R. v. Saleh, 2020 ONSC 4734 COURT FILE NO.: CR-19-30000012-0000

DATE: 20200805

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MAHDI SALEH

Levi Vandersteen, for the Crown

Christian Angelini, for Mahdi Saleh

HEARD: October 21, 22, 24, 28-31, November 1, 4, 5 & 7, December 4 & 5, 2019, and March 11, 2020

REASONS FOR JUDGMENT

Garton J.

Introduction

[1] The accused, Mahdi Saleh, age 22, is charged with six offences arising from events that took place on the evening of June 21, 2017.

[2] Count 1 charges Mr. Saleh with assaulting the complainant, Noran Al-Sammarraee (“Noran”) with a weapon, contrary to s. 267 (a) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown alleges that the weapon used was a knife. This altercation took place in the parking lot behind the Alexandria Café, located at 1940 Lawrence Ave. East in Toronto (the “Alexandria”). A witness called 911 to report the incident at 8:42 p.m.

[3] Count 6 charges Mr. Saleh with attempting to murder Noran by discharging a firearm, contrary to s. 239 (1) of the Code. The shooting took place in a small parking lot behind the apartment building at 1850 Victoria Park Avenue in Toronto. Six shots were fired. None of them struck Noran, who fled the scene on foot. One of the bullets became lodged in the apartment building’s fire escape door at ground level. Another round penetrated the bedroom window of a second-floor apartment where a family of seven resided. There were about 30 to 40 children playing in an adjacent parking lot at the time of the shooting. The police received a call reporting the gunshots at 8:53 p.m.

[4] Counts 2 to 5 in the indictment charge Mr. Saleh with related firearm offences: possession of a firearm for the purpose of committing an offence, contrary to s. 88 (1) of the Criminal Code; intentionally discharging a firearm while being reckless as to the life or safety of another person, contrary to s. 244.2 (1); pointing a firearm at another person, namely Noran, contrary to s. 87 (1); and discharging a firearm at Noran with the intent of endangering his life, contrary to s. 244 (1) of the Code.

[5] The main issue with respect to the attempt murder charge and firearm offences is identification – that is, whether the Crown has established beyond a reasonable doubt that Mr. Saleh was the shooter.

[6] On June 19, 2020, I advised counsel of my decision in this case. I found Mr. Saleh guilty on Count 1 and not guilty on Counts 2 to 6, with reasons to follow. These are those reasons.

THE COMPLAINANT: NORAN AL-SAMMARRAEE

Noran’s Failure to Attend Court

[7] The Crown relies on circumstantial evidence to implicate Mr. Saleh as the shooter. These include motive, footage from surveillance cameras, and post-offence conduct. Another source of circumstantial evidence was Noran, the intended target of the shooting. Noran was subpoenaed as a witness but failed to attend in court. Despite vigorous attempts by the police to secure his attendance, he could not be located.

[8] Noran tried to avoid being served with a subpoena by providing several false addresses to the police. He was eventually served but ignored requests by the Toronto Police Service and the Victim Witness Assistance Program to contact them.

[9] On October 3, 2019, Noran told Detective Constable Justin Kapp that he resided at 156 Floyd Avenue, Unit #403. Noran did not reside at that address.

[10] On October 4, 2019, Noran advised Victim Witness Assistance that he would attend a witness preparation meeting on October 17, 2019. He did not attend that meeting or any trial preparation meetings.

[11] On October 24, 2019, I issued a material witness warrant for Noran’s arrest. He was arrested pursuant to that warrant on December 4, 2019, but by that time the evidence had been heard and the parties proceeded to make their final submissions.

Admission of Noran’s Testimony at the Preliminary Hearing

[12] When Noran could not be located, Crown counsel applied pursuant to s. 715 (1) of the Criminal Code to admit his testimony at the preliminary inquiry. Defence counsel did not oppose that application. References in these reasons to “Noran’s testimony” refer to the evidence he gave at the preliminary inquiry over a two-day period in November 2018.

Admission of Certain Portions of Noran’s DVD-recorded Statement

[13] Crown counsel also applied to have certain portions of a DVD-recorded police interview of Noran admitted as a principled exception to the hearsay rule.

[14] Shortly after the shooting, at 9:17 p.m., two officers, Police Constables Michael Seaban and Terrence Ko, spoke to Noran at his uncle’s apartment. Noran agreed to provide a recorded statement and was later driven to 41 Division for that purpose.

[15] The statement, which commenced at 12:10 a.m. on June 22, 2017, and was completed an hour later, at 1:10 a.m., was given under oath. At the outset of the interview, the consequences of making a false statement to police were explained to Noran, as was the fact that the statement was being recorded. He was asked to tell the officers if he did not understand anything. He indicated that he understood the instructions, that he was sober, and that he was providing the statement voluntarily. He then related the events of June 21, 2017.

[16] I found that certain portions of the statement that were inconsistent with Noran’s testimony at the preliminary inquiry could be adduced for the truth of their content as the requirements of necessity and threshold reliability had been met. It was necessary to admit these portions of the statement in order to properly weigh the preliminary inquiry evidence, where Noran recanted parts of his statement and gave a more favourable version of events for the accused.

[17] Those portions of Noran’s statement that he adopted during his testimony at the preliminary inquiry, including demonstrations or gestures using his hands, were also admitted.

[18] The parties have agreed that other portions of Noran’s statement – to the extent that they are inconsistent with his preliminary inquiry testimony – are admissible to assess his credibility.

[19] In terms of assessing the credibility and reliability of Noran’s evidence, I bear in mind that I did not have the opportunity to observe him during his examination-in-chief and cross-examination. I am limited to the transcript of the preliminary inquiry and the recording of his police interview. I also bear in mind that Noran, by attempting to avoid being served with a subpoena, by giving several false addresses to the police, and by failing to attend in court after being subpoenaed, displayed a lack of respect for the administration of justice.

OVERVIEW

[20] The series of incidents leading to these charges began around noon on June 21, 2017. Prior to that date, Noran and Mr. Saleh had never met or seen one another.

[21] Noran testified that on June 21, 2017, while he was hanging out with friends in the parking lot behind the Alexandria, Mr. Saleh approached him, began to yell at him, and accused Noran’s younger brother, Omer, and one of Noran’s cousins, of being “snitches.” Mr. Saleh appeared to be drunk.

[22] Mr. Saleh testified and agreed that he confronted Noran after a friend, Saif, pointed out Noran to him and told him that Noran’s cousin had gotten him (Saif) into trouble by snitching on him with respect to selling weed. Mr. Saleh agreed that he was “very mad” at Noran as a result of these “snitching” allegations. He told Noran to “get the fuck out of here.” Noran swore at Mr. Saleh and drove off in his van.

[23] Noran called one of his cousins following this confrontation and told him that Mr. Saleh was talking about him. That cousin, along with his brother (another cousin of Noran’s), drove to the parking lot behind the Alexandria and fought with Mr. Saleh.

[24] Mr. Saleh suffered some significant but non-life-threatening injuries as a result of this fight. He blamed Noran for setting up the assault. A couple of Mr. Saleh’s friends drove him to 67 Parkwoods Village Drive, where his girlfriend, Gabrielle Pilgrim (“Gabby”), her siblings, and her mother, Nicole Pilgrim (“Nicole”), resided. Nicole applied ointment to his wounds. Mr. Saleh slept for a while. He testified that when he woke up, he realized that he did not have his wallet or phone, which had been in his pants pockets during the fight at the Alexandria. He used Nicole’s phone to call an Uber to take him back to the parking lot. He testified that his purpose in going back was not to look for Noran but to look for these lost items.

[25] Footage from the surveillance cameras at 67 Parkwoods Village Drive shows Mr. Saleh exiting the apartment building at 8:27 p.m. to wait for the Uber car. Crown counsel submits that Mr. Saleh’s hand movements in the area of his waist indicate that he was concealing a gun on his person. The position of the Crown is that Mr. Saleh went to the Pilgrim apartment with the specific purpose of retrieving a gun.

[26] Defence counsel submits that Mr. Saleh’s hand movements are consistent with Mr. Saleh adjusting his belt buckle and nothing more. Defence counsel submits that Mr. Saleh had no way of knowing that Noran had returned to the lot: since he did not have a phone, his friends had no way of letting him know of Noran’s return.

[27] Meanwhile, Noran left the parking lot after the fight between Mr. Saleh and his cousins and did not return until several hours later. Upon his return, he parked in the lot and remained in his van. The driver’s window was down. Noran’s friend, Nader Badreddine (“Nader”), parked his BMW beside the van.

[28] Surveillance footage shows Mr. Saleh arriving at the parking lot in the Uber car. He got out and approached a red Mercedes parked in the lot. Mr. Saleh testified that he had spent the earlier part of the day with the driver of the Mercedes, Robert Janes, whose nickname was “Little Man” (“Little Man”). Little Man had driven Mr. Saleh to the Alexandria earlier and was present when Mr. Saleh confronted Noran with the snitching allegations. The position of the Crown is that Mr. Saleh leaned into the Mercedes and “handed off” the gun that he was carrying. Mr. Saleh testified that he went over to the Mercedes to ask Little Man if he had seen his wallet or phone.

[29] Mr. Saleh testified that he got “very mad” when he saw Noran again because he believed that Noran had orchestrated the assault on him. Mr. Saleh took off his shirt, confronted Noran in his van, and showed him the injuries to his back. He challenged Noran to get out of the van and to fight. Mr. Saleh was holding something in his hand but denied that it was a knife. He denied trying to stab or hit Noran, although he admitted that he wanted to scare him. He testified that he had picked up a chair leg from the ground and banged it against Noran’s van. There is an issue as to whether Mr. Saleh reached into the van with whatever he was holding and attempted to hit or stab Noran. Mr. Saleh’s confrontation of Noran on the driver’s side of the van is the subject matter of Count 1.

[30] Noran refused to get out of his van. He told Mr. Saleh to “chill out” and drove off. Noran then circled around the front of the café and re-entered the lot. The surveillance footage shows that Noran’s van clipped Mr. Saleh on his shoulder as it re-entered, causing Mr. Saleh to spin out a little bit, although he did not fall down.

[31] Noran drove to a nearby plaza and waited for the red Mercedes to leave the Alexandria parking lot. At some point, he spoke to Nader, who had called the police regarding Mr. Saleh’s confrontation of Noran at the driver’s door of the van. Nader believed that Mr. Saleh had a knife.

[32] Mr. Saleh and a male known as “P” got into the red Mercedes. Little Man then drove them to a small offshoot parking lot behind 1850 Victoria Park Avenue. Two other associates, “V” and “Athir,” also drove their respective vehicles from the Alexandria to the same lot and parked behind the Mercedes. Mr. Saleh testified that their intention was to “chill” at Little Man’s nearby apartment at 1441 Lawrence Avenue East. The properties at 1441 Lawrence Avenue East and 1850 Victoria Park Avenue are adjacent to each other but separated by a fence.

[33] Noran saw the red Mercedes leaving the Alexandria and ultimately located it in the lot behind 1850 Victoria Park. He parked his van, grabbed a metal construction level from the back of the van, and confronted Mr. Saleh on foot. He testified that he wanted to keep track of Mr. Saleh’s whereabouts so that he could tell the police where he was. The level was for protection in case Mr. Saleh was still in possession of what Noran believed at that time was a knife.

[34] Noran testified that he saw Mr. Saleh retrieve a backpack from the Mercedes, reach into the bag, and begin to remove an object. During his police interview, Noran stated that he believed that there was a gun in the bag. At the preliminary inquiry, he no longer held that belief. He thought that Mr. Saleh was about to pull out some other object and hit him with it. Noran either threw the level at Mr. Saleh or hit him with it and turned to run. One and a half seconds after turning, he heard two to four gunshots. Noran abandoned his van and fled on foot to his uncle’s apartment at 1441 Lawrence Avenue East.

[35] During his testimony at the preliminary inquiry, Noran stated that although he was telling the truth, as he believed it to be at the time of his police interview, he now realizes that he made a number of “mistakes.” He gave several reasons for having made these mistakes, including his state of mind when he gave the statement and the fact that he made various unwarranted assumptions.

[36] Mr. Saleh denied that he had a gun or that he was the shooter. When he heard the gunshots, he thought that he was the target. He testified that he fled on foot and ran all the way back to Gabby’s apartment. He was still shirtless, as he had taken off his shirt and sweater at the Alexandria in order to show Noran his injuries. The only stop he made along the way was when he paused to speak briefly with a friend, Moe, who gave him a white t-shirt that he happened to have in his car.

[37] Mr. Saleh was arrested on June 23, 2017. Earlier that day, he and his mother attended at the Passport Office, where Mr. Saleh had applied for a passport on an expedited basis. A flight to Beirut on June 25, 2017, and a return flight to Toronto on October 15, 2017 had been purchased and booked in his name by his mother. Mr. Saleh testified that his motivation in leaving Toronto was his fear of Noran. He denied the suggestion that he was in a rush to leave town because he was the shooter.

[38] The principles in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, apply.

AGREED STATEMENT OF FACTS

[39] The following facts were agreed to by counsel:

1. All photos and videos introduced into evidence are true and accurate. The time stamp on the video from the Alexandria Café is 25 minutes ahead of real time. The time stamp on the video from 67 Parkwoods Village Drive is accurate.

2. Nader Badreddine called 911 at 8:42 p.m. in relation to Mr. Saleh’s alleged assault of Noran with a weapon in the Alexandria’s parking lot.

3. Sergeant Nicole Bailey received a call of gunshots fired at 1850 Victoria Park Avenue at 8:53 p.m. She arrived on scene at 9:00 p.m.

4. At 9:12 p.m., Sergeant Bailey spoke to Basel Hwara, who directed her to a pile of six cartridge casings. Detective Weller photographed the casings. Sergeant Bailey secured the scene until after the shell casings were seized by Detective Weller.

5. Subsequent DNA testing of one of the seized cartridge casings produced a “hit” to Robert Janes (Little Man) (DOB: September 13, 1998). It is agreed that the DNA of Robert Janes was found on the cartridge casing.

6. Mr. Saleh’s DNA was not located on the cartridge casing.

7. No DNA was located on any of the other cartridge casings seized by Detective Weller.

8. Robert Janes resided at 1441 Lawrence Avenue East in June 2017.

9. Robert Janes’ criminal record is as follows:

i) April 18, 2019: Mischief under $5000 – 43 days (2 days pre-sentence custody;

ii) May 24, 2019: Break & Enter with Intent – Suspended Sentence & 12 months’ probation; and

iii) August 23, 2019: Aggravated Assault – 18 months jail (8 months pre-sentence custody) plus two years’ probation.

10. Forensic testing linked the discharged shell casings to a prohibited handgun, which was seized by police on December 18, 2017, in the residence of Jordon Cole (DOB: May 11, 1999).

11. Jordon Cole was arrested and charged with possession of the firearm in question. He subsequently pleaded guilty to being in possession of that firearm on or about December 18, 2017. Jordon Cole is a white male.

12. On May 29, September 8, November 14, December 5, and December 12, 2017, the firearm in question was used in five different shootings in the City of Toronto. The Toronto Police Service did not have reasonable and probable grounds to charge Mr. Saleh in relation to any of those shootings. Nor did the Toronto Police Service have reasonable and probable grounds to charge Robert Janes in relation to any of those shootings.

13. The continuity of items and videotaped footage that were seized is not in issue following their discovery by the police.

14. On June 29, 2017, Noran’s white cargo van was found abandoned at 1 Kilpatrick Drive in Toronto. The van was photographed by Police Constable Zheng on July 3, 2017.

WITNESSES

[40] The Crown called the following witnesses:

1. Detective Richard Weller, through whom photographs of the crime scenes were introduced, as well as a cell phone video and surveillance footage from security cameras at the Alexandria and the apartment building at 67 Parkwoods Village Drive.

2. Nithiyanatham Kirushnapillai, who lived at 1850 Victoria Park Avenue, Unit 217, with his wife and five children. All members of the family were home on June 21, 2017 when a bullet went through one of their bedroom windows.

3. Nader Badreddine, who was parked beside Noran’s van behind the Alexandria when Mr. Saleh confronted Noran at his driver’s door.

4. Basel Hwara, who lived with his wife and children at 1850 Victoria Park Avenue. Mr. Hwara was in the larger parking lot that was adjacent to the smaller offshoot lot where the shooting took place. Mr. Hwara observed, among other things, the arrival of Noran in his white van, Noran running into the small parking lot while carrying the metal level, and Noran’s flight on foot from the scene after the shots were fired.

5. Jonathan Co, who is a Passport Intelligence Analyst with the Tactical Intelligence Section of Immigration, Refugees and Citizenship Canada. Mr. Co gave evidence with respect to Mr. Saleh’s passport application.

[41] The defence witnesses included Mr. Saleh, his girlfriend, Gabrielle Pilgrim, and her mother, Nicole Pilgrim.

[42] The defence also called Police Constable Michael Seaban, who spoke to Noran at his uncle’s apartment shortly after the shooting. Officer Seaban made notes of Noran’s responses to questions posed by his partner, Police Constable Terrence Ko.

EVIDENCE

I. Testimony of Noran Al-Sammarraee at the Preliminary Hearing (admitted as evidence pursuant to [s. 715 (1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html))

[43] Noran was 26 years old when these events took place. He worked as a contractor and did renovations. He has no criminal record, although he was charged in May 2018 with criminal harassment with respect to his ex-girlfriend.

[44] Noran enjoyed hanging out at the Alexandria. On June 21, 2017, he had parked his white cargo van in the parking lot behind the café and was smoking and conversing with friends, including a friend by the name of Saif. At some point, Mr. Saleh, whom Noran had never met, confronted him and started talking about Noran’s younger brother, Omer, who was 24 years old, as well as Noran’s cousin, Abdul Al Rahman (“Abdul”). Mr. Saleh was saying that Omer and Abdul were responsible for putting him in jail. Mr. Saleh was holding a bottle of beer and appeared to be drunk or “wasted.”

[45] Mr. Saleh had a number of friends with him in the parking lot. Noran saw him arrive in a red two-door Mercedes with “three Black guys.” The friends told Noran that Mr. Saleh was a “nice guy” and blamed the way he was behaving on the fact that he had been drinking. Noran had never met any of these men. He did not believe that any of them “had a problem” with him.

[46] Noran observed that in addition to the “three Black guys,” Mr. Saleh was also speaking to other people in the parking lot. He testified: “There’s a lot of people that he knows. That’s what it looked like to me …”

[47] Noran called Omer and Abdul. Omer did not answer his call, but Abdul did. Noran asked Abdul if he knew Mr. Saleh and told him that Mr. Saleh was talking about him. Noran recalled telling his cousin: “[If] you got a problem with him, like, I’m here on the scene because I don’t want to have anything to do with him. Come and solve it right now.”

Noran’s cousins arrive at the Alexandria and fight with Mr. Saleh

[48] Noran drove his van to the front of the Alexandria to await Abdul’s arrival. When Abdul and Abdul’s brother got there, they drove directly to the rear parking lot rather than stopping to talk to Noran. Noran speculated that they had not seen him.

[49] Noran’s testimony regarding his cousins’ ensuing fight with Mr. Saleh in the rear lot is inconsistent in some respects with statements he made during his police interview. It appears, however, that during the interview, Noran related a lot of information that had been given to him by his cousins as opposed to what he actually witnessed himself. At the preliminary inquiry, he testified that he saw only the last few seconds of the fight, when he drove to the back of the lot. He acknowledged that Abdul told him that he had hit Mr. Saleh with a “piece of wood or something like that,” but Noran had not actually seen him hit Mr. Saleh. He did, however, see a piece of wood or object in Abdul’s hand.

[50] Noran told Abdul to stop fighting. Mr. Saleh was on the ground on his back at that point but stood up. He was apologizing, saying that he was sorry. Noran observed an injury to his back. Some of Mr. Saleh’s friends assisted him and “took him home.”

Noran returns to the Alexandria and is confronted by Mr. Saleh at the side of the van

[51] After the fight, Noran and his cousins drove to a nearby plaza, had something to eat, and then went their separate ways. Noran went home but decided to return to the Alexandria two or three hours later. He parked his van in the back lot near some bushes and was facing away from the café. There was a garbage bin nearby.

[52] Noran remained seated in his van. He was unaware that Mr. Saleh had returned to the lot until Mr. Saleh suddenly appeared at the side of his van by the driver’s window, which was open. Mr. Saleh was mad. He told Noran that he was hurt and was saying, “Look what your cousin did to me.” Noran told him to relax and tried to talk to him, but Mr. Saleh wanted to fight. Mr. Saleh was holding a t-shirt and “something else” in his one hand while holding Noran’s wrist with his other hand. Noran held on to Mr. Saleh’s hand – that is, the hand that was holding the object. Noran described the object as being “upside down, so I don’t know what it is.” He did not think that it was “a weapon or something like that.” Noran testified that Mr. Saleh never entered the van but his hand was inside the van.

[53] At one point, Mr. Saleh used the object he was holding to hit the side of the van. Noran testified that he did not believe that the object was a knife because the damage to the van looked as though someone had punched it: “I’m looking at the van like this is not a knife. There’s no way it’s a knife.”

[54] Noran’s testimony at the preliminary inquiry with respect to what Mr. Saleh was holding in his hand and whether he tried to stab Noran is inconsistent with what he told the police during his interview. Those portions of his KGB statement were admitted as evidence pursuant to the principled exception to the hearsay rule.

[55] During the police interview, Noran repeatedly referred to the object in Mr. Saleh’s hand as a knife. For example:

• “The guy (Mr. Saleh), he show up (at the Alexandria) with a knife, and he came. I was lucky that I had my car started, you know? I need my car start because I listen to music because I park the truck right there, right? And the guy come up with the knife to a point. I had him good. So he holding my t-shirt right here (indicating the neck of his t-shirt). Even if you see this scratch right here.” [At this point, Noran pulled down the neck of his t-shirt to show the officers a mark on his throat.] Statement, p. 10

• Noran made a further reference to Mr. Saleh having scratched his neck as Noran tried to control the hand in which Mr. Saleh was holding the knife: “He grabbed me right there, but I don’t think I have injuries … just scratches.” Statement, p. 47

• “[…] he has a piece of knife, and he wants to stab me. I held him with two hands, and after I hold him with two hands, I left one hand, I put one [hand] on my car, on D. I drove. The guy has a big knife. If he got me, he would kill, he would stab my head, easy, or my neck, okay? So I hold his hand, and then I drove the van.” Statement, p. 10

• “[Mr. Saleh] came back with the knife, with the cooking knife. You know the long salad knife or something like that? I don’t know.” Statement, p.21

• When asked by police to describe the knife, Noran stated: “A knife is a black handle [sic], and it’s a long handle with a little curve in the end. Like the one that you cut salad and something like that. It’s about eight inches knife, with no handle, then the whole thing is one foot.” Statement, p.26

• When asked how Mr. Saleh tried to stab him, Noran stated that he was sitting in his van and listening to music when he heard Mr. Saleh saying “Yo, yo, yo.” Noran looked up and saw Mr. Saleh approaching with a knife: “He came up with the knife, and I hold his hand.” Noran continued: “So that time I hold him like that. I’m like yo, you know what I mean? I couldn’t close the window. So he was like inside, already holding me, right? Even you see the mark. He’s holding me like that, so tight, ‘cause my two hands are on his hand – the one on the knife, okay? So I lift one hand, I put it on D, I push on the gas. I mean, on reverse. I put on reverse, I pushed that, I reverse, okay? And then I put it on D, and I left.” Statement, pp. 26-27

[56] During his testimony at the preliminary inquiry, Noran expressed great uncertainty as to whether Mr. Saleh was holding a knife. His evidence was to the effect that although he told the police the truth (as he believed it to be at that time), he now believes that he was mistaken as to what Mr. Saleh had in his hand. He testified that he was “pissed off” and “mad” at Mr. Saleh and noted that something like this had never happened to him before. Mr. Saleh’s actions had scared him. Several times during his testimony, Noran mentioned that other people had told him that Mr. Saleh had a knife and that this influenced what he told the police during the interview.

