minicounsel

COURT FILE NO.: CR-2317/17

DATE: 20201124

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Dylan Hamre

A. Midwood, for the Crown

M. Osadet, for Mr. Hamre

HEARD: March 2, 5, 6, 9, 10, 12, 13 and September 16, 2020

C.M. Smith J

Background

1On October 1, 2016 a shooting occurred at a residential address in Peterborough, Ontario, being the home of one Andrew Kennedy. Multiple rounds were fired into the backyard of the residence from the rear alleyway. Most of the rounds hit the rear wooden fence however, one round struck the hand of Mr. Damian Hall.

2On November 22, 2016 Mr. Hamre was arrested by Peterborough police on an unrelated matter. At the time of that arrest he was in possession of a loaded prohibited handgun. A warrant was executed at Mr. Hamre’s residence that same day in the course of which police located additional loaded, restricted handguns. Mr. Hamre was charged with a variety of offences as a result. He was subsequently convicted of those offences and is currently serving a five-year penitentiary sentence.

3On April 16, 2018 Mr. Hamre was re-arrested and charged with the following offences relating to the October 1, 2016 shooting:

(1) Discharging a prohibited firearm with intent to wound contrary to section 244(1) of the Criminal Code of Canada (‘the Code”).

(2) Aggravated assault contrary to section 268 of the Code.

(3) Possession of a firearm without being the holder of a license contrary to section 91(1) of the Code.

(4) Possession of a loaded prohibited firearm contrary to section 95 (a) of the Code.

(5) Transferring a firearm knowing he was not authorized to do so contrary to section 99 of the Code.

(6) Possession of a firearm while he was prohibited from doing so by reason of a Court Order of Prohibition contrary to section 117.01 (1) of the Code.

Procedural History

4A preliminary inquiry was conducted in this matter in August 2019 in the Ontario Court of Justice following which Mr. Hamre was committed to stand trial in this court. The matter was set for trial before me commencing March 2, 2020. The last witness and closing submissions were scheduled for Tuesday, March 17, 2020 which as it happened was the first day of the lengthy shutdown of the courts necessitated by the COVID 19 pandemic. The matter was subsequently rescheduled and was completed on September 16, 2020.

Agreed Statement of Facts

5At the outset of the trial on March 2, 2020 counsel filed an Agreed Statement of Facts which was made exhibit TR01. The various items referred to in the Agreed Statement of Facts were also made exhibits. For the sake of convenience, the Agreed Statement of Facts is reproduced here in its entirety:

Around 9 PM on the evening of October 1, 2016 a shooting occurred at 266 McDonell Street, in the City of Peterborough. Two males attended in a vehicle via a back alleyway and shot multiple bullets into the backyard of the residence. Several bullets struck the rear wooden fence, while another bullet struck Damien Hall in the right hand. That bullet remained lodged in his hand [Report of the radiologist exam admitted as [exhibit number TR02].
Peterborough police responded to the call about a shooting at 266 McDonell. Multiple officers arrive around 9:09 PM. At the residence, they identified Damian Hall, who was bleeding from the hand. He was transported to local hospital. They also identified in the residence: Andrew Kennedy, Daniel Kennedy, Robert Byrnes, and Crystal Kyle.
While searching the location, police identified bullet holes in the back fence of 266 McDonell. They also located 3 shell casings together in the alleyway running behind the residence [marked by a red ‘X’ on [exhibit number TR11]].
Police seized the shell casings and subsequently sent them to the Centre of Forensic Sciences (‘C.F.S.’) for analysis. The items were received and logged at the C.F.S. (see the ‘Raise Letter’ from the CFS of April 13, 2017 [admitted as exhibit number TR04]).
Later, on December 11, 2016, police executed a search warrant at 576 Garside Drive, Peterborough. This was the residence of Austin Murphy and his mother Lori Sabourin. Therein police located several firearms in the attic. Austin Murphy and his friend Lucas Allison were located inside the house and arrested for the gun possession. The following firearms were seized:

a. A loaded Remington 870 12-gauge shotgun, serial RS26691E

b. Unloaded Savage Arms 30/06 rifle with scope, serial H394972

c. Loaded Ruger 10/22 ‘Archangel’ semiautomatic, serial 35161244, along with an oversized round magazine with ammunition.

