 K-9 advises he is available. Sgt. Thomas advises he wants K-9 involved.
10. 16:17:51 Page 27 Sgt. Thomas advises K-9 and dispatch they are on the field and the stolen van is still mobile.
11. 16:17:51 Page 27 Sgt. Thomas advises he sees the van in the field.
12. 16:18:40 Page 27 Sgt. Thomas advises he sees one person, so far, getting out of the car and “running with a bag in his hand into the bush” straight in the direction Sgt. Thomas is going.
13. 16:18:40 Page 28 Officer Scott advises Sgt. Thomas, “Bob, we’re going to clear the van before we go any further”.
14. 16:18:40 Page 28 Sgt. Dorling asks Sgt. Thomas, “Bob is he headed to the 401”. Sgt. Thomas advises K-9 to follow the tracks off of Old Mill Road.
15. 16:18:40 Page 28 Sgt. Thomas advises dispatch the van is stuck in the mud; they are not going to chase the guy; they’re going to clear the van first.
16. 16:18:40 Pages 28 and 29 Sgt. Thomas advises dispatch they are within a couple of hundred metres west of the Old Mill Road roundabout.
17. 16:18:40 Page 29 Officer Deschatelets advises dispatch that there is no one else in the van and states, “Two rifles are in the van”.
18. 16:18:40 Page 29 Sgt. Thomas advises they need someone to keep an eye on the highway because he’s heading through the bush to the highway “from here”. Sgt. Thomas indicates they are maybe half a kilometre down from Princess Auto.
19. 16:18:40 Page 30 Sgt. Dorling advises he is on the 401 and advises he is not with the OPP.
20. 16:18:40 Page 30 Sgt. Thomas asks that the OPP be patched into their radio transmissions.
21. 16:18:40 Page 30 The K-9 officer indicates he will need two officers to assist him stating, “just the one plus one rule. Just because of the firearms”. Sgt. Thomas testified that K-9 normally needs another officer to cover K-9 as the K-9 officer has to focus on the tracking dog. The one for one rule is invoked as another officer is needed to assist if the first officer becomes disabled.
22. 16:18:40 Page 31 Officer Scott advises dispatch, “just to update, two rifles in the van, couple boxes of open ammunition with rounds missing”.
23. 16:18:40 Page 31 Dispatch states “Open ammo, rounds missing”. Sgt. Dorling responds, “That’s an issue. Is the duty officer aware of this?”. Sgt. Dorling then tells dispatch, “Call ERU out”.
24. 16:23:41 Pages 31 and 32 Sgt. Thomas believed the OPP radio was patched in, but dispatch advised they were not, after Sgt. Thomas gives his update.
25. 16:24:25 Page 32 Dispatch advises Sgt. Thomas that the OPP are now patched in and Sgt. Thomas makes a second attempt to provide an update. Sgt. Thomas advises the OPP that the suspect fled into the bush towards the 401 after bailing from his vehicle just south of 401 where New Dundee curves parallel to Hwy 401.
26. 16:24:25 Pages 32 and 33 Sgt. Thomas was standing in front of the van and right after Sgt. Thomas provides the OPP with his update, Sgt. Dorling makes radio contact stating, “I got him. He’s going out to the 401”. Dispatch asks Sgt. Dorling, “Which way on the 401?”
27. 16:25:23 Page 33 Sgt. Dorling, on the Division 3 – Waterloo channel, is heard to yell out, “Show me your hands. Don’t move. Put your hands in the air now”. (see also Exhibit 2B)
28. 16:25:35 Page 33 Sgt. Dorling is heard to say the following over the Division 2 – Cambridge channel:

(a) “Show me your fucking hands now, now. You got …”

(b) “He’s not showing me his hands HQ. Show me your fucking hands”.

(c) “Show me your hands now. Show me your fucking hands now”.

29. Sgt. Thomas testified that the status of the male suspect was unknown. Sgt. Thomas had heard different reports about different number of firearms. There was ammo missing. Sgt. Thomas did not know the suspect was not armed. Sgt. Thomas testified, “I would assume the person was armed until I heard otherwise”.

Sgt. Thomas’ notes indicate at 16:25:33, after he heard Sgt. Dorling state that the suspect was to show his hands and Sgt. Dorling stated the suspect was not showing his hands, Sgt. Thomas heard a gun shot after those comments by Sgt. Dorling. There was a single shot and then a pause for 3-4 seconds. This was followed by four quick shots, one after the other. All the shots occurred over a 6-7 second total time frame.

30. Sgt. Thomas’ first reaction was, “Who was shooting?”
31. 16:25:35 Page 34 Sgt. Dorling gave more information over the air stating, “Shots fired. Male is down, 9-49 (suspect arrested). OPP are with me, get an ambulance, please. He’s been shot in the leg.”
32. 16:27:23 Page 35 Sgt. Thomas instructed Officer Scott to make sure the stolen vehicle stays seized – it won’t be towed for a long time. The duty officer directed that the whole crime scene be secured.
33. 16:27:23 Page 36 Sgt. Thomas left the van and made his way to the shooting scene. Over the radio, he heard Sgt. Dorling state, “Gunshot wound to upper right thigh. I think I just shot him once”.
34. Sgt. Thomas arrived at the 401 at 4:30 p.m., parking on the median on the westbound 401. Sgt. Thomas provided Officer Bowman bolt cutters to cut a wire fence.
35. Sgt. Thomas crossed over the Hwy 401 eastbound lanes. He saw the suspect lying on the grass partially on his side and partially on his stomach.
36. Officers Bowman, Edwards, Sgt. Dorling and OPP officers were at the scene. Sgt. Dorling was on the highway side of the fence and the suspect was on the other side of the fence.
37. Sgt. Thomas saw a black bag to the suspect’s right and a black handled knife to the suspect’s left; both items were beside the suspect. Later Sgt. Thomas found a $20 bill to the west along the fence line. The location of the bill is set out in slide 44 of Exhibit 1. It was found near where the cartridge cases were found.
38. There was a conversation with Sgt. Dorling. Sgt. Dorling told Sgt. Thomas he couldn’t get on the air because Thomas was on the air. Sgt. Dorling also stated, “He wouldn’t show me his hands”. Sgt. Dorling pointed out the clearing that the suspect came/ran out of – see the circle on Exhibit 21 and the clearing in the middle of the photo in slide 51 of Exhibit 1. Sgt. Dorling pointed out that suspect came/ran along the fence and came/ran back. Sgt. Thomas made no note of whether Sgt. Dorling said “came” or “ran”. Sgt. Thomas instructed Sgt. Dorling to go to his cruiser.
39. Sgt. Thomas placed the yellow tape in Exhibit 1, slide 53. The tape goes from the post on the left of the photo to the right of the large bush on the right side of the photo. Sgt. Dorling said the tape covered the area where the suspect went along the fence line and then turned around and went back. In cross-examination, Sgt. Thomas testified the fence line is about 100 metres from the left edge of the yellow tape to the right edge of the yellow tape depicted in slide 53 of Exhibit 1. It was definitely not 250 metres along the fence line in slide 53 of Exhibit 1.
40. After placing the yellow tape on the shooting scene, Sgt. Thomas confirmed with Sgt. Dorling that he was good with the crime scene. Sgt. Thomas believes Officer Edwards was in the cruiser with Sgt. Dorling.
41. Slide 81 of Exhibit 1 is the laptop bag that Sgt. Thomas saw the suspect possess when the suspect ran from the van.
42. Slide 79 of Exhibit 1 is a photo of the knife as he saw it at the scene. Sgt. Thomas only saw the handle and thought it was a butcher knife.
43. Sgt. Thomas left the scene sometime after 5 and went back to the stolen van. The ERU officers were there at the stolen van scene. Officer O’Neill travelled with the suspect to the Hamilton General Hospital.

[321] In cross-examination, Sgt. Thomas testified that he didn’t see any urgency to run after the suspect after the suspect ran into the bush.

[322] Sgt. Thomas only observed a bag in the suspect’s hands. He did not see any weapons.

[323] The suspect driver made no attempt to engage with the police officers. The suspect ran away from Sgt. Thomas and the other officers.

[324] Sgt. Thomas has only used the red button on his portable radio one time many years ago.

[325] In an attempt to de-escalate a situation, taunting and swearing is generally not used.

[326] Sgt. Thomas saw the knife and can’t say if Sgt. Dorling pointed it out. Sgt. Thomas told the SIU that Sgt. Dorling pointed the knife out.

[327] Sgt. Dorling never pointed out a specific point where the suspect turned around. After the yellow taping was done, Sgt. Dorling confirmed that the tape included all relevant areas.

[328] After consulting Exhibit 2, Tab 1, Sgt. Thomas indicated he was back at Old Mill Road at 5:50 p.m. It is 5-7 minutes away.

[329] Sgt. Thomas never measured the time duration of the gun shots. It took place between 6-7 seconds. When asked if the shots could have been all successive shots, Sgt. Thomas testified, “No”. Officers Dione, Scott, Deschatelets and Koonsakda were with Sgt. Thomas at the time of the gun shots.

BRANDON BEDARD

[330] Officer Bedard is an OPP officer who was on duty on day shift on March 31, 2018.

[331] At about 4:15 p.m., he overheard on the radio that the Waterloo Regional Police force were investigating a stolen white 2011 Dodge Caravan that potentially also had stolen rifles and ammo in it. Officer Bedard overheard the van had been traced to Old Mill Road near Hwy 401.

[332] Officer Bedard was at the Beaverdale Road detachment, which was 7-8 kms. away from Hwy 401 and Old Mill Road.

[333] Officer Bedard proceeded to Hwy 401 westbound and at 4:22 p.m. parked on the right shoulder of the westbound 401 lanes just east of Homer Watson. There was heavy traffic and Officer Bedard did not notice anything significant.

[334] At about 4:23 p.m., the Waterloo and OPP radio systems were linked together. Officer Bedard received information that the suspect was in the area of Princess Auto west of Homer Watson (see page 29 of Exhibit 2, Tab 3).

[335] Officer Bedard drove west to Princess Auto and parked on the north shoulder of Hwy 401 westbound, west of Homer Watson after arriving there at 4:25 p.m.

[336] At 4:26 p.m., he heard over the radio, an officer state, “Show me your hands”. Officer Bedard’s window was partially open and Officer Bedard, through the window, heard 3-4 gunshots from nearby, coming from his left. The shots came immediately one after the other.

[337] Officer Bedard immediately exited his cruiser and sprinted across six lanes of heavy traffic and entered the south ditch. There was a wire fence approximately 30 feet from the south shoulder of the 401.

[338] A Waterloo officer was approaching a male laying on the ground who was 10-15 feet from the Waterloo officer.

[339] Officer Bedard saw Officer Kernaghan’s cruiser approaching the scene.

[340] Officer Kernaghan and Officer Bedard proceeded to the fence. Officer Bedard held the fence down so Officer Kernaghan could get over it. The fence poles were rotted, and the wire fence would not support Officer Bedard’s weight. Officer Bedard got over the fence as well, with some difficulty. The male was lying on the ground on his back. The Waterloo officer handcuffed the suspect. At that time, the suspect was laying on this stomach.

[341] The suspect had a wound to his leg and his pants and ground underneath were soaked with blood. The Waterloo officer got a tourniquet from Officer Kernaghan and the Waterloo officer applied it. The suspect complained that he couldn’t breathe and Officer Bedard rolled the suspect on his side. Officer Bedard was standing near the suspect’s head, and grabbed a black bag that was closely nearby within reach of Officer Bedard, and propped the suspect’s leg on the bag.

[342] Officer Bedard can’t recall any discussions between the Waterloo police officer and the suspect. Officer Bedard assisted Officer Bowman in cutting the fence.

[343] Officer Bedard did not notice other items other than the black bag.

[344] The suspect was lying on an angle with his feet close to Hwy 401 and his head closer to the bush area. The suspect’s feet would have been where the yellow marker 10 is placed in slides 48 and 49 of Exhibit 1. The black bag that was used to prop up the suspect’s leg can be seen at yellow markers 6 and 7 on slides 48 and 49. It is Officer Kernaghan, who is the OPP officer, who states at the bottom of Exhibit 2, Tab 3, line 32 at page 33 “Okay. He’s 401, going eastbound south ditch, just west of Homer Watson (inaudible) update. I’m going out there”.

[345] In cross-examination, Officer Bedard heard the gunshots one after the other. He was looking to his right and heard the gunshots coming from his left. After he got out of the cruiser and crossed the 401, which had lots of traffic, Officer Bedard recalls the male laying on his back, not moving at all.

[346] Officer Bedard told the SIU in his statement dated June 13, after being asked about the man’s position on the ground, that, “I can’t tell, no”.

[347] Officer Bedard’s recollection today is that he was lying on his back. Officer Bedard sprinted across six lanes of heavy traffic on the 401 in about 20-30 seconds. The black bag was an arms length away near the suspect when Officer Bedard grabbed it. Officer Bedard didn’t see a knife and didn’t see anyone interact with the black bag.

CHRISTOPHER O’NEILL

[348] Officer O’Neill is a Waterloo police officer. Officer O’Neill was on duty on March 31, 2018 in a marked police cruiser.