[57] After reviewing portions of his police interview, Noran testified at the preliminary inquiry:

• “I don’t know what is in his hand. Some people tell me it’s a knife, some people tell me it’s a piece of wood. Somebody tell me, so I’m just – I don’t know what it is. I’m not sure what is that but I don’t think it’s a knife or something.” Testimony, vol. 1, p. 21

• “Like, something covered it, so I didn’t see it well.” Testimony, vol. 1, p. 21

• Noran described the object the accused was holding as “something he wants to hit me with…” Testimony, vol. 1, p. 22

• [Referring to his statement] “I said knife but I don’t want to say knife and it’s not a knife, right? I said knife before but I’m just getting flashback because the moment that happened, it’s not, like, unbelievable world I was in.” Testimony, vol. 1, p. 23

• “I don’t know, like, I thought that was a knife, but I’m getting flashback, it’s not knife. It’s something, I don’t know, you should ask him [Mr. Saleh] what is it.” Testimony, vol. 1, p. 23

• When asked to describe what he saw in Mr. Saleh’s hand, Noran stated: “So basically Mahdi has his t-shirt and something in his hand. So people say it’s a knife, right, and what I saw is a piece – I don’t know. I don’t want to – when I – when I trying to flashback what about I saw. I’m thinking about it. I don’t know if it’s a knife or something else and that was on the moment [sic]. So it’s different than now, right. So I think it’s something. I don’t know. It’s a knife or not. I’m not sure.” Testimony, vol. 1, p. 29

• “So I described it as something eight inches. Yeah, I don’t know if it’s a knife but maybe it’s a pipe or something like that, right. So – but when he hit my van wasn’t like, doesn’t look like a knife. Like a punch.” Testimony, vol. 1, p. 29

• “Yeah, I said it’s a cooking knife [in the statement] or a piece of metal or it’s just something weird. The way he’s holding it I can’t clear what is it [sic]. I can’t tell you it’s something when I’m not sure.” Testimony, vol. 1, p. 66

• After Crown counsel suggested that it was a knife, Noran stated: “Okay. If it’s a knife it’s a knife, but I just tell you I’m not sure if it’s a knife. Even though I say it’s a knife, I told you I’m getting a flashback on whatever happened and it’s been a year and three months so I can’t – like some things I realize after it’s not what I said, and I’m saying that in the court right here. Like, I don’t want to be in a position I have to say something which is I’m not sure what – even though I said it before the day that what happened. The incident happened.” Testimony, vol 1. p. 67

[58] Noran testified that Mr. Saleh never entered the van but his hand was inside the van.

[59] In cross-examination, Noran explained what he meant when he used the word, “flashbacks.” He testified that since these events took place, he has thought about them and remembers them differently from how he described them in his statement. He was not trying to lie to the police, but now realizes that he made some mistakes and did not explain some things properly. He was in shock and his mind was mixing things up. He had not had sufficient time to calm down. He was also angry because someone had shot at him and angry with Mr. Saleh for saying disrespectful things about his brother and cousin. He told the police that Mr. Saleh had stolen his van even though he never saw him go into the van. He just assumed at the time that it was Mr. Saleh who took it.

[60] In cross-examination, Noran re-iterated that the object was possibly a knife but he could not be sure:

Q. You never saw a blade, correct?

A. Something looked like it, but I can’t say it’s a blade. I can’t say it’s a blade. Something.

Q. You …

A. It was, was covered, but I don’t know what that was.

Q. You never – look, it could have been a knife, if I understand what you’re saying is …

A. Yeah.

Q. … It’s possible it was a knife, right? Correct?

A. Yeah. It possible could be a knife, but I can’t say I’m sure.

Q. It’s equally possible it could have been a piece of wood, correct?

A. Yeah.

Q. You …

A: I seen the end of it was wood, but I don’t know and little bit, like, it looked like a – a solid knife, but I can’t be sure it’s a solid knife, right? And it was covered something and then in my face.

Q: A knife, almost all knives, have sort of a silver blade, correct?

A: Yeah.

Q: And you never saw any silver …

A: It’s not silver.

Q: … on this object that he was holding, correct?

A: No, it was brownish.

[61] Noran agreed with defence counsel’s suggestion that he told the police that the object was a knife based on its size, the way he was holding it, and the fact that another person at the scene had told him that it was a knife.

[62] Noran expressed a desire to “re-do” this part of his statement and to correct it:

Q: But that’s one of the parts of your statement that you wish you could re-do and correct. …

A: Yeah.

Q: … is that fair?

A: That’s very fair.

[63] Noran testified that he had just smoked a joint when Mr. Saleh suddenly appeared at his driver’s door. He also smoked a joint at his uncle’s apartment after the shooting and before he made his statement to the police in order to calm himself down as he was so “jittery.” Noran agreed that when he smokes marijuana, his thinking is not as clear as it is when he has not smoked.

[64] Noran testified that he did not have much time to see what Mr. Saleh had in his hand because Noran’s friend, Omar Khalil, pulled Mr. Saleh away from the van quite quickly. Noran testified that as he did so, Mr. Saleh’s t-shirt, which was wrapped around the object he was holding, came off in Noran’s hand. Noran testified that the t-shirt remained in his van for about 20 minutes before he threw it in the garbage. However, the surveillance footage shows that Noran was mistaken as to when Mr. Saleh’s t-shirt may have ended up in his van: the footage shows that Mr. Saleh was still holding his t-shirt as he chased after Noran’s van following the confrontation.

[65] Crown counsel showed Noran a photograph of the inside of his van, which the police located on June 29, 2017. The photograph was taken on July 3, 2017. Noran was asked if he recognized two articles of clothing – a white t-shirt and a grey sweater – which were lying together on the floor in the back of the van. Noran was unable to identify either of these items. He testified that he kept many work shirts and “stuff” in his van and that the items in question may well have belonged to him. He could not recall what Mr. Saleh was wearing or the colour of his clothing on June 21, 2017.

[66] As stated, the surveillance footage shows Mr. Saleh running after the van following the confrontation. He was bare-chested and holding his t-shirt and sweater. He then walked back toward the area in the parking lot where he had confronted Noran. Shortly thereafter, Noran’s van re-entered the lot and clipped Mr. Saleh on his shoulder. The surveillance footage does not show what happened to his shirt and sweater, as that event took place just out of range of the camera. It is clear, however, that after being clipped, Mr. Saleh was no longer holding these articles of clothing. They also do not appear in any of the police photographs of the scene.

[67] When asked why he circled the Alexandria and re-entered the lot, Noran testified that he wanted to talk to Mr. Saleh because Mr. Saleh had tried to hit him and had also “disrespected” his family. He wanted to ask Mr. Saleh “What’s wrong with you?” and “Are you okay?”

[68] Noran then drove to a plaza beside the Alexandria, parked at a Pizza Pizza, and called his friend, Nader, who had been parked beside him when Mr. Saleh confronted him by his van. Noran believed that Mr. Saleh was still “mad and stuff.” Nader, who was one of the people who told Noran that Mr. Saleh had a knife, had called the police. Noran testified: “Nader, he told me, ‘I called the police. Go get him’ so I went.” The agreed statement of fact indicates that Nader called 911 at 8:42 p.m.

Noran follows the red Mercedes to 1850 Victoria Park Avenue

[69] From his vantage point at the Pizza Pizza, Noran saw the red Mercedes leave the Alexandria. He followed behind it. He testified that he still wanted to talk to Mr. Saleh because Mr. Saleh had tried to hit him and had disrespected Noran’s family by talking about Noran’s brother and cousin negatively. He also adopted that portion of his police interview where he stated that he followed Mr. Saleh so that he could tell the police where Mr. Saleh was and could keep or hold him for the police.

[70] In cross-examination, it became apparent that Noran lost track of the Mercedes as he was following it. As a result, he drove back to the Alexandria and asked a “brown guy” where it had gone. That individual told him that the Mercedes was at 1850 Victoria Park:

Q: And you asked around saying where is this guy? Where is Mahdi?

A: Soon as I popped in [presumably referring to the Alexandria], he’s like, he’s there, he’s out. Go to that building. So I went there, like.

Q: So the reason you went to 1850 is because someone told you that’s where …

A: Yeah.

Q: … they were going …

A: Yeah.

[71] Noran testified that the red Mercedes was already parked in the small lot when he arrived at 1850 Victoria Park. He was “one hundred percent sure” that the “three Black guys” were already outside the car, and that Mr. Saleh was in the course of getting out of the vehicle.

[72] Noran did not park in the lot. He stopped the van about eight metres from the Mercedes, grabbed a metal level from the back of his van, and started walking toward Mr. Saleh. He left the keys in the van. He testified that he just wanted to talk to Mr. Saleh but took the level to protect himself in case “anything happen[s].” He noted that there was a very large grassy area with trees behind the parking lot and wondered whether Mr. Saleh might try to run away into the bushes.

[73] Noran recalled that there were other vehicles in the lot at that time, including a white car, a couple of other cars, a van, and a boat. There were also a “lot of people” in the lot. There were three or four men who appeared to be with Mr. Saleh and the “three Black guys.” One of the men was Black, one was white, and one was Arab. Noran was not sure if any of these individuals had been at the Alexandria earlier that day. He did not recognize them. He had not been involved in any confrontations with them.

[74] Noran was sure that “everyone” was standing outside their cars when he arrived. He gave further descriptions of some of these men: some were short, some had braids, and some were bald (shaved). One man was a “tall guy with curly, fluffy hair.” Noran also testified that “they’re like Arab and white, like, mixed up, mix.” He testified that prior to his police interview, he had mentioned some of these individuals (not including the accused) to his friend, Omar Khalil, who told him that they were “gangsters and drug dealers.” During his police interview, Noran also referred to these people as “gangsters and drug dealers,” although he did not know if that was true. He admitted that Omar’s comments may have influenced him in terms of the way he described events during his police interview and that he may have added “a little bit extra” to his statement. Noran also spoke to Nader and his cousin, Abdul, prior to his police interview.

[75] Noran testified that as he was walking toward Mr. Saleh, Mr. Saleh was exiting the Mercedes from the back-passenger seat. He also saw Mr. Saleh “go into the car” and pull out a bag. Noran did not see from where in the car Mr. Saleh retrieved the bag, as it was a two-door vehicle. He adopted his statement to police that Mr. Saleh was standing and leaning into the Mercedes when he grabbed the bag.

[76] Noran described the bag as a grey or dark beige backpack. When Mr. Saleh turned around, his hand was in the bag. The “three Black guys” were around Mr. Saleh at this time. There were many other cars there. People were standing outside of those cars.

[77] Noran testified that as he was walking toward Mr. Saleh, Mr. Saleh started walking toward him. Mr. Saleh was not wearing a shirt. Noran was walking faster than Mr. Saleh, whom he described as “wobbling.” Noran thought that he was drunk. Noran was talking to Mr. Saleh but Mr. Saleh did not say anything to him. Mr. Saleh’s hand was in the bag as he approached Noran, but Noran could not see what was in the bag.

[78] Noran testified that when they were within half a metre or one metre of each other, he hit Mr. Saleh with the level and turned and ran. He testified that he hit him because he did not know what Mr. Saleh had in the bag: “So I’m like this guy is going to get something and hit me …”

[79] Noran testified that he did not hit Mr. Saleh hard with the level: “I hurt him just a little bit and I left. [Indiscernible] somebody start shooting. Like I don’t know … I don’t want to say it’s him.”

[80] Noran testified that he did not believe Mr. Saleh was the shooter because they were too close to one another for Mr. Saleh to have missed. Noran estimated that he was about three metres from Mr. Saleh when the shots were fired. He heard two or three shots. The shots were fired one and a half seconds after he turned and ran.

[81] Noran also did not think that Mr. Saleh was the shooter because the shots seemed to have come from “somewhere else”: “I don’t think it’s him because when I’m thinking about it, like he had a bag in his hand, right? But the shooting was somewhere else.”

[82] Noran never saw Mr. Saleh pull anything out of the bag, because after he hit him with the level, he turned and ran and “then that shot happened.” At the time that he hit Mr. Saleh with the level, he thought that Mr. Saleh was going to run after him.

[83] When asked during his examination-in-chief whether he threw the level at Mr. Saleh or whether he was holding it when he hit him, Noran stated, “I throw it and hit him.” He also stated during his police interview that he threw the level at Mr. Saleh. However, in cross-examination, Noran testified that he did not throw the level at Mr. Saleh. He testified that he swung the level at him and only let go of it after it had made contact with Mr. Saleh. In demonstrating how he swung the level, Noran raised his right arm in an overhand swinging gesture (according to counsel’s description of Noran’s actions in the witness box at the preliminary inquiry.)

[84] Noran testified that his statement to police that he threw the level at Mr. Saleh, as opposed to hitting him with it, was another example of a mistake that he made during his police interview.

[85] Noran thought that the level may have struck Mr. Saleh’s shoulder but he was not sure. He did not see whether Mr. Saleh fell down as a result of the blow because he turned around right away and started to run. He noted that there were people standing behind Mr. Saleh at the time.

Mr. Saleh’s alleged hand movements inside the bag

[86] In cross-examination by Crown counsel at the preliminary inquiry, pursuant to s. 9 (2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, Noran confirmed that as he was walking toward Mr. Saleh, he saw him go into the car and pull out the bag. When Mr. Saleh turned around, his hand was in the bag.

[87] Noran agreed that he came to believe that there was a gun in the bag because of the way Mr. Saleh was pulling his hand out of the bag. He agreed that he demonstrated this action during his videotaped statement by putting his hand in the shape of a gun – that is, with his thumb straight up and his index finger pointed. He agreed that he told the officers that Mr. Saleh said, “Yo.” However, Noran noted that Mr. Saleh may have said “yo” because Noran had hurt him with the level. When he spoke to the police, he was “like shocked. I was mad.” He added that he never saw a gun.

[88] When Crown counsel played the portion of his statement containing his demonstration of Mr. Saleh’s alleged hand movements inside the bag, and asked if he was telling the truth, Noran testified:

… I’m going to tell you that what I said was just the time that I was press – like, not me, right. Because I never had this kind of situation, but I never saw the gun. And then, when I’m pointing like that, like, it sounds like I seen him doing like that but of course, like, I got – after I didn’t see the gun and then I heard someone shoot so I assume him did that, right. But, I can’t say him after that time. I realize I – and I get my thinking back. Like, I can’t tell you that’s him had a gun because I never saw it and I’m realizing if he had that I was just two metres away or three like, it’s not hard for him to catch me or something, right. I can’t say him and I can’t say what I’m saying is 100 percent right. It’s just the time that wasn’t me. That’s all I’m saying.

[89] Noran also questioned why, if Mr. Saleh had intended to shoot him, he did not fire the gun while they were eight metres apart and walking toward each other:

Like – and if he would have got that he would have got it a long time ago because he was walking towards me and he had eight metres to come towards me with that bag, right? So, I can’t tell you him and I’m really sorry about what I said right there [referring to his police interview] because that wasn’t me and I wasn’t like, in my, in my head, right.

[90] At another point during his testimony, Noran stated:

I don’t think this person [referring to Mr. Saleh] had a gun. If this person had a gun, I was right in front of his face and if he would’ve shoot me, he would have done it before I even go closer to him. That’s what I’m realizing.

[91] Noran also testified that if Mr. Saleh had a gun and intended to shoot him, he would not have attacked him with what he thought might have been a knife (or an unknown object) back at the Alexandria parking lot.

[92] Noran pointed out that at the time that the shots were fired, there were “four or five other suspicious guys right there.”

[93] Noran testified that he was in shock when he spoke to the police and that he would like to re-do his statement. He denied that he appeared to be calm during the interview. He testified that he was nervous, scared, emotional, and not thinking because there were “so many things in my head.” He pointed out that during the interview, he got up and was walking around. Prior to the interview, he did not have a chance to shower, change, and calm himself down. The fact that he had been shot at was still on his mind. He was angry and not his normal self. Just as he had assumed that Mr. Saleh had stolen his van, he assumed that Mr. Saleh was the shooter, although he never saw him holding a gun.

[94] In cross-examination by defence counsel at the preliminary inquiry, Noran explained that at the time that he demonstrated for the police the shape of Mr. Saleh’s hand in the bag, he was assuming that Mr. Saleh had a gun in his hand. He could not tell whether Mr. Saleh was holding a gun as opposed to anything else in the bag. The bag was not a see-through bag but a dark grey knapsack. Thus, Noran was not able to say what shape, if any, Mr. Saleh was making with his hand. Noran testified that there was nothing about the way that Mr. Saleh had his hand in the bag, or the way his body was moving, or anything about the movements he was making that would lead him to believe that he had a gun in the bag.

[95] Noran explained that he was nervous when he made the statement and that he should not have made any assumptions:

It’s just the way that I’m nervous making that statement and is I was – like I wasn’t there, and I told every – I told the Crown and plus you I told that I realized things after and I realized things how to be said before. I should not say that. I shouldn’t assume right there. Like, I, I shouldn’t say I think his hand was like that. I should just not say that, right? But I assumed his hand was in the bag like that.

[96] In cross-examination by the Crown pursuant to s. 9 (2) of the Canada Evidence Act, Noran agreed that during a meeting with Crown counsel and a police officer prior to his testifying at the preliminary inquiry, he stated that Mr. Saleh was “a young guy” and he “didn’t want to ruin his life.” However, Noran went on to testify that he was being truthful and “I’m not trying to help him or something like that. … I’m answering whatever question you ask me. So that’s the truth. That’s all [indiscernible] … This has nothing to do with my feeling.”

[97] Noran expressed similar sentiments at other times during his testimony. For example, he stated:

Anybody can do mistake, right, so nobody is perfect. … Something like that can ruin his life instead of helping him to find out what’s better in this life and if there is anything, I forgive him and I hope the Judge will look into that and see what I feel inside me, right. So, I’m putting myself in his position. It’s not something easy, right? And there’s things that I’m thinking about as I told you I realized wasn’t right for me and I should take my time to do my statement, wasn’t rushed to take me there and say anything that comes to my mind, which is not right. I need time and I couldn’t – if I have the chance to redo my statement, I will go and do it.

[98] Noran went on to explain that when he referred to Mr. Saleh as having made a “mistake,” he was not saying that Mr. Saleh made a mistake by having a gun. Noran did not believe that he had a gun. Noran believed the mistake that Mr. Saleh made was drinking too much and acting tough:

He did a mistake in the beginning but the mistake that he did it doesn’t mean he’s the one who had the gun. It doesn’t mean he’s the one who shot me. Doesn’t mean that I like, got to say yeah, he is. No, he did a mistake because he was drinking. Acting a little bit tough, this and that, right? And what happened as I’m saying the truth, I don’t think he has the weapon and I didn’t see it. And, if I’m realizing again back, if he had the weapon, it’s not hard for him to get me because he was too close to me.

II. Testimony of Nader Badreddine

[99] Nader Badreddine (“Nader”), age 27, first met Noran about 12 years ago when they were working for the same flooring company. They have been friends ever since.

[100] On June 21, 2017, Nader drove from work to the parking lot behind the Alexandria to meet up with Noran, a friend named Saif, and a few other people. He was supposed to give Saif some money but they ended up meeting in another location for that purpose.

[101] Nader had not consumed any alcohol that day but had smoked marijuana at work. He was driving a black four-door BMW. His girlfriend at that time, Marija, was in the passenger seat. Marija’s 6-year-old son was in the back seat.

[102] Nader pulled up beside Noran’s white cargo van, which was facing north, away from the Alexandria and toward some trees. There was a garbage bin in front of Nader’s car. Nader parked his car in such a way that its front bumper was about one foot ahead of Noran’s van. Nader left a space of about three feet between the two vehicles so that he could open his car door without hitting the van.

[103] Nader got into the front passenger seat of the van and chatted with Noran for a couple of minutes. Noran was smoking marijuana. Nader then returned to his own vehicle.

[104] A few minutes later, Nader saw Mr. Saleh walk up to the driver’s side of the van. Nader had never seen Mr. Saleh before. It was only after these events that he learned that his name was “Mahdi.”

[105] Mr. Saleh approached the van from Nader’s left side or from the west. (See Exhibit 6.) Mr. Saleh started arguing with Noran through the driver’s window. Mr. Saleh was very upset.

[106] Nader observed the interaction between Mr. Saleh and Noran through the driver’s side window of his own car and through the passenger side of Noran’s van. This placed him at a distance of about seven to ten feet from Noran and Mr. Saleh. Nader testified that since the BMW was much lower than the cargo van, he would only have had a “perfect view” of what was happening on the other side of the van if he stuck his head out the driver’s window and looked upward, which he did not do. He had a view of the back of Noran’s head. At one point during his evidence-in-chief, Nader stated that he could “barely see anything” but he “got a hint” of what was going on.

[107] Nader testified that he saw something in Mr. Saleh’s hand that looked like a knife. It was about one foot in length, including the wooden handle, which was about five or six inches long. Nader speculated that it could have been a paint scraper or possibly a tire iron but added that “it looked like a knife to me.”

[108] Nader testified that the argument between Mr. Saleh and Noran lasted less than five minutes. Mr. Saleh was mad about something and was telling Noran that “you guys hurt me.” Noran was telling Mr. Saleh to calm down.

[109] Nader testified that at one point, Mr. Saleh started to bang the driver’s door with the object that he was holding. Nader initially did not recall what part of the object Mr. Saleh was using to hit the van. However, after refreshing his memory from his evidence at the preliminary inquiry, he testified that he used the “wooden part.” Nader could not say where exactly Mr. Saleh was hitting the van as he did not have a view of that side of the vehicle.

[110] In terms of physical contact between Mr. Saleh and Noran, Nader testified that Noran’s hand was outside the window and pushing Mr. Saleh as he was telling him to stop. After refreshing his memory from his testimony at the preliminary inquiry, Nader testified that Noran was holding Mr. Saleh’s hand. When asked which of Mr. Saleh’s hands Noran was holding, Nader stated, “I guess the empty one,” that is, the hand that was not holding what looked to be a knife.

[111] When asked if he ever saw Mr. Saleh reach inside the window of Noran’s van, Nader stated, “No, not really.”

[112] Nader testified that after Mr. Saleh banged on the door of the van, Noran reversed “super-fast” and took off. Nader did not see Noran involved in an argument or physical confrontation with anyone else in the parking lot.

[113] In cross-examination, Nader testified that after these events, he and his girlfriend, Marija, discussed what had happened and that Marija told him that she thought Mr. Saleh was holding a knife. When asked whether what Marija told him influenced his own recollection, Nader stated, “Pretty much.” He agreed that he was not actually able to see what, if anything, Mr. Saleh had in his hand, and that what others had told him resulted in his saying that he had a knife:

Q. That’s what I’m driving at, is that your testimony today, and it sometimes happens, has been affected by hearing what other people, in particular, Marija, told you she saw happen, right?

A. Exactly.

Q. Okay. And Marija told you she saw him with a knife, like right away, right after it happened, right?

A. Correct

[114] During his testimony, a cell phone video taken by Marija while Noran’s van was still in the parking lot was played. Nader could not identify any of the four males seen in the video. He testified that Noran reversed so quickly that he thought he was going to hit his BMW.

[115] When shown the surveillance footage of the rear parking lot, commencing at 8:35 p.m., Nader pointed out that his BMW and Noran’s van were parked out of range of the camera – they would have been past the top right corner of the screen. Nader identified Noran’s van as it exited the parking lot, with Mr. Saleh chasing after it. Nader did not recall seeing Mr. Saleh completely shirtless, although it is clear from the footage that Mr. Saleh was not wearing a shirt and was holding his shirt in his hand.

[116] Nader recalled that Noran circled the Alexandria and re-entered the rear parking lot. Shortly thereafter, Nader drove out of the lot.

[117] Nader thought that a white van seen in the surveillance footage a few minutes after Nader had left the parking lot could have been Noran’s van but he was not certain.

[118] After leaving the Alexandria, Nader drove to a pub across the street and called the police. The agreed statement of fact indicates that he called 911 at 8:42 p.m.