Photos of these items are attached as Exhibit 5.

These firearms were also sent to the Centre of Forensic Sciences. Judy Chin, a Forensic Scientist in Firearms and Toolmarks at the C.F.S., is an expert in the identification, classification, and comparison of firearms and ammunitions. She examined and classified the three firearms in her Report of May 18, 2017 [see exhibit TR 06].
She also undertook an examination and comparison of the shell casings from 266 McDonnell and the firearms seized from Garside Drive. In her Report, she concluded that it was the Archangel Prohibited Firearm which fired the shell casings: “there is an agreement of class and individual characteristics between the comparison items”.
Between October 1, 2016 and December 12, 2016, Dylan Hamre was bound by 4 separate Court imposed Weapons Prohibition Orders, prohibiting him from the possession of any firearm or ammunition.
On November 22, 2016, Dylan Hamre was arrested by Peterborough Police while the occupant of a motor vehicle. He was in possession of a loaded prohibited handgun, to wit an Interarms Revolver. On the same day, a warrant was executed at his residence and police located a loaded restricted Girsan handgun, and a loaded restricted Tec DC 9 mm semi-automatic handgun. Dylan Hamre has been convicted for these items and is serving sentence.

The Evidence of the Crown

6The Crown called two police officers and four civilian witnesses.

(a) P.C. Jamie McIntyre

7PC McIntyre was called by the Crown for the purpose of providing background evidence, an overview of the police investigation and for the admission of certain exhibits. He was the scribe while Mr. Hamre was interviewed by the investigating officer who arrested him in November 2016. He also testified that he had dealt with Mr. Hamre on a number of other occasions prior to that arrest. In the course of his testimony he was able to identify Mr. Hamre.

8PC McIntyre described a number of investigative tools utilized by the police in their investigation into this matter. These included information from confidential informants, information from other officers, information gleaned from a tracking device attached to a motor vehicle, as well as information gleaned from a Part VI Warrant to Intercept private communication. I note there were no challenges raised regarding the validity of any of the warrants obtained by the police in this matter.

9PC McIntyre played two excerpts from a wiretap interception on October 23, 2017 of a telephone conversation between Mr. Hamre, who was then incarcerated at the Central East Correctional Centre, and his then girlfriend, Stephanie Wright. PC McIntyre testified that he believes the male voice in question belongs to Mr. Hamre based on his previous dealings with Mr. Hamre. There was no objection to that evidence, however the fact that it is Mr. Hamre speaking is established by the content and context of the call as is made clear in the following excerpts:

SW: ‘Kay, well no, like I, like Margaret’s gonna talk to you, bec…because she’s gonna ask a question for me. You, I, like Heather’s gonna do it if I can’t. Heather said she would step up for me, ‘cause you, I, no one told me it was a fuckin’ machine gun. The minute that comes out Dylan, it’s definitely, if they, like, they know, the police know that I’m, you’re staying with me. I have a kid under the age and fuckin’ decided to become Al CAPONE. My heart stopped when she told me that. You’ve done some crazy shit man, but like, holy fuck G I Joe.

DH: Yeah, I told you it was a machine gun.

SW: No you didn’t. I would have fuckin’ lost it on you. No, you didn’t. You left that piece out. (Chuckles) When she told me…

DH: (Stutters) It’s, it’s a very pretty, a very pretty one.

SW: Was it? I don’t care. don’t, we won’t talk about it. Don’t… my head and my heart stopped.

DH: (Unintelligible sound)

SW: ‘Kay stop. Seriously don’t do that.