[349] At 3:20 p.m., he became aware, over the radio, that the Waterloo police were investigating a stolen motor vehicle that contained stolen firearms and stolen ammo and there were no trigger locks on the firearms.

[350] At 3:55 p.m. he was dispatched to park on the south side of Hwy 401 on Fountain Street for containment purposes. The stolen vehicle had been located in an area a couple of hundred metres from where he was parked. He took out his C8 clips in case he needed his Carbine rifle due to the concern regarding stolen rifles and ammo. He arrived at his location at 4:04 p.m.

[351] Officer O’Neill heard over the radio that an officer had stated to the suspect “Show me your hands” and that shots had been fired.

[352] At about 4:40 p.m. Officer O’Neill arrived at the apprehension scene. Officer O’Neill was told that the suspect was under arrest for possession of stolen property over $500 and possession of a dangerous weapon.

[353] The suspect was placed into a land ambulance at 4:55 p.m. At 4:58 p.m. the suspect was told he was under arrest for stolen property over $500 and possession of a dangerous weapon. The suspect was also given his rights to counsel, standard caution and secondary caution. The suspect was unresponsive as he was in pain. The suspect’s handcuffs were removed to allow for the medical personnel to check for other injuries. An air ambulance arrived at 5:1l p.m. on the eastbound lanes of the 401. The suspect, accompanied by Officer O’Neill, arrived at the Hamilton General Hospital at 5:27 p.m.

[354] At 5:50 p.m. a projectile was recovered from the suspect’s pants near the wound and at 6:51 p.m. this item was provided to Officer Webber from the SIU.

[355] At 7:50 p.m. the suspect was advised he was under arrest for possession of stolen property over $5,000, weapons dangerous, possession of a firearm while subject to a prohibition order, drive disqualified and two counts of breach probation. The suspect stated, “I understand my rights. Yes, I do”. The suspect stated that yes, he wanted to speak to a lawyer. The suspect was also again provided with his caution and secondary caution at 7:55 and 7:57 p.m. respectively. At 8:11 p.m. Officer O’Neill was relieved by other officers who were told that the accused wanted to speak to a lawyer.

[356] After the suspect was told about his rights in the land ambulance, he was unresponsive. After the second time he was given his rights at the hospital, the accused was under medication and wanted to speak to a lawyer, but not right then.

[357] The bullet that appears in Exhibit 1, slide 92, is the one that was recovered under the suspect’s pants near the exit wound at the front of the suspect’s leg.

DEFENCE EVIDENCE

JOSHUA HANNAFORD

[358] On March 31, 2018, Joshua Hannaford, the accused was at a friend’s house at 7:30 – 8:00 a.m. The accused left that house in a stolen Ford Escape. The accused was charged with theft of the Ford Escape by Halton police and has pleaded guilty to possession of that Ford Escape. The accused has a criminal record.

[359] The accused attended at another friend’s house and smoked a joint. The accused went to Burlington and left Burlington at 11:45 a.m. to 12:30 p.m.

[360] The accused has a common law wife and daughter in Cambridge.

[361] The accused travelled through back roads in Flamborough. The accused developed mechanical problems with the Ford Escape – braking problems and the engine light went on.

[362] The accused started looking for another vehicle to steal. On a property to his right, he saw a work van with a wallet and a key fob in the centre of the dash.

[363] He parked the Ford Escape half a kilometre down the road and returned to the van on foot. He thought there might be money in the wallet. He had been having arguments with his wife due to his not having a job and not contributing to the family finances.

[364] The accused grabbed the key fob and started the van. The accused returned to the Ford and collected his stuff and transferred it to the rear of the stolen Dodge Caravan. He removed the tarp he had in the Ford along with a green bin and a duffle bag.

[365] Some of the transferred items from the Ford belonged to him. With respect to the other items, he was asked to get rid of some things by somebody.

[366] He was charged with break and enter and theft of the Dodge Caravan by Hamilton police. The break and enter was withdrawn. He never committed a break and enter.

[367] The accused had been away for 6-7 days and as his wife was the breadwinner, he wanted to make it up to her. The accused had been in stolen motor vehicles during those 6-7 days. He attended the area where he lives near Middleton. He could see the street where he lives. He could not see his wife’s motor vehicle in the driveway. He attended the industrial area on Middleton. He wife was not responding to his calls. He was able to call his mother. According to the video, he was there for around an hour. He drove his vehicle to see if his wife’s vehicle was at the house. It was not there. He changed locations to wait it out and drove to the dead-end on Old Mill Road. He was a suspended driver – in August 2017 Justice Leitch had given him a 10 year driving prohibition. He is a Native but looks white with a bit of a tan.

[368] After calling his mother and texting his common law partner, he exited the van, rolled a joint and smoked it. He then got back into the van and drove toward New Dundee.

[369] He found a baseball cap in the van and had it on. He also had a dark sweater with pockets, grey pants and dark shoes.

[370] As he went up the hill, he saw a large number of police.

[371] They had a blockade with enough space to drive through but there was a spike belt between the vehicles.

[372] A number of officers outside the vehicle had guns and rifles out and were pointing them in his direction. Due to the number of police with guns drawn, he was concerned and not sure of what was going on. He got to within 50-80 feet from the roadblock and heard officers tell him to turn off the vehicle and put his hands up. The accused was in a panic – he didn’t want to be arrested. He reversed his vehicle and did a three point turn and drove toward the dead-end. He decided the only way out was to go through a small opening on a field to his left. He drove past the last farm house to his left on Old Mill Road and drove onto the second field. He drove through an opening in the adjoining field and got stuck in the mud.

[373] Exhibit 1, slide 5, photo 32 shows the tracks of the van – he drove at an angle towards the bush line. When the vehicle got stuck, he decided to get out and run. He grabbed a black bag with his right hand, ran around the van, ran into the bush to get away from the police.

[374] Exhibit 1, slide 13 shows the wallet that was on the dashboard of the van. The wallet contained a large amount of paper money and the accused put it into his sweater pocket. He returned the wallet to the dashboard after looking at the ID in the wallet. In his sweater pocket was the cash, see Exhibit 1, slide 89. Also, in his sweater pocket was a cigarette lighter and a cell phone – see Exhibit 1, slide 80.

[375] The accused noticed that at least two cruisers from the roadblock were following him. He ran toward the bush hoping to get away from the police. He entered the bush and it was slow going – it was swampy, muddy with fallen trees and bushes. Halfway into the woods, he phoned his mother. There was no answer. He put the phone back into his pocket. The bag he was holding had a strap on it. He put the strap on his right shoulder, grabbed the handle and continued to run. He injured his right hand when he jumped over something and something punctured his right hand. He continued to run and noted blood from his right hand.

[376] At the edge of the bush he saw the 401 and turned left and ran westbound along the ditch. This was the general direction toward his home. As he was running, he saw a police officer coming down the side of the ditch. The officer had his gun drawn and was pointing it at him. The officer was yelling, “Show me your fucking hands” two or three times. The officer yelled, “You got that Motherfucker”. The accused was scared and intimidated and feared for his life. The accused realized his westward path would intersect with the officer who could then tackle him.

[377] The accused reversed his course and went back in an easterly direction from where he had come from. The police officer was not reasonable. The officer’s face was beat red; his cheeks were out of shape; his face was contorted. The accused believed the officer was angry and upset – he looked like a wild animal. The accused was scared.

[378] After the accused turned, his back was to the officer. The accused continued to run for 3-5 seconds. The accused yelled, “I just want to go home”.

[379] That just came to his mind. A second later, the officer started firing. The first shot flew by his head – he heard it and saw the steam trail in the mist. The second shot flew by his elbow area. The third shot hit him, and he fell. As the accused was falling, he heard 3-4 more shots. The shooting was very fast although it seemed that time slowed down.

[380] The accused was facing the woods area the whole time period of the gunshots. The accused fell face first onto the ground. He couldn’t feel his legs. He tried to get up but could not. The officer jumped on the accused’s back and told the accused to show his hands. The accused complied and he was handcuffed. At first the accused didn’t feel much but then he was screaming in pain. He got cold and had trouble breathing. A female officer put a tin foil blanket on him and he told her that she saved his life. He rotated his ankle, but the pain continued. He was bleeding a lot and thought he was dying. When in the hospital, he was handcuffed to the bed. He couldn’t feel his leg, lower back and hip area.

[381] He was transferred to Maplehurst – the health care unit in jail is not the greatest. The accused didn’t speak to a lawyer for a week. The first week was spent in bed. The wound was treated by packing material in it from back to front with a string inside the wound.

[382] He was on medication with opioids and was not himself.

[383] Regarding Exhibit 1, slide 68, the slide shows where he fell. His feet were between the yellow markers 5 and 10. His head was where yellow markers 2 and 8 are.

[384] Regarding Exhibit 1, slide 65, the white log in the photo to the right of the apprehension site, is where the accused turned around.

[385] Regarding Exhibit 1, slide 76, the officer at the time of the shooting was just behind the little tree in front of the yellow markers near the top of the photo. There was never any obstruction between him and the officer.

[386] The knife, with the black handle shown beside yellow marker 1 in slide 79 of Exhibit 1, is something he never saw before. His hand was on the handle of the black bag with the strap on his right shoulder.

[387] Exhibit 1, slides 81-87 show the items that were in the black bag. The items in the black bag were personal items that he felt he needed.

[388] The first knowledge the accused had about firearms in the van was when the SIU or the Waterloo Police told him a few days after he was shot.

[389] When the accused changed direction, the officer was 25 to 30 feet away. The accused was shot 30-40 seconds after he came out of the forest – 40 seconds is pushing it. He was running the whole time in order to get away from the police.

[390] His cell number is 289-700-5472 and his mom’s cell number ends in 4698.

[391] There is a metal barricade in the stolen van which prevents access to the back.

[392] After he put items in the back, the accused didn’t interact with the back of the vehicle.

[393] Slide 99 of Exhibit 1 shows the entry wound of the bullet into the back of his right leg. Slides 97 and 98 show the exit wound on the front of his right leg. These photos were taken by the SIU on April 6, 2018.

[394] The accused’s recovery has been horrible.

[395] He has had five surgeries from December of 2018 to December 2019.

[396] The surgeries have been painful and have left him disabled and his leg is scarred. Rotted tissue has been removed and his leg has not healed properly. Damaged muscle tissue from his quad has been removed. Exhibit 22 is a recent photo which shows significant deformities around the gunshot wound to his leg.

[397] A sixth surgery will be required which will involve skin grafts to alleviate the extensive scarring to his leg.

CROSS-EXAMINATION

[398] On March 31, 2018, the accused slept over at his friend’s house and left at 7:30 – 8:00 a.m. The accused indicated the friend lives in a rural area outside of Hamilton in Caledonia. The friend’s name is Jonathon Chechalk, but he is not sure of the last name. Jonathon is just an acquaintance.

[399] The accused testified that at 4:52 a.m. he was at Jonathon’s house. He went to bed after midnight.

[400] However, the accused admitted he was awake until 5:30 a.m. at which time he put his head down. It was suggested that at 4:52 a.m. the accused was at the Auto Laundry in Caledonia.

[401] The accused replied that he may have washed his car there but couldn’t give an exact time.

[402] The accused was directed to Exhibit 1, slide 28 and admitted that the green bin, gas tank and tarp belonged to him. In Exhibit 1, slide 30 reproduces Exhibit 1, slide 28 but there is a circle around a NY Yankees ball cap with property, keys inside, which is tucked under the other slide 28 items.

[403] In Exhibit 1, slide 32, there is a receipt in the circle around the NY Yankees cap. [Note, Exhibit 1, slide 42 indicates the accused’s DNA cannot be excluded as the source of DNA in the cap.] The receipt indicates a $10 payment at 4:52 a.m. on March 31, 2018 for a car wash at Auto Laundry in Caledonia – see Exhibit 23 receipt. Upon being confronted with the Exhibit 23 receipt, the accused admitted this was the time he washed his car at the Caledonia car wash.

[404] Regarding the Clark clothing, in the back of the van, as shown in slides 28 and 30 of Exhibit 1, the accused admitted he was at a business named Clark the previous evening. The Clark clothing was given to him. The Crown asked what was meant by the accused’s testimony in chief that “somebody else asked him to get rid of things”. This was part of things given to him. The previous in chief testimony would be interpreted as getting rid of stolen property.

[405] The accused understood this was stolen property.

[406] The accused initially testified that he would not name the person who gave him the stolen property. The accused declared he is not a rat. When reminded that he chose to testify and now had to tell the truth, the accused stated it wasn’t John who gave him the stolen property. It was just a guy the accused knows as “Ace”. Ace asked the accused to dispose or ditch the stolen property. The accused can’t be certain when he got it.

[407] The accused left John’s house at 7:30 – 8:00 a.m. in a stolen Ford Escape. The accused has pled guilty to either theft or possession of the stolen Ford Escape – he believes it was possession.

[408] The Crown suggested that, in chief, the accused said he was in a number of stolen vehicles. The accused denied that.

[409] The accused was directed to his criminal record that indicated on March 19, 2019, the accused was convicted of theft of the Ford Escape. The accused admitted to pleading guilty but could not remember if it was theft or possession.