[119] Nader testified that while he was at the pub, and about five minutes after the incident, he saw Noran’s van exit onto Lawrence Avenue and head west. He also saw a “bunch of other vehicles” exit but could not recall any details about them. He called Noran a couple of times but Noran did not answer. Nader managed to reach him later on. The two of them met at a coffee shop about three kilometres from the Alexandria and “smoked up.” Nader did not know if this was before or after Noran went to the police station to make his statement.

[120] Nader described the parking lot behind the Alexandria as a “warehouse for junkies.” There was all sorts of junk and litter strewn about.

III. Testimony of Basel Hwara

[121] Basel Hwara, age 40, lives with his wife and four children at 1850 Victoria Park Avenue. On the evening of June 21, 2017, he and other parents in the community were watching their children play soccer in the larger of the two parking lots behind the apartment building. There were 30 to 40 children in the large lot, which was usually empty of cars.

[122] Mr. Hwara testified that he was approximately in the middle of the large lot when he saw a white cargo van going fast along the driveway on the north side of the building. It followed the driveway south along the west side of the building and stopped at the entranceway to the smaller offshoot parking lot. The van was parked in such a way that it would have blocked other vehicles from entering or exiting the smaller lot. (See Exhibit 1B, where Mr. Hwara marked the location of the van at the entrance to the smaller lot.)

[123] Mr. Hwara testified that the driver got out of the van and stood looking toward the smaller lot. He was holding a yellow stick in his hand. The yellow stick was “over his head and like, he’s like, kind of attacking someone.” Mr. Hwara noted that when the man exited the van, “he stand like, he’s standing. You know like the van is high, and when he’s standing you can’t see his head from over the van.” The man then ran south into the lot and toward the area where two moving vans were parked. (See Exhibit 2, photograph #5.) Mr. Hwara then heard three, four, or possibly more gunshots.

[124] Mr. Hwara testified that he did not see anything after the man ran from the van toward the two moving vans because there were a lot of cars: “ …after he ran from the van I didn’t see nothing.”

[125] When Mr. Hwara heard the shots, he was in the middle of the large parking lot and escorting his children toward the building as they had finished playing soccer. After the shots were fired, everyone started to run and get their children into the building. Mr. Hwara saw the driver of the van running north along a strip of grass on the west side of the building and in the direction of Lawrence Avenue. Mr. Hwara was not looking in the direction of the small parking lot at that moment. The driver of the van left the van at the scene. Mr. Hwara did not see anyone else fleeing the small parking lot on foot.

[126] Mr. Hwara testified that when he and his children reached the front of the building, he was looking around to see what, if anything, was going to happen next. He had a good view of the smaller parking lot at that point because the entrance to the building is elevated. That was when he saw a person get into the van and back it up so that it was no longer blocking the entranceway. Mr. Hwara also saw other people get into two vehicles – a two-door Mercedes and a gold-coloured car – that were parked in the smaller lot. Mr. Hwara could not describe any of these individuals. The two cars were backed out of the lot. All three vehicles – the two cars, followed by the van – then proceeded along the driveway on the south side of the building.

[127] Mr. Hwara testified that someone told him that the gold car was a Nissan Maxima. He had only seen the side of the car, but it looked like it could have been a Maxima.

[128] Mr. Hwara took his children into their apartment. About 30 or 40 minutes later, he returned to the small parking lot, where another parent brought to his attention a cartridge casing on the ground. The two of them, along with a third parent, located other casings, which they then kicked into the centre of the lot. They did not pick up the casings with their hands. All six casings were found in the small lot and were closer to the north side of the lot. None was found under a vehicle or in the grass.

[129] Mr. Hwara testified that the small lot is used as a place to park damaged vehicles or vehicles in need of repair, and that people generally do not hang out there. The larger parking lot was used more for recreational purposes. People gathered there and would sit along the edge of the lot while watching their children play soccer.

[130] Mr. Hwara agreed that on the evening of June 21, he saw a “bunch of people” in the smaller lot but only after the shooting, when people got into the two cars and the van and then left. He agreed that at the preliminary inquiry, which was held in September 2018, he testified that there were a “lot of people” or a “bunch of people” in the smaller lot when the driver of the van ran into the lot and looked as if he was going to attack someone. Mr. Hwara also agreed he was telling the truth at the preliminary inquiry and that his memory would have been fresher at that time than it is today. He ultimately adopted his testimony at the preliminary inquiry.

IV. Testimony of Mahdi Saleh

[131] In June 2017, Mr. Saleh was 19 years old and living with his parents and four siblings at their house on Crocus Drive in Scarborough. He often stayed overnight with his girlfriend, Gabby, at 67 Parkwood Village Drive in North York, where she, her five siblings, and her mother, Nicole Pilgrim, lived in a third-floor apartment. The two residences were separated by a 20-minute walk.

[132] Mr. Saleh initially testified that he was employed in June 2017 and worked with his father doing flooring. When it was pointed out to him that he had indicated on his passport application that he was unemployed, Mr. Saleh stated that he was “not really employed” and that he was just helping his father.

[133] Mr. Saleh initially testified that he was attending Victoria Park Collegiate in June 2017. However, he later stated that he had dropped out of school in grade 12 and was not attending school at the time of the shooting.

[134] Mr. Saleh testified that on June 21, 2017, he woke up at Gabby’s place and later walked to his parent’s home. He picked up some fresh clothes and his laptop computer, put them in his backpack, and set out in the early afternoon to return to 67 Parkwoods Village Drive. As he was passing the Parkway Mall near the intersection of Victoria Park Avenue and Ellesmere Road, he saw Robert Janes, whose nickname is “Little Man,” coming out of The Beer Store across the street. Little Man, who was carrying a case of beer, waved him over and they chatted for a while. Little Man invited him back to his place to drink beer and smoke weed. Mr. Saleh accepted the invitation, and the two men took a taxi to Little Man’s apartment at 1441 Lawrence Avenue East.

[135] Mr. Saleh and Little Man knew each other from having attended the same elementary school, Terraview-Willowfield Public School. In June 2017, they were “just acquaintances” who saw each other “here and there.” They occasionally ran into each other in the area around Victoria Park Avenue between Lawrence Avenue and Highway 401. Mr. Saleh had gone with a friend to Little Man’s apartment on a couple of occasions to buy weed but had never hung out at his place prior to June 21, 2017.

[136] Mr. Saleh described Little Man as short and with a small Afro. He was Black, with a skin tone that was light but “more on the darker side.”

[137] Mr. Saleh testified that on June 21, 2017, he had a couple of beers at Little Man’s place, although he was not counting them. He also smoked two or three joints of marihuana, although again, he was not keeping track of the number. At some point, Little Man got a phone call, after which he and Mr. Saleh went downstairs and met “P” at the back of the building, where they smoked weed. Mr. Saleh believed that he smoked one more joint there.

[138] Mr. Saleh had never seen P before and did not know his real name. He described P as Black. He had braids and was a little taller than Mr. Saleh.

[139] Mr. Saleh testified that he took his backpack with him when he left Little Man’s place, even though he was just going downstairs to smoke weed. He testified that he “just didn’t want to leave it in [Little Man’s] house.” The backpack contained clothes and his laptop. In re-examination, he clarified that he understood that he and Little Man were leaving the apartment and would not be returning.

[140] Little Man then drove him and P in a red Mercedes to a 4C Broast Chicken restaurant on Lawrence Avenue East. Mr. Saleh had seen Little Man drive the red Mercedes on other occasions.

[141] Mr. Saleh testified that the Mercedes was parked in the small lot behind 1850 Victoria Park Avenue. The lot belonged to the housing complex at that address and was not part of the address at 1441 Lawrence Avenue where Little Man lived. In order to get to the parking lot, he, P, and Little Man went through a hole in the fence that separated the two properties. Mr. Saleh marked on Exhibit 15 the route that they followed from the rear area of 1441 Lawrence Avenue East to the parking lot.

[142] Mr. Saleh could not say whether the small lot behind 1850 Victoria Park was used to park vehicles on a daily basis or whether it was used mainly for vehicles that were damaged or in need of repair. He agreed that the police photographs of the lot show a number of vehicles without licence plates. One car had no doors. There was a boat and a trailer with a pile of wood on it. According to Mr. Saleh, the Mercedes was parked between the boat and a blue car that lacked a licence plate. When Little Man drove back to the lot later that day and just prior to the shooting, he parked the Mercedes in the same spot.

[143] While they were at the restaurant, Little Man got a call, after which he drove Mr. Saleh and P to the parking lot behind the Alexandria. Mr. Saleh had been to the café before but had never hung out in the back lot.

[144] Mr. Saleh testified that when he got out of the car, he saw his friend, Saif Ziead. At some point, Saif pointed out Noran to him. Saif told him that Noran’s cousin had gotten him, Saif, into trouble by snitching on him with respect to Saif selling weed. In cross-examination, Mr. Saleh was asked whether the cousin in question was Abdulrahman Al-Sammarraie. Mr. Saleh stated no, that Saif had referred to “some dude named Omar.”

[145] Mr. Saleh testified that he was “devastated” by the information provided to him by Saif and got very mad, even though Saif himself did not appear to have a problem with Noran. At no point did Saif go up to or confront Noran. Saif may have yelled at Noran, but Mr. Saleh did not have a specific recollection of him doing so. Mr. Saleh was unaware as to whether Saif and Noran were friends.

[146] When questioned as to why he got so mad at Noran, Mr. Saleh stated, “I didn’t want the dude around me. I don’t want snitches around me.” He confronted Noran, was yelling at him, and told him to “get the fuck out of here.” In cross-examination, it was pointed out to Mr. Saleh that he was calling Noran a snitch even though it was allegedly Noran’s cousin who was the snitch. Mr. Saleh responded, “Well, they’re related.”

[147] Mr. Saleh denied that he was angry not because Noran’s cousin had snitched on Saif but because Noran’s brother, Omer, had snitched on Mr. Saleh when they were both attending Victoria Park Collegiate. Mr. Saleh testified that he had never seen or met Noran or Noran’s younger brother, Omer, prior to June 21, 2017. He also testified that he had never been arrested or charged with selling drugs and had never spent any time in jail.

[148] Mr. Saleh testified that he did not want Noran around him because snitches tell on other people; for example, he would not want someone getting him in trouble by telling the authorities that he was drinking and smoking weed in the parking lot behind the Alexandria, even if that were the truth.

[149] Noran, in response to Mr. Saleh’s outburst, swore at him and then drove off in his white van.

[150] Mr. Saleh and Saif continued “chilling” and smoking in the parking lot. Mr. Saleh testified that he consumed one or two beers and smoked one or two more joints.

Mr. Saleh is Assaulted in the Alexandria Parking Lot

[151] Sometime after Noran had driven off, Mr. Saleh heard the screeching of tires. He turned to look but was suddenly hit on the back of his head before he could see anyone. He fell to the ground and continued to be hit. He curled up in a ball and held his hands up to his forehead to protect his face. He did not know how many people were beating him. He did not see a weapon but could feel it. He was unable to fight back. The beating lasted a couple of minutes, during which time his assailants were yelling, “You want to talk shit about my cousins and family.” This led him to believe that it was Noran’s cousins who were beating him up. Mr. Saleh blamed Noran for orchestrating the assault.

[152] Noran’s cousins, Abdullah and Abdulrahman, testified at the preliminary inquiry. Mr. Saleh testified that he did not recognize and had never seen Abdullah. He had seen Abdulrahman prior to June 21, 2017, as Abdulrahman had bought weed from him. Mr. Saleh, however, did not know his name at that time. He denied seeing Abdulrahman on June 21, 2017.

[153] Mr. Saleh testified that his assailants did not threaten to shoot him or come back later to continue the assault. He did not see them leave. He assumed that they left in a car because he heard the screeching of tires.

[154] When the beating ended, Little Man, Saif, and/or P helped him to his feet. None of these individuals had been beaten up or attacked by Mr. Saleh’s assailants.

[155] Mr. Saleh described himself as shocked and dazed after the beating. In cross-examination, he initially denied being angry with Noran, but later admitted that he was indeed angry with both Noran and his family. He blamed Noran for having set up the assault.

[156] Photographs taken by the police following Mr. Saleh’s arrest on June 23, 2017, show the injuries he sustained during the beating: see Exhibits 11(a)-(e). The injuries included what appears to be a burn mark across his back, scratches to his back, a puncture mark on his right side above the hip, a scratch on the left tricep, and bruising to the inside of his left wrist. Mr. Saleh did not call 911 to report the beating.

Mr. Saleh Leaves the Alexandria Parking Lot and Goes to 67 Parkwoods Village Drive

[157] Mr. Saleh testified that he drank one beer before his friend, Habib El-Saad, and Habib’s friend, Taza, drove him in Habib’s car to Gabby’s apartment building.

[158] Gabby’s mother, Nicole, and Gabby’s 12-year-old sister were home when Mr. Saleh arrived at the apartment. Nicole applied ointment to his injuries as he lay in bed, after which he fell asleep. Mr. Saleh estimated that he slept for 30 minutes to an hour.

[159] Mr. Saleh testified that it was only after he woke up that he realized that he did not have his backpack with his clothes, his phone, which was new, or his wallet, which contained his SIN card and other identification documents. He described himself as “freaking out.” When asked where he thought these items might be, he stated, “Still at the Alexandria.” As he did not have a phone, he used Nicole’s phone to summon an Uber, which picked him up at 8:25 p.m. and drove him back to the parking lot behind the café.

[160] Mr. Saleh testified that at the time of the assault, his backpack was in the red Mercedes, his phone was in his back pants pocket, and his wallet was in his front pants pocket. He never saw the phone or wallet again.

Mr. Saleh leaves 67 Parkwoods Village Drive to Return to the Alexandria

[161] The footage from four surveillance cameras at 67 Parkwoods Village Drive captures Mr. Saleh as he was leaving the building.

[162] Channel 4 shows Mr. Saleh coming down the stairs and pausing for seven or eight seconds at the glass door leading to the lobby. He was wearing a sweater over a white t-shirt. The sweater had an Argyle-type pattern down the centre-front portion of it. Mr. Saleh testified that the sweater and t-shirt were in his hand when he later chased after Noran’s van in the Alexandria parking lot.

[163] As Mr. Saleh descended the stairs, he had his right hand on his belt buckle, and his left thumb hooked over his belt on his left side.

[164] Channel 3 shows the lobby area and the other side of the glass door, through which Mr. Saleh can be seen as he paused at the door. Mr. Saleh agreed that the footage shows him doing something with his hands at the front of his waist. He testified that he was probably just adjusting his belt buckle and that he tends to “fix [his] pants a lot.” Mr. Saleh denied that he was carrying a firearm or that he was adjusting a firearm when his hand went to his waist. He denied that his purpose in going to 67 Parkwoods Village Drive was to retrieve a firearm.

[165] Mr. Saleh agreed that he briefly touched the waist area of his pants with his right hand as he walked through the lobby and that he was not touching his belt buckle at that time.

[166] Channel 2 shows Mr. Saleh walking through the foyer as he exited the building.

[167] Channel 1 shows Mr. Saleh after he was outside and walking toward a garden area in front of the building. At one point, he briefly touched his waist area with his right hand.

[168] Channel 1 also shows Mr. Saleh sitting on some rocks by the garden as he waited for the Uber. When it arrived, he walked briskly toward it and got into the back seat. There was nothing unusual about his gait. He was not stumbling or unsteady on his feet.

Mr. Saleh Returns to the Alexandria Parking Lot

[169] Little Man, Saif, P, a male known as “V,” and a male by the name of Athir Farange were in the Alexandria parking lot when Mr. Saleh arrived in the Uber. Noran was also there. Mr. Saleh testified that prior to his arrival, he had no idea that any of these individuals would be there. He had no way of communicating with Little Man or Saif because he did not have his phone.

[170] Mr. Saleh testified that after exiting the Uber, he approached Athir, whom he had previously met through Little Man and whom he described as an acquaintance. He asked Athir where “his stuff” was, referring to his phone and wallet. Athir pointed to the red Mercedes. Mr. Saleh then walked over to the Mercedes, briefly leaned into the vehicle, and asked Little Man if he had seen his stuff. Little Man told him, “No.” Mr. Saleh did not recall anyone else being in the car.

[171] Mr. Saleh denied that he handed off a firearm to Little Man. His purpose in going over to the car was to look for his phone and wallet, which he always carried in his pants pockets.

[172] The surveillance footage from the Alexandria confirms that after he got out of the Uber, Mr. Saleh approached Athir, who gestured toward the Mercedes with his right arm. Mr. Saleh then walked over to the Mercedes and leaned into the car for a few seconds.

[173] In cross-examination, Mr. Saleh agreed that he did not reach or lean into the back seat of the Mercedes to look for his phone and wallet. He explained that there was no point in checking to see if they had fallen out of his pockets at some point while he was in the car because both items were on his person when he was beaten up. After the beating, he did not get back into the Mercedes as he was driven to Gabby’s apartment in Habib’s car. Mr. Saleh testified that he never puts his phone or wallet in his backpack.

[174] In cross-examination, Mr. Saleh was asked if he looked in the Mercedes for his backpack that contained his laptop and clothes. Mr. Saleh’s testified that he had no need to look for his backpack as it had remained in the car from the time that he first arrived at the Alexandria. He never took the backpack out of the car.

[175] Mr. Saleh agreed that he got “very mad” when he saw Noran in the parking lot because he believed Noran had “set him up” by calling the people who assaulted him. He was also angry at Noran for being a snitch.

[176] Mr. Saleh took off his shirt and went over to confront Noran, who was seated in his van. He wanted to show Noran his injuries and to tell him, “Let’s fight fair and square.” He yelled and screamed at Noran and kept telling him to get out and fight. Noran, however, refused to get out of his vehicle and told Mr. Saleh to “just chill out.”

[177] The surveillance footage shows that just after Mr. Saleh left the area where the Mercedes was parked, the Mercedes was backed out of its parking spot and moved closer to the area where Mr. Saleh was confronting Noran. At the same time, V exited the car that was parked beside the Mercedes. Mr. Saleh identified this car as belonging to Athir. He testified that Little Man and V took these actions because he had asked them to “back him up” when he went over to fight with Noran.

[178] Mr. Saleh testified that he picked up a piece of wood from the ground in front of Noran’s van and started banging it on the side of the van. He thought that the piece of wood was a chair leg, as it was thin at the bottom, thicker at the top, and about a foot long. He testified that there was a dumpster in the parking lot and quite a lot of garbage strewn around.

[179] When asked why he picked up the piece of wood, Mr. Saleh stated that he wanted to defend himself just in case Noran got out of the van and was armed with a weapon. He noted that the people who had earlier beaten him up had used some sort of weapon.

[180] Mr. Saleh testified that as he was banging on the van and telling Noran to get out, Noran grabbed his arm, told him, “Chill out, chill out, relax,” and then drove away. Noran never threatened him.

[181] Mr. Saleh denied trying to strike Noran with the piece of wood. He testified that he was banging on the van “just to scare Noran a little bit” and because he wanted him to come out of his van. He denied reaching into the van while holding the piece of wood. He denied that he was holding a knife and that he tried to stab Noran.

[182] Mr. Saleh described Noran as driving away “in a panic, very fast.” Mr. Saleh ran after the van as it exited the parking lot. He was holding his shirt and sweater in his hand as he pursued the van. He was still holding them after Noran had left the lot. Mr. Saleh is seen on the surveillance footage running back toward the area in the lot where he had confronted Noran. He was still holding his shirt in his hand.

[183] Seconds later, the van returned, at which point it “clipped” Mr. Saleh on his shoulder. This caused Mr. Saleh to “spin out a little bit,” but he did not fall to the ground. Noran then drove out of the parking lot. Mr. Saleh had no idea where Noran went.

[184] Mr. Saleh identified some of the people seen in the cell phone video taken by Nader’s girlfriend, Marija. He identified the person in the blue shirt with his back to the camera as Athir, and the male in the pink shirt as Omar Khalil. The back of the red Mercedes is also visible. Mr. Saleh identified himself as the male running shirtless and confirmed that he was chasing after Noran’s van at the time.

[185] Mr. Saleh agreed that he had been carrying the sweater, the t-shirt, and the chair leg in the same hand when he approached the van. He denied that he attempted to hit Noran with the chair leg. He denied ever reaching into the van or that his shirt and sweater came out of his hand when he reached into the van.

[186] Mr. Saleh did not recall what he did with the chair leg after he finished banging on the van. He agreed that no chair leg is visible in the police photographs taken of the parking lot, which include the area near the dumpster where Noran’s van was parked and where Mr. Saleh confronted him. (See Exhibit 2, photographs 31, 32 and 33).

[187] Mr. Saleh could not say when he lost his shirt and sweater. He only recalled running with them in his hand, as seen on the surveillance footage. He agreed that they do not appear to be in his hand after he was sideswiped by the van. He could not say if they ended up in the van. When shown the photograph of the articles of clothing in Noran’s van, he stated, “I don’t know if that’s my shirt.”

Mr. Saleh Leaves the Alexandria and Arrives at the Small Parking Lot Behind 1850 Victoria Park Avenue

[188] Mr. Saleh testified that after Noran drove off, he got into the rear passenger seat of the red Mercedes. P got into the front passenger seat. Little Man then drove them to the small lot behind 1850 Victoria Park and parked in the same spot where the car had been parked earlier that day. (See Exhibit 13, where Mr. Saleh marked the car’s location as being in the south west corner of the lot.) Their intention was to go back to Little Man’s apartment and just chill. Mr. Saleh described himself as feeling shocked and dizzy.

[189] In cross-examination, Mr. Saleh denied that he sat in the front passenger seat of the Mercedes on the way back to 1850 Victoria Park. He insisted that he had ridden in the back passenger seat, which is in accord with Noran’s testimony. Mr. Saleh only waivered in his evidence or began to second guess his position in the car when, in cross-examination, Crown counsel implied that there was a video of him getting into the front passenger seat. There was, in fact, no such footage, as Mr. Saleh was out of range of the camera when he entered the car. Based on Noran’s and Mr. Saleh’s evidence, I am satisfied that Mr. Saleh was in the back passenger seat of the Mercedes when he arrived at the parking lot behind 1850 Victoria Park Avenue.

[190] Mr. Saleh testified that he was not expecting to see Noran or Noran’s cousins again that night and that he did not want to see Noran. He was very angry at Noran. He was first angered when Saif told him that Noran’s cousin was a snitch. Mr. Saleh blamed Noran for arranging the subsequent assault on him and the injuries he sustained as a result of that beating. When Mr. Saleh returned to the Alexandria parking lot and saw Noran again, he was still angry with him, which is why he picked up the piece of wood and challenged Noran to fight. Noran refused to fight and drove away, but then returned and sideswiped him with his van. Mr. Saleh agreed that all these events made him very angry at Noran. He denied, however, that he wanted to kill Noran.

[191] Mr. Saleh described the lighting in the small lot as “pretty dark” but not “dark dark.” The sun was just setting. He thought that there was one lighting pole “off to the centre of the lot” and about two to three metres from where Little Man parked the Mercedes. When asked how well the lighting pole illuminated the lot, Mr. Saleh stated that it was “very dim.” Police photos show that there was, in fact, no lighting pole in the lot. It appears that Mr. Saleh was simply mistaken in his recollection regarding the presence of a lighting pole.

[192] Mr. Saleh testified that V and Athir drove to the small lot in separate vehicles and parked behind the Mercedes. V’s car was “yellowish-gold” in colour and a four-door. He had two female passengers. Athir’s car was also a four-door but darker in colour. Athir had one female passenger. Mr. Saleh had seen the girls sitting in these vehicles in the parking lot back at the Alexandria.

[193] Mr. Saleh testified that they were all getting out of their respective cars when he heard tires screeching and saw Noran running at him. He just caught a glimpse of Noran before Noran hit him with the level. At the time, Mr. Saleh thought that the level was a pole. He put up his left hand to block the blow. The level hit his hand, resulting in a “huge bump.” (See Exhibit 14, which is a police photograph taken after Mr. Saleh’s arrest on June 23, 2017, showing the back of his left hand.)