DH: (Laughs)

The “unintelligible sound” was the sound of Mr. Hamre doing a very convincing imitation of the sound made by a machine gun.

DH: Like, what the.

SW: That’s what your mom called you.

DH: Fir (ph), first off no one calls me Dylan anymore, like that’s, that guy’s dead.

SW: Okay that’s not, I will never call you by Stro (ph), Stro (ph). (Laughs)

DH: Yeah, but you can’t call me Dylan either.

SW: No, your names Dylan.

DH: You can call me fuckin’…

SW: Dylan.

10PC McIntyre also testified about his knowledge of the local drug subculture which he gleaned from his six years on the police drug squad from 2012 through 2018. In particular, he testified about a local organization called “the Ugly Crew” which consists of a group of individuals who are heavily involved in the local drug trade. PC McIntyre testified that Mr. Hamre is one of those individuals. Apparently, the members of the Ugly Crew are known by various nicknames with Mr. Hamre being nicknamed “Astro” which he shortens to “Stro”.

11PC McIntyre advised that his involvement with this particular investigation started with his initial attendance at the scene of the shooting shortly after it was reported to police on October 1, 2016. Thereafter his duties with the drug squad had him involved in a separate investigation which coincidentally also involved Mr. Hamre. That investigation eventually led to Mr. Hamre’s arrest on November 22, 2016.

12Mr. Hamre remained in custody on those charges until his guilty plea and sentencing on July 4, 2018. He was given a penitentiary sentence of slightly more than five years which he is still serving.

13PC McIntyre was also the affiant for the search warrant that was executed on December 11, 2016 at the Garside Drive home of Lori Sabourin and her son, Austin Murphy. The guns seized by police at that time were brought to court by PC McIntyre for inspection. Having inspected those weapons myself I would observe that Mr. Hamre’s girlfriend’s reference to Al Capone was apt.

14The data received by the police from the tracking device shows that a vehicle owned and operated by one of Mr. Hamre’s Ugly Crew associates was at the scene of the shooting on October 1, 2016, at the time of the shooting.

(b) Austin Murphy

15Mr. Murphy testified that he is a former drug trafficker who for a time was a good “buddy” of Mr. Hamre. He sold drugs for Mr. Hamre.

16On the day of the shooting Mr. Murphy testified that he was in Lindsay with his friend Jonah Edwards where they spent some time together using drugs. He first heard about the shooting over the radio in his car as the two men drove home from Lindsay that evening.

17The next day Mr. Murphy apparently took the proceeds from some drug sales to Mr. Hamre. In the course of their discussion that day the subject of the shooting came up. Mr. Murphy claimed Mr. Hamre uttered the words “we got him”, followed by the words, “pop, pop, pop”.

18Mr. Murphy also testified that he knew of a man named Andrew Kennedy who also worked for Mr. Hamre and who apparently was thought to have “ripped off” Mr. Hamre for approximately 3 ounces of cocaine. On the evidence before me that would have been valued at more than $5000. Mr. Murphy also told the court that approximately two weeks before that occasion he accompanied Mr. Hamre on what he called a reconnaissance mission to what ultimately became the scene of the shooting. He claimed to have no idea at the time as to why they were reconnoitering that location however, he was able to describe it in some considerable detail.

19Mr. Murphy continued doing business with Mr. Hamre until Mr. Hamre was arrested in November 2016.

20Mr. Murphy was himself arrested and charged with various weapon possession offences on December 11, 2016 following the execution of the search warrant at his mother’s home on Garside Drive. His friend Lucas Allison, who was staying with Mr. Murphy at the time, was also arrested and charged at that time.

21In the course of his testimony Mr. Murphy admitted to storing the guns in question in the attic of the Garside Drive home. He said he did so at Mr. Hamre’s direction and that he was paid by Mr. Hamre to do it. He was unclear as to how long he actually had the guns in his home however, he did tell the court that he returned the Archangel machine-gun to Mr. Hamre a week or so before the alleged drug rip-off. He said the weapon in question was returned to him by Mr. Hamre a week or so after the shooting.