[410] The criminal record indicates that on March 3, 2019, the accused was convicted of possession of a stolen motor vehicle in relation to a 2008 Audi station wagon stolen on March 26, 2018. The criminal record was filed as Exhibit 24.

[411] It was suggested that the accused also pled guilty on March 19, 2019 to possession of a stolen motor vehicle in relation to a stolen 2012 Mercedes SUV. The accused indicated he didn’t believe he did a guilty plea to that offence. The Crown obtained the original information which was Information 18-2985 and was filed as Exhibit 25A. Exhibit 25A indicates that the accused, at Milton, on March 19, 2019, pled guilty to possessing a stolen 2012 Mercedes on March 17, 2018, in the City of Hamilton.

[412] After the accused left John’s house, he went to visit his friend, Jolee Macdonald. She lives in Kenilworth and Main in Hamilton. He doesn’t know her address – just the location.

[413] She had an appointment and the accused then went to a Richard’s home. The accused doesn’t know Richard’s last name or his address either. Richard lives in the area of King and Sherman in Hamilton. The accused smoked marijuana and cigarettes at his friend’s home.

[414] The accused admitted to struggling with a crystal meth addiction and attending treatment programs for it for some time. The accused did not use crystal meth that day and never told anyone that he used crystal meth around that time.

[415] The accused left Hamilton and visited two friends in Burlington. The friends were a girl named Liz and a man named Matt.

[416] Liz lives somewhere near North Shore Road. Matt lives near Guelph Line. He doesn’t know their addresses. The accused left Burlington at 11:45 a.m. to 12:30 p.m. He smoked cigarettes at the Burlington residence and can’t be certain regarding marijuana.

[417] The accused’s plan was to go back to Cambridge to mend fences with his wife. Her residence was at 3 Francis Street, Cambridge.

[418] The accused took the back roads or rural roads through Flamborough. It was not going through his mind that if he was on a main road, a police officer would run the plate and ascertain the accused was driving a stolen vehicle. At some point, it was his intention to ditch the stolen Ford Escape in Cambridge. However, while driving in Flamborough, there was a problem with the brakes and the engine light was on.

[419] The accused drove down Westover Road – it is a dead-end road.

[420] He was looking for an easy vehicle to steal. He saw the front passenger side of the Dodge van which was parked parallel to the road. The rear of the vehicle was against a barn and the front was facing away from the barn. It was 30 feet away from the road where he was. Exhibit 26 is an aerial view of 1633 Westover Road. The accused placed a circle where the van was. The accused could see the wallet and key fob on the dash of the van. The key fob was on the right side of the wallet. The key fob is dark black with a silver written Dodge on it. The accused parked the Ford Escape near the bottom of Westover Road in Exhibit 26 and walked to the van. He got in the van and put the key in the van and left.

[421] At some point, he looked in the wallet, took out the money and put the money in his sweater and returned the wallet to the dash. The accused was shown Exhibit 27 and was asked how you could possibly see the wallet and key fob in the van from the roadway where Exhibit 27 was taken. The accused said the van was closer to the road and put a rectangle where the van was. This rectangle does not touch the barn and is entirely away from the barn closer to the roadway. In Exhibit 26, the accused had placed the entire van in front of the barn. Exhibit 1, slide 9 is a photograph of the front of the van a lot closer than 30 feet. The accused testified that he could see the wallet to the right of the white paper document in the photo (Note – the windows are tinted and while I can see the white paper document, I cannot see the wallet in the window).

[422] Slide 89 of Exhibit 1 shows that $2,060 was recovered from the Clark jacket the accused was wearing – see Slide 88 of Exhibit 1. Allowing for the $20 found at the scene, $920 was missing as the complainant reported that $3,000 was taken. The accused stated he never got out of the van until Old Mill Road. The accused stated he had a couple of hundred dollars on him before the theft of the van.

[423] In Exhibit 1, slide 28, there is a tarp. It has stolen property in it and stolen items such as the Clark clothing, duffle bag (with lots of change) were transferred to the van from the Ford Escape.

[424] The accused admitted to wearing the New York Yankees baseball cap seen in Exhibit 1, Slide 32.

[425] Exhibit 1, slide 33, is a motion detector camera the accused stole from a tree in a conservation area. The accused disagreed that the items seen in Exhibit 1, slide 33, belong to Clark – i.e. the motion detector camera, black bag.

[426] Exhibit 1, slide 34 – binoculars and case were from Clark for him to dispose of.

[427] Slide 35 of Exhibit 1 are bolt cutters the accused used to cut padlocks.

[428] The Dewaldt bag and satchel seen in Exhibit 1, slide 35 are vehicle theft tools that belonged to the accused. The road hazard bag and green bin were also the accused’s.

[429] Slides 36 and 37 of Exhibit 1 – DVR and computer – were given to the accused to get rid of – the accused can’t say if they belonged to Clark.

[430] The drill in Exhibit 1, slide 38 belongs to the accused. It was part of a tool kit to do break and enters.

[431] The walkie talkie in slide 38 was used by his cohorts who acted as lookouts. He brought the walkie talkie to do auto thefts.

[432] The accused stated his only goal was to do auto thefts. It was suggested the accused also did break and enters. The accused testified, “No”. The Crown suggested that the accused did plead guilty to a B & E he committed during the 6-7 days. The accused stated, “around that time”.

[433] At page 5 of the criminal record, there is a conviction for break and enter relating to a business, Losani Homes, in Stoney Creek, that was broken into on March 17, 2018.

[434] The accused explained that Losani Homes was before the 6-7 day period he was stealing cars, i.e. two weeks before.

[435] In Exhibit 1, slide 39, there is a gas can, tarp and Clark clothes. The accused disagreed that the tarp came from Clark. The accused admitted he smoked the cigar, seen in Exhibit 1, slide 40, at Old Mill Road. Exhibit 1, slide 42, is a CFS report which indicates the accused’s DNA cannot be excluded from the DNA swab taken from the cigar.

[436] At 2:00 p.m., the accused drove by Francis Street and his wife’s vehicle was not there. The accused had given her his key to the house. The van was conspicuous, and he wanted to get rid of it.

[437] The accused testified that he just wanted to go home and become a productive member of society. On March 31, 2018, the accused wanted to go home and leave his criminal lifestyle. The accused admitted he had no where to go and in order to get what he wanted, he was prepared to break the law.

[438] When the accused went into the Middleton Road parking lot, there was only one vehicle parked in a large parking lot. The accused may have bumped the vehicle and if he did, it was because he was distracted by his cell phone. The accused indicated he had consumed marijuana but was not high. He couldn’t get a hold of his girlfriend, Shauna Burlingham, and he decided to leave the industrial area. The accused was aware they had security cameras there and he was in a stolen van. He drove by Francis Street – Shauna was not there, and he could not contact her. He drove toward Conestoga College because it was one of the few areas in Cambridge he was familiar with.

[439] He didn’t know that Old Mill Road was a dead-end road. Westover Road in Hamilton is also a dead-end road. The accused denied he was going to ditch the van and get another vehicle. The accused was going to ditch the van near Francis Street.

[440] The accused was not aware of any police presence when he parked at Old Mill Road. The accused phoned his mother and told her he was in a stolen motor vehicle. She told him to distance himself from the vehicle. He ignored this advice.

[441] When the accused drove back up Old Mill Road, he was surprised to see a road block with a spike belt deployed.

[442] The accused had fled from the police before. On August 4, 2017, the accused pled guilty to two different counts of “Flight while pursued by a police officer”, before Justice Leitch. He received three years probation and a 10 year driving prohibition.

[443] While on Old Mill Road, the accused was not permitted to drive due to:

1. Disqualified due to a driver licence suspension.
2. A 10 year driving prohibition order.
3. A probation order which stipulated he was not to occupy a driver’s seat – see condition 14 of Exhibit 12 probation order.

[444] He was disobeying all those orders because he wanted to go home and made a decision to do that.

[445] When the accused saw the roadblock and police presence with rifles displayed, he panicked. He heard the police state, “Stop the car. Show us your hands.” The accused would have surrendered and de-escalated the situation. The accused had been attacked by the police before, so he reversed his van in order to get away.

[446] The police were not racing after him – they were armed but stationary giving oral demands which he ignored.

[447] He made a three-point turn and fled from the police toward the dead-end. The accused didn’t know why there were so many police or why they had guns out, but he did know he did not want to be apprehended. He had bad experiences before in dealings with the police. The accused wanted to get away and he knew the police would pursue him. He decided to go off road and had to use more acceleration to go through the muddy field. The accused had another opportunity to surrender and de-escalate when the van got stuck in the mud. Instead, the accused left the vehicle and ran away. The accused grabbed the black bag as his bank card was in there which would identify him. There were also stolen items in the bag, as well as crime related items. For example, found in the bag were:

1. Exhibit 1, slide 83, shows ID in the name of Rachel Kielstra and Eckhard Lutz.
2. Exhibit 1, slide 86, shows other stolen items – i.e. Aviva Auto Insurance for Abbott Laboratories and a variety of stolen car keys. The Naloxone kit belonged to him.
3. Exhibit 1, slide 85, includes two screwdrivers that the accused used for car thefts.
4. Exhibit 1, slide 82, includes a meth pipe used for meth consumption.
5. Exhibit 1, slide 84, shows the accused’s bank card. That card was one of the reasons the accused grabbed the bag.

[448] The accused did not have a pocket knife – he is certain of that.

[449] While the accused was running through the bush, he stopped and called his mom. She would have been able to talk him into surrender, but he could not get a hold of her.

[450] The accused got to the edge of the 401 but didn’t see the cruiser to his left. The accused came out of the bush just above the white/green sign where the yellow tape extends to a small tree in slide 52 of Exhibit 1.

[451] The accused ran west and saw the officer coming toward him. The officer was at the center of slide 52 of Exhibit 1. At first the accused didn’t hear any commands. The first thing the accused heard was “Show me your fucking hands.” He heard that three times. The officer was pointing a gun at him. The accused agreed that this was the third time he had the opportunity to surrender. When the accused realized the officer was there and making commands, the accused, who was running westbound, turned where the log was. The officer was 25-30 feet away.

[452] The accused was very intimidated. The officer was using swear words: fucking hands, motherfucker and was screaming angrily at him. The accused’s hands were clearly visible. His right hand was holding the right handle of the black bag and the accused’s left hand was swinging to assist his running.

[453] The accused could have raised his hands, but instead he was still trying to get away. The accused testified in chief that the officer was not reasonable and was like a wild animal, not in control of himself. The officer was 25-30 feet away and was issuing instructions with profanity. The accused does not recall hearing the officer state: “He’s not showing me his hands”. There was at that time a lot of traffic on the 401 and it was noisy.

[454] After the accused turned around and changed direction and the officer was behind him, all the accused said was “I just want to go home”.

[455] The accused turned left to turn around. After the accused turned around, and was running toward the bush, the accused yelled, “I just want to go home”. The officer then started to fire. The first bullet went by the left side of his face. The second bullet went by his left elbow. The accused testified he could see the steam trails of the first two bullets. The third bullet struck him. The bullets were fired one after the other – back to back. The accused fell forward. The officer put his knee on the accused’s back and handcuffed him.

[456] The accused doesn’t remember being in the land ambulance and being given his rights.

[457] The accused doesn’t recall being interviewed by SIU officers on April 1, 2018 at the Hamilton General Hospital before his transfer to Maplehurst.

[458] The accused remembers the SIU for the first time on April 6, 2018. He can’t be certain they just took photos on April 6, 2018.

RE-EXAMINATION

[459] In 2013, the accused was attacked by Hamilton police at his residence. The police forced their way in and choked him for 2-3 minutes. The accused’s common law partner was concerned the police would kill him.

PATRICIA HANNAFORD

[460] Joshua Hannaford, the accused, is Ms. Hannaford’s son.

[461] Ms. Hannaford testified that the accused phoned her two times on March 31, 2018:

1. 2:30 – 3:30 p.m.
2. 4:22 p.m.

[462] Regarding the first call between 2:30 and 3:30 p.m., the accused phoned his mother and told her that he was headed to Cambridge to talk to Shauna.

[463] They were arguing about money and he wanted to see if they could talk it out.

[464] Regarding the second call at 4:22 p.m., Ms. Hannaford was grocery shopping and her son’s call went to voicemail. She listened to the voicemail a couple of minutes after it was left on her phone. She could hear wind, rustling sounds like leaves and she could hear breathing for 30-40 seconds. She heard the accused say, “I just want to go home”. There was more wind and rustling noises for 10-20 seconds and a sharp intake of breath and the phone went dead.

[465] She listened to it 12-16 times over 3-4 months at which time her service provider automatically deleted the voicemail. She needed to re-save it every week or it would be deleted. When the call was deleted, she was told by Freedom Mobile there was no way to get it back.

[466] On March 31, 2018, after reviewing the voicemail, she phoned her son back.

[467] On March 31, 2018, her phone number ended in 4698 and the accused’s number was 289-700-5472.

[468] Freedom Mobile faxed her the cell phone record for her 4698 number. The record was filed as Exhibit 28. Exhibit 28 shows that the first phone contact between the accused and his mother was at 3/31/208, 15:37.