[194] Mr. Saleh denied that this injury to his left hand occurred earlier when he was assaulted in the parking lot behind the Alexandria. He also denied that it happened during his arrest on June 23, 2017. Mr. Saleh and his mother had been driving in her car when they were pulled over and he was arrested by officers from the Emergency Task Force. Mr. Saleh agreed that the officers used force in executing the arrest. He testified that he was thrown out of the car window and hit his face on the curb.

[195] Mr. Saleh described Noran as sprinting toward him with his arms above his head while holding the level. Noran brought it down in a chopping motion and “bashed” him. He testified that he was “pretty sure” that the level was still in Noran’s hands when it made contact with his hand, but he did not actually see Noran hit him. He believed that Noran hit him with the level as opposed to throwing it at him because of the force of the blow, which he described as “very hard.”

[196] In cross-examination, Mr. Saleh agreed that when he heard the screeching of tires, he looked over to see what the source of the sound was. However, he denied that he saw Noran’s van at that time. He did not see Noran exit the van. All he saw were headlights and Noran running full speed at him while carrying the pole. Noran was only a step or two away from him when he first saw him.

[197] When asked to mark on a map (Exhibit 15) where Noran had parked his van, Mr. Saleh placed it inside the small lot and very close to where Little Man had parked the Mercedes. Mr. Saleh’s evidence differed in this respect from that of Mr. Hwara, who testified that the van was parked at the entranceway to the lot.

[198] Mr. Saleh testified that when he got out or as he was getting out of the Mercedes, he took out his backpack containing his laptop and clothes because he intended to go to Little Man’s apartment. He was holding the backpack as Noran was coming at him. He did not recall reaching into his backpack at that time or doing anything that could have been misinterpreted as reaching into it. He was probably just putting the bag in his other hand but had no specific recollection of making such a motion. He denied having a gun in his backpack.

[199] Mr. Saleh testified that he dropped the backpack when he was struck with the level and fell to the ground. That was when he heard the gunshots. He heard two shots. He got up and started to run because he thought the shooter was shooting at him. He did not stop to pick up the backpack. He did not look back. He had nothing in his hands and was shirtless as he ran from the scene.

[200] Mr. Saleh testified that he did not see the shooter. Nor did he see anyone with a gun. Noran, who had been holding the level with two hands, was not holding a gun. Mr. Saleh did not see anyone else with Noran. When asked who he thought the shooter was, he stated, “I don’t know. It could have been anybody.”

[201] When asked why he thought he was getting shot at, Mr. Saleh testified: “Because he – there’s no other – I didn’t know who else would ever do that.” In cross-examination, it was suggested to Mr. Saleh that what he meant by this answer was that out of all the people who were in the small parking lot, none of them was the kind of person who would be shooting at someone. Mr. Saleh testified that he did not know that.

[202] When asked whether he thought one of his friends was shooting at him, Mr. Saleh stated, “It could’ve been.” However, he did not think that Little Man was shooting at him. He agreed that Little Man had no reason to shoot him. He did not know Little Man to carry a gun and, more particularly, did not know him to carry the gun used in this shooting. Mr. Saleh knew nothing about the other five shootings in which this same gun was used. One of those shootings took place before this incident and four shootings took place after it.

[203] Mr. Saleh testified that he did not see Little Man, Athir, P, or V with a gun on June 21. Nor did he hear any of them speak of having a firearm, although he added, “I don’t think that’s something people talk about.” He was not aware of any of these people having had a problem with Noran that day. None of them had tried to fight or threaten Noran. Mr. Saleh agreed with the suggestion that this is why he concluded that he himself was the target of the shooting – no one else to his knowledge had a reason to be shooting at Noran.

[204] Mr. Saleh testified that he ran “straight into the bushes” and then in a northwest direction, as shown by the red line he drew on Exhibit 13. He went up toward the Victoria Terrace Plaza located at 1448 Lawrence Avenue East, reached Victoria Park Avenue, and headed north toward Gabby’s apartment at 67 Parkwood Village Drive. He stayed on Victoria Park Avenue until he reached Parkwood Village Drive and ran all the way to her building. He was running very fast.

[205] Mr. Saleh testified that the only time that he stopped on his way to Gabby’s place was when he was in the area of Victoria Park Avenue and Ellesmere. He saw his friend, Moe Elejime, who called out his name and called him over. They spoke for a couple of minutes. Moe asked him what had happened to him and gave him a white t-shirt that he had in his car.

Mr. Saleh Returns to 67 Parkwood Village Drive

[206] Mr. Saleh testified that after leaving Moe he went straight to Gabby’s apartment building. He was wearing the shirt that Moe had given him. He still believed at that time that he was the target of the shooting.

[207] Gabby, her mother and a younger sibling were outside when he arrived. Gabby came up to him and asked him what was wrong. They continued speaking by the rocks where Mr. Saleh had earlier waited for the Uber. Mr. Saleh testified that this area is just steps from Parkwood Village Drive, which is a very busy road. There is a bus stop in front of the apartment building. The Channel 1 surveillance camera captured Mr. Saleh and Gabby arriving in the area of the rocks at 10:08 p.m.

[208] Mr. Saleh testified that he told Gabby that he got “jumped on” by some people earlier in the day, that Noran had hit him with a pole, which he blocked with his hand, and that someone had tried to shoot him.

[209] Mr. Saleh used Gabby’s phone to call his brother, Mortada, who arrived at 10:12 p.m., along with his sister, Isra. Mr. Saleh explained to them what had happened and lifted up his shirt to show them the injuries to his back that he sustained during the beating behind the Alexandria. He also told them that someone had later hit him with a pole, and that he was the target of a shooting.

[210] Mr. Saleh’s brother and sister left without going into the apartment building. Mr. Saleh testified that neither his brother, his sister, nor Gabby told him that he should report the shooting to the police. Mr. Saleh never reported to the police any of these events in which he was the victim.

[211] Mr. Saleh’s interaction with Gabby and his siblings was captured by the building’s surveillance camera. Between 22:12:17 and 22:12:30, Mr. Saleh is seen punching the air with his fists, which appears to be the reenactment of a fist fight, as opposed to his lying on the ground turtling while he was being beaten. Mr. Saleh agreed that he did not re-enact for his brother and sister the shooting or the two-handed chop with the level by Noran. He agreed that getting shot at was a more significant event than getting into a fist fight.

[212] At 10:34 p.m., Mr. Saleh, Gabby, and her mother went up to the apartment and he went to bed. Mr. Saleh agreed that he appears in the surveillance footage to be wobbly on his feet as he entered the building. He explained that he was still slightly dizzy as a result of running from the scene of the shooting. He had also been hit by Noran’s van and struck with the level.

[213] Mr. Saleh estimated that he consumed four or five beers that day. He drank beer when he was at Little Man’s apartment. The last beer that he consumed was just after he was beaten up in the parking lot behind the Alexandria. He described himself as “super sober” after he woke up at Gabby’s place and returned to the café to look for his phone and wallet. He did not consume any alcohol or weed after that.

[214] The surveillance footage from the next day, which was June 22, shows Mr. Saleh driving a friend’s scooter in the vicinity of 67 Parkwoods Village Drive at about 5:30 p.m.

[215] Mr. Saleh testified that he has discussed with Gabby what happened on June 21, 2017, including the surveillance footage in which she appears.

Mr. Saleh Had No Communication with Little Man, Athir, P, V, or Saif, after the Shooting

[216] Mr. Saleh testified that between the time that he fled the scene of the shooting on the night of June 21, 2017 and his arrest on June 23, 2017, he did not speak to or have any communication with Little Man, Athir, P, or V. He did not ask any of them if they had his backpack containing his laptop and clothing, which he had left at the scene, or if they had seen his phone or wallet. Mr. Saleh explained that he did not have their phone numbers, having lost his own phone.

[217] Mr. Saleh never went back to Little Man’s apartment to ask him if he had his backpack. Nor did he return to the Alexandria prior to his arrest on June 23, 2017 to look for his phone or wallet. Mr. Saleh explained that after the shooting and having reflected on the matter, he thought that his phone and wallet were probably not “lost” but had been taken from him by the people who beat him up in the parking lot. In those circumstances, there was not much point in his searching for these items at the Alexandria. Following his arrest, he was prohibited by a term of his bail from being within 500 metres of 1850 Victoria Park Avenue and the Alexandria.

[218] Mr. Saleh agreed that he did nothing to find his backpack prior to his arrest. He agreed that there is no backpack visible in the police photographs of the small parking lot, which includes the area where the red Mercedes was parked.

Mr. Saleh’s Passport Application

[219] Mr. Saleh testified that after his mother found out from his sister what had happened to him, she wanted to send him “back home” to Lebanon. Mr. Saleh was born in Canada but had visited Lebanon with his parents as a child. He is not a Lebanese citizen.

[220] Mr. Saleh testified that his mother presented him with a passport application in his name. The application had been filled out by a family friend, Ibrahim Yasim, whose writing Mr. Saleh recognized and who had signed as the guarantor.

[221] According to Mr. Saleh, his mother made him sign the application. He did not read it before signing it, although he had ample time to do so before submitting it to Passport Canada.

[222] Mr. Saleh testified that about four months prior to June 21, 2017, his grandmother, who lived in Lebanon, had died, leaving his aunt alone in their home. After his grandmother died, Mr. Saleh’s mother asked him many times to go to Lebanon to be with his aunt. He consistently refused to go because he did not want to leave Gabby and his friends.

[223] Mr. Saleh testified that after June 21, 2017, he agreed to go to Lebanon because his mother told him that she would pay for Gabby’s ticket and because he was scared that Noran and his family were “going to come back and get me.”

[224] Mr. Saleh and his mother attended at the Passport Office together on June 23, 2017. As part of the application, Mr. Saleh was required to explain why he did not have any identification documents. At page 11 of the application, he wrote: “I lost my wallet in a restaurant while I was eating with my girlfriend. When I went back, they said that they don’t have and didn’t receive it.” Mr. Saleh testified that he lied about how he lost his wallet because he thought he would get his identification documents quicker and that the passport application would be processed faster. He also lied because he did not want to be questioned by passport officials as to how he really lost his wallet on June 21, 2017 and the events of that day.

[225] Mr. Saleh’s travel itinerary, which was attached to his application, shows that a flight with Air Canada from Toronto to Athens had been booked for June 25, 2017, and a flight from Athens to Beirut had been booked with Middle East Airlines for June 26, 2017. The flights are marked as confirmed. Return flights to Toronto were booked for October 15, 2017.

[226] Mr. Saleh testified that his mother booked these flights through a travel agent and that he played no role in that process. On June 23, when he attended with her at the Passport Office, he still had no idea that she had booked these flights, which were scheduled to leave two days later. Mr. Saleh further testified that even after they left the Passport Office and at the time of his arrest later that same day, he was still unaware that his mother had booked the flights. He testified: “I agreed to go but I don’t know – I don’t know her plan.”

[227] Mr. Saleh agreed that had he not been arrested on June 23, he would have flown to Lebanon on June 25.

[228] Mr. Saleh agreed that there was nothing urgent happening in Lebanon that required him to leave immediately. He denied the suggestion that he was in a rush to leave town because he was involved in the shooting. He denied the suggestion that he might not have returned to Canada.

[229] Mr. Saleh testified that he was afraid of Noran. He agreed that he never saw Noran with a gun, and that he was not afraid of Noran when he yelled at him for being a snitch, or when he challenged Noran to a fight while holding the chair leg. He testified, however, that he was afraid of Noran after the shooting. When it was suggested to Mr. Saleh that he did not think that Noran was the shooter, he testified:

A. I don’t know who the shooter is.

Q. You didn’t think it was Noran.

A. At the time I did.

[230] In re-examination, Mr. Saleh testified that he thought Noran was the shooter because he was the one with whom he had the altercation. However, he did not see Noran do anything that would indicate that he was the shooter. His allegation that Noran was the shooter was “just a thought. I thought it was him.”

[231] Mr. Saleh testified that Little Man had nothing to do with his plans to leave the country on June 25, 2017 – that is, he was not afraid of Little Man and did not believe Little Man to be the shooter. However, in re-examination, he testified as follows:

Q. You were asked about whether you thought Noran was the shooter; you were asked whether you thought Little Man was the shooter. Do you recall being asked those questions?

A, Yes.

Q. All right. You weren’t asked whether you thought there might have been anybody else who was the shooter. Did you think it might have been anybody else that was the shooter?

A. Yeah.

Q. All right. And who might that be?

A. Little Man.

[232] Mr. Saleh testified that prior to living on Crocus Drive in Scarborough, he and his family had lived in Pickering. Before that, they had lived in Scarborough, where there was a “lot of trouble” – they experienced some damage to their property and his brother kept getting into fights. As a result, his mother moved the family to Pickering. When his brother continued to get into trouble there, his mother moved the family back to Scarborough.

V. Testimony of Gabby Pilgrim

[233] Gabby Pilgrim, age 20, testified that Mr. Saleh often stayed overnight at her three-bedroom apartment, where she resided with her five younger siblings and her mother, Nicole Pilgrim. Gabby and Mr. Saleh slept in Gabby’s bedroom when he stayed the night. On other nights, she shared the bedroom with her 16-year-old sister.

[234] Gabby testified that Mr. Saleh did not keep many belongings at the apartment – “maybe a set of pajamas. Not often though.” In cross-examination, she allowed that he may have sometimes kept an extra set of clothes or “something like that” at her place. He never left his backpack at the apartment but may have left smaller items, such as his phone charger.

[235] Gabby was not aware of any storage areas inside the apartment that Mr. Saleh used. He kept his “stuff” at his parent’s apartment, where he lived.

[236] Gabby testified that Mr. Saleh did not have his own clothes closet or chest of drawers in her bedroom. She agreed that there was “a lot of stuff” in the dresser and clothes closet, which both she and her sister used. She also agreed that on June 21, 2017, she had not done any “spring cleaning” in which she would have emptied the dresser and closet, searched the top shelf in the closet, or checked behind the furniture.

[237] Gabby saw Mr. Saleh on the morning of June 21, 2017, before he left to go to his parents’ home. She did not see him again until later that night. She, her mother, and her younger brother were at a park or children’s playground when she saw Mr. Saleh crossing Parkwoods Village Drive and walking toward the apartment building. She waved to him and he walked over to her. He was “kind of out of breath,” “stumbling a bit,” and “not himself.” He did not, however, appear to be under the influence of alcohol or drugs.

[238] In cross-examination, Gabby agreed that she did not have any particular training in identifying persons who are under the influence of alcohol or drugs, and that she was not investigating Mr. Saleh for being drunk or high. She did not smell his breath or attempt to determine if he smelled of marihuana.

[239] Gabby testified that Mr. Saleh was wearing a white t-shirt that was too big for him. She had not previously seen him wearing this shirt.

[240] Although Gabby’s mother had told her that Mr. Saleh had been injured earlier that day, she was not exactly sure about the circumstances. When she asked Mr. Saleh what had happened, he began relating events to her and showed her the injuries to his back. They continued walking toward the apartment building and then remained outside while Mr. Saleh called his brother. He used Gabby’s phone as he had lost his own phone. Mr. Saleh’s brother and sister eventually arrived. They did not go up to the apartment but remained outside speaking to Mr. Saleh and Gabby.

[241] Gabby confirmed that Mr. Saleh had earlier used her Uber account, via her mother’s phone, to order an Uber to take him back to the Alexandria. Various documents generated from that transaction were filed as exhibits.

[242] Gabby testified that Mr. Saleh’s mother never booked a flight for her to Lebanon. Gabby, however, told his mother that she was willing to go to Lebanon. According to Gabby, Mr. Saleh’s mother came to her and Mr. Saleh and insisted that he go to Lebanon. When Mr. Saleh said that he did not want to go, his mother agreed to pay for Gabby’s ticket so that she could visit him. No specific date for her visit was set as she had to book time off from work and apply for a passport.

[243] Mr. Saleh’s mother was not called as a witness, and thus what she allegedly told Gabby is hearsay.

VI. Testimony of Nicole Pilgrim

[244] Nicole Pilgrim (“Nicole”), age 44, has known Mr. Saleh for approximately four years. In June 2017, he was staying overnight at her apartment about “50 percent of the time.”

[245] Nicole testified that on June 21, 2017, she was in the washroom when her youngest daughter called to her and told her that Mr. Saleh needed her help. She followed her daughter into her (Nicole’s) bedroom, where she found Mr. Saleh lying face down on her bed, with his arms extended over his head. He normally slept in Gabby’s, not Nicole’s, bedroom.

[246] Nicole did not see Mr. Saleh enter the apartment and did not know how long he had been there. It could not have been too long, however, because she was not in the washroom for very long. She did not know if he had been in Gabby’s room before entering her bedroom.

[247] Nicole testified that Mr. Saleh was sobbing as he lay on the bed. He was not wearing a shirt. Nicole observed the injuries on his back and applied Polysporin to them. Mr. Saleh then fell asleep and remained asleep for 30 minutes to an hour.

[248] Prior to his falling asleep, Nicole asked Mr. Saleh what had happened. He told her that he “got jumped,” that he had been cut with something, and that more than one person had attacked him. When asked whether Mr. Saleh told her who attacked him, she stated, “Not that I recall.”

[249] Nicole agreed that Mr. Saleh’s injuries were significant, although not life-threatening. Along the top of his back he had a burn mark or pinkish welt that looked like the imprint of a machete. He also had a puncture wound in the area of his ribs. Mr. Saleh told her that he had been stabbed. He had other scrapes on his back and elsewhere on his body.

[250] Nicole did not advise Mr. Saleh to call 911 as he had fallen asleep, and his injuries, in her view, were not severe enough that they required medical attention. He was not bleeding, he did not appear to have any broken bones, and the wounds were “sort of superficial.”

[251] Nicole also never advised Mr. Saleh to report the assault to the police. She stated, “That’s not my job” and that “Mahdi can fend for himself. If Mahdi wants to call the police, Mahdi will call police.” She advised him to tell his parents about the attack.

[252] Nicole was in the living room when Mr. Saleh woke up. She testified that she could hear that he was in a panic or “flipping out” about his missing phone and wallet. When he came into the living room, he insisted that he had to go back to the Alexandria to get his stuff. Nicole initially testified that he told her that he had probably dropped the phone. However, she later stated that this was perhaps an assumption on her part. She could not remember specifically what he had said to her. In any event, she did not get the impression from Mr. Saleh that his assailants had robbed him of his phone.

[253] Nicole was unaware of what rooms Mr. Saleh may have entered after he woke up and before he went into the living room. She recalled that when he left the apartment, he was wearing a shirt, which he possibly retrieved from Gabby’s bedroom.

[254] Mr. Saleh used Nicole’s phone to summon an Uber and then left the apartment.

[255] The next time Nicole saw Mr. Saleh it was dark outside. She was at a playground with her son, Theo, and Gabby when she saw Mr. Saleh crossing Parkwoods Village Drive. She did not recall Mr. Saleh stumbling or being unsteady on his feet. Gabby went up to him. They were talking and then started walking toward the apartment building. Nicole stayed behind and attended to Theo.

[256] Nicole described Parkwoods Village Drive as quite a busy street. It was regularly patrolled by the police, who drove up and down it every day.

[257] Nicole testified that when Mr. Saleh returned to the apartment that night, he was wearing a t-shirt that was too big for him. She did not recall having previously seen him in an oversized t-shirt. She also observed that his hand was very swollen and that it appeared to be broken.

[258] Nicole testified that Mr. Saleh later told her what happened after he left her apartment to look for his phone and wallet. He told her that he was hit in the head with metal, that there was gunfire, and he ran. He also said that “they” hit him with a vehicle. Nicole acknowledged that she could not recall the exact words used by Mr. Saleh, but by the time he finished talking to her, she understood that “as he was running there was gunfire.” He did not say who he thought the shooter was. He did not say that he thought some “little man” was the shooter. Nor did he say that he thought someone by the name of Noran was the shooter.

[259] Nicole agreed that during the two and a half years since these events, she and Gabby, who still lives with her and is still Mr. Saleh’s girlfriend, have talked about certain details that they remember from June 21, 2017. Nicole denied, however, that they spoke about Mr. Saleh wearing a white t-shirt that was too big for him.

[260] When asked if she discussed with Mr. Saleh the length of time that he napped at the apartment, Nicole stated that she could not say “yes” or “no.” She did not specifically recall having that discussion. The only person she recalled conversing with after the actual event was Gabby. However, she did not recall speaking to her about how long Mr. Saleh had slept.

VII. Testimony of Police Constable Michael Seaban

[261] Police Constables Michael Seaban and his partner, Terrence Ko, received two radio calls shortly after 9:00 p.m. on June 21, 2017. One call related to a person in possession of a knife. The second call related to a shooting. The officers were detailed to an apartment at 1441 Victoria Park Avenue to interview the target of the shooting, Noran Al-Sammarraee. Noran answered the door and invited them in.

[262] Prior to being questioned, Noran was cautioned with respect to his obligation to tell the truth. He was also informed of the consequences should he lie to the police or mislead them. He indicated that he understood these cautions.

[263] Officer Ko asked Noran questions while Officer Seaban made notes of his responses. Officer Seaban testified that he made the notes in order to have a written record of what Noran said. He also intended to pass along any information he received from Noran to investigators at the detective office and to officers on the road. There was an active investigation being carried out at the time.

[264] Officer Seaban testified that he has received training in notetaking and that he accurately recorded in his memo book what Noran said to him and Officer Ko. He made his notes as Noran was speaking or immediately thereafter.

[265] Using the letter “V” for “victim” in referring to Noran, Officer Seaban recorded Noran as providing the following information: “Victim followed him. Male reached for his waist. Victim hit him. Male pulls out gun. Shoots three times.” In cross-examination by Crown counsel, it was suggested to Officer Seaban that Noran may not actually have used the word “waist” but may have been re-enacting what happened and reached down to his waist area. Officer Seaban responded: “I believe I would have written ‘waist’ in my notes because I heard ‘waist.’” He testified that if a witness makes a gesture while speaking to him, he might make a note of the specific action, such as “he pointed across the room at something.”

[266] Officer Seaban testified that his notes regarding the male reaching for his waist accord with his memory as to what Noran said. The officer had no recollection of Noran telling him, for example, that the male pulled a gun from a bag.

[267] Officer Seaban also recorded information provided by Noran regarding the suspect. Noran gave the name “Mahdi” but did not provide a last name. He also stated that the suspect “had a black gun, he thinks.” Officer Seaban testified that he had no doubt that Noran told him that he believed the shooter had a black gun, although he currently does not have a specific memory of Noran saying that – in other words, he relied on his notes.

[268] Officer Seaban did not ask Noran to sign his memo book where he recorded Noran’s responses. He explained that toward the end of the questioning, one of the detectives assigned to the case called him and asked him to bring Noran to 41 Division so that he could provide a videotaped statement. Officers Seaban and Ko complied with that request.

[269] In cross-examination by Crown counsel, Officer Seaban testified that he did not record the questions asked by Officer Ko. Nor did he record Noran’s responses verbatim. He may have taken a call while Officer Ko was questioning Noran. Toward the end of the questioning, Officer Seaban made a call himself to the investigative office.

[270] Officer Seaban agreed that his recording of Noran’s responses in his memo book differed from a “statement” in several ways. When taking a statement from a witness, he normally writes out the caution in more detail. He records the questions and answers verbatim. The witness is asked to initial each page of the statement at the top and bottom and to provide a signature. This procedure is followed if the witness is not going to subsequently provide a videotaped KGB statement. Had Noran refused to provide a videotaped statement, Officer Seaban would have followed the above procedure.

[271] Officer Seaban described his notetaking of Noran’s response to Officer Ko’s questions as “summarizing the conversation” as opposed to taking a “statement.” In summarizing a conversation, he attempts to get the gist of what the witness is saying. In terms of his notation “had a black gun, he thinks,” Officer Seaban could not say if Noran actually said, “I saw a black gun.”

[272] Officer Seaban described Noran as very excited, talkative, and animated. He was moving back and forth and was unable to stand still.