22Mr. Murphy testified that he gave a statement to police following his arrest in which he related the details of a conversation he had with Mr. Hamre prior to the shooting. In the course of that conversation Mr. Hamre told Mr. Murphy that Mr. Kennedy had stolen drugs from him, and that he wanted to retaliate for that theft.

23Mr. Murphy knew Mr. Hamre went by the nickname Astro.

24Mr. Murphy testified that he gave the statement to the police because it he felt would help him get a more lenient sentence. He said he knew he was guilty of the offences he was charged with and ultimately he did plead guilty to those charges, being one count of possession of a loaded prohibited or restricted firearm, two counts of unauthorized possession of a firearm and one count of possession of a schedule one substance. On February15, 2018 he received a sentence of four months and 15 days, with credit for the equivalent of 10 months 15 days presentence custody, followed by two years’ probation. I note that sentence had been completed before Mr. Murphy testified at the preliminary inquiry held in this matter and long before he testified in this trial.

25In cross-examination Mr. Murphy denied giving a statement to the police just to get out of jail. He acknowledged several lies including lying to his mother about his activities generally and particularly about the quantum of marijuana he currently smokes each day. He acknowledged telling his friend Jonah Edwards to lie for him if and when he appeared on his behalf as surety at his bail hearing. He also admitted having lengthy discussions with his mother about an alibi for the time of the shooting.

26Mr. Murphy also admitted in cross-examination that when he was first arrested, he suspected that Mr. Hamre may have set him up, presumably by acting as a confidential informer and telling the police about the guns in his attic. He said he later changed his mind about that notion and denied any feelings of enmity toward Mr. Hamre.

27When confronted with the fact that when his mother, Lori Sabourin, was testifying in her role as proposed surety for him at his bail hearing he called out to her from the visitors box “just tell them mom” he explained that he did so because he wanted her to feel comfortable answering questions about the actual ownership of the guns and that they belonged to Mr. Hamre.

28Mr. Murphy’s CPIC print out was made Exhibit 10 in this proceeding. It is rather limited in length with the charges related above being the only offences for which he was sentenced to jail time.

(c) Lucas Allison

29Mr. Allison testified by CCTV link from an unknown location elsewhere in Canada. He apparently remains fearful of the other civilian witnesses involved in this case. He had his 17^th birthday during the course of these events.

30He has no criminal record. He described the nature and extent of the rather profound drug addiction he suffered from at the time of these events.

31Mr. Allison testified that he was a friend of Austin Murphy and was living with him temporarily at the time of their arrest in December 2016.

32He apparently knew Mr. Hamre and had bought drugs from him. He said that he had known him for about a year at the time of these events but that he did not know him well. He also knew that Austin Murphy sold drugs for Mr. Hamre.

33Mr. Allison also testified that the first time he saw the guns in question was at Austin Murphy’s house.

34He described his stay at Austin Murphy’s house as though he were considered something of a slave by Mr. Murphy. He was obliged to remain in the house and perform menial household tasks at Mr. Murphy’s behest. He claimed that Mr. Murphy once threatened him with a shotgun in order to make sure that he remained in the home. He felt he had little choice but to comply as he had nowhere else to go and the supply of the drugs he required to feed his addiction was dependent on him remaining on good terms with Mr. Murphy.

35Mr. Allison testified that he eavesdropped on a number of telephone conversations that Mr. Murphy conducted with Mr. Hamre over his cell phone speaker. In the course of one of those eavesdropping sessions he overheard Mr. Hamre say that “one of the guns has a body on it”. Mr. Allison was subsequently directed by Mr. Murphy to clean the guns by which I took him to mean wipe them down for fingerprints.

36Mr. Allison said that Mr. Murphy frequently referred to Mr. Hamre as “Stro”.

37In cross-examination Mr. Allison agreed that he was a very heavy user of street drugs at the time of these events. He vociferously denied the suggestion that he himself had done the drive-by shooting.