[469] In cross-examination, Ms. Hannaford indicated she never discussed any issues with the Waterloo Police. She spoke with the SIU on March 7^th and 8^th, 2019. She knew her information was relevant, but she didn’t think of talking to the police. She told Joshua about the voicemail on Facebook and asked him about the voicemail and what was going on. She discussed the content of the voicemail with Joshua.

[470] She spoke to Joshua between 2:30 and 3:30 p.m. for the first time on March 31, 2018. The first time he called was 15:37 or 15:38 as listed on Exhibit 28. At that time, he told his mother that it was his intention to go home to Cambridge and that he wanted to talk it out with Shauna.

[471] She doesn’t remember Joshua saying he was in Cambridge. She asked him how he was getting to Cambridge. He told her he was in a stolen van. She stated, “Oh my God, Josh, what are you doing? Park the van and go away.” Ms. Hannaford testified the accused never said anything about the police.

[472] The Crown suggested that Ms. Hannaford made a statement to SIU Investigators Seymour and Piro who attended her residence on March 7, 2019.

[473] The Crown further suggested that Ms. Hannaford told the SIU officers, “Joshua, in a call at 3:00 p.m., said he was in a van in Cambridge and police were around him and she told Josh to get out of the vehicle”. Ms. Hannaford testified she doesn’t remember that conversation or that event occurring. She testified, “That didn’t happen”.

[474] Ms. Hannaford testified she spoke to the SIU in March 2019 and anything related to the police was based on what she had read.

[475] The information on Exhibit 28 is confusing, especially regarding the information regarding duration of the calls. For example, the 15:38 call from the accused to his mother is listed as 1,394. There is no realistic likelihood that she talked to Joshua for 1,394 minutes or even 1,394 seconds.

[476] Regarding a call at 16:18 which indicates “voicemail”, no voicemail message was left. At 16:22, a voicemail was left, and she listened to it at 16:24 and 16:27. The voicemail was 1.5 to 2 minutes and she didn’t hear any other voices or background voices made by the police.

[477] The accused was struggling with meth and smoked marijuana. She knows the accused had addiction problems.

[478] Ms. Hannaford was cross-examined on a police report regarding an incident that occurred at Shauna’s residence in May 2013. Ms. Hannaford said it occurred in 2014. Ms. Hannaford denied that she was aggressive with police. She denied she swore at the police and kicked at them.

[479] Ms. Hannaford indicated the police deployed a taser on her when she was already handcuffed. She denied being on a one week meth binge. Ms. Hannaford told the police that she had tried meth just that day.

[480] In re-examination, Ms. Hannaford stated she first spoke with the defence lawyer in November 2018. Ms. Hannaford testified she tried meth one time in May 2014 and has had no struggle with drugs since 2018.

ANALYSIS OF EVIDENCE

[481] The evidence at this trial can be broken down into four component parts:

1. Civilian testimony.
2. Waterloo Police and OPP testimony.
3. Sgt. Dorling’s testimony.
4. Defence evidence.

[482] Relevant to all of the above four component parts are the exhibits filed at this trial, particularly Exhibit 1 – photos of the crime scene, items seized and analyzed, and Exhibit 2 – recordings of relevant police communications relayed on March 31, 2018.

1. CIVILIAN TESTIMONY

[483] The Crown called Rocco Fazzari, who lived at 1633 Westover Road, Flamborough, with his wife. Mr. Fazzari reported the theft of his company car and the break and enter and theft of his rifles from his home in the early afternoon of March 31, 2018. Mr. Fazzari’s evidence was given in a straightforward honest fashion and his cross-examination by experienced and competent defence counsel revealed no material inconsistencies or contradictions.

[484] I conclude that Mr. Fazzari is both a reliable and competent witness.

[485] Mr. Fazzari, in cross-examination, testified that he did not tell police that any ammunition was missing. However, Mr. Fazzari did testify that the ammunition returned to him by the police was from his gun cabinet in the basement of his home.

[486] The initial police CAD report at 15:20:59 (see page 2 of Exhibit 1, Tab 1 and Exhibit 3) of March 31, 2018 indicates, “Use caution as firearms and ammo was stolen”. In the police communication transcript of 15:54:11 at page 11 of Exhibit 2, Tab 3, dispatch refers to stolen rifles “and some ammo”. These reports were broadcast well before the police secured the van after it got stuck in the farmer’s field off Old Mill Road. Accordingly, I conclude that Mr. Fazzari made an honest mistake in his testimony and did report stolen rifles and ammo to the police when he reported the break and enter into his home on March 31, 2018.

2. WATERLOO POLICE AND OPP TESTIMONY

[487] Many of the officers from both the Waterloo Police Service and OPP were called by the Crown.

[488] These officers testified regarding the background circumstances leading up to the arrest of the accused. Their evidence was generally corroborated and supported by the photos included in Exhibit 1 and the transcripts included in Exhibit 2, of police communications on March 31, 2018 surrounding the apprehension of the accused.

[489] Officers Scott, Koonsakda, Deschalelets, Dionne and Sgt. Thomas were involved in the pursuit of the accused on Old Mill Road. As previously summarized, the details of the pursuit were marked by the various officers on a duplicate copy of a google map of Old Mill Road that appears at slide 2 of Exhibit 1. Officer Scott placed his markings on Exhibit 5; Officer Koonsakda placed his markings on Exhibit 6; Officer Deschatelets placed his markings on Exhibit 7; Officer Dionne placed his markings on Exhibit 8 and Sgt. Thomas placed his markings on Exhibit 20.

[490] As previously summarized, these markings varied somewhat but not in any material way. The markings and testimony of the officers at Old Mill Road clearly indicate that the accused drove the stolen van toard the roadblock, the accused turned around and drove the stolen van toward the dead-end veering left onto the farmer’s field and then abandoning the van near the bush at the edge of field #3. The police testimony is supported by the photos in Exhibit 1 and police communications in Exhibit 2 both before, during and after the apprehension of the accused.

[491] The testimony given by the police officers was generally consistent both internally and externally with the other police evidence and was supported by the photos, exhibits and transcripts as included in the Exhibit 1 photos and Exhibit 2 communications, as well as other exhibits.

[492] The only material inconsistency in all of the police evidence, in my opinion, was Sgt. Thomas testifying that, after the shooting, Sgt. Thomas “believed” that Officer Edwards was in the police cruiser with Sgt. Dorling. Both Sgt. Dorling and Officer Grieve testified it was Officer Grieve who was in Sgt. Dorling’s cruiser with Sgt. Dorling, after the shooting. Officer Edwards makes no mention of being in Sgt. Dorling’s cruiser at the scene of the shooting after the shooting occurred. I conclude that Sgt. Thomas made an innocent mistake regarding an event that was not all that significant in the scheme of things that occurred that day.

[493] This type of error is not uncommon with even the most honest, reliable witnesses who try to recall events many years after the fact.

[494] However, the bulk of Sgt. Thomas’ testimony, is amply supported by other police testimony, as well as Exhibits 1, 2 and the other exhibits. This same conclusion can be applied to all of the police testimony provided at the trial by all of the Waterloo Police Service and OPP officers.

[495] Accordingly, I find that the individual testimony of all of the police officers to be credible, reliable and amply supported by other credible and reliable testimony and physical exhibits.

3. SGT. DORLING

[496] The bulk of Sgt. Dorling’s evidence was also supported by the Exhibit 1 photos and Exhibit 2 police communications as previously summarized. There are, however, two areas of his testimony that give rise to some concern and require closer scrutiny.

[497] Regarding area of concern number one, Officer Grieve attended the shooting scene and saw Sgt. Dorling walk up the grassy hill adjacent to the eastbound 401. Officer Grieve asked Sgt. Dorling if he was OK. Sgt. Dorling, according to Officer Grieve, replied, “Fuck, I had dinner plans.” Officer Grieve’s opinion was that Sgt. Dorling was upset and pissed off. Sgt. Dorling, in his testimony, did not deny making this statement and confirmed that he had plans to have dinner with his family.

[498] This appears to have been a callous and inappropriate remark. What is to be made of it?

[499] Officer Grieve was invited into Sgt. Dorling’s cruiser after Sgt. Dorling made this remark to her.

[500] Officer Grieve also accompanied Sgt. Dorling on the drive to the station. Sgt. Dorling talked about his family. Officer Grieve indicated she would have handled the situation differently and she concluded that Sgt. Dorling was still in shock. Later at the station, Officer Grieve testified that Sgt. Dorling seemed less stressed.

[501] Constable Edwards appears to be the first Waterloo police officer who arrived at the apprehension just after the shooting. She saw Sgt. Dorling finishing putting handcuffs on the suspect. Officer Edwards climbed over the four foot fence and saw that Sgt. Dorling was visibly upset and said, “Fuck”. She calmed him down by saying, “it’s OK”.

[502] Sgt. Thomas spoke to Sgt. Dorling and got Sgt. Dorling to outline where the police tags should be. Sgt. Dorling told Sgt. Thomas he couldn’t get on the air because Sgt. Thomas was on air – Sgt. Dorling stated, “He wouldn’t show me his hands”.

[503] Sgt. Dorling, immediately after the shooting, advised dispatch to contact an ambulance and assisted the OPP officers in first aid by applying a tourniquet to the suspect’s injured leg.

[504] I conclude from this evidence that Sgt. Dorling had been in an extremely stressful situation and was upset and, as outlined by Officer Grieve, Sgt. Dorling was in shock. It was in this state of upset that Sgt. Dorling made the inappropriate and seemingly indifferent comment.

[505] However, all of Sgt. Dorling’s actions prior to the comment were the exact opposite of indifference, i.e. dealing with a stressful, dangerous experience, immediately arranging for an ambulance and applying first aid to the suspect. Accordingly, I attribute the comment “Fuck, I had dinner plans” not as a result of callous indifference, but rather as a result of Sgt. Dorling being overwhelmed by stress to the point that Officer Grieve concluded that Sgt. Dorling was in a state of shock. As Officer Grieve acknowledged, (i.e. she would have reacted differently), different people react differently to stressful situations.

[506] Regarding area of concern number two, Sgt. Dorling testified that the shoulder strap was in the way of handcuffing, and the shoulder strap had to be unbuckled. Sgt. Dorling, in cross-examination, testified he had a distinct memory of it. At the preliminary hearing, Sgt. Dorling testified that he did not cut the strap as he had no knife on him. Sgt. Dorling testified at the preliminary hearing that, from the pictures, it would have been unclipped, but “I don’t remember doing that”.

[507] When asked in cross-examination why he remembers detail today that he didn’t remember before, Sgt. Dorling testified at this trial that the strap was in the way and it had to be unclipped.

[508] Slide 81 of Exhibit 1 is a picture of the bag at the scene and it clearly shows the bag has a buckle that the shoulder strap clips on to. The shoulder strap is unbuckled.

[509] In my experience, it is not uncommon for even honest witnesses, after the fact, to reconstruct events upon reviewing other physical evidence and/or other witness statements/testimony.

[510] This is why courts, as a standard practice, issue “exclusion of witness” orders. I have carefully reviewed Sgt. Dorling’s evidence and many of the crucial details of it are corroborated/supported by other trial testimony and filed exhibits.

[511] In my opinion, Sgt. Dorling’s trial evidence regarding the shoulder strap is, at worst, a reconstruction upon reviewing the Exhibit 1, slide 81 photo and is a relatively minor inconsistency that does not materially detract from Sgt. Dorling’s credibility or reliability.

[512] I conclude, in the context of all the other trial evidence, that Sgt. Dorling is an honest witness, albeit not a 100% perfect witness. Accordingly, I accept Sgt. Dorling’s testimony as being credible, reliable and truthful.

4. DEFENCE EVIDENCE

[513] The main defence witness was the accused, Joshua Hannaford.

[514] The accused’s evidence was in conflict with important parts of the testimony of Crown witnesses. The accused’s testimony was also replete with contradictions, inconsistencies and concerns.

[515] Examples include:

1. The accused testified in chief that some of the items in the stolen van belonged to him. With respect to other items that he had transferred from the Ford Escape to the stolen van, the accused testified cryptically, “I was asked to get rid of some things by somebody.”

In cross-examination, the accused was shown slide 30 of Exhibit 1 where there is blue clothing with the label “Clark” on it. The accused agreed that he “visited” Clark’s, a business in Caledonia, the previous evening. The accused stated that he did not get that clothing from his visit to Clark. The accused testified, “I’m implying that those objects were given to me.” The accused stated that this clothing was part of the things that somebody else asked him to get rid of. The accused admitted that he understood that it was stolen property from a third party. The accused was asked if it was Jon (his friend Jonathon as per my summary). The accused answered, “I’m not going to implicate anybody. I’m not going to rat somebody out for …”

The accused was reminded by me that he was under oath and had to provide an answer. The accused stated that the person who gave him the stolen property to get rid of was not “Jon”. It was just a guy “I was with that night. I know him as Ace, … that’s, I would imagine a nick name”. The accused denied he was going to sell the stolen items. He testified that “I was basically asked to dispose of it, I wasn’t asked to sell it. I was asked to get rid of it. So I was going to basically ditch it somewhere”.