POSITIONS OF THE PARTIES

[273] Brief summaries of the positions of counsel are set out below.

Position of the Crown

[274] With respect to Count 1, Mr. Vandersteen submits that Noran’s evidence supports the finding that Mr. Saleh reached into the van while holding the knife or chair leg with the intention of assaulting Noran. Even if Mr. Saleh did not reach into the van, Mr. Saleh essentially confessed to assaulting Noran with a weapon when he testified that he used the chair leg in a way that was intended to scare or intimidate Noran.

[275] In terms of Counts 2 to 6 in the indictment, Mr. Vandersteen relies on four sources of circumstantial evidence to support his position that the Crown has proved beyond a reasonable doubt that Mr. Saleh was the shooter.

[276] First, Mr. Saleh had a strong motive to kill Noran. This motive developed in stages. Mr. Saleh was angry with Noran after hearing the “snitching” allegations. He was beaten up by Noran’s cousins and suffered fairly significant injuries. He blamed Noran for setting him up for this beating. His animus toward Noran was apparent when he returned to the Alexandria, confronted Noran with a weapon, and challenged him to a fight. Noran refused to fight and drove away but returned a few seconds later and sideswiped Mr. Saleh with his vehicle. Noran then followed Mr. Saleh and his associates to 1850 Victoria Park, where he attacked Mr. Saleh with the level. The Crown submits that Mr. Saleh’s intention at that time was to kill Noran.

[277] Second, Mr. Vandersteen relies on the surveillance footage of Mr. Saleh exiting 67 Parkwood Village Drive with the intention of returning to the Alexandria. He submits that Mr. Saleh’s hand movements in the area of his waist indicate that he was carrying a firearm on his person. He submits that Mr. Saleh went to Gabby’s apartment after he was beaten up by Noran’s cousins with the specific purpose of retrieving a gun. When he arrived back at the Alexandria, he handed off the gun to someone in the Mercedes when he leaned into the car, as seen in the café’s surveillance footage. Mr. Vandersteen submits that Mr. Saleh handed off the gun because otherwise it would have been exposed when he took off his shirt to show Noran his injuries, as well as during any potential fight with Noran.

[278] Third, Mr. Vandersteen relies on Noran’s evidence that Mr. Saleh’s hand was in a bag and removing something from that bag only one to one and a half seconds before the shooting. He submits that the court can rely on Noran’s evidence in conjunction with other evidence. Both Noran’s evidence at the preliminary inquiry and his KGB statement, to the extent that it is admissible, have procedural and substantive guarantees of reliability.

[279] Fourth, Mr. Vandersteen relies on Mr. Saleh’s after-the-fact conduct, including Mr. Saleh’s intention to leave the country four days after the shooting. Mr. Vandersteen submits that Mr. Saleh wanted to flee the jurisdiction because he was the shooter and wanted to avoid being arrested for this crime.

[280] Mr. Vandersteen submits that Mr. Saleh was not a credible witness and that his evidence does not raise a reasonable doubt. On his own admission, Mr. Saleh lied on his passport application as to how he lost his wallet in order to avoid being questioned about the events on June 21, 2017. His evidence was inconsistent in terms of who he believed was the shooter. While his evidence was supported by the testimony of Gabby and Nicole Pilgrim, it was only with respect to non-contentious, as opposed to material matters.

[281] Mr. Vandersteen submits that the only reasonable inference available on the totality of the evidence is that Mr. Saleh was the shooter.

Position of the Defence

[282] Mr. Angelini, on behalf of Mr. Saleh, submits that Mr. Saleh’s account of his confrontation of Noran at the side of Noran’s van should be accepted: that is, he picked up a chair leg from the ground to defend himself in case Noran had a weapon; that he only used the chair leg to strike the side of the van; and that he did not try to hit Noran with it. He submits that Noran’s evidence regarding the confrontation was neither credible nor reliable.

[283] Mr. Angelini does not dispute that there is an available inference, based on the evidence, that Mr. Saleh was the shooter. Mr. Saleh was at the scene. He was holding a bag from which the gun could have come, and he showed considerable animus toward Noran. Indeed, the evidence may establish that Mr. Saleh is the most likely person to have fired the gun. However, there are other reasonable inferences that may be drawn from the evidence, or absence of evidence.

[284] Mr. Angelini submits that one reasonable possibility is that Little Man (Robert Janes) was the shooter. Little Man was at the scene and his DNA was found on one of the shell casings. The presence of his DNA on the casing puts the gun in Little Man’s hands. It is a reasonable inference that he loaded the gun. Little Man has a propensity for violence, as evidenced by his criminal record. Significantly, Mr. Saleh’s DNA was not on the casing. There is no forensic evidence linking Mr. Saleh to the gun. Mr. Saleh does not have a criminal record.

[285] Mr. Angelini acknowledged the possibility that Little Man could have handed the gun to Mr. Saleh when Noran suddenly showed up at the 1850 Victoria Park Avenue parking lot and as they were exiting the Mercedes. However, it makes no sense that Little Man would have first put the gun in a bag. It is more likely that he would have just handed the gun directly to Mr. Saleh so that it was easily accessible, rather than requiring Mr. Saleh to rummage for it in a backpack.

[286] Mr. Angelini submits that the fact that Noran was not hit with a bullet suggests that the shooter was not Mr. Saleh, as Noran was within point-blank range of Mr. Saleh. It is unlikely in these circumstances that he would have missed his target. Mr. Angelini submits that the Crown’s position that Mr. Saleh missed because he was drunk is not supported by the surveillance footage showing Mr. Saleh leaving 67 Parkwoods Village Drive at around 8:30 p.m. Mr. Saleh showed no signs of impairment at that time.

[287] Mr. Angelini submits that there is also a reasonable possibility that someone in the parking lot, other than Mr. Saleh or Little Man fired the gun. Noran and Mr. Saleh testified that there were a number of people by the Mercedes. Mr. Hwara ultimately adopted his evidence at the preliminary inquiry that there were “a bunch of people” in the lot. None of these people were called as witnesses, so it is not known if any of them had a motive to shoot Noran or had a propensity for violence. Although the Crown might argue that it is mere speculation to suggest that one of these individuals was the shooter, there is no burden on the defence to fill this gap in the evidence. Mr. Angelini noted that although the shots were fired from somewhere in the parking lot, it cannot be determined where exactly they came from, as the shell casings were moved prior to the arrival of the police.

[288] Mr. Angelini submits that it would be unsafe to rely on Noran’s evidence. Noran’s evidence is not credible, given the many inconsistencies in his evidence. Nor is his evidence reliable, given his admitted use of marijuana at various times during the day on June 21, 2017.

[289] Mr. Angeline submits that Mr. Saleh’s account of events was detailed and had the ring of truth. His evidence that he returned to the Alexandria to look for his phone and wallet should be accepted. Mr. Saleh had no way of knowing that Noran had returned to the parking lot, and therefore had no reason to bring a gun with him. The surveillance footage from 67 Parkwoods Village Drive does not support the Crown’s position that Mr. Saleh was carrying a gun on his person.

[290] Mr. Angelini questioned whether Mr. Saleh could have removed the gun from his backpack and fired it within one and a half seconds after Noran had hit him with the level and knocked him to the ground. Mr. Saleh testified that he fled the scene on foot because he thought that the shots were being fired at him and he was scared. His description of his flight and encounter with Moe, who gave him an oversized t-shirt, is supported by the evidence of Gabby and Nicole Pilgrim, as well as the surveillance footage, where he is seen wearing a large white t-shirt.

[291] Mr. Angelina submits that Mr. Saleh’s explanation as to why he intended to leave the country is credible given all of the circumstance – he was scared of what Noran and members of his family might do.

EVALUATING CIRCUMSTANTIAL EVIDENCE

[292] As stated in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, when the Crown’s case depends on circumstantial evidence, the Crown must demonstrate that an inference of guilt is the only reasonable inference available on the totality of the evidence. The approach to be taken by the trier of fact in assessing circumstantial evidence was described by the court at para. 37:

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.C.A. 11, at para. 20; R. v. Mitchell, 2008] QCA 394 (AustLll), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p.8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[293] The court, at para. 38, recognized that:

[t]he line between “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[294] At para. 36, the court observed that a reasonable doubt, or a theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence:

As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[295] It is important to remember that when the Crown relies on circumstantial evidence, the evidence must be evaluated as a whole, rather than as individual pieces. It is the cumulative effect of the relevant circumstances that must be assessed in determining whether the Crown has met its burden: R. v. Dodd, 2015 ONCA 286, [2015] O.J. No. 2129, at para. 59.

APPLICATION OF W.(D.)

[296] As stated at the outset of these reasons, the principles set out in W.(D.) apply. I must acquit Mr. Saleh if I believe his evidence or, even if I do not believe his evidence, I am left with a reasonable doubt by it. If I am not left with a reasonable doubt by his testimony, then I must determine whether, on the basis of the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt.

ANALYSIS AND FINDINGS

[297] In assessing Mr. Saleh’s evidence, I have considered it in the context of all of the evidence. I bear in mind that Mr. Saleh is not a professional witness, that he is facing a serious charge – attempt murder – and that testifying over a two-day period would obviously have been quite stressful.

[298] Mr. Saleh was 19 years old in June 2017. He is now 22. He has no criminal record but acknowledged that he has bought and sold marijuana in the past.

[299] Mr. Saleh was not entirely forthcoming in describing his employment. He initially stated that he worked for his father doing flooring. When questioned, however, as to why he described himself as unemployed on his passport application, he stated that he was “not really employed” and that he just “helped out” his father.

[300] Mr. Saleh provided considerable detail about the events that took place on June 21, 2017 and, in particular, how he ended up spending the better part of the day with Robert Janes, also known as Little Man, after a chance meeting outside The Beer Store. Crown counsel questioned the veracity of Mr. Saleh’s account and whether Little Man was ever in the red Mercedes or at the scene of the shooting. No other witness identified the driver of the red Mercedes. However, there is evidence that tends to support Mr. Saleh’s testimony as to how he and Little Man met and interacted with one another that day. I accept his evidence in that regard.

[301] Mr. Saleh testified that he and Little Man first met in grade school, when they were both attending Terraview-Willowfield Public School. There is no evidence, such as school records, to suggest that this was not the case.

[302] Mr. Saleh testified that in June 2017, he and Little Man were “just acquaintances” but would see each other from time to time in the neighbourhood. According to the agreed statement of fact, Little Man was living at 1441 Lawrence Avenue East in June 2017, which is not that far from the two residences where Mr. Saleh spent his time, namely, his parent’s place on Crocus Drive and Gabby’s apartment on Parkwoods Village Drive. It is plausible that Mr. Saleh and Little Man occasionally ran into each other, as attested to by Mr. Saleh. Mr. Saleh testified that he had been to Little Man’s apartment on a couple of occasions to buy weed.

[303] At the time of the shooting, the red Mercedes was parked in the small parking lot behind 1850 Victoria Park Avenue, which abutted 1441 Lawrence Avenue East. Little Man was connected to that lot, which was the scene of the shooting, not only by the proximity of his residence to it, but also by the fact that his DNA was on one of the shell casings found in the lot.

[304] Mr. Saleh’s account as to how he and Little Man happened to meet in the early afternoon on June 21, 2017 was quite detailed. That account was not shaken in cross-examination. He testified that he was walking back to Gabby’s apartment from his parent’s place when he saw Little Man coming out of The Beer Store and carrying a case of beer. They chatted for a while. Little Man invited Mr. Saleh back to his apartment, where Mr. Saleh drank at least two beers and smoked two or three joints of marihuana. They later met “P” at the back of the building, where Mr. Saleh smoked another joint. From there, the three men made their way over to the red Mercedes, which was parked in the small off-shoot parking lot behind 1850 Victoria Park Avenue. In order to get there, they walked through a hole in the fence separating that property from 1441 Lawrence Avenue East. Mr. Saleh was carrying his backpack, which contained his laptop and some clean clothes that he had picked up at his parents’ place.

[305] Little Man drove them in the Mercedes to a restaurant. While there, Little Man got a call, after which he told the others: “Let’s go.” He then drove them to the parking lot behind the Alexandria. Mr. Saleh had been to the café on other occasions but had never spent time in the back lot. Noran recalled that Mr. Saleh arrived at the parking lot in a red Mercedes and that there were three Black males with him. During his testimony, Noran consistently referred to there being “three Black males” with Mr. Saleh in the Mercedes. I accept, however, Mr. Saleh’s evidence that there were only two males in the car with him – namely, Little Man and P, both of whom were Black.

[306] It is clear that Mr. Saleh was drunk when he confronted Noran with the snitching allegations. Noran testified that Mr. Saleh was holding two bottles of beer as he exited the Mercedes and described him as “wasted.”

[307] Neither Noran’s nor Mr. Saleh’s recollection as to what Mr. Saleh said during this confrontation appears to be entirely accurate. Noran testified that Mr. Saleh accused Noran’s brother, Omer, and his cousin, Abdul, of being snitches and responsible for Mr. Saleh spending two years in jail. However, Mr. Saleh had never been arrested or been in jail.

[308] Mr. Saleh’s version of events was that Saif, whom he described as a friend, pointed out Noran to him and told him that Noran’s cousin – “some dude named Omer” – had snitched on Saif with respect to Saif selling weed. However, Noran referred to Saif as his friend. Saif was present in the parking lot when Mr. Saleh started yelling at Noran but did not go up to or confront Noran. Noran did not testify about having had any dispute or problem with Saif. Mr. Angelini suggested in his submissions that Mr. Saleh may not have been referring to the same “Saif.”

[309] In any event, there is no question that Mr. Saleh became very angry at Noran after hearing the snitching allegations, even though he and Noran had never met and there was no allegation, according to Mr. Saleh, that Noran himself was a snitch. Mr. Saleh was perhaps predisposed to strongly dislike “snitches” as, on his own admission, he was involved in buying and selling marihuana. He described himself as “devastated” upon learning that Noran’s cousin was a snitch and told Noran to “get the fuck out of here.”

[310] Noran testified that Mr. Saleh, while angry and drunk, broke one or more beer bottles in the parking lot. Mr. Saleh denied breaking any beer bottles. However, I accept Noran’s evidence in this regard. A photograph taken by Detective Weller later that night shows the remains of a broken beer bottle under a truck.

[311] Noran eventually drove off in his van but called his cousin, Abdul, to come and “solve” any problem he had with Mr. Saleh.

[312] When Abdul and his brother arrived, Mr. Saleh would have been even more intoxicated. He testified that after Noran’s departure and prior to Abdul’s arrival, he consumed one or two more beers, presumably from the case of beer purchased earlier by Little Man. He also smoked one or two more joints.

[313] Mr. Saleh’s testimony that he never saw who assaulted him is problematic. According to Mr. Saleh, there was no fight. All he did was try to protect himself after he was hit on the head from behind, fell to the ground, and continued to be hit. He curled up in a ball and held his hands up to his forehead to protect his face. He did not see who was attacking him but believed there was more than one person. He concluded that they were Noran’s cousins as they were accusing him of “talking shit” about their family. Mr. Saleh testified that he heard a screeching of tires when his assailants arrived and again when they left. However, on neither occasion did he see who they were.

[314] That the altercation actually began as a fist fight, in which case Mr. Saleh would have seen his attackers, is suggested by the surveillance footage of Mr. Saleh at 67 Parkwoods Village Drive when he returned there after the shooting. Mr. Saleh is seen re-enacting a fist fight while recounting the day’s events to his brother and sister outside the apartment building. I do not accept Mr. Saleh’s evidence that he did not see who attacked him or with whom he was fighting.

[315] Aside from how the fight may have started, it ended after two or three minutes, with Mr. Saleh on the ground and having sustained some significant injuries. In addition to various scrapes and bruises, Mr. Saleh had a large red welt or burn mark across his back and a small puncture wound on his right side.

[316] Noran did not see the first part of the fight. By the time he reached the rear parking lot, Mr. Saleh was already on the ground. Noran told Abdul to “stop fighting.” He testified that some of Mr. Saleh’s friends assisted him and then “took him home.”

[317] Mr. Saleh assumed that Little Man, Saif, and/or P helped him to his feet, as “they were my only friends there.” He drank another beer, after which his friend Habib El-Saad and Habib’s friend, Taza, dropped him off at Gabby’s apartment. Mr. Saleh was not sure whether Habib and Taza saw the beating.

[318] Crown counsel submits that Mr. Saleh’s account as to who drove him home is questionable, given his testimony that Little Man, Saif, and P were his only friends in the lot. However, it was never suggested to Mr. Saleh that someone other than Habib drove him home. He readily provided Habib’s last name when asked. I also note Noran’s testimony that he had seen Mr. Saleh talking to other people in the lot in addition to the “three Black guys” from the Mercedes. Noran testified: “There’s a lot of people that he knows. That’s what it looked like to me […].”

[319] Mr. Saleh initially testified that after the beating, he was “dazed,” as opposed to being angry with Noran. However, he agreed that he blamed Noran for setting up the assault and ultimately agreed that he was, in fact, very angry with him. It is fair to say that the beating added fuel to the fire in terms of Mr. Saleh’s animus toward Noran.

[320] When Mr. Saleh left the parking lot, he left his backpack containing his laptop and clothes in the red Mercedes. He testified that his wallet and phone were in his pants’ pockets when he was assaulted by Noran’s cousins. It was not until he woke up after falling asleep at Gabby’s place that he realized that his wallet and phone were missing. He testified that his motivation in returning to the Alexandria was to look for these items.

[321] Mr. Vandersteen submits that it is highly unlikely that Mr. Saleh would not have realized before he left the parking lot that he did not have his phone, given the frequency with which young people make use of their phones. He noted that Mr. Saleh drank a beer after the assault and was then driven home. Mr. Vandersteen submits that at some point during that interval, it would have been natural for him to call someone, such as Gabby, to tell them about the beating. Mr. Vandersteen submits that Mr. Saleh went to Gabby’s apartment after the beating for the express purpose of retrieving a firearm and that his real reason for returning to the Alexandria was not to look for his phone or wallet but to confront Noran, although he may not have had the intention at that time to kill him.

[322] I accept Mr. Saleh’s evidence that he did not realize that his phone and wallet were missing until after he woke up at the Pilgrims’ apartment. One reason that he may not have noticed that these items were missing was his state of intoxication when he left the Alexandria. He was also out of sorts after the assault, which was, by all accounts, quite brutal.

[323] Mr. Saleh’s evidence that he did not discover that his phone and wallet were missing until after his nap was supported by Nicole Pilgrim’s testimony. Nicole was home with her youngest daughter when Mr. Saleh returned to the apartment. She was in the bathroom when her daughter knocked on the door and told her that Mr. Saleh needed her help. Nicole found Mr. Saleh lying face down on the bed in her bedroom. He was shirtless and sobbing. She applied some ointment to his injuries, after which Mr. Saleh fell asleep. When he woke up about half an hour to an hour later, he was “flipping out” about his missing phone and wallet and insisting that he had to go back to the Alexandria to get his “stuff.”

[324] Although Nicole, as the mother of Mr. Saleh’s girlfriend, is obviously close to Mr. Saleh, I found her testimony to be credible and reliable. She gave her evidence in a straightforward manner. She appeared to take care to be as accurate as possible in describing events. I note that her evidence regarding the issue of whether Mr. Saleh had the opportunity to retrieve a gun from the apartment was of no assistance to Mr. Saleh. Nicole acknowledged that she did not know what rooms Mr. Saleh may have entered when he first arrived at the apartment, as she was in the bathroom. She was also not aware of what rooms he went into after he woke up and before he joined her in the living room. In other words, according to Nicole’s evidence, if Mr. Saleh had hidden a gun in the apartment, he had ample opportunity to retrieve it without her knowledge.

[325] There can be no doubt that Mr. Saleh had, in fact, lost his phone, as he had to borrow Nicole’s phone in order to summon the Uber to take him back to the Alexandria. Mr. Saleh’s ordering of the Uber, in itself, suggests that he did not have his phone – if he had his phone, which would have contained his friends’ phone numbers, he would most likely have just called one of them and asked for a ride rather than paying for an Uber.

[326] The finding that Mr. Saleh had lost his phone is also supported by the evidence of Gabby, who testified that she called him several times that day, but he did not answer. In addition, after the shooting, Mr. Saleh had to borrow Gabby’s phone to call his brother. When Mr. Saleh was arrested on June 23, 2017, he had his sister’s phone.

[327] There is also no doubt that Mr. Saleh lost his wallet, which contained his identification papers – hence his attendance at Service Ontario on June 23, 2017 to obtain OHIP coverage and a temporary driver’s licence, which he required for his passport application.

[328] Crown counsel submits that Mr. Saleh’s real intention in returning to the Alexandria was to confront Noran and not to look for his phone or wallet. He submits that Mr. Saleh’s evidence that he returned to the Alexandria to look for his phone and wallet is undermined by his evidence in re-examination, when he stated that he thought that the people who beat him up had robbed him of these items. If that were the case, there was no point in his returning to look for the phone and wallet as he already knew what had happened to them – they were not lost but had been taken from him. However, the question posed to Mr. Saleh in re-examination was not directed at what Mr. Saleh thought had happened to these items when he was at the Pilgrim residence and ordering an Uber to take him back to the Alexandria. Rather, it was directed at what he came to believe after the shooting and upon some further reflection on the matter:

Q. You were also asked questions about not – doing nothing to find your wallet and your phone. After the shooting had taken place and you had an opportunity to sort of reflect upon what had happened, did you – what did you think had happened to your wallet and your phone?

A. I thought I got robbed.

Q. By whom?

A. By the people that beat me up. [emphasis added]

[329] When Mr. Saleh left the Pilgrims’ apartment, he most likely did not know whether Noran was at the Alexandria – since he did not have a phone, his friends there had no way of letting him know that Noran had returned to the lot.

[330] The fact that Mr. Saleh returned to the Alexandria to look for his phone and wallet and did not know if Noran was there does not foreclose the possibility that he armed himself with a gun before leaving the apartment. It is possible that he retrieved a gun as a protective measure before returning to the place where he had earlier suffered a fairly severe beating, although, according to Mr. Saleh, his assailants made no threats to return to the parking lot or to shoot him.

[331] Based on Nicole Pilgrim’s evidence, Mr. Saleh had the opportunity before he headed back to the Alexandria to retrieve a gun that he may have secreted in the apartment on an earlier date. Gabby testified that Mr. Saleh did not have his own storage area within the apartment. However, that fact would not have prevented him from hiding a firearm somewhere within the residence, such as behind a piece of furniture, without the knowledge of the other occupants.

[332] The surveillance footage of Mr. Saleh as he left 67 Parkwoods Village Drive shows him descending the stairs to the ground floor of the building. Mr. Saleh’s right hand was holding on to the area of his belt buckle. His left thumb was hooked over his belt on his left side. When he reached the glass door leading to the lobby, he paused for seven to eight seconds and was bent over at the waist for a brief moment before entering the lobby.

[333] The surveillance footage from the camera in the lobby shows Mr. Saleh as he paused on the other side of the glass door. Both of his hands were engaged in doing something at his waist in the area of his belt buckle. When asked, Mr. Saleh could not recall exactly what he was doing but thought that he was probably adjusting his belt. His hand movements could also be consistent with adjusting an object in his pants. As he walked through the lobby, Mr. Saleh very briefly touched his waist area near his belt buckle but over his sweater. Footage from another camera shows him again briefly touching the area of his waist after exiting the building.

[334] There were no obvious bulges in Mr. Saleh’s clothing, which consisted of jeans, a t-shirt, and a sweater that was not particularly bulky. There was nothing unusual about Mr. Saleh’s gait as he walked through the lobby and foyer, and then exited the building. He sat on some rocks at the front of the building as he waited for the Uber. When it arrived, he walked briskly toward it and got into the rear passenger seat.

[335] Mr. Angelini submits that it would have been difficult or uncomfortable for Mr. Saleh to sit on the rocks or in a car with a firearm secreted in his pants. Crown counsel noted that there is no evidence before the court one way or the other with respect to this issue.