(d) Andrew Kennedy

38Mr. Kennedy testified before me for an entire morning. During that time, he testified that for the previous two months he had been using either 12 mg of hydromorphone or 8 mg of dilaudid, twice a day. In addition, he was consuming somewhere between .1 to .5 mgs. of crystal methamphetamine every day

39The impact on Mr. Kennedy of that drug usage was readily apparent. In the course of his testimony before me he mumbled constantly, had obvious difficulty focusing his thoughts, took overly long pauses before attempting to answer the simplest question, and appeared utterly unkempt. He testified that since the preliminary inquiry in 2019 he has suffered at least two head injuries, one as a result of a beating and the other as a result of him colliding with a pedestrian while riding his bicycle.

40Through the course of his testimony it became clear to me that Mr. Kennedy has absolutely no present recollection of events that occurred in the past.

41The Crown Attorney made a lengthy and reasonable effort to refresh Mr. Kennedy’s memory. Mr. Kennedy was provided with the transcript of his preliminary inquiry testimony and directed by the Crown to five separate excerpts. Mr. Kennedy was asked to read each of those excerpts to himself before answering any questions about that excerpt. On each occasion Mr. Kennedy took several minutes to read what was only a 10 to 20 line excerpt from the transcript. On each occasion Mr. Kennedy indicated that even after reading the transcript he still had no recollection of the events in question.

42Having watched Mr. Kennedy carefully through this process I was satisfied that he was neither malingering nor fabricating his responses. As I noted at the time, Mr. Kennedy clearly has a profound drug problem which would be self-evident to all but the most inexperienced of observers. In my view, Mr. Kennedy’s drug problem has fettered his memory as well as his ability to process all but the simplest concepts.

43As a result of Mr. Kennedy’s difficulties, the Crown Attorney brought an application to use Mr. Kennedy’s evidence from the preliminary inquiry as evidence in this trial. After submissions from both counsel I ruled that the evidence of Mr. Kennedy given at the preliminary inquiry in this matter would be admitted into the record and considered as part of his testimony in this trial.

44At the preliminary inquiry held in this matter Mr. Kennedy described how he and his girlfriend Jasmine Rowe, who sold drugs for Mr. Hamre, decided to help themselves to 3 ounces of Mr. Hamre’s cocaine and use it for their own purposes unbeknownst to Mr. Hamre. At the time Mr. Kennedy had met Mr. Hamre but did not know him well.

45Approximately two weeks later Mr. Kennedy was visiting the local Walmart department store with his six-year-old daughter in hand when he was confronted by Mr. Hamre just inside the main entrance to the store. Mr. Hamre told Mr. Kennedy that he was coming to his house that evening to “get what’s his”. He told Mr. Kennedy to make sure that his young daughter was not present at his home that evening.

46Mr. Kennedy testified that Mr. Hamre had a firearm with a 100 round drum attached to it in a duffel bag he was carrying at the time. He described the bag as being slightly open and the tip of the barrel of the gun was poking out wrapped in a bandanna. Mr. Hamre apparently unzipped the bag so that Mr. Kennedy could have an opportunity to see the gun, which he described as a large, black, dark gunmetal gun with a cylindrical drum type chamber attached to it.

47The encounter between Mr. Hamre and Mr. Kennedy at Walmart was captured on the store’s CCTV video system. That particular video was subsequently seized by the police on October 4, 2016 and was made exhibit 14 in this trial. I have watched it multiple times. While it is difficult to identify the participants, the video does show two men talking, one of whom is holding the hand of a little girl while the other is carrying what looks to be a duffel bag on a strap over his shoulder. The encounter unfolds just as described by Mr. Kennedy. The camera is located toward the rear of the store and clearly shows the entranceway where the encounter allegedly occurred. The video also shows the man with the duffel bag walking away from the meeting toward the rear of the store, i.e. toward the camera. In my opinion, that individual bears a striking resemblance to Mr. Hamre.