2. Later in cross-examination, the accused admitted that the binoculars found in the stolen van, as depicted in slide 34 of Exhibit 1, was part of the property from Clark’s that was given to him to dispose of. These binoculars and case are in very good shape and I infer would have some re-sale value as well as other stolen items in the van (for example, a DVR system, network storage system and computer on slides 36 and 37 of Exhibit 1 that the accused admitted were stolen items he was given to dispose of). The accused had ample opportunity to “ditch” these stolen items, but instead transferred them into the stolen van instead of leaving them in the stolen Ford Escape or “ditching” them in rural Flamborough.

3. The accused was unable to provide the names of his “friends” or their addresses with any precision. For example, his friend Jonathon’s name was Jonathon Chechalk but the accused was not 100% sure as Jonathon was “basically an acquaintance”. The accused slept over there the night of March 30-31, 2018 but could not provide an address other than it was in Caledonia. After leaving Jonathon’s house, he visited another friend, Jolee Macdonald. She lives in the area of Kenilworth and Main.

The accused does not know Jolee’s address either. After leaving Jolee’s place (due to her having an appointment), the accused messaged other friends and went to another friend’s house.

The name of the friend he visited is Richard, last name unknown. Richard lives in the King and Steven area of Hamilton. The accused could not provide an address for Richard. The accused testified, “I’m not going to be able to supply addresses for any of the locations I went. I just know them by memory”. The accused smoked marijuana there and then visited “Liz” and his friend “Matt” in Burlington. The accused does not know their last names or their addresses either. Liz lives on North Shore Blvd., off Plains Road and Matt lives “roughly” on Guelph Line.

The bottom line of all this part of the accused’s testimony is that it would be impossible to confirm or refute where the accused was the evening/morning of March 30-31, 2018 or what exactly he was doing with one clear exception.

4. The exception relates to a receipt which was found in the stolen van – see slides 30-32 of Exhibit 1; slide 32 of Exhibit 1 contains image 50 which contains a white paper document which was blown up and entered as Exhibit 23. Exhibit 23 is a receipt dated March 31, 2018, time 04:52:10 showing $10 was paid at a car wash at Caledonia Auto Laundry, 210 Argyle Street South, Caledonia.

The accused testified that he was at Jonathon’s house the night of March 30-31, 2018. The Crown asked the accused specifically where the accused was at 4:52 a.m. The accused testified, “I believe I was at Jonathon’s house”. The accused testified he retired some time after midnight stating, “I don’t think I actually laid my head down until maybe 5:30.” The accused agreed he was awake at 4:52 a.m. The Crown asked the accused, “Were you outside of Jonathon Chechalk’s home, sir?” The accused replied, “Not that I can recall, no.” The accused was asked if he was at the Caledonia Auto Laundry at 4:52 a.m. The accused could not recall the Caledonia Auto Laundry but indicated he may have washed the car in Caledonia but couldn’t recall the time but it may have been in the middle of the night or early morning hours – it was dark out and he was with his friend. It was only when the accused was confronted with the Exhibit 32 receipt that the accused admitted he was at the Caledonia car wash at 4:52 a.m. When asked if the accused “visited” Clark’s in Caledonia on the same early morning, the accused stated, “It was that previous evening – I believe”. Later in cross-examination, the accused was asked by the Crown if the stolen property from Clark came into his possession in the early morning hours of March 31, 2018, the accused responded “On the previous evening … I can’t say for certain the time.” As indicated previously, the accused indicated he was with a guy that night who he knows only as “Ace” who gave him the Clark stolen property to get rid of.

5. The Crown suggested that over the course of 6-7 days that the accused was out of the house in Cambridge, he had been in a number of stolen vehicles. The accused indicated he never said that. The accused stated, “I’m certain I never said I was in a number of stolen vehicles”. The Crown indicated his note actually stated the throughout the six or seven days the accused indicated that the accused had been in stolen vehicles, plural. The accused indicated, “I agree with the word stolen vehicles. I never said a number of stolen vehicles”.

The accused agreed that if the court documentation stated that on March 19, 2019, he pled guilty to theft of the Ford Escape, which theft occurred on March 26, 2018, from JP Motors, Burlington, that would be correct.

Regarding the 6-7 day period the accused was within other stolen vehicles, the accused was asked if he recalled being in a 2008 Audi station wagon that had been stolen from Toronto. The accused responded, “I do recall being in a – in a station wagon, yes”. The accused could not recall whether he pled guilty to being in possession of that. The Crown suggested that, in Milton on March 3, 2019, the accused pled guilty to being in possession of a 2008 Audi station wagon knowing it to be stolen. The accused indicated if that was the information the Crown had, he would agree with it. The accused pled guilty to a number of charges but was not able to give specifics.

The accused was asked if he had occasion to be in a stolen 2012 Mercedes, stolen out of Toronto in this time frame. The accused indicated he remembered that one but indicated he did not recall pleading guilty to being in possession relative to that vehicle. The accused testified, “I don’t think I did plead guilty to that”.

The accused was referred to his criminal record (Exhibit 24) and at page 5 of the record, it was suggested that at count 5 of the March 19, 2019 Milton convictions, there is a conviction for possession of property obtained by crime over $5,000. It was suggested that conviction related to the Mercedes. The accused responded, “How do we know that’s the Mercedes? I’m a little bit confused because you’re just showing me numbers. It says nothing about a Mercedes here”. The Crown then showed the accused an information – Exhibit 25 – that indicated in count 2 that on March 17, 2018 he did have in his possession a 2012 Mercedes valued at over $5,000. The defence pointed out that Exhibit 25 did not have an endorsement whether or not the accused pled guilty to the Mercedes count. The Crown then filed as Exhibit 25A, a duplicate copy of Exhibit 25 but with an endorsement at page 2 that the accused pled guilty to counts 1, 2, 3 and 4 or in other words all the four counts in the information including count 2. The cross-examination regarding the stolen 2012 Mercedes was yet another clear illustration, that unless the accused is faced with clear and unrefutable proof, his evidence tends towards vague and cryptic testimony that obscures and minimizes his criminal behaviour. This is yet another example in addition to others previously outlined, i.e. for example, the statement “somebody else asked me to get rid of some things”.

6. The accused in cross-examination was asked these series of questions and provided answers as follows:

Q. But en route, sir, your vehicle became problematic. You had issues with this Ford Escape.

A. Correct.

Q. You told us about brakes being squishy, lights coming on, that kind of stuff.

A. Engine light came on and, yeah, the brakes were not functioning properly.

Q. But interestingly, sir, you took, you said – you took a route, perhaps a less traveled route. You took the off roads, if I understand your evidence. Is that right, sir?

A. I wouldn’t say off roads, but I was taking rural roads, yes.

Q. My note was you took back roads. Is that wrong, sir?

A. Back roads and rural roads to me are one in the same.

Q. And you took the back roads, sir because you didn’t want to be on a principal highway where, I don’t know, some officer could run the plate and find you in a stolen vehicle.

A. That wasn’t something that was going through my mind at the time, no.

Q. No.

A. No.

Q. You just take back roads all the time, I guess.

A. I – you could – you could say – yeah, I guess you could say that.

Q. Okay.

A. I wouldn’t say I take them all the time, but ….

The claim that it didn’t cross the accused’s mind to avoid main roads and police detection is patently absurd in these circumstances. The accused was on probation on March 31, 2018. By driving a stolen vehicle with stolen goods in it in addition to possessing and consuming marijuana, the accused was breaching the following conditions of the probation order:

(i) Condition 1 - Keep the peace and be of good behaviour.

(ii) Condition 10 - Do not buy/possess or consume marijuana or other intoxicating substances.

(iii) Condition 14 - Not to be in the driver’s seat of any motorized vehicle.

Further, the accused, even on his own evidence on March 31, 2018, was at a minimum committing the following offences while driving the Ford Escape:

(1) Breach of court orders – probation order and 10 year driving prohibition.

(2) Possession of stolen vehicle.

(3) Possession of stolen property, i.e. Clark property.

(4) Drive suspended/disqualified – his driver’s licence was suspended plus he was subject to a 10 year driving prohibition order.

(5) Possessing burglary tools suitable for both break and enter and car thefts.

(6) Possession of marijuana (marijuana possession was legalized in October 2018)

It is instructive to reproduce the convictions for which the accused was on probation for. Justice Leitch, on August 4, 2017 placed the accused on a 3 year probation term for the following offences:

Accordingly, the accused on March 31, 2018, was a repeat offender for the following convictions which appear on the probation order, as set out above:

(1) (a) Probation convictions for Breach of court orders:

• Fail to Comply Recognizance x 5

• Fail to Attend x 1

(b) On March 31, 2018 – Breach of Probation x 3

• Breach of Justice Leitch’s 10-year driving prohibition x 1

(2) (a) Probation convictions for Unlawful Possession of Motor Vehicle x 4

(b) On March 31, 2018 – driving a stolen Ford Escape x 1

(3) (a) Probation convictions for Possession of Stolen Property x 5

(b) On March 31, 2018 – possession of stolen Clark property, possession of stolen car keys, possession of stolen identification and other papers

(4) (a) Probation convictions for Drive Suspended – s. 53(1) HTA x 1

(b) On March 31, 2018 – driving a stolen Ford Escape while driver’s licence suspended and subject to a 10-year driving prohibition

(5) (a) Probation conviction for without lawful excuse possess instruments –

s. 351(1)

(b) On March 31, 2018, possessing burglary tools suitable for break and

and enters and car thefts

(6) (a) Probation convictions for possess a CDSA substance – Schedule 1 x

and Schedule 2 x 1

(b) On March 31, 2018 consuming and possession marijuana

The conclusion that is inescapable is not only was the accused in flagrant breach of his probation order in many, many ways, but also he was committing many of the same offences that he was placed on probation for.

Obviously, the probation order meant nothing to the accused other than this: It is reasonable to infer that the accused, if arrested in these circumstances would be aware that he would be unable to return home and patch things up with his estranged wife, as was his purpose.

Would one expect a person, who so flagrantly, repeatedly and deliberately, violates a court order binding upon him, feel bound by an oath? The very asking of the question provides the obvious answer.

7. Exhibit 24 is the criminal record of Joshua Hannaford, which is five pages in length and includes numerous convictions for breaching court orders and matters of dishonesty such as break and enter, theft, possession over, possession of stolen vehicles. The record progressively becomes more serious over time and after a seven year gap from 2010-2016, the last three pages from 2017-2020 are illustrative of an ongoing, extensive crime spree of dishonest conduct demonstrating an absolute disregard for court orders and a contempt for society manifesting in stealing and depriving owners of their property. There are 54 convictions on the criminal record. 27 of these convictions are property related crimes of dishonesty. 18 convictions are for breach of court orders.

Numerous convictions for dishonesty of a recent origin can be properly taken into account in assessing credibility – see R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 at paras. 159-168.

8. The accused testified that he was driving on Westover Road slowly and when he was approximately 30 feet away from the van he saw the brown wallet and a black key fob on the dash above where the speedometer and steering wheel would be. The dash, as can be seen in slide 13 of Exhibit 1 is also a dark brown colour. He could see the front passenger side of the van. The rear of the van was facing a barn structure or had been backed in towards that barn. In response to my questions, the accused agreed that if you drew a line from the bottom of the barn to the top and kept going, the van would be parked just to the left of that line. The accused circled the position of the van in Exhibit 26 – which is an aerial view of 1633 Westover Road.

The accused was then shown a street view of the van which was entered as Exhibit 27. The accused was asked how it was possible to see the key fob and wallet in the van in Exhibit 27 from the street.

The accused explained that the van he stole was a lot closer to the street than the van in Exhibit 27. The accused put a rectangle on Exhibit 27 where the van was when he saw it. I note that the rectangle is to the right of the imaginary line referred to in Exhibit 26 and accordingly, the accused put the rectangle closer to the street than the circle in Exhibit 26. The accused, however, maintained that his evidence had not changed – the van was in the same location as he originally testified to.

The accused was then referred to Exhibit 1, slide 9 which is a photo of the front passenger side of the stolen van. The accused agreed that the photograph in Exhibit 1, slide 9 was a lot closer than 30 feet in reference to the passenger and front area of the stolen van. The accused testified that he could see the wallet in Exhibit 1, slide 9 and pointed to its location just to the right of a white paper document on slide 9. I have studied Exhibit 1, slide 9 many times and I cannot see the wallet. I note that the windows are tinted, and the dash is a dark colour. All I can see beyond the tinted window in the middle of the dash is the white paper document and I cannot make out the wallet at all.

Mr. Fazzari, the complainant home owner of 1633 Westover Road testified that he kept the wallet, containing $3,000 cash in the van under the driver’s seat. It would make sense to conceal a wallet containing that amount of cash instead of leaving it on the dashboard of an unlocked vehicle with no one home. Further Mr. Fazzari indicated the keys to the van were usually kept just inside the porch at the back of the house. Putting it all together, I reject the accused’s evidence that he was able to see both the wallet and the key fob from the street a considerable distance away. I reject the accused’s evidence regarding the location and discovery of the wallet and key fob. I find, as credible and reliable, Mr. Fazzari’s evidence that the wallet was under the car seat and the keys were just inside the porch at the back of the house. When Mr. Fazzari returned home at 1:00 p.m., the back-porch door was open, and the basement light was on.