[336] The surveillance footage of Mr. Saleh pausing in the stairwell before entering the lobby, his hand movements in the area of his belt buckle, and the touching of his waist two times suggest that he could have been carrying a gun. However, the footage alone is certainly not conclusive in that regard, particularly in the absence of anything unusual in Mr. Saleh’s gait or any bulges in his clothing. The footage, of course, must be considered along with, and in the context of, all of the evidence, including the surveillance footage from the Alexandria parking lot.

[337] Mr. Vandersteen submits that the footage of the Alexandria lot undermines Mr. Saleh’s evidence that he returned there to look for his phone and wallet, as he does not appear to be looking around or searching the ground for any lost items. Instead, after getting out of the Uber, Mr. Saleh went over to the red Mercedes and leaned into the car on the passenger side for a few seconds. Mr. Vandersteen submits that Mr. Saleh, having retrieved a gun at Gabby’s place, handed it off to someone in the red Mercedes. Based on Mr. Saleh’s evidence, that individual would have been Little Man, although Mr. Saleh denied that he had a gun or passed it off to anyone.

[338] In my view, the footage lends some support to Mr. Saleh’s evidence that he returned to the lot to look for his phone and wallet. The footage shows that Mr. Saleh exited the Uber from the right rear passenger seat, which is consistent with where he entered the car back at 67 Parkwoods Village Drive. The red Mercedes was parked in a spot to his right and only a short distance ahead of where the Uber stopped to let him out. It would have been clearly visible to Mr. Saleh when he got out of the car. However, Mr. Saleh did not go directly over to the Mercedes. Instead, he walked around the back of the Uber and took a few steps toward Athir, who was seated on a chair across from the Mercedes.

[339] Mr. Saleh testified that he asked Athir, “Where’s my stuff,” referring to his phone and wallet. Athir, in response, pointed to the red Mercedes. The surveillance footage confirms this brief interaction between Mr. Saleh and Athir: Athir did, in fact, gesture with his arm and point toward the Mercedes. Mr. Saleh then approached the Mercedes and, according to his testimony, asked Little Man if he had seen his stuff. Little Man told him “no.” Mr. Saleh also testified that he asked Little Man to cover him during his anticipated fight with Noran when he realized that Noran was present in the lot.

[340] Mr. Saleh leaned into the Mercedes for about five seconds. There are no body movements made by Mr. Saleh that would be consistent with his passing something to someone in the car. That said, the view of Mr. Saleh’s body is, to a large extent, obstructed by the Mercedes. It is not possible to see what Mr. Saleh may or may not have been doing with his hands.

[341] After leaning into the car, Mr. Saleh stood up, turned around, and appeared to speak very briefly to someone in the car parked beside the Mercedes. Mr. Saleh identified that person as V.

[342] It is clear that when Mr. Saleh realized that Noran was in the parking lot, he became enraged and abandoned any intention he may have had to search for his phone and wallet. Mr. Saleh was still angry about the “snitching” allegations and held Noran responsible for the assault that he had suffered at the hands of Noran’s cousins.

[343] If Mr. Saleh was in possession of a gun when he returned to the parking lot, he refrained from using it to intimidate or shoot Noran, despite the rage that he felt toward him. Instead, Mr. Saleh vented his anger by arming himself with a knife or chair leg, confronting Noran, and challenging him to a fight. Mr. Angelini submits that the fact that Mr. Saleh did not produce a gun when he confronted Noran indicates that he did not have a gun.

[344] Mr. Vandersteen submits that Mr. Saleh was carrying a gun but, in light of his decision to challenge Noran to a fight, could not keep it on his person. The gun would have been exposed when Mr. Saleh tore off his shirt to show Noran his injuries. It would also likely be exposed during a fight in the event that Noran took him up on his challenge. Mr. Vandersteen submits that Mr. Saleh therefore handed off the gun to someone when he leaned into the Mercedes. As noted earlier, that person, based on Mr. Saleh’s evidence, would have been Little Man.

[345] The surveillance footage shows that shortly after Mr. Saleh left the Mercedes and headed over to Noran’s van, Little Man backed the Mercedes out of its parking spot and drove closer to the area where Mr. Saleh was confronting Noran. At the same time, V exited the car parked beside the Mercedes. Mr. Saleh testified that Little Man and V took these actions because he had asked them to back him up during his fight with Noran. Little Man’s moving of the Mercedes to a position where he would be closer to the fight is consistent with his acting as a backup or cover for Mr. Saleh. As it turned out, Mr. Saleh did not require any cover, as Noran refused to get out of his van and drove away.

Whether Mr. Saleh was holding a knife or a chair leg when he approached Noran at the Alexandria Parking Lot

[346] Mr. Saleh denied being in possession of a knife when he approached Noran’s van. He testified that he picked up a piece of wood, which resembled a chair leg, from some garbage strewn around the area where the van was parked and began banging it against the van in order to scare Noran. He acknowledged yelling at Noran and telling him to get out of the van and fight.

[347] Mr. Saleh’s confrontation of Noran at the side of the van took place out of range of the surveillance camera. However, he does not appear to have anything in his hands as he strode away from the Mercedes, which is consistent with his evidence that he picked up whatever he had in his hand in the vicinity of the van. Nader Badreddine confirmed in his testimony that there was a dumpster in front of the van and that there was all sorts of litter strewn about on the ground. Nader described the parking lot as a “warehouse for junkies.”

[348] Although Nader initially testified that Mr. Saleh was holding an object that “looked like a knife,” it became clear in cross-examination that Nader was in no position to see what Mr. Saleh had in his hand. Nader was seated in a “low-profile” BMW, which was parked beside Noran’s cargo van. The vehicles were separated by about three feet. The van was about five feet wide. Thus, Nader was about eight feet away from the altercation between Mr. Saleh and Noran, which was taking place on the other side of the van. He testified that the only way that he could have seen what was happening between Mr. Saleh and Noran would have been to stick his head out the driver’s window and look upward – an action that he did not take.

[349] Nader would have been able to see the back of Noran’s head and perhaps some jostling, but little else, as Noran’s body would have blocked his view. On the cell phone video, Nader can be heard asking, “What’s going on?”, which is consistent with his not knowing or being able to see what was happening. Nader ultimately agreed that he could not see what Mr. Saleh had in his hand and that he came to believe that he was holding a knife as a result of what his girlfriend, Marija, had told him.

[350] During his police interview on June 22, 2017, Noran stated that Mr. Saleh was holding a knife. However, Noran expressed great uncertainty in that regard during his testimony at the preliminary inquiry. He explained that although he told the police the truth (as he believed it to be at the time), he now realizes that he made some mistakes and explained some things incorrectly during the interview. He expressed a desire to redo this particular part of his statement.

[351] Noran testified that since the object that Mr. Saleh was holding was wrapped in Mr. Saleh’s t-shirt, he “didn’t see it well.” He only saw part of the object and never saw a blade or any silver that would indicate that there was a blade. What he saw was “brownish” in colour. He testified that it was possible that the object was a knife, but it was equally possible that it was a piece of wood. Noran explained that part of the reason that he jumped to the conclusion that it was a knife was because other people at the scene had told him that it was a knife.

[352] Noran noted that he only had a brief amount of time to make his observations of the object because everything happened so fast.

[353] Noran also testified that at the time of the interview, he was angry about being shot at and angry with Mr. Saleh because Mr. Saleh had spoken disrespectfully of his brother and cousin. This led him to jump to the conclusion that Mr. Saleh had a knife, just as it also caused him to jump to the conclusion that Mr. Saleh had stolen his van after the shooting, even though Noran never saw Mr. Saleh getting into the van.

[354] Police photographs of the scene show neither a chair leg nor a knife in the area where the van was parked. I note, however, that no photographs were taken of the contents of the dumpster, which was in front of the van. Mr. Saleh testified that he could not recall what he did with the chair leg. The surveillance footage shows him chasing the van through the parking lot immediately after the confrontation. The only items in his hand at that time were his sweater and t-shirt.

[355] In summary, Nader was not in a position to see what Mr. Saleh was holding in his hand when he approached the van. Nader was simply relying on what his girlfriend told him when he testified that Mr. Saleh had a knife. Noran was also influenced by the fact that other people at the scene had told him that Mr. Saleh had a knife. After reflecting on what he had actually seen, Noran concluded that it was possible that Mr. Saleh had a knife but equally possible that he was holding something other than a knife. In the end, Noran’s statement during his police interview that Mr. Saleh was holding a knife is not reliable.

[356] As noted earlier, Mr. Saleh does not appear from the surveillance footage to have anything in his hands as he left the Mercedes and headed off to the van to confront Noran.

[357] I accept Mr. Saleh’s evidence that he did not have a knife and that he was holding a piece of wood or a chair leg that he picked up from the ground in the area of the dumpster before confronting Noran.

Whether Mr. Saleh assaulted Noran with the chair leg as Noran was seated in the van

[358] Mr. Saleh denied reaching into the van and attempting to hit Noran with the chair leg. He testified that he grabbed the chair leg to defend himself in case Noran got out of the van and was armed with a weapon. Although Mr. Saleh had not seen Noran with any weapon that day, he noted that the people who had beaten him up had used some sort of weapon.

[359] Mr. Saleh testified that he began hitting the van with the chair leg in order to scare Noran and to get him out of the van. That Noran was, in fact, scared and intimidated by Mr. Saleh’s actions with the chair leg is apparent from Mr. Saleh’s own evidence: he described Noran as driving away “in a panic, very fast.”

[360] Mr. Saleh was clearly in a highly agitated state and furious with Noran when he confronted him at the side of the van. He tore off his shirt and sweater so that he could show Noran the injuries that he had sustained. He was yelling and screaming and demanding that Noran get out of the van and fight with him. He was infuriated when Noran refused to get out of the van, refused to fight with him, and instead was telling him to calm down and relax. Mr. Saleh’s level of anger and frustration are apparent from the way that he ran after the van as Noran drove out of the parking lot.

[361] Mr. Vandersteen submits that given the intensity of Mr. Saleh’s anger, he did more with the knife or, as I have found, the chair leg, than just use it to scare Noran and hit his van. He submits that Mr. Saleh reached into the van while holding the chair leg in an attempt to assault Noran.

[362] Noran testified that while he was holding onto Mr. Saleh’s hand – that is, the hand that was holding the chair leg – Omar Khalil pulled Mr. Saleh away from the van, at which point Mr. Saleh’s t-shirt, which was wrapped around the chair leg, came off in Noran’s hand. Noran testified that the t-shirt was in his van for about 20 minutes before he threw it in the garbage.

[363] Noran was clearly mistaken in his recollection of the t-shirt coming off in his hand at that point, as the surveillance footage shows Mr. Saleh holding his t-shirt and sweater as he chased the van following the confrontation. Mr. Saleh was still holding the t-shirt and sweater when the van re-entered the lot and clipped him on the shoulder. That event was just out of range of the surveillance camera, although Mr. Saleh is seen stumbling or losing his footing after being struck by the vehicle. He was no longer holding his t-shirt or sweater at that point.

[364] It is likely, in my view, that the t-shirt and sweater ended up in the van as Noran clipped Mr. Saleh’s shoulder and Mr. Saleh let go of the items. However, it is doubtful that Mr. Saleh would have deliberately reached through the driver’s window as the van passed by, given the speed of the vehicle. The surveillance footage shows that Mr. Saleh did not have a weapon in his hands when he was struck by the van.

[365] Neither the t-shirt nor the sweater is seen in the police photographs of the area where the van hit Mr. Saleh. It appears that Mr. Saleh left the scene without them as he was shirtless when he left the Alexandria parking lot and when he arrived at the parking lot behind 1850 Victoria Park Avenue. The fact that he no longer had these articles of clothing suggests that they ended up in the van when it sideswiped him.

[366] The police located the van on June 29, 2017, or eight days after this incident. Photographs taken by the police on July 3, 2017 show a white t-shirt and a grey sweater lying crumpled together on the floor in the back of the van. Noran was unable to identity either of these items but suggested that they may have been his.

[367] One feature of Mr. Saleh’s sweater that would have made it more readily identifiable was a pattern of orange and black triangles down the centre of the front of the sweater. No such pattern is visible on the sweater in Noran’s van but, as noted, the pattern was only in a line down the front of the sweater. The sweater in the van appears to be a similar texture and colour as Mr. Saleh’s sweater, as seen in the surveillance footage when he left 67 Parkwoods Village Drive. Mr. Saleh testified that he could not say if the shirt and sweater ended up in the van or if the shirt, as seen in the photograph, was his.

[368] In my view, it is likely that the shirt and sweater in the van belonged to Mr. Saleh and that they ended up there when the van struck him. However, as noted earlier, it is unlikely that Mr. Saleh deliberately reached into the van at that point, given the speed of the vehicle. Mr. Saleh was not holding a weapon in his hand at that time. The question remains as to whether Mr. Saleh reached into the van at any point while holding the chair leg.

[369] Noran had a more detailed recollection of the confrontation during the police interview than at the preliminary inquiry. This is not surprising, given the passage of time. His account of the confrontation during the interview appeared to be spontaneous and not contrived. He described to the officers Mr. Saleh’s actions with respect to the knife, or what Noran believed at the time to be a knife, and how he attempted to defend himself when Mr. Saleh suddenly confronted him as he was seated in his van:

And the guy come up with the knife to a point. I had him good. So he holding my t-shirt right here. Even if you see this scratch right here.

[370] At this point in the interview, Noran demonstrated how Mr. Saleh had grabbed his t-shirt. Noran pulled down the front of his t-shirt and showed the officers the scratch on his neck that was caused when Mr. Saleh grabbed his shirt. Noran described how he used both of his hands to hold or restrain Mr. Saleh’s other hand, which was holding the knife or chair leg. Noran let go of Mr. Saleh’s hand with one of his hands so that he could put his vehicle in gear and drive away:

He has a piece of knife, and he wants to stab me. I held him with two hands, and after I hold him with two hands, I left one hand, I put one my car on, on D, I drove.

[371] Noran referred several times during the interview to the scratch or mark on his neck caused by Mr. Saleh holding on to him “so tight” while Noran was holding Mr. Saleh’s other hand, which was holding what Noran believed at the time to be a knife. Examples of these references include the following:

And then there’s a guy who’s telling me, yo, yo, yo, and I looked and then he’s coming with a knife. So that time I hold him like that. I’m like, yo, you know what I mean? I couldn’t close the window. So he was like inside, already holding me, right? Even you see the mark. He’s holding me like that, so tight, ‘cause my two hands are on his hand … the one on the knife, okay? So I lift one hand, I put it on D, I push on gas. I mean, on reverse. I put in reverse, I pushed that, I reverse, okay? And then I put it on D and I left [emphasis added]; and

That’s he grabbed me right there [indicating the area of his neck] but I don’t think I have injuries … just scratches.

[372] When Noran testified at the preliminary inquiry, he was no longer certain that Mr. Saleh was holding a knife and allowed that it could have been a piece of wood. However, he maintained that the hand in which Mr. Saleh was holding the knife or piece of wood was inside the van.

[373] It is clear that Noran was very frightened by Mr. Saleh’s behaviour. Nader testified that Noran backed up so fast that he almost hit Nader’s car. The intensity of the confrontation by Mr. Saleh of Noran is apparent from the cell phone video. Mr. Saleh was so angry that when Noran managed to get his vehicle in gear and drive away, Mr. Saleh chased after him through the parking lot.

[374] I did not find Mr. Saleh’s denial that he reached into the van to be credible. I note that in cross-examination, Mr. Saleh initially down played or denied that he was angry with Noran after he was beaten up by Noran’s cousins and claimed that he was only “dazed”:

Q. … Now on Friday you were asked by your lawyer what kind of condition you were in after you got beaten up and you described yourself as dazed and I’m going to suggest to you that you were actually more than just dazed. You were quite angry.

A. I was angry?

Q. Yes.

A. No, I was dazed.

[375] Only later on during his testimony did Mr. Saleh admit that he was, in fact, angry with Noran, as he believed that Noran had set up the assault.

[376] There can be no doubt that Mr. Saleh was enraged when he confronted Noran by the side of the van. He became even angrier, more frustrated, and was humiliated when Noran refused to get out of the van and fight with him. Instead, Noran tried to calm him down. I am satisfied that as a result of his anger and frustration, Mr Saleh reached into the van, as described by Noran during his police interview, in an effort to force Noran out of the van. He grabbed at the neck of Noran’s t-shirt with one hand, causing the scratch or scratches to Noran’s neck. At the same time, Noran was holding on to and trying to restrain Mr. Saleh’s other hand, which was holding the chair leg.

[377] In summary, I do not believe Mr. Saleh’s evidence that he did not reach into the van. His evidence does not raise a reasonable doubt. I am satisfied that Mr. Saleh, while holding the chair leg in one hand, reached into the van with his other hand and grabbed Noran’s t-shirt, causing the scratches to Noran’s neck, which Noran showed to the officers during his interview. At the same time, Noran tried to restrain Mr. Saleh from using the chair leg by holding on to Mr. Saleh’s other hand.

[378] After considering all of the evidence and the submissions of counsel, I am satisfied beyond a reasonable doubt that Mr. Saleh assaulted Noran while using a weapon, that is, the chair leg. Mr. Saleh is found guilty on Count 1.

Counts 2-6: Whether Mr. Saleh was the shooter

[379] Mr. Angelini submits that Mr. Saleh’s confrontation of Noran while armed with a chair leg indicates that he did not arrive at the parking lot with a gun. Mr. Angelini queries why, if Mr Saleh had a gun, he would pass it off and not use it to shoot or at least intimidate Noran. Instead, Mr. Saleh confronted Noran with a random piece of wood that he picked up in the parking lot.

[380] There is no doubt that when Mr. Saleh saw Noran, his anger flared – he was angry with him because he believed he or members of his family were snitches and that Noran was responsible for the assault perpetrated on him by Noran’s cousins. However, it is apparent that Mr. Saleh’s anger, as intense as it was with respect to these matters, did not translate into an intent to kill Noran. Noran had not as yet further angered Mr. Saleh by refusing to get out of his van and fight with him. He had not as yet sideswiped Mr. Saleh with his vehicle or attacked him with the level. Mr. Saleh’s animus toward Noran when he returned to the Alexandria motivated him to scare and intimidate him, challenge him to a fight, and led to his assault of Noran in the manner described earlier. I am satisfied, however, that he did not intend to kill Noran. Mr. Saleh had a much stronger motive to cause harm to Noran by the time they were in the smaller lot behind 1850 Victoria Park Avenue.

[381] Mr. Vandersteen listed a number of reasons why Mr. Saleh would not have produced the gun to intimidate or shoot Noran at the Alexandria parking lot: it was still daylight; the lot was well lit; the surveillance cameras were clearly visible; and there were a lot of people present, including some of Noran’s friends. By contrast, the small off-shoot parking lot behind 1850 Victoria Park Avenue was darker, poorly lit, and there were no surveillance cameras. There were not as many people present, and those who were there were friends or acquaintances of Mr. Saleh. Noran was by himself.

[382] The reasons outlined by Mr. Vandersteen as to why Mr. Saleh would not likely have produced a gun, assuming that he was armed when he arrived at the Alexandria, are rational reasons. They make sense. However, as Mr. Angelini pointed out, Mr. Saleh did not appear to be acting in a rational way at the time. He tore off his t-shirt and sweater, he was yelling and screaming, banging on Noran’s van etc., and apparently not at all concerned about making a spectacle of himself in front of everyone in the parking lot. Given Mr. Saleh’s irrational behaviour, he may have produced a gun, if he had access to one, if only to intimidate Noran. The fact that Mr. Saleh did not produce a gun suggests that he may not have had a gun.

[383] Based on the evidence, it cannot be said that Mr. Saleh “chose” the smaller lot over the Alexandria parking lot as the “better” or “preferable” place to intimidate or shoot Noran. When Mr. Saleh arrived at the Alexandria, he would have had no expectation of seeing Noran again later that night at another locale. He could not have foreseen that Noran would show up at the smaller lot behind 1850 Victoria Park Avenue. Mr. Saleh did not follow Noran to the smaller lot: it was the other way around – Noran followed Mr. Saleh there. Noran wanted to keep tabs on Mr. Saleh so that he could tell the police where he had gone. Noran acknowledged that the occupants of the red Mercedes would not have been aware that he was following them.

[384] Mr. Saleh testified that he felt shocked and dizzy after he was struck by Noran’s van. Noran drove off and Mr. Saleh got into the rear passenger seat of the red Mercedes. P got into the front passenger seat. Little Man then drove them to the lot behind 1850 Victoria Park Avenue and parked the Mercedes in the same spot where it had been parked earlier that day. Athir and V arrived in their own respective vehicles. Mr. Saleh testified that they intended to go back to Little Man’s apartment and “chill.” There is no evidence to suggest otherwise.

[385] After sideswiping Mr. Saleh with his van, Noran had driven to a nearby mall and waited for the Mercedes to leave the lot. When he saw it pull out onto Lawrence Avenue, he tried to follow it but then lost track of it. He returned to the Alexandria, inquired of someone as to the whereabouts of the Mercedes, and was directed to 1850 Victoria Park Avenue. By the time Noran arrived there, the Mercedes was already parked in the lot and the “three Black guys” were out of the vehicle. Mr. Saleh was in the course of getting out of the car.

Noran’s Arrival at the parking lot behind 1850 Victoria Park Avenue

[386] Noran testified that he did not drive into the small lot but parked at the entranceway and about eight metres from the Mercedes. Noran’s evidence in this regard was supported by the testimony of Mr. Hwara, who saw him park the van at the entranceway in such a way that it would have blocked other vehicles from entering or exiting the lot. I accept Noran’s and Mr. Hwara’s evidence as to where the van was parked. I find that Mr. Saleh was mistaken when he testified that the van was parked inside the lot and very close to the Mercedes.

[387] Noran testified that there were other vehicles in the lot, including a white car, a couple of other cars, a van, and a boat. There were also a “lot of other people” in the lot. In particular, there were three or four men who appeared to be with Mr. Saleh and the “three Black guys.” They were all standing outside their cars when Noran arrived. Noran was able to give a limited description of some of these individuals. He did not know or recognize any of them and had not been involved in any altercations with them.

[388] Mr. Hwara, who was standing in the centre of the larger lot when Noran arrived on scene, testified that the small lot was used as a place to park vehicles in need of repair and that people generally did not hang out there. He testified that he saw a “bunch of people” in the smaller lot on the evening of June 21 but only after the shooting and as people got into the red Mercedes, the gold-coloured car, and Noran’s van, and then drove off. Mr. Hwara agreed, however, that at the preliminary inquiry, he testified that there were a “lot of people” or a “bunch of people” in the smaller lot when the driver of the van – referring to Noran – ran into the lot while carrying the level. Mr. Hwara agreed that he was telling the truth at the preliminary inquiry and that his memory would have been fresher then that it is now. Mr. Hwara ultimately adopted his testimony at the preliminary inquiry.

[389] I find that in addition to the men who had been in the Mercedes, there were “a bunch” of other individuals standing in the area and outside their vehicles, including Athir and V.

[390] Noran testified at the preliminary inquiry that he grabbed the level from his van to protect himself in case “anything happened.” As he was walking toward Mr. Saleh, he saw Mr. Saleh lean into the Mercedes and retrieve a bag. When Mr. Saleh turned around, his hand was in the bag. The “three Black guys” were around Mr. Saleh at that time. Other people were standing outside their cars.

[391] Noran further testified that as he was walking toward Mr. Saleh, Mr. Saleh started walking toward him. Noran was walking faster than Mr. Saleh, who was “wobbling.” Noran thought that he was drunk. Noran was talking to Mr. Saleh, but Mr. Saleh did not say anything to him. When they were half a metre to one metre apart, Noran hit Mr. Saleh with the level. He testified that he hit him because he did not know what Mr. Saleh had in the bag. He thought that Mr. Saleh was going to pull something out of the bag, use it to hit him, and then run after him.

[392] Noran testified that he did not hit Mr. Saleh hard with the level. He just hurt him “a little bit.” He thought that the level may have struck Mr. Saleh’s shoulder but he was not sure. He did not know if Mr. Saleh fell down because he turned around right away and started to run. There were people standing behind Mr. Saleh. Noran estimated that he was only about three metres from Mr. Saleh when the shots were fired. He heard two or three shots one and a half seconds after he turned to run.