9. Mr. Fazzari testified that $3,000 was in the wallet. When the accused was arrested, he had $2,060 on him and a $20-dollar bill was found near the shooting scene. The accused testified he did not spend any money after taking the Dodge Caravan as he never got out of the van from Flamborough to Old Mill Road. Accordingly, the accused has no explanation regarding the missing $920.

10. The accused testified that he never knew the rifles were in the van. Officer Scott testified that he did a quick search of the vehicle and located the rifles and ammunition - see slides 17, 22, 24 and 26 of Exhibit 1. The rifles and ammunition are clearly visible in those slides. In Exhibit 2, Tab 3 at page 27 at 16:18:40, Sgt. Thomas reports that one person is running out of the stolen van. Officer Scott, at page 28, in the same 16:18:40 time frame reports they are going to clear the van.

Officer Deschatelets in the same 16:18:40 time frame, at page 29, advises dispatch that two rifles are in the van. Officer Scott, in the same time frame of 16:18:40, at page 31, advises dispatch that “two rifles in the van, couple boxes of open ammunition with rounds missing”.

The next set of communications near the bottom of page 31 starts at 16:23:41.

Accordingly, according to the dispatch communication, the police were able to locate both rifles and the ammunition in five minutes or less of searching the van. Yet somehow, the accused, who had testified that he was able to observe a wallet and key fob from a significant distance from the street was not able to see or locate two easily discoverable rifles despite being in the stolen van for many hours. As I have indicated, I disbelieve the accused’s evidence regarding the location of the wallet. It is obvious, given the $2,060 on his person, that the accused located the wallet under the driver’s seat. One would expect the accused, who was in the thieving business, would rummage through the vehicle looking for more valuables, especially after discovering the $3,000 cash. Mr. Fazzari also testified that when he got home at 1:00 p.m. the back-porch door was open and the basement light was on. The keys to the van were kept just inside the porch at the back of the house. Sometimes Mr. Fazzari left the keys in the van. The keys and van were missing. Stolen, as well, from the basement were the two rifles recovered it the van. Also recovered from the van, was ammunition from his gun cabinet in the basement. This stolen ammunition would not fit into the rifles. The ammunition that did fit into the rifles were in other parts of the house and were not stolen. Mr. Fazzari also testified that the rifles were never put in the company van. As well, the wallet was not left on the front dash by him.

Putting it all together, it is an easy and reasonable inference that the accused entered the house, stole the car keys and the rifles and ammunition from the basement.

Accordingly, I find the accused was well aware of the presence of the two rifles and the ammunition in the van as he had stolen those items that day some 4-5 hours, more or less, before the police recovered them.

11. The accused agreed with the suggestion that his only goal in the six or seven days before March 31, 2018 was to go on an auto theft adventure.

In slide 38 of Exhibit 1, is a drill that the accused admitted was part of a tool kit for breaking into places he shouldn’t be breaking into.

The Crown asked, “But you also broke in – you committed break-ins, did you not?” The accused replies, “No”.

The Crown suggested that the accused did plead to a break and enter. The accused testified that he did plead to one break and enter “around this time”. Exhibit 25A indicates that the accused, on March 24, 2019 pled guilty to a break and enter a business at 430 McNeilly Road in Stoney Creek, which was identified as Losani Homes, on March 17, 2018.

12. The accused testified in chief that Exhibit 1, slides 81-87 show the items that were in his black bag. This is the black bag the accused grabbed when he abandoned the stolen van (which was stuck in the mud) and ran into the bush. The accused explained in chief that the items in the black bag were personal items he felt he needed. This again is just another example of a cryptic explanation that the accused was fond of providing.

In cross-examination, a different picture emerged regarding the “personal” items that the accused felt he “needed”. The accused, in cross-examination, indicated he grabbed the black bag as his major concern was that his bank card was in there which would identify him. There were also stolen items in the bag as well as crime related items. For example, in the bag were:

1. Exhibit 1, slide 83, shows ID in the name of Rachel Kielstra and Eckhard Lutz.

2. Exhibit 1, slide 86, shows other stolen items – i.e. Aviva Auto Insurance for Abbott Laboratories and a variety of stolen car keys. The Naloxone kit belonged to him.

3. Exhibit 1, slide 85, includes two screwdrivers that the accused used for car thefts.

4. Exhibit 1, slide 82, includes a meth pipe used for meth consumption.

5. Exhibit 1, slide 84, shows the accused’s bank card. That card was one of the reasons the accused grabbed the bag.

6. The accused testified that he was certain he did not have a pocket knife. The knife with the black handle shown beside yellow marker 1 in slide 79 of Exhibit 1 is something he never saw before. His hand was on the handle of the black bag with the strap on his right shoulder. As can be seen in Exhibit 1, slide 78, the knife was found very close to where the accused’s feet were at the apprehension site – approximately six feet away. So, where did it come from? The only explanation comes from Sgt. Dorling. Sgt. Dorling testified that when he saw the accused, Sgt. Dorling concentrated on the suspect’s right hand and saw a dark object in the accused’s right hand in front of his pants.

After the shooting, Sgt. Dorling noticed the black handled knife to his right and tied one of the latex gloves to mark the location. There is absolutely no other evidence as to how the knife came to be found near the apprehension site. In the context of all the evidence, I am satisfied that it was the accused who had the black handled knife in his hand before he was shot and dropped the knife at around the time of the shooting.

14. The accused’s mother testified. She confirmed the accused’s evidence that between 2:30 – 3:30 p.m. the accused phoned her while he was at Old Mill Road. She also confirmed the accused’s evidence that he phoned his mother while running in the bush. He left a voicemail at 4:22 p.m. She provided Exhibit 28 which provided confirmation of these calls with some confusing details, which have been previously summarized.

Ms. Hannaford, however, also contradicts the accused’s testimony. In both examination in chief and cross-examination of the accused, there was reference to the accused phoning his mother during the hour he was at the Middleton Road industrial park. The security video entered as Exhibit 19 shows the van entering the vacant parking lot shortly before 2:00 p.m. and leaving shortly after 3:00 p.m.

Ms. Hannaford testified that the first time she spoke to him was between 2:30 p.m. and 3:30 p.m. However, the Exhibit 28 phone record she produced indicates the first time the accused called his mother on March 31, 2018 was 15:37 or 15:38, that is 3:37 or 3:38 p.m. Accordingly, the phone record contradicts the accused’s assertion that he phoned his mother between 2:00 p.m. and 3:00 p.m., while he was at the Middleton Road parking lot.

15. The accused’s version of the interaction between himself and Sgt. Dorling paints a picture that Sgt. Dorling shot the accused because Sgt. Dorling was angry and upset.

The accused testified as follows: Sgt. Dorling had his gun drawn as he approached the accused. Sgt. Dorling was yelling “Show me your fucking hands” two or three times. The officer yelled, “You got that Motherfucker”. The officer was not reasonable – his face was beet red and was contorted. The accused believed the officer was angry and upset, “He looked like a wild animal”. The accused ran away from the officer and yelled, “I just want to go home”. A second later, the officer started shooting. The first two shots narrowly missed; the third shot struck his leg and the accused fell down. As he was falling, he heard 3-4 shots.

In cross-examination, the accused indicated the first thing the accused heard from Sgt. Dorling was, “Show me your fucking hands”. That was said three times. The accused stated the officer was screaming angrily at him.

The accused did not raise his hands as they were clearly visible, and the accused was still trying to get away. The accused stated he doesn’t recall hearing the officer yelling out “He’s not showing me his hands”. There was a lot of traffic on the 401 at the time.

Sgt. Dorling’s evidence was that as he approached the accused, he stated, “Police, don’t move”. Sgt. Dorling’s first transmission was on North Air – Waterloo, due to an error. Sgt. Dorling switched on to South Air – Cambridge. Sgt. Dorling testified he repeatedly told the suspect to show his hands. The suspect had his hand in his waist area and Sgt. Dorling saw the accused holding a black handled object. Sgt. Dorling believed, based on dispatch information and the accused’s actions, that the accused was holding a firearm. The accused went behind a large bush and was out of sight for 5-10 seconds. Sgt. Dorling thought the accused was getting something out of the bag and expected to get shot at. Sgt. Dorling continued to command the accused to show his hands, but the accused did not comply. The accused, after turning to go southbound, faced Sgt. Dorling holding the black handled item and stated, “Want to die” and Sgt. Dorling believed the accused was going to shoot Sgt. Dorling with what he believed was a firearm in the accused’s hand and Sgt. Dorling believed he was facing grievous bodily harm or death. The officer then shot multiple times with the 6^th and last shot striking the accused. Sgt. Dorling only shot to stop what he believed to be a life-threatening imminent threat. Defence counsel suggested that Sgt. Dorling was angry and “pissed” off. Sgt. Dorling denied this suggestion stating that he was calm but directed aggressive commands stating “Show me your hands” and/or “Show me your fucking hands”. Sgt. Dorling doesn’t remember saying “Motherfucker”. Sgt. Dorling denies that all the accused said, was “I just want to go home”.

Given these two conflicting versions, it is vital to examine the other trial evidence.

Exhibit 2B is a North-Waterloo radio transcript which indicates that at 16:25:23, Sgt. Dorling stated, “Show me your hands! Don’t move! Put your hands in the air now.”

There was no swearing in this initial command, contrary to the accused’s evidence.

Exhibit 2, Tab 3, at page 33 also reflects this initial command of 16:25:23 on Waterloo – North air without any swearing. The transcript at page 33 at 16:25:35 then indicates Sgt. Dorling stated a second command, as follows:

“Show me your fucking hands. Now. You got ---”

“He’s not showing me his hands HQ. Show me your fucking hands.”

“Show me your hands now. Show me your fucking hands”.

Shortly after, Sgt. Dorling reports that shots were fired.

As the radio transmission indicates, Sgt. Dorling, at the same time that he said “Show me your fucking hands”, Sgt. Dorling also stated, “He’s not showing me his hands, HQ”. Somehow, the accused didn’t hear that despite hearing repeated commands accompanied by swearing.

The accused also testified his hands were clearly visible – his right hand holding the handle of his bag and the left hand swinging freely. If that was true, Sgt. Dorling would not need to inform dispatch that the accused was not showing his hands.

The word “Motherfucker” does not appear in the transmission transcripts.

Other officers listened to these radio transmissions.

Officer Scott, from the Waterloo Police Service, heard these transmissions and Officer Scott testified that the male voice commanding the accused was loud but not angry. The voice was fairly direct, stern and clear.

Officer Kernoghan, from the OPP, with 25 years experience, was parked about a ½ kilometre behind Sgt. Dorling’s cruiser maintaining containment. At 4:26 p.m. Officer Kernoghan heard an officer on the radio uttering short sentences in a distressed tone which then stopped.

Officer Kernoghan then moved forward and parked just behind Sgt. Dorling’s cruiser. In cross-examination, Officer Kernoghan described the distressed voice as follows:

1. The words were speedier than normal.
2. The voice was louder than normal.
3. There was no anger in the voice.

After hearing the distressed voice, Officer Kernoghan moved forward as he felt there was a strong possibility someone might need help.

The actual transmissions were played in court. I agree with the characterization of those transmissions as testified to by Officers Scott and Kernoghan.

Accordingly, I accept that Sgt. Dorling was “not pissed” or “angry” and certainly was not acting out of control like a “wild animal” as the accused asserted.

Regarding the events just prior to the shooting, the radio transmissions, transcripts and other testimony confirm Sgt. Dorling’s version of the events and contradict material aspects of the accused’s claims that Sgt. Dorling was a wild animal who shot the accused because Sgt. Dorling was “pissed off” and out of control.

Accordingly, I accept Sgt. Dorling’s testimony regarding the events leading up to the shooting and reject the accused’s version where it conflicts with Sgt. Dorling’s evidence.

CONCLUSION REGARDING DEFENCE EVIDENCE

[516] Given the numerous contradictions, inconsistencies and concerns as outlined, I conclude that the accused is neither a credible or reliable witness. The accused is a master of cryptic answers. His lifestyle for years up to the shooting consisted of stealing and contempt of societal norms. His explanation that he wanted to just go home and become a productive member of society is 100 per cent contrary to the planned and deliberate crime spree that led to the accused’s arrest on March 31, 2018.

[517] To put it bluntly, the cross-examination of the accused revealed him to be a dishonest criminal who would basically break the law without hesitation if the accused felt there was some benefit in doing that for him. Without independent reliable confirmation, it would be foolhardy to rely on anything the accused says. Accordingly, for reasons outlined, I reject the bulk of the accused’s evidence and I do not intend to rely on it in order to determine the truth of what led up to his arrest on March 31, 2018.

CONCLUSION REGARDING CHRONOLOGY OF EVENTS.