[393] Noran’s account at the preliminary inquiry regarding events in the parking lot was inconsistent in a number of respects with statements that he made during his recorded interview and to Officers Seaban and Ko. Some of these inconsistencies are referred to below.

Noran’s use of the level

[394] Noran initially downplayed his use of the level. During his police interview and in his examination-in-chief, he stated that he threw the level at Mr. Saleh and “hurt him just a little bit.” However, in cross-examination, Noran testified that he swung the level at Mr. Saleh and did not let go of it until it made contact with him. In demonstrating how he swung the level, Noran raised his right arm in an overhead swinging gesture. His demonstration as to how he hit Mr. Saleh with the level is supported by the evidence of Mr. Hwara. Although Mr. Hwara did not see Noran strike Mr. Saleh, he described him as holding the level over his head as though he was about to attack someone. Mr. Hwara lost sight of Noran after Noran ran from the van and into the parking lot, as there were a lot of cars obstructing his view. Shortly thereafter, Mr. Hwara heard the gunshots.

[395] Noran was certainly close enough to Mr. Saleh to have struck him with the level. They were only half a metre to one metre apart at the time.

[396] Mr. Saleh testified that he was just getting out of the Mercedes when he heard the screeching of tires. When he looked over to see what the source of the sound was, he saw Noran running at him with what he thought was a pole. Mr. Saleh, like Mr. Hwara, described Noran as holding the level over his head. He testified that Noran brought it down and “bashed” him with it. Mr. Saleh put up his left hand to block the blow. As a result, the level hit the back of his hand, which then hit his forehead. Mr. Saleh described the force of the blow as “very hard.” He dropped his backpack and was knocked to the ground.

[397] I am satisfied that the injury to the back of Mr. Saleh’s left hand, as seen in the police photographs, was sustained at this time, and not during the earlier assault by Noran’s cousins at the Alexandria or during the course of Mr. Saleh’s arrest on June 23, 2017. I note that when Mr. Saleh returned to 67 Parkwoods Village Drive after the shooting, the surveillance footage shows him as he was relating some of the events of that evening to his brother and sister. Mr. Saleh is seen holding out his hand as his brother leaned over to examine it. Nicole Pilgrim also observed the injury to Mr. Saleh’s hand that night when he returned to the apartment. She described his hand as very swollen. She thought that it might have been broken. The impact of this injury is relevant with respect to whether Mr. Saleh could have retrieved a gun from his backpack and fired it within one and a half seconds after being struck with the level.

Noran’s description of the bag that Mr. Saleh was carrying and whether he saw a gun

[398] During his police interview, Noran gave a very sparse description of the bag that Mr. Saleh retrieved from the Mercedes. He described it as a dark grey cloth bag but could not say what kind of bag it was. At the preliminary inquiry, he testified that it was a backpack.

[399] During his police interview, Noran stated that he was sure that Mr. Saleh was pulling out a gun from the bag and that he was going to shoot him. He made it clear during the interview that he never actually saw the gun but that he believed Mr. Saleh had a firearm based on what he perceived to be the shape of Mr. Saleh’s hand inside the bag.

[400] At the preliminary inquiry, Noran testified that he did not know what was in the bag but thought that Mr. Saleh was going to pull something out of it, hit him with it, and then run after him, which is inconsistent with his earlier statement that he thought Mr. Saleh was going to shoot him. In cross-examination, Noran acknowledged that he could not see the contents of the backpack or what Mr. Saleh’s hand looked like inside it, because the backpack was opaque. Noran explained that during the police interview, he assumed that there was a gun in the bag because the shots were fired just after he turned and ran. He also testified that he was nervous, scared, and angry with Mr. Saleh when he spoke to the police and that these feelings led him to jump to the conclusion that Mr. Saleh had a gun in the bag.

[401] Officers Seaban and Ko spoke to Noran at his uncle’s apartment at 9:17 p.m. on the night of the shooting and prior to his recorded police interview. Noran, in response to questions posed by Ko, gave a different version of what he saw just before the shots were fired. Notably, he made no mention of Mr. Saleh carrying a bag or pulling a gun out of a bag. Rather, he stated that Mr. Saleh pulled a gun from his waist and fired three shots. Seaban also recorded Noran as stating that the suspect “had a black gun, he thinks.”

[402] Seaban did not pose any questions to Noran but played the role of scribe in terms of recording Noran’s responses to Ko’s questions. Seaban had twelve years of experience with the Toronto Police Service at the time and had received training in notetaking. He made his notes as Noran was speaking. He testified that one of his purposes in making the notes was to create a written record of the information given by Noran so he could pass it on not only to the detectives but also to officers in the field, as the investigation was ongoing at the time. Seaban was acutely aware of the importance of making accurate notes of what the complainant in the case was telling him. I am satisfied that Seaban accurately recorded the information provided by Noran, although it was not a verbatim recording.

[403] The inconsistencies between Noran’s statements to Ko, his statements during his recorded interview at the police station, and his testimony at the preliminary inquiry are far from trivial. In summary, Noran made no mention to Ko that Mr. Saleh was carrying a bag. He simply stated that Mr. Saleh pulled a gun from his waist, fired three shots, and he thought that the gun was black. During his later recorded interview, Noran clearly stated that he never saw a gun. He then went on to explain at great length why he came to believe that there was a gun in the bag and that Mr. Saleh was going to take it out and shoot him. At the preliminary inquiry, Noran acknowledged that he could not possibly have seen what was in the backpack or the shape of any object in the backpack, including Mr. Saleh’s hand. Noran no longer believed that Mr. Saleh had a gun in the bag but thought that he was going to pull out some other object from the bag, hit him with it, and then chase after him. These inconsistencies raise serious concerns with respect to both the reliability and credibility of Noran’s account of events that took place just moments before the shooting.

Whether Mr. Saleh said “Yo”

[404] During his police interview, Noran stated that Mr. Saleh said “Yo” as he was taking out an object from his backpack, which Noran believed at the time was a gun. Noran then hit Mr. Saleh with the level. At the preliminary inquiry, Noran testified that Mr. Saleh said nothing to him as they approached one another in the parking lot.

[405] I do not place much significance on this inconsistency. If, in fact, Mr. Saleh said “Yo,” it was not a word that necessarily indicated that he was about to shoot Noran. It could just as well have been uttered because Noran was about to hit him with the level. Mr. Saleh was not questioned during his testimony as to whether or not he uttered the word “Yo.”

Factors that caused Noran to second-guess his assumption during his police interview that Mr. Saleh was the shooter

[406] One factor that caused Noran to second-guess the assumption he made during his police interview that Mr. Saleh was the shooter was the fact that they were eight metres apart when they started toward one another in the parking lot. Thus, if Mr. Saleh had a gun in his backpack, he would have had sufficient time to pull it out and shoot him. As Noran stated at the preliminary inquiry, Mr. Saleh “had eight metres to come toward me with that bag, right?” He also testified, “I don’t think [Mr. Saleh] had a gun. If [Mr. Saleh] had a gun, I was right in front of his face and if he would’ve shoot me, he would have done it before I even got closer to him. That’s what I’m realizing now.”

[407] Noran also questioned how, if Mr. Saleh was the shooter, he could have missed hitting him. Six shots were fired. Yet none of them struck Noran, who was within point-blank range.

[408] Mr. Vandersteen submits that Mr. Saleh missed hitting Noran because he was drunk. He relies in this regard on Noran’s description of Mr. Saleh as “wobbling” when Mr. Saleh was walking toward him.

[409] Mr. Saleh denied that he was drunk. He testified that the last beer that he consumed that day was just after he was beaten up at the Alexandria and that he consumed neither alcohol nor marijuana after that. He described himself as “super-sober” when he left Gabby’s place and returned to the Alexandria to look for his phone and wallet. The surveillance footage from 67 Parkwoods Village Drive supports his evidence in this regard. Mr. Saleh is seen coming down the stairs to the lobby, walking through the lobby, and out to the front of the building. He was sure-footed, walked briskly to the Uber when it arrived, and got into the back seat.

[410] The footage from the Alexandria shows Mr. Saleh arriving in the Uber, taking a few steps toward Athir, and then walking over to the Mercedes. He confronted Noran in the van shortly thereafter. The confrontation was not captured by the surveillance camera, but Mr. Saleh is seen running after the van as Noran drove away, and then running back toward the area where the van had been parked. He did not stumble or fall. He was not unsteady on his feet. He only lost his balance when Noran returned to the lot and sideswiped him with the van.

[411] In short, there is nothing in any of the surveillance footage to suggest that Mr. Saleh was impaired by alcohol or drugs when he left the Alexandria shortly after 8:35 p.m. and headed to the parking lot behind 1850 Victoria Park Avenue. Mr. Saleh was just getting out of the Mercedes when Noran arrived at the lot. The shots were fired at about 8:50 p.m. There is no evidence that Mr. Saleh consumed any alcohol during that 15-minute interval.

[412] Mr. Vandersteen noted that Mr. Saleh appeared to be unsteady on his feet as he entered the apartment building at 67 Parkwoods Village Drive with Gabby and her mother later that evening at 10:34 p.m.

[413] Mr. Saleh attributed any unsteadiness on his feet to the fact that he was dizzy after being sideswiped by Noran’s van. He had also been hit with the level. In addition, he had run all the way from the scene of the shooting to Gabby’s apartment, stopping only once to speak briefly to his friend Moe.

[414] Gabby described Mr. Saleh as “kind of out of breath,” “stumbling a bit,” and “not himself.” He did not appear to her, however, to be under the influence of alcohol or drugs, although she acknowledged that she has no particular training in identifying persons who are under the influence of such substances.

[415] I accept Mr. Saleh’s evidence that the last beer that he consumed prior to the shooting was just after he was beaten up by Noran’s cousins earlier in the day and that he was not drunk when he saw Noran approaching him in the parking lot while holding the level. Although Mr. Saleh was not drunk at that time, he was nonetheless feeling “shocked and dizzy” after being hit by the van. This may explain why Noran perceived him as “wobbling.” The dizziness and the fact that he was hit with the level and, according to his evidence, knocked to the ground, could have affected the accuracy of Mr. Saleh’s aim if he was the shooter. On the other hand, as Mr. Angelini submits, these factors could be viewed as making it less likely that Mr. Saleh would have been able to retrieve a gun from the backpack and fire it within one and a half seconds after Noran turned and ran.

[416] Noran testified that another reason that he doubted that Mr. Saleh was the shooter was the fact that it appeared to him that the shots came from some place other than Mr. Saleh’s location. He testified: “I don’t think it’s him because when I’m thinking about it, like he had a bag in his hand, right? But the shooting was somewhere else.”

[417] There is no independent evidence indicating the location of the shooter. By the time the police arrived, Mr. Hwara and two other civilians had kicked the six shell casings from their original locations in the parking lot into a pile in the centre of the lot. As a result, there is no expert evidence to indicate the position of the shooter or the angle of the gun when it was fired. One of the bullets became lodged in a fire door at a slight upward angle and about 28 inches from the ground. The fire door faced south. Another bullet went through a second-story window that faced west and was at right angles to the fire door. As Mr. Angelini noted, the two different directions in which the bullets were fired is somewhat confusing in terms of the location of the shooter.

[418] According to Mr. Saleh, there were only three people – himself, Little Man, and P – in the Mercedes that day, including the time when they arrived at the parking lot behind 1850 Victoria Park Avenue. Noran, on the other hand, recalled that there were four people in the car – Mr. Saleh and three Black males. Mr. Saleh could easily have tailored his evidence to that of Noran, thereby adding another potential shooter to the scene. The fact that he did not enhances his credibility.

[419] Similarly, Mr. Saleh could have tailored his evidence to accord with Noran’s testimony that they were eight metres apart when they started moving toward each other – a distance that was in accord with Mr. Hwara’s testimony that the van was parked at the entranceway to the lot. It was this distance that caused Noran to question whether Mr. Saleh had a gun: if Mr. Saleh had a gun and was going to shoot him, he would have pulled out the gun and shot him before Noran was close enough to hit him with the level. Although Mr. Saleh could have tailored his evidence to accord with that of Noran, he did not do so. Mr. Saleh testified that Noran’s van was parked quite close to the Mercedes and that Noran was only a step or two away from him when he first saw him. Again, Mr. Saleh refrained from adopting evidence that may have assisted his defence and gave his evidence in accordance with how he recalled the event. Mr. Saleh’s mistake as to where the van was parked cannot be attributed to an intention to lie.

[420] I also attribute no intention by Mr. Saleh to lie when he testified that there was a lighting pole in the parking lot – an assertion that he would have known could be easily disproved by simply looking at the police photographs of the scene. I note that despite his evidence regarding the lighting pole, Mr. Saleh did not dispute the fact that the lot was dimly lit or “pretty dark.”

[421] Mr. Saleh acknowledged that he took hold of his backpack when he got out, or as he was getting out of the Mercedes. He intended to take it with him to Little Man’s apartment. The backpack contained his laptop and some clothes and had been in the Mercedes for the better part of the day. Mr. Saleh denied that the backpack contained a gun. He did not recall making any motions with his hand that would suggest that he was reaching into the backpack. He may have been putting the backpack in his other hand but had no specific recollection of doing so. He was holding the backpack as Noran approached him. When Noran hit him with the level, he fell to the ground and dropped the backpack. That is when he heard two gunshots. He fled the scene because he thought that the shots were being fired at him. He did not stop to pick up his backpack. He never saw his backpack again.

[422] Mr. Saleh testified that he ran into the treed area, which was close to where the Mercedes was parked, and headed in a northwest direction until he reached Lawrence Avenue. From there he made his way to Victoria Park Avenue and ran north until he reached Parkwoods Village Drive, which he followed until he arrived at the Pilgrims’ apartment building. He was shirtless as he ran. The only stop that he made was to talk briefly to Moe Elejime, who called him over, asked him what had happened to him, and gave him the oversized t-shirt that Mr. Saleh was wearing when he reached 67 Parkwoods Village Drive. Neither Gabby nor Nicole had seen Mr. Saleh wearing this shirt prior to that date.

[423] Mr. Vandersteen questioned whether Mr. Saleh fled the scene as he described in his testimony. Mr. Vandersteen noted that Noran was the only person whom Mr. Hwara saw fleeing the scene on foot. However, it is doubtful that Mr. Hwara was in a position to have observed Mr. Saleh flee. When Mr. Hwara heard the shots, he was in the middle of the large parking lot and escorting his children toward the apartment building, as they had finished playing soccer. After the shots were fired, everyone started to run and get their children into the building. Mr. Hwara testified that he saw Noran running north along a strip of grass on the west side of the building, as marked on Exhibit 1 (b). Mr. Hwara would have been looking in a north easterly direction at that time, and not in the direction of the small parking lot, which was south of his location. Even if he had looked in that direction, he might well have missed seeing Mr. Saleh, whose route, at least initially, would have been obscured by trees and bushes.

[424] Mr. Vandersteen noted that if Mr. Saleh was the shooter, he had the opportunity to dispose of the firearm between the time that he fled the scene and the time that he arrived at 67 Parkwoods Village Drive. That period of time was about an hour: the shooting took place at 8:50 p.m. Mr. Saleh arrived at 67 Parkwoods Village Drive at around 10:00 p.m. At 10:08 p.m., he and Gabby came into view of the surveillance camera. They were in the same area where Mr. Saleh had waited for the Uber earlier that day.

Mr. Saleh’s after-the-fact conduct

[425] Mr. Saleh remained outside and in front of the apartment building until 10:34 p.m. or for about half an hour. During that time, he spoke to Gabby, used her phone to call his brother and sister, awaited their arrival, and then related to them some of the events of the day.

[426] Mr. Vandersteen submits that if Mr. Saleh thought that he was the target of the shooting, he would most likely have hidden from public view for fear of being targeted again.

[427] Mr. Angelini submits that if Mr. Saleh was the shooter, he most likely would have hidden from public view for fear of being arrested. He would not have remained near a busy street and in front of a bus stop. According to Nicole Pilgrim, Parkwoods Village Drive is regularly patrolled by the police.

[428] I agree that both the shooter and the target of the shooting would have reason to maintain a low profile – the shooter to avoid arrest, and the target to avoid being shot at again.

[429] In my view, the fact that Mr. Saleh did not hide from public view is not particularly informative in determining whether he was the shooter or whether he believed himself to be the target. I would not draw an inference one way or the other from the fact that he remained outside the apartment building for half an hour while explaining the events of the day to his brother and sister and before going inside with Gabby and Nicole.

[430] Mr. Angelini submits that Mr. Saleh’s behaviour in drawing attention to himself by riding around the building in a scooter the next day shows a state of mind that is inconsistent with his having been the shooter – that is, Mr. Saleh does not appear to be someone who is concerned about being arrested for shooting at someone the night before. It could also be argued, however, that Mr. Saleh did not appear to be afraid of being shot at again. I would not attribute much significance to this evidence.

[431] Mr. Vandersteen observed that when Mr. Saleh was relating the events of the day to Gabby and his siblings, as seen in the surveillance footage, he did not re-enact Noran’s alleged overhand chopping motion when he struck him with the level. Mr. Vandersteen submits that this omission casts doubt on the veracity of Mr. Saleh’s account as to how Noran hit him with the level. I note, however, that Mr. Saleh is seen showing his brother the injury to the back of his left hand, which Mr. Saleh testified was a result of having been struck by the level just before the shooting. Mr. Saleh’s account of how Noran was holding the level was supported by the testimony of Mr. Hwara, although Mr. Hwara was not in a position to see the blow being struck. Noran himself used an overhead swinging motion at the preliminary inquiry to demonstrate how he swung the level at Mr. Saleh.

[432] Mr. Vandersteen noted that Mr. Saleh re-enacted the fight with Noran’s cousins but did not re-enact the shooting by dropping or falling to the ground. He submits that this omission is telling, as the shooting would have been a more significant event if, as Mr. Saleh maintains, he believed he was the target. I note, however, that the shooting did not result in Mr. Saleh suffering any injury, whereas the fight with Noran’s cousins resulted in some fairly serious injuries. Mr. Saleh lifted up his shirt to show his brother those injuries, which included a burn mark to his back and a puncture wound on his right side.

[433] Mr. Saleh testified that when the shots were fired, he fled in a panic and left behind his backpack, which contained his laptop computer. Mr. Vandersteen queried why Mr. Saleh did not call any of his friends who were present at the shooting – that is, Little Man, Athir, P, or V – the next day or sometime prior to his arrest on June 23 to ask them if they had his backpack. Mr. Saleh explained that he did not have their phone numbers as he had lost his phone.

[434] Mr. Saleh acknowledged that prior to his arrest on June 23, he never attended at Little Man’s apartment to ask him in person if he had his backpack or knew where it was. Mr. Angelini submits that Mr. Saleh should not be faulted for not wanting to return to the scene of the shooting. In any event, following his arrest on June 23, Mr. Saleh was prohibited by a term of his bail from being within 500 metres of 1850 Victoria Park Avenue. Little Man’s apartment building abutted that property and would have been within the 500-metre radius. Mr. Saleh was also prohibited from attending within 500 metres of the Alexandria.

[435] The backpack does not appear in any of the police photographs of the scene. I note, however, that after the shooting, there were a number of people in and around the parking lot. The backpack could have been taken by any number of people.

Mr. Saleh’s passport application and the purchase of tickets to Lebanon

[436] Mr. Saleh lied on his passport application when he indicated that he lost his wallet in a restaurant. He testified that he lied because he wanted to expedite the issuing of his passport and he did not want to be questioned as to how he had actually lost his wallet, which was during the beating by Noran’s cousins in the Alexandria parking lot. Mr. Saleh’s false statement in his passport application obviously negatively impacts his credibility. However, it does not, in my view, rise to a level where it should be regarded as consciousness of guilt with respect to the offences that he is facing.

[437] I accept Mr. Saleh’s evidence that his mother was the driving force behind his expedited passport application. She took it upon herself to take the necessary steps to obtain the passport, and Mr. Saleh went along with it. The application was already filled out when she presented it to him. All he had to do was sign it. She booked and paid for the airline tickets and drove him to the Passport Office. She took these measures after hearing about the shooting (from Mr. Saleh’s sister and, no doubt, from Mr. Saleh’s perspective) and learning about the injuries that he had sustained in the Alexandria parking lot. Mr. Saleh’s mother had taken decisive action in the past when the family had encountered problems – on two occasions, she had moved the family to a different city.

[438] The trip to Lebanon did not come entirely “out of the blue”: Mr. Saleh’s mother had previously urged him on a number of occasions to go to Lebanon to visit his aunt following the death of his grandmother. Mr. Saleh had refused to go because he did not want to leave Gabby and his friends. However, he understood that in terms of this latest proposed trip, his mother was prepared to pay for Gabby’s flight. Gabby testified that she told Mr. Saleh’s mother that she was willing to go to Lebanon. However, she first had to apply for a passport and arrange to take time off from her work. Thus, no flights had been booked in her name.

[439] Mr Saleh testified that he was also willing to go to Lebanon because he was afraid that Noran and his family were “going to come back and get [him].” Mr. Saleh’s evidence was to the effect that he did not know who the shooter was. He did not see Noran holding a gun, but he connected Noran to the shooting because Noran was the person with whom he had the altercation at the Alexandria and who had orchestrated the earlier attack on him by members of his family. He testified that he was not afraid of Noran prior to the shooting but he was afraid of him after the shooting.

[440] I do not accept Mr. Saleh’s evidence that he was unaware at the time of his arrest on June 23 that the flight that his mother had booked him on was leaving on June 25. In my view, it is highly unlikely that his mother would not have told him at some point on June 23, which was the day they attended together at the Passport Office, that he would be leaving town in two days. The flight itinerary was attached to the passport application. On the other hand, Mr. Saleh candidly acknowledged that had he not been arrested, he would have been on that flight.

Mr. Saleh’s opinion as to who fired the shots

[441] Crown counsel pointed out the inconsistencies in Mr. Saleh’s evidence as to who he believed fired the shots. Although Mr. Saleh’s evidence was inconsistent in this regard, the overall tenor of his evidence was that he did not know who fired the shots, but he speculated on various possibilities. The questions posed to him with respect to the identity of the shooter were in the context of who he was afraid of and the basis for his fear.

[442] When asked if he thought Noran was the shooter, Mr. Saleh initially stated, “I don’t know who the shooter is.” He then stated that he thought at the time that Noran was the shooter because he was the person with whom he had the altercation and who had orchestrated the attack on him earlier in the day. However, he also stated that it was “just a thought. I thought it was him.” He acknowledged that he did not see Noran holding a gun, and that Noran was holding the level with both hands just before the shots were fired.

[443] Mr. Vandersteen submits that if, as Mr. Saleh maintains, he believed he was the target of the shooting, he would have reported it to the police, as well as Noran’s assault on him with the level. I do not find that that is necessarily the case. Mr. Saleh may have hesitated to complain to the police about Noran hitting him with the level, given what happened earlier that day when he accused Noran’s cousin of being a snitch. Noran called his cousins, who then came and beat up Mr. Saleh. Mr. Saleh may have anticipated similar or even more severe retaliation if he contacted the police in regard to any alleged criminal behaviour on the part of Noran.

[444] Mr. Saleh testified that Little Man had nothing to do with his plans to leave the country – that is, he was not afraid of Little Man and he did not believe that Little Man was the shooter. In re-examination, however, Mr Saleh stated that the shooter might have been Little Man. That was as close as Mr. Saleh came during his testimony to laying any blame on Little Man. Mr. Saleh testified that he had not seen Little Man with a gun that day. Nor did he hear Little Man, Athir, P, or V, speak of having a gun, although he added that he did not think that is something that people talk about.

[445] Neither Little Man nor Athir, P, or V, testified at this trial. In these circumstances, it would have been easy for Mr. Saleh to allege that Little Man had spoken of having a gun or that he had seen Little Man with a gun that day. However, Mr. Saleh made no such allegations. He also testified that he was not aware of any motive that Little Man might have to shoot Noran.