[518] From the evidence I do accept, which has been summarized and analyzed previously, I make the following findings of fact:

1. Rocco Fazzari left his home at 1633 Westover Road with his wife at 9:30 a.m. This left no one at home in a rural area.
2. The accused, who was engaged in a lifestyle of theft and dishonesty, drove by the home in a stolen Ford Escape equipped with a variety of burglar tools and other stolen property.
3. The accused, noticing no one was home, entered the house and stole two rifles, ammunition and keys to the Dodge Caravan.
4. The accused drove off in the Dodge Caravan and transferred his “tools” and other stolen property from the stolen Ford Escape into the stolen van.
5. When Mr. Fazzari returned home at about 1:00 p.m. he noted the back-porch door was open and the basement light was on. Mr. Fazarri eventually discovered that his house had been broken into. His company van was missing, along with his car keys. Mr. Fazzari reported the theft, of the van, two rifles, ammunition, a couple of cross-bows and a wallet with $3,000 cash and identification, to the police. Unfortunately, Mr. Fazzari did not tell the police that the stolen ammunition would not fit into the stolen rifle.
6. The accused rummaged through the stolen van and discovered the $3,000 in the wallet under the driver’s seat. The accused spent almost a $1,000 of it right away in some unknown way.
7. At about 2:00 p.m., the accused arrived at an industrial parking lot at Middleton Road in Cambridge and stayed there until 3:00 p.m.
8. The stolen van had a GPS in it. The Hamilton police learned that the GPS was pinging that the van was at 55 Middleton Road in Cambridge.
9. The Hamilton police contacted the Waterloo police and requested their assistance to apprehend the stolen van and, at that time, its unknown driver.
10. At 15:20:59 or 3:20 p.m., CAD, the Waterloo police computer system, advised Waterloo police officers that the stolen van’s GPS was pinging at 55 Middleton Road, Cambridge; the CAD report stated, “Use caution as firearms and ammo was stolen”.
11. Waterloo officers responded to the Middleton location, but the stolen van was no longer there.
12. Sgt. Thomas was the supervising officer with the Cambridge – South Division on March 31, 2018 and was in charge of the investigation. Due to the theft of firearms and ammunition, Sgt. Thomas at 15:52:04 asks dispatch if ERU is working and is told they are not.
13. At 15:54:11 dispatch advises there are possibly three weapons in the stolen van plus ammunition and cautions for officer safety. Dispatch also advises there are two rifles and unknown about another weapon. Dispatch advises that the stolen van’s GPS is showing the van is at the dead-end of Old Mill Road. Given the dispatch information, it was reasonable for the officers to believe that up to three firearms and ammunition could be in the stolen van.
14. At 15:59:11, Sgt. Thomas asks for assistance from K-9 but is told by dispatch, “Negative for K-9”.
15. Sgt. Dorling was near the end of his shift when he overheard developments over the radio and became aware of the situation. He was aware of a stolen van with stolen firearms and ammo in it. Sgt. Dorling was in charge of Central Division and at around 16:00:00 confirms with dispatch that two of Sgt. Dorling’s units were “flipped” over to South Division. Sgt. Dorling decided to transfer these units due to what he perceived to be a serious developing situation.
16. At 16:00:24 dispatch indicates, “Making you aware again, officer safety, there is two rifles, one cross-bow, firearms are not trigger locked.” Sgt. Thomas was concerned upon hearing this dispatch. There were more unknowns now and this meant the suspect(s) could be more dangerous.
17. Sgt. Thomas set up a roadblock on Old Mill Road, just up from the intersection of Old Mill Road and Dickie Settlement Road. There were cruisers parked on both sides of Old Mill Road with enough space for a vehicle to drive through. Officer Scott, at Sgt. Thomas’ direction, placed stop sticks – a vehicle deflation device – in the space between the parked cruisers.
18. A number of other officers arrived at Old Mill Road. Due to the reports that the suspect may be armed with firearms, Sgt. Thomas testified that four officers displayed their C-8 Carbine rifles. Officer Koonsakda confirmed he drew out his firearm when the accused drove toward them. Officer Deschatelets confirmed he had his Carbine rifle in his hands at that time as well.
19. At about 4:10 p.m. the accused drove the stolen van slowly towards the officers but stopped approximately 50 feet from where the officers were gathered around the roadblock. The accused testified that as he drove the van uphill on Old Mill Road, he saw a large number of police. He saw the blockade with enough space to drive through but there was a spike belt between the vehicles. The accused observed a number of officers had guns and rifles out and were pointing them in his direction. The accused testified he heard officers tell him to turn off the vehicle and put his hands up. Instead the accused reversed the van and did a three-point turn and drove toward the dead end.
20. I infer that most reasonable persons in the accused’s position would have realized they were trapped and would have surrendered. The accused had every opportunity to surrender but did not. The accused was in possession of $2,000, a relatively large amount of money, which would assist him in his efforts to make up with his wife. Further, the stolen van had a variety of stolen equipment in it, including stolen firearms, and given that the accused was breaching a host of court orders at the time, it is obvious there was a significant likelihood of the accused going back to jail once arrested. The accused, in his testimony, admitted that when he saw the police at the roadblock, he “panicked” as he did not want to be arrested.
21. Sgt. Thomas testified that an officer yelled for the driver to get out of the van. Instead, the van backed up and went out of view of the crest of the hill on Old Mill Road. Officer Scott and Sgt. Thomas, accompanied by a variety of armed officers, followed the van on Old Mill Road.
22. The accused drove the van on to the farmer’s field to the left of Old Mill Road near to the roundabout. Officer Scott and Sgt. Thomas followed the van and also went off-road.
23. The van got stuck in the mud. The accused decided to get out and run instead of surrendering to the police that he knew would pursue him. The accused admitted that he noticed that at least two cruisers from the roadblock were following him. The accused ran into the bush that was between him and the 401. Accordingly, the accused had a second opportunity to surrender, but refused to do so.
24. Before running, the accused grabbed a black bag which contained items the accused stated he needed. Upon arrest, the contents of the black bag included the accused’s bank card, stolen items, screwdrivers used for car thefts and a meth pipe.
25. At 16:17:08, K-9 reports that she/he is available. At 16:17:51, Sgt. Thomas advises they don’t have a location yet as the vehicle is still mobile and the police are in the field also - see pages 26 and 27 of Exhibit 2, Tab 3.
26. At p. 27 of Exhibit 2, Tab 3, at 16:18:40, Sgt. Thomas reports that “people” are getting out of the car and running with a bag into the bush. “Just one person so far”.
27. At 16:18:40, Officer Scott advises dispatch that they are going to clear the van before going further – see p. 28 of Exhibit 2, Tab 3.
28. At 16:18:40, Sgt. Dorling, over the dispatch, asks Sgt. Thomas if the suspect is headed to the 401 – see p. 28 of Exhibit 2, Tab 3.
29. At 16:18:40, Sgt. Thomas advises dispatch that the van is stuck in the mud; they’re not going to chase the guy; they’re going to clear the van first – see p. 28 of Exhibit 2, Tab 3.
30. At 16:18:40, Officer Deschatelets advises dispatch there is no one else left in the van. “Two rifles are in the van”.
31. Officer Scott testified he did a quick search of the vehicle and located two rifles, a full package of .22 calibre rounds and a 9 mm box of empty rounds, but two rows of five rounds were missing – see slides 17, 22, 24 and 26 of Exhibit 1. Officer Scott testified that 9 mm rounds are common for pistols.
32. Officer Deschatelets testified that during the clearing of the van, he heard Officer Scott mention that he saw an open box of ammunition. Officer Deschatelets testified that an open box of ammunition is significant as that finding creates the potential for an outstanding weapon with ammunition.
33. Near the end of the 16:18:40 transmission, Officer Scott provides dispatch with an update: “Two rifles in the van, couple boxes of open ammunition with rounds missing”. Dispatch repeats, “Open ammo, rounds missing” – see p. 31 of Exhibit 2, Tab 3.
34. Sgt. Dorling obviously agrees with Officer Deschatelets’s assessment of the significance of the open box of ammunition, immediately after dispatch advises “open ammo, rounds missing”, the next communication is from Sgt. Dorling who advises, “That’s an issue. Is the duty officer aware of this?” Dispatch advises they are making her aware “right now”. Sgt. Dorling advises “Call ERU out”.
35. Sgt. Thomas testified that the status of the male suspect was unknown. Sgt. Thomas had heard different reports about a different number of firearms. There was ammo missing. Sgt. Thomas did not know the suspect was not armed. Sgt. Thomas testified, “I would assume the person was armed until I heard otherwise”.
36. It is reasonable to conclude that all the officers at or near the apprehension scene were operating under the assumption that the person was armed both before and after the discovery of open ammunition in the van. Numerous officers at the roadblock had their firearms out and were pointing them at the accused’s vehicle when the accused approached them on Old Mill Road. Another officer, Officer O’Neill was parked on Fountain Street, south of the 401, a couple of hundred metres from where the stolen van was located on Old Mill Road. After arrival on Fountain Street at 4:04 p.m., Officer O’Neill took out his C8 clips in case he needed his Carbine rifle due to the concern regarding stolen rifles and ammo. At 16:18:40, just prior to the discovery of the open ammo box, the K-9 officer requested two officers to assist him, explaining, “I’ll probably need two, just the one plus one rule. Just because of the firearms”. – see p. 30 of Exhibit 2, Tab 3.
37. Accordingly, I conclude it was reasonable for Sgt. Dorling, prior to encountering the accused, to assume that the accused was armed with a fully functional loaded pistol given the background information of missing 9 mm ammunition and the information that there were three weapons stolen but only two rifles had been recovered and there were no trigger locks.
38. Not only was it objectively reasonable for Sgt. Dorling to believe the accused was armed with a fully functional loaded pistol, but Sgt. Dorling’s comments, upon being informed of “open ammo, rounds missing”, stating “That’s an issue … call ERU out” at p. 31 of Exhibit 2, Tab 3 fully support Sgt. Dorling’s testimony he believed that the missing rounds were loaded into a firearm.
39. Sgt. Dorling testified he saw the accused come out of the bush. He drove his cruiser closer to the accused and parked his cruiser on the eastbound shoulder of Hwy 401. At 16:24:25 at p.32 of Exhibit 2, Tab 3, Sgt. Dorling, over the radio, states, “I got him. He’s going out to the 40l”.
40. Sgt. Dorling walked towards the accused, unholstered, and pointed his Glock at the accused. Sgt. Dorling believed the suspect was armed, a belief that was reasonable in these circumstances. Sgt. Dorling believed persons in the car pool to the east, persons in the subdivision to the west and persons driving on the 401 were in danger. I agree with Sgt. Dorling’s assessment, save to add it was reasonable for Sgt. Dorling to believe he was the person who was in the greatest jeopardy.
41. Sgt. Dorling told the accused “Show me your hands. Don’t move. Put your hands in the air now.” Sgt. Dorling was not angry. Officer Kernoghan, an OPP officer, who was an impressive witness, overheard Sgt. Dorling and described Sgt. Dorling’s voice as distressed. Officer Kernoghan described Sgt. Dorling’s voice as: (1) speedier than normal; (2) louder than normal; and (3) no anger in the voice. Officer Scott, who heard Sgt. Dorling over the radio, described Sgt. Dorling’s voice as loud but not angry. According to Officer Scott, the voice was fairly direct, stern and clear.
42. The accused, just as he had done previously at the roadblock, ignored the officer’s commands to show his hands and not move. The accused ignored Sgt. Dorling and kept moving westward.
43. Sgt. Dorling stated again, “Show me your fucking hands.” – see 16:25:35 at p. 33 of Exhibit 2, Tab 3. Sgt. Dorling testified that the suspect had his hand in his waist and did not move his hands. The accused did not comply with Sgt. Dorling’s commands and continued to walk westbound along the fence line – there is a path that can be seen in slide 63 of Exhibit 1.

Sgt. Dorling’s testimony that the accused was keeping his hand in his waist is corroborated by the next transmission on the radio by Sgt. Dorling. At 16:25:35, Sgt. Dorling is recorded as saying, “He’s now showing me his hands HQ – Show me your fucking hands.” – see p. 33 of Exhibit 2, Tab 3.

44. Sgt. Dorling got closer to the accused. Sgt. Dorling could see a black handled object in the accused’s hand in his pants at his waist. Sgt. Dorling believed, based on the dispatch information and the accused’s actions, that the accused was holding a firearm. I agree that on objective grounds, this was a reasonable belief in these circumstances.
45. The accused proceeded to a large bush and was out of sight for 5-10 seconds. Sgt. Dorling’s thought process was that the accused was getting something out of the bag. Sgt. Dorling expected to get shot at. I find that Sgt. Dorling’s thoughts and expectation of getting shot at were objectively reasonable in the circumstances.
46. Sgt. Dorling moved closer to the accused and the accused changed direction and walked eastbound. The accused testified that he changed direction (but at a point earlier than the bush, which I reject). The accused explained that he changed direction to go east because his westward path would intersect with the officer who could then tackle him.
47. At this point in time, this was the third opportunity for the accused to surrender (the other times being at the roadblock and when the van got stuck in the mud). It is a reasonable inference that the accused would never submit to an arrest voluntarily and force would be required to effect an arrest. The accused was determined to somehow escape so that he could go home to patch things up with his wife aided and abetted by the stolen $2,000 in his sweater.
48. Sgt. Dorling testified that he continued to issue commands as the accused started to move back eastward. Sgt. Dorling’s testimony is supported by the transcript at p. 33 of Exhibit 2, Tab 3. Sgt. Dorling is heard to state yet again, “Show me your hands, now. Show me your fucking hands now”. An OPP officer – Officer Kernoghan – almost immediately after, radios, “Okay. He’s 401, going eastbound south ditch just west of Homer Watson … I’m going out there”.
49. Numerous officers were listening to that transmission. Officer Katrina Edwards was driving at Homer Watson and upon Sgt. Dorling repeatedly stating, “Show your hands”, she sped up and activated her cruiser’s siren. She testified that from the content and stress of Sgt. Dorling’s voice, she had the impression of a situation involving serious bodily harm or death. Officer Amanda Grieve heard Sgt. Dorling state, “Show me your hands” and then “He’s not showing me his hands”. Constable Grieve testified that Sgt. Dorling’s voice had a sense of urgency and he sounded fearful.