[446] I bear in mind that there is no onus on Mr. Saleh to establish motive on the part of another person to commit the offence. Mr. Saleh was asked questions as to whom he feared and, on that basis, to give his opinion as to who he thought may have fired the shots. Other than that, Mr. Saleh’s opinion as to who fired the shots is not relevant.

Summary of findings with respect to Mr. Saleh’s evidence

[447] Mr. Saleh was forthright in some areas of his evidence and untruthful in others. There were several areas in which he could have benefitted by tailoring his evidence to accord with that of other witnesses but, to his credit, he did not do so.

[448] I accept Mr. Saleh’s evidence as to how he and Little Man ended up spending the day together on June 21, 2017. I also accept his evidence with respect to the amount of beer he consumed and weed that he smoked during the course of the day.

[449] Mr. Saleh acknowledged his anger toward Noran after hearing the snitching allegations. He denied breaking any beer bottles in the Alexandria parking lot. However, given his state of intoxication, he may not have recalled breaking any bottles.

[450] I reject Mr. Saleh’s evidence that he did not see who attacked him in the parking lot. Mr. Saleh’s reenactment of this altercation for his brother and sister later that night indicates that it began as a fist fight, in which case he would have seen his attackers. However, Mr. Saleh most likely ended up on the ground shortly after the fight began and was curled up in a ball in an effort to protect himself, as he described in his evidence. The fight only lasted two to three minutes. It ended when Noran told his cousin to “stop fighting.” Mr. Saleh was on the ground at that point. After the fight, Mr. Saleh drank another beer, which was the last beer that he consumed that day.

[451] Mr. Saleh initially testified that he was dazed but not angry with Noran after the beating. That was not true. Later on in his evidence, he acknowledged that he was, in fact, very angry with Noran because he believed that Noran had set up the assault.

[452] I accept Mr. Saleh’s evidence that his friend, Habib, drove him to the Pilgrims’ apartment after the beating, and that he did not realize until after he woke up from his nap that he did not have his phone or wallet. He returned to the Alexandria for the purpose of looking for those items, although, as stated earlier, that does not foreclose the possibility that he armed himself with a gun before leaving the apartment.

[453] The surveillance footage supports Mr. Saleh’s evidence that he was not drunk when he returned to the Alexandria. When he saw Noran in the parking lot, he decided to challenge him to a fight.

[454] I accept Mr. Saleh’s evidence that he asked Little Man and V to back him up during the anticipated fight with Noran. Little Man, in response, moved the Mercedes closer to where Noran’s van was parked. V got out of the car he was in.

[455] I accept Mr. Saleh’s evidence that he approached Noran’s van with a wooden chair leg, which he picked up from the ground. As indicated earlier in these reasons, however, I do not believe Mr. Saleh’s denial that he never reached into the van. I am satisfied beyond a reasonable doubt that Mr. Saleh grabbed Noran’s t-shirt with one hand, while holding the chair leg in the other hand.

[456] Following the confrontation and after Noran had sideswiped Mr. Saleh with the van, Little Man drove Mr. Saleh and P to the parking lot behind 1850 Victoria Park Avenue. They would not have been aware that Noran followed them there.

[457] Mr. Saleh could have easily tailored his evidence to accord with Noran’s testimony that there were three, as opposed to two, other people in the Mercedes, thereby adding another potential shooter to the scene. To his credit, he refrained from doing so.

[458] Similarly, it would have been easy for Mr. Saleh to adopt Noran’s and Mr. Hwara’s evidence, which I accept, that Noran parked his van at the entrance to the parking lot, as opposed to very close to the Mercedes. The greater the distance between Noran and Mr. Saleh, the more likely it would be that if Mr. Saleh had a gun, he would have pulled it out of his backpack and shot Noran before Noran got close enough to hit him with the level. However, Mr. Saleh testified that Noran parked his van very close to the Mercedes. I find that Mr. Saleh was simply mistaken in that regard.

[459] Mr. Saleh testified that there was a lighting pole in the parking lot. Again, I find that he was simply mistaken and that there was no intention on his part to lie about this matter.

[460] I accept Mr. Saleh’s evidence that Noran struck him with the level using an overhead motion, which is in accord with Noran’s testimony in cross-examination. It is also in accord with Mr. Hwara’s description as to how Noran was holding the level when he ran into the parking lot. I accept Mr. Saleh’s evidence that there was considerable force behind the blow and that it injured his hand. Nicole, who saw Mr. Saleh’s hand later that night, described it as very swollen. She thought that it might be broken. The blow could possibly have resulted in Mr. Saleh falling to the ground, as he described in his evidence.

[461] Although Mr. Saleh could have easily alleged that he saw Little Man with a gun that day or heard him talking about a gun, he made no such assertions.

[462] There is no evidence to contradict Mr. Saleh’s evidence as to how he fled the scene. He was shirtless at the time. He testified that he initially ran through the treed area close to where the Mercedes was parked and continued running all the way to Gabby’s apartment on Parkwoods Village Drive. The only time that he stopped was to speak briefly to Moe, who gave him a t-shirt that was too big for him. Gabby described Mr. Saleh as out of breath when she saw him crossing the street and approaching the apartment building. Neither she nor Nicole had ever seen him wearing that t-shirt before.

[463] I reject Mr. Saleh’s evidence that on June 23, 2017, he was unaware that his mother had booked his flight to Lebanon for June 25, 2017.

[464] Mr. Saleh lied on his passport application as to how he had lost his wallet. He testified that he lied because he thought he would get his identification documents sooner and his passport application would be processed faster.

[465] I turn then to the critical issue – whether the Crown has established beyond a reasonable doubt that Mr. Saleh was the shooter.

The Circumstantial Evidence

[466] The Crown’s case consists of circumstantial evidence. No one saw Mr. Saleh holding a gun. There is no forensic evidence linking him to the firearm.

[467] As stated in Villaroman, when the Crown’s case depends on circumstantial evidence, the Crown must demonstrate that an inference of guilt is the only reasonable inference available on the totality of the evidence. When assessing circumstantial evidence, the trier of fact must consider “other plausible theories” and “other reasonable possibilities” that are inconsistent with guilt. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[468] The circumstantial evidence in this case falls into four categories:

• Motive

• Surveillance footage that the Crown relies on to show that Mr. Saleh retrieved a firearm from the Pilgrim apartment and handed it off while at the Alexandria parking lot before confronting Noran and challenging him to a fight

• Noran’s evidence that Mr. Saleh’s hand was in the backpack and removing something from it one and a half seconds before the shooting

• After-the-fact conduct

Motive

[469] Motive is not an essential element of the offence that the Crown must prove to establish guilt. However, evidence of motive is relevant and material because it may help to establish the identity and state of mind of the person who is alleged to have committed an offence. Evidence of motive is a species of circumstantial evidence used to prove, or to assist in proving, a human act. By nature, evidence of motive is prospectant: because a person had a motive to do an act X, that person probably did the act X: R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, at paras. 71-72.

[470] There is no question that Mr. Saleh had a motive to shoot Noran when he saw him coming at him with the level in the parking lot.

[471] Mr. Saleh’s animus toward Noran first manifested itself at the Alexandria parking lot when he heard that members of Noran’s family were snitches. He yelled and screamed at Noran and told him to “get the fuck out of here.” Noran left but called his cousin, who arrived shortly thereafter with another cousin. The two cousins fought with Mr. Saleh, who ended up with fairly serious injuries. Mr. Saleh blamed Noran for the assault. Mr. Saleh left the parking lot but later returned. He became very angry when he saw Noran and challenged him to a fight. When Noran refused to get out of the van, Mr. Saleh became even more enraged and assaulted him by grabbing the neck of his t-shirt while holding the chair leg in his other hand. Mr. Saleh was humiliated by Noran’s refusal to get out of the van. Noran drove off but returned to the lot and sideswiped Mr. Saleh with his vehicle. The next time that Mr. Saleh saw Noran, Noran was coming at him with the level in the parking lot behind 1850 Victoria Park Avenue. Noran struck Mr. Saleh with the level and turned and ran. Shots were fired one and a half seconds later.

[472] The position of the Crown is that Mr. Saleh must have been the shooter because, among other things, he was the only person in the parking lot with a motive to shoot Noran. I respectfully disagree. In my view, there is evidence from which the inference can be drawn that another person on scene, namely, Robert Janes, also known as Little Man, had a motive to shoot Noran.

[473] Mr. Saleh and Little Man had known each other since grade school. Mr. Saleh described their relationship at the time of these events as acquaintances. On June 21, 2017, they spent the better part of the day together after meeting by happenstance outside The Beer Store. Mr. Saleh drank beer and smoked weed at Little Man’s apartment. Little Man drove him and P to a restaurant and then to the Alexandria parking lot. Little Man witnessed the beating that Mr. Saleh suffered at the hands of Noran’s cousins. Mr. Saleh believed that Little Man was one of the people who helped him to his feet after the beating. Mr. Saleh was then driven to Gabby’s apartment by another friend.

[474] When Mr. Saleh returned to the parking lot, he approached the red Mercedes, spoke to Little Man, and asked him to cover him during his anticipated fight with Noran. It may be inferred that Little Man was prepared to provide that protection: he backed the Mercedes out of its parking spot and drove closer to the area where Mr. Saleh confronted Noran. As it turned out, no cover was required, because Noran refused to fight and drove off. However, the fact that Little Man was prepared to back up Mr. Saleh during the fight speaks to his relationship with Mr. Saleh and shows a willingness on his part to take action to protect Mr. Saleh from physical harm inflicted by Noran.

[475] Little Man would have seen or been aware that after the confrontation, Noran returned to the lot and sideswiped Mr. Saleh with his van. After he was struck, Mr. Saleh, who was shirtless at that point, got into the Mercedes and Little Man drove him and P to the parking lot behind 1850 Victoria Park Avenue. Their intention at that time was to “chill” at Little Man’s apartment.

[476] When Noran showed up at the lot, Little Man and P were already out of the Mercedes and Mr. Saleh was in the process of getting out. Noran described the “three Black guys” as around or near Mr. Saleh at that time. Little Man was therefore in a position to see Noran coming toward Mr. Saleh while holding the level and then striking him with it. This would have been the third assault on Mr. Saleh that Little Man had witnessed that day – the first having been committed by Noran’s cousins but orchestrated by Noran, and the second having occurred when Noran hit Mr. Saleh with his vehicle.

[477] Noran testified that as he was approaching Mr. Saleh with the level, Mr. Saleh was walking toward him. He testified that when he hit Mr. Saleh with the level and turned and ran, people were standing behind Mr. Saleh. Based on Noran’s evidence, Little Man would have been one of those people and was therefore in a position to have fired the shots when Noran turned and ran.

[478] Mr. Saleh had a strong motive to shoot Noran. However, the weight to be accorded to that circumstance is tempered by the fact that Little Man also had a motive to shoot Noran and was in a position to have fired the shots.

The Surveillance Footage from 67 Parkwoods Village Drive and the Alexandria

[479] The Crown relies on the surveillance footage from 67 Parkwoods Village Drive and the Alexandria parking lot to show that Mr. Saleh retrieved a firearm from the Pilgrim apartment and handed it off at the parking lot before confronting Noran at the van.

[480] I have found that Mr. Saleh’s purpose in returning to the parking lot was to look for his phone and wallet. When he left 67 Parkwoods Village Drive, he likely did not know that Noran was there, although he may have suspected that he might be. Mr. Saleh may have brought a gun with him as a protective measure, given the injuries he suffered at the hands of Noran’s cousins earlier in the day. I note, however, that Mr. Saleh testified that his assailants had made no threats to return to the lot or to shoot him.

[481] Mr. Saleh had the opportunity to retrieve a gun while at the Pilgrims’ apartment. His hand movements in the vicinity of his belt buckle just before he entered the lobby and the touching of his waist on two occasions could be viewed as being consistent with his carrying a gun. However, these actions are far from conclusive in that regard, particularly in light of the fact that there is nothing else about Mr. Saleh’s behaviour or his appearance to indicate that he was armed. Notably, there were no bulges in his clothing, which was not bulky, and there was nothing unusual about his gait.

[482] If Mr. Saleh was carrying a gun, he had the opportunity to hand it off when he leaned into the Mercedes after he arrived at the Alexandria. If he had a gun, he had a reason to hand it off at that time; namely, to avoid exposing it when he tore off his shirt to show Noran his injuries. The gun could also have been exposed if Mr. Saleh became engaged in a fight with Noran. Crown counsel submits that this is why Mr. Saleh went over to the Mercedes “immediately” after arriving at the parking lot. As noted earlier, however, the surveillance footage lends support to Mr. Saleh’s evidence that he approached the Mercedes in connection with his search for his phone and wallet and not for the purpose of getting rid of a gun. The footage shows that after exiting the Uber, Mr. Saleh did not go immediately over to the Mercedes but walked toward and interacted briefly with Athir. Mr. Saleh testified that he asked Athir where his stuff was. The footage shows that Athir, in response, pointed to the Mercedes. It was then that Mr. Saleh approached the Mercedes and leaned briefly into it. Mr. Saleh testified that he asked Little Man if he had seen his phone or wallet. Little Man replied “no.”

[483] If Mr. Saleh’s purpose in approaching the Mercedes was to hand off a gun, he had no need to first speak to Athir. There would also have been no need for him to ask Athir where the Mercedes was parked, because the Mercedes would have been clearly visible to Mr. Saleh as he exited the Uber.

[484] The surveillance footage does not show any body movements by Mr. Saleh that would be consistent with his passing something to someone in the car.

[485] A further circumstance for consideration in assessing the weight to be accorded to the surveillance footage upon which the Crown relies is the fact that Mr. Saleh did not produce a gun when he confronted Noran, who was the target of his rage. Mr. Saleh was angry, highly agitated, and clearly not concerned about drawing attention to himself when he tore off his shirt and sweater, confronted Noran while holding the chair leg, and then chased after his van through the parking lot. Given his state of mind, Mr. Saleh may well have had no qualms about producing a gun if he had access to one. I recognize, however, that even in his highly agitated state, Mr. Saleh may have been deterred from producing a firearm in daylight in an area where surveillance cameras were clearly visible.

Noran’s evidence that Mr. Saleh’s hand was in the backpack and removing something from it one and a half seconds before the shooting

[486] Noran testified that as he began walking toward Mr. Saleh in the parking lot, Mr. Saleh leaned into the Mercedes and retrieved a bag. When Mr. Saleh turned around, his hand was in the bag. As Noran continued walking toward Mr. Saleh, Mr. Saleh started walking toward him. When they were about half a metre to one metre apart, Noran hit Mr. Saleh with the level, turned, and ran. One and a half seconds later, Noran heard two or three shots.

[487] I have already reviewed some of the more problematic aspects of Noran’s evidence with respect to the bag and whether he could see what was in the bag. The inconsistencies in Noran’s evidence and his statements to Officers Seaban and Ko give rise to concerns about the reliability of his testimony that Mr. Saleh’s hand was in the backpack and whether he was pulling anything out of the backpack when Noran hit him with the level.

[488] Briefly, when Noran spoke to Officers Seaban and Ko, he told them that Mr. Saleh pulled a gun from his waist. He made no mention of Mr. Saleh carrying a bag or pulling anything out of a bag. He thought that the gun was black. During his police interview, Noran stated that he never saw a gun, but he believed that Mr. Saleh was pulling a gun out of his bag based on the shape of Mr. Saleh’s hand inside the bag. At the preliminary inquiry, Noran acknowledged that he could not see what was in Mr. Saleh’s dark grey backpack, the shape of Mr. Saleh’s hand in the backpack, or the shape of any other objects in it, because it was opaque. Noran explained that the way in which he spoke during the police interview made it sound as though he had seen Mr. Saleh’s hand in the shape of a gun but that was not, in fact, the case. He testified that there was nothing about the way in which Mr. Saleh had his hand in the bag or the way in which his body was moving that would indicate that he had a gun in the bag. It was only after he heard the shots, which occurred almost immediately after he hit Mr. Saleh with the level and then turned and ran, that he jumped to the conclusion that Mr. Saleh had a gun and was the shooter.

[489] That was perhaps a reasonable conclusion based on the circumstances as Noran perceived them. However, the circumstances also included the presence of another person at the scene – Little Man – who was in a position to have fired the shots, who had demonstrated a willingness less than half an hour earlier to cover or protect Mr. Saleh during his anticipated fight with Noran, and whose DNA was on one of the cartridge casings found at the scene, thereby linking him to the gun that was used to fire the shots.

[490] In addition, Noran himself raised some matters that caused him to question the correctness of his initial assumption that Mr. Saleh was the shooter. He testified that he and Mr. Saleh were initially eight metres apart before they began to walk toward one another. Noran pointed out that if Mr. Saleh had a gun in his backpack, he had ample time to pull it out and shoot him before Noran hit him with the level.

[491] Noran also queried how Mr. Saleh could have missed hitting him when he was within point-blank range. He was only three metres away from Mr. Saleh when the six shots were fired. It is possible that Mr. Saleh’s aim was affected by the fact that he was feeling dizzy after being struck by the van or by the fact that the level had hit him on his hand. On the other hand, the blow from the level, which was a hard blow and which Mr. Saleh testified knocked him to the ground, lessens the probability that he could have retrieved a gun from the bag and aimed and fired it within one and a half seconds.

[492] Noran testified that at the time of the shooting, there were a bunch of people standing behind Mr. Saleh. Little Man would have been one of those people. Noran and Little Man would therefore have been more than three metres apart when the shots were fired. Thus, Noran would have been a “more distant” target for Little Man than he was for Mr. Saleh. In other words, Little Man may have been more likely than Mr. Saleh to have missed hitting Noran because he was further away from Noran.

[493] There is the possibility that Mr. Saleh fired the shots and missed because he was simply a bad shot, or perhaps the shots were fired as warning shots. The same could be said of Little Man, if he was the shooter.

[494] It was Noran’s impression that the shots came from “somewhere else” – in other words, from someplace other than where Mr. Saleh was standing. Unfortunately, there is no independent evidence indicating the position of the shooter as the shell casings were moved from their original locations prior to the arrival of the police. There is, however, forensic evidence linking Little Man to the gun: his DNA was on one of the shell casings, which implies that he handled the gun and loaded it. Little Man has a criminal record that includes a conviction for a violent offence: in 2019 he was convicted of aggravated assault.

[495] By contrast, there is no forensic evidence linking Mr. Saleh to the gun. His DNA was not found on the cartridge casing. Mr. Saleh has no criminal record.

[496] Crown counsel suggested that if Little Man had spat or dropped a cigarette in the parking lot, his DNA could have been transferred to the casing when the civilians at the scene kicked it into the centre of the parking lot. However, that, in my view, is a highly speculative proposition.

[497] In summary, the weight to be accorded to Noran’s evidence that Mr. Saleh’s hand was in the backpack and removing something from it one and a half seconds before the shooting is considerably diminished by the cumulative effect of the following factors: the inconsistencies in Noran’s evidence as outlined above; the fact that if Mr. Saleh had a gun, he had ample time to pull it out and shoot Noran before Noran hit him with the level; the likelihood that Mr. Saleh was knocked to the ground after being hit by the level, which would make it less likely that he would be able to pull out a gun from the bag and fire it in one and a half seconds; the fact that Noran was not struck by any bullets even though he was only three metres away from Mr. Saleh when the shots were fired; Noran’s sense that the shots were fired from some place other than where Mr. Saleh was standing; and the presence of Little Man, who was in a position to have fired the shots, who is linked to the gun through forensic DNA testing, and who had earlier taken measures to back-up or protect Mr. Saleh in the event of a fight between Mr. Saleh and Noran

After-the-fact Conduct

[498] In R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 21, the court observed that evidence of after-the-fact conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases, it may be highly incriminating, while in others it might play only a minor corroborative role. Like any piece of circumstantial evidence, an act of flight may be subject to competing interpretations and must be weighed by the trier of fact in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion.

[499] In considering Mr. Saleh’s intention to leave for Lebanon on June 25, 2017, I take into account that the plans for the trip were not initiated by him. His mother, acting no doubt on her understanding of the events of June 21, as related to her by Mr. Saleh’s sister, and aware of Mr. Saleh’s injuries, was the driving force behind the expedited passport application. She also purchased the airline tickets without Mr. Saleh’s input. It is fair to infer that she had concerns about his safety and, as a result, took charge in terms of arranging the trip. As noted earlier, she had not hesitated in the past to take decisive action when family members encountered difficulties.

[500] Mr. Saleh testified that his mother had urged him on previous occasions to go to Lebanon to visit his aunt, but he had refused, as he did not want to leave Gabby. This time, however, she offered to pay for Gabby’s flight. Mr. Saleh testified that he agreed to take the trip because of this offer, plus that fact that he feared that Noran and Noran’s family were “going to come back and get [him].” Mr. Saleh testified that although he had not seen Noran holding a gun, he associated him with the shooting because of the altercation at the Alexandria parking lot and the earlier attack on him by Noran’s cousins. He did not fear Noran prior to the shooting but he was afraid of him after the shooting.

[501] Mr. Saleh denied the suggestion that he might not return from Lebanon. Since he is not a Lebanese citizen and he did not have a work visa, he presumably could not have stayed there indefinitely. A return flight to Toronto on October 15, 2017 had been booked in his name and paid for by his mother. The inference may be drawn that Mr. Saleh intended to return to Canada.

[502] Having considered all of the evidence, I would not draw an inference of consciousness of guilt from Mr. Saleh’s intention to go to Lebanon on June 25, 2017. His conduct, when viewed in the context of all the circumstances, is not necessarily inconsistent with the conduct of an innocent person.

THE CUMULATIVE EFFECT OF THE CIRCUMSTANTIAL EVIDENCE

[503] When all of the circumstances are considered as a whole, a reasonable inference may be drawn that Mr. Saleh was the shooter. Mr. Saleh had a motive to shoot Noran. He had the opportunity to retrieve a gun at the Pilgrim apartment after he was beaten up by Noran’s cousins. These circumstances, along with the surveillance footage from the apartment building and the Alexandria parking lot, and Noran’s evidence that Mr. Saleh’s hand was in his backpack and removing something just before the shots were fired, support an inference that Mr. Saleh was the shooter. However, as outlined above, the weight to be accorded to each of these circumstances is diminished by other factors or circumstances. Together, those factors give rise to a reasonable possibility that Little Man was the shooter.

[504] Little Man had a motive to shoot Noran. Little Man was in a position to have fired the shots. Little Man was further away from Noran than Mr. Saleh was, which could explain why none of the shots struck Noran. If Little Man was the shooter, it would also explain why Noran had the sense that the shots came from somewhere other than Mr. Saleh’s location. There is no independent evidence indicating the location of the shooter. However, Little Man is linked to the gun used in the shooting by the presence of his DNA on one of the shell casings. Little Man’s criminal record reflects some propensity for violence.

[505] A circumstance that suggests that Mr. Saleh was not the shooter is the fact that he had ample time to pull out a gun and shoot Noran before Noran hit him with the level. Having been struck by the level, it is questionable whether Mr. Saleh could have retrieved the gun from the bag and fired it in one and a half seconds.

[506] In terms of the footage from the Alexandria parking lot, I refer to my earlier finding: the footage tends to support Mr. Saleh’s evidence that he approached the Mercedes in connection with his search for his phone and wallet, and not for the purpose of handing off a gun.

[507] Unlike Little Man, Mr. Saleh has no criminal record and there is no forensic evidence linking him to the firearm.

[508] As there is a reasonable possibility that is inconsistent with Mr. Saleh’s guilt, the Crown has failed to establish beyond a reasonable doubt that Mr. Saleh was the shooter.

CONCLUSION

[509] For the reasons given, Mr. Saleh is found guilty on Count 1 and not guilty on Counts 2 to 6.

Garton J.

Released: August 5, 2020

COURT FILE NO.: CR-19-30000012-0000

DATE: 2020805

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MAHDI SALEH

Accused

reasons for judgment

Garton J.

Released: August 5, 2020