These radio transmissions were played in court and I agree with the descriptions of Sgt. Dorling’s voice provided by the various officers in their testimony.

I find it is reasonable to infer that Sgt. Dorling was fearful for his safety due to his reasonably believing he was in the midst of a situation involving serious bodily harm or death, as described by Officer Edwards.

50. The accused, after refusing to comply with repeated commands by Sgt. Dorling, i.e. to stop and show his hands, continued eastbound and then made a turn to go southbound towards the nearby bush. The accused then turned and faced Sgt. Dorling. Sgt. Dorling could see that the accused was holding the black handled item and said, “Want to die?” Sgt. Dorling believed at that time that the accused was going to shoot at Sgt. Dorling. I find that in the circumstances it was objectively reasonable for Sgt. Dorling to believe that the accused was about to shoot at Sgt. Dorling. Sgt. Dorling then fired six times at the direction of the accused, with the final shot striking the accused in the back of the leg.

Sgt. Dorling advised dispatch at 16:27:23 that the accused had a gunshot wound to his upper right thigh, stating, “I think I just shot him once”.

51. Sgt. Dorling testified he did not want to shoot his firearm. Sgt. Dorling testified that based on the Ontario use of force model, an officer, in response to serious bodily harm or death is entitled to use his firearm to stop the threat. Sgt. Dorling indicated that the accused was a threat to officers on the other side of the bush, a threat to the nearby community and most importantly, when the suspect said, “Want to die?”, Sgt. Dorling thought that the suspect was going to fire at Sgt. Dorling. I accept Sgt. Dorling’s evidence that when the suspect turned with what Sgt. Dorling believed to be a firearm, Sgt. Dorling felt he was in peril of imminent harm/death and he fired his firearm to stop the threat. I also conclude that objectively this was a reasonable belief in these circumstances.
52. Sgt. Dorling, in his cross-examination, agreed that at no point did the accused pull out a firearm or a knife towards him and at no point did the accused say anything in a threatening manner towards him.
53. Sgt. Dorling started shooting, the accused turned away and looked at the bushes. When he was struck, the accused fell forward. Sgt. Dorling testified he stopped shooting after the accused was struck. Sgt. Dorling fired six times and there are 15 cartridges in his magazine, plus one in the gun.
54. Approximately six feet from where the accused fell after being struck, a black handled knife was found by Sgt. Dorling – see slide 79 of Exhibit 1 near yellow marker #1.
55. Sgt. Dorling had in his possession a baton, taser and pepper spray, but none of those options would have been sufficient to stop the threat that Sgt. Dorling reasonably believed that he was confronted with.
56. After the accused was shot, OPP officers arrived as Sgt. Dorling was handcuffing the accused. These officers were Officer Kernoghan and Officer Bedard. Officer Kernoghan provided Sgt. Dorling with a tourniquet which Sgt. Dorling administered upon the accused. Officer Bedard helped to prop up the accused’s leg on the black bag.
57. At 16:25:35, almost immediately after the shooting, Sgt. Dorling advised that shots were fired, the male was shot in the leg and indicated, “Get me an ambulance, please”.
58. Sgt. Dorling described that his six shots were consistent firing in the direction of the accused. There was no time for careful aiming. The evidence of the other officers who heard the shots generally confirm Sgt. Dorling’s testimony.

Officer Scott testified he heard 4 or 5 gunshots fired rapidly one after the other – the time from the first shot to the last shot was no more than 4 seconds – one shot per second, more or less.

Officer Deschatelets testified that the gunshots were one after the other.

Officer Dionne heard 4 gunshots, one after the other, over 6-7 seconds.

OPP Officer Bedard heard 3-4 gunshots, one after the other.

Sgt. Thomas was a bit of an outlier. Sgt. Thomas testified he heard a shot and a pause for 3-4 seconds. This was followed by four quick shots, one after the other. All the shots occurred over a 6-7 second time frame.

I am satisfied that Sgt. Dorling shot six shots over a period of about six seconds – one shot per second.

LAW

[519] Excessive force used by the police may result in a Charter breach.

[520] In R. v. Pan, 2012 ONCA 581, the Ontario Court of Appeal heard at para. 47:

47 Excessive force may give rise to a breach of s. 7 if it substantially interferes with an accused’s security of the person interest. The use of force that is not excessive – even force that gives rise to foreseeable injury – would not likely amount to a breach of s. 7. The police are entitled to use force to make an arrest as long as the force used is proportional, reasonable and necessary: see R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.

[521] Justice Hill in R. v. DaCosta, [2015] O.J. No. 1235, 2015 ONSC 1586 reviewed the “excessive use of force” authorities and summarized them succinctly at paras. 97-103, as follows:

97 Judicial review of the use of force by police in the context of an arrest requires an assessment of the reasonableness of the forcible arrest “in all circumstances”: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at paras. 74-6; see also R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 83 (“Looking at the totality of the evidence through the lens of an officer with training and field experience in…”); R. v. Canada (Royal Canadian Mounted Police) [Bottrell] (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.), at p. 218 (“It is the belief of the police officer in the light of all the circumstances that is important”); Laufers v. Toronto (Metropolitan) Police Force et al., [1992] O.J. No. 2222 (Div. Ct.), at p. 21 (“Having regard to all the circumstances as they existed at the time the force was used…”).

98 Apart from the interpretive caution to consider all the circumstances faced by the police, a reviewing court must guard against the tendency to over-reliance upon reflective hindsight:

It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

(R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 24)

The point is: officers have a duty to protect and a right to their own safety. Assessing whether belligerent and intoxicated persons might harm other members of the household or might take out their anger against the officers is not governed by clearly defined rules. It is an exercise in discretion and judgment, often guided by experience. Second-guessing is not helpful. As Cromwell J. explained in Cornell, judges who review the decisions of officers should be slow to intervene on the basis of hindsight (at para. 24) …

(R. v. Alexson, 2015 MBCA 5, at para. 20)

…the immediate decisions a police officer makes in the course of duty are not assessed through the “lens of hindsight”…

(Crampton v. Walton (2005) 2005 ABCA 81, 194 C.C.C. (3d) 207 (Alta C.A.), at para. 45)

…his conclusion was inappropriately based, at least in part, on hindsight…

(Webster v. Edmonton (City) Police

Service, 2007 ABCA 23, at para. 28)

99 A critical contextual circumstance for many arrests is the dynamic and fluid nature of an apprehension with the need for rapid, on-the-spot decisions by a police constable:

A certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances.

(Assante-Mensah, at para. 73)

[measures] reasonably necessary to eliminate threats to the safety of the public or the police …will generally be conducted by the police as a reactionary measure… they will generally be unplanned, as they will be carried out in response to dangerous situations created by individuals, to which the police must react “on the sudden”.

(MacDonald, at para. 32 per LeBel J.)

…police officers put their lives and safety at risk in order to preserve and protect the lives and safety of others…[in] potentially dangerous situations…

(MacDonald, at para 64. per Moldaver and Wagner JJ.)

The justifiability of the officers’ conduct must always be measured against the unpredictability of the situation they encounter and the realization that volatile circumstances require them to make quick decisions…

(Alexson, at para. 20)

The police are often placed in situations in which they must make difficult decisions quickly, and are to be afforded some latitude for the choices they make. See R. v. Asante-Mensah, 2003 SCC 38, 2003 2 S.C.R. 3 at para. 73, Courts recognize that law enforcement is dangerous; no one wants police officers to compromise their safety.

Police officers act in dangerous and unpredictable circumstances.

(Crampton, at paras. 22, 44)

In this case, I am concerned with the police interest in protecting the safety of those at the scene of the arrest. This interest is often the most compelling concern at an arrest scene and is one which must be addressed immediately. In deciding whether the police were justified in taking steps to ensure their safety, the realities of the arrest situation must be acknowledged. Often, and this case is a good example, the atmosphere at the scene of an arrest is a volatile one and the police must expect the unexpected. The price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as it is wrong to engage in ex post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions.

In my opinion, one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists and law enforcement will be significantly compromised.

(R. v. Golub (1977), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at paras. 44-5, notice of discontinuance filed [1997] S.C.C.A. No. 571)

100 It may be, in a given case, that inconsistencies between officers’ evidence regarding a use-of-force situation are the result of the intensity and stress of fear, danger and unfolding events: see R. v. Boston, 2013 ONCA 498, at para. 13; R. v. Pompeo, 2014 BCCA 317, at para. 45.

101 “Police officers” will be exempt from liability “if they use no more force than is necessary having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves””. Webster, at para. 26. This approach is codified by section 25 of the Criminal Code which has been described as “a safe harbour from liability for those who are required to enforce the law”: Crampton, at para. 22. Sections 25(1)(b) and (3)(4) read:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(b) as a peace officer…

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-perseveration of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

(4) A peace officer, and every person lawfully assisting the police officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;

(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;

(c) the person to be arrested takes flight to avoid arrest;

(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and

(e) the flight cannot be prevented by reasonable means in a less violent manner.

102 In the Nasogaluak case, at para. 34, the Court reviewed the scope of s. 25:

Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him-or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59). If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.

103 Over time, the employ of force by a peace officer in the lawful discharge of his or her duties has, through the experience of the courts with specific fact situations, come to be described with these features:

(1) given the need to be mindful of abuses of power, and the priority to be afforded citizens’ Charter rights, it is accepted that “…police officers do not have an unlimited power to inflict harm on a person in the course of their duties” (Nasogaluak, at para. 32) and “s. 25(1) is not an absolute waiver of liability, permitting officers to act in any manner they see fit:” Crampton, at para. 22

(2) the authority to use force implies a degree of discretion in a police officer and, in a particular case, a permissible range of response which may be accepted as reasonable:

They [the police] cannot be expected to measure in advance with nuanced precision the amount of force the situation will require…

(Cornell, at para. 24)

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude”…

(Nasogaluak, at para. 35)

While considerable force was used causing considerable pain, it has been said that in such a situation, the officer “could not be expected to measure the force used with exactitude”…

(R. Mulligan (2000), 2000 CanLII 5625 (ON CA), 142 C.C.C. (3d) 14 (Ont. C.A.), at para. 41)

Police officers are not expected to measure the precise amount of force the situation requires…

(Crampton, at para. 45)

(3) accordingly, where the police act within a reasonable range of forcible response, they will not be denied the protection of s. 25(1) of the Code “if they fail to use the least amount of force that would achieve the desired result”: Crampton, at para. 45; Castro, at para. 38; Puricelli, at para. 43; Chartier v. Greaves, [2001] O.J. No. 634 (S.C.), at para. 64; Levesque v. Sudbury Regional Police Force, [1992] O.J. No. 512 (Gen. Div.), at para. 17.

(4) because police actions are not judged against a standard of perfection (Nasogaluak, at para. 35), “([t]he police are entitled to be wrong but they must act reasonably” and therefore “…the police need not demonstrate the correct decision was made, but that the decision was made based on reasonable grounds on the circumstances known at the time (Crampton, at paras. 22, 40) -- in effect, some allowance is justifiably afforded “for misjudging the degree of force because of the exigency of the moment”: Webster, at para. 31; Puricelli, at paras. 42, 45

(5) by extension, in light of the accepted proposition that a range of reasonable force response exists in a given set of circumstances, a description of what the police might have done differently “may well run afoul of the discretionary allowance for police action”: R. v. Mackay, 2012 ONCA 671, at para 28

(6) “[t]he police officer cannot be deemed in breach of section 25(3) of the Code merely because in the final result grievous bodily harm resulted, unless he intended that result”: Bottrell, at p. 218.

APPLIATION OF LAW TO FACTS

[522] As previously reviewed in painstaking detail, the evidence establishes that Sgt. Dorling believed subjectively that: (1) once the accused turned and stated, “Want to die”, (2) with a black object in his hand which Sgt. Dorling believed, on reasonable grounds, was a firearm and (3) that the accused was going to fire at Sgt. Dorling and hence (4) Sgt. Dorling felt he was in peril of imminent harm/death and only then (5) he fired his gun until the threat was stopped

[523] Section 25(3) of the Criminal Code indicates a person is not justified in using force likely to cause death