48Mr. Kennedy immediately took his daughter to his mother’s house. He enlisted the assistance of his father who returned with him to his home to await developments.

49At approximately 8 PM that evening the two men were in the company of Mr. Damien Hall when they heard the sound of a car in the laneway behind the home. A large fence blocked their view of the laneway, so Mr. Hall ran across the backyard and climbed up on the fence to see what was happening. Mr. Kennedy describes Mr. Hall as saying, “that nigga’s got a gun”. Mr. Kennedy then heard three loud noises which he described as “pop, pop, pop”. He then heard Mr. Hall say “fuckin’ sand nigger shot me”. He then heard the sound of the vehicle rapidly departing.

50Mr. Kennedy subsequently learned that Mr. Hall had in fact been shot in the wrist and hand. Police were called.

(e) Jonah Edwards

51Jonah Edwards also testified for the Crown. He has been a friend of Austin Murphy since high school. He took up residence at Ms. Sabourin’s house while Mr. Murphy was in pretrial custody following his arrest in December 2016.

52Mr. Edwards participated in a number of telephone conversations with Mr. Murphy that took place while Mr. Murphy was in custody at the Central East Correctional Centre. Some of these conversations were captured by the Part VI Warrant to Intercept and were played in court. In the course of one of those conversations Mr. Edwards agreed to act as surety for Mr Murphy at his bail hearing whereupon Mr. Murphy spent some considerable time advising Mr. Edwards of exactly what to say when he was on the stand. Mr. Edwards did not recall that conversation.

53The intercepted communications also included a conversation between Mr Murphy, Mr Edwards and Ms. Sabourin in the course of which the three parties spent a considerable amount of time exploring the issue of an alibi for Mr Murphy for the time of the shooting.

54Mr. Edwards was insistent that he and Mr. Murphy were in Lindsay on the evening of the shooting, and they got “wasted” together. He denied counsel’s suggestion that he had intentionally approached the police to provide them with that information as an alibi for Mr. Murphy. Rather, he indicated that the police had contacted him about the matter.

55Mr. Edwards also denied counsel’s suggestion that he had been offered money by anyone to come and testify against Mr. Hamre. He also insisted that he had never, at any time, had anything to do with the guns.

(f) Detective Constable Reesor

56Detective Reesor was the officer in charge of the police investigation of the shooting incident. He testified about a number of matters including how the Walmart video was obtained and the fact that it made Mr. Hamre a person of interest to the police. At the time Detective Reesor was not familiar with Mr. Hamre so he showed the video to two of his colleagues, who were familiar with Mr. Hamre. They identified the male in the video carrying the duffel bag as Mr. Hamre. No objection was taken to the hearsay nature of that evidence.

57Detective Reesor reviewed the Walmart video with Mr. Kennedy a few days before he testified in this trial. He advised that at the time Mr. Kennedy had no independent recollection of the event and could not confirm or deny the identification of the parties in the video based on the video quality. The officer believed that was the only time Mr. Kennedy ever saw the video.

58Once Detective Reesor obtained the Part VI wiretap intercepts, and in particular the one referred to above between Ms. Sabourin, Mr. Murphy and Mr. Edwards, he decided he needed to speak with Austin Murphy and Lucas Allison. They were by that time in custody. Both gave statements to D/C Reesor which apparently were generally consistent with their evidence at trial. Once Detective Reesor was in receipt of those statements he determined that he had reasonable grounds to charge Mr. Hamre with the shooting as a result of which Mr. Hamre was arrested on April 16, 2018.

59DC Reesor agreed that he had originally been looking at Austin Murphy as the individual who shot Mr. Hall based on the fact that the gun was been found in his house. He said he was not involved in any discussions regarding what effect cooperation by Mr. Murphy would have on the way the Crown might choose to deal with his charges.

Evidence of the Defence

(g) Laurie Sabourin

Evidence of the Defence

60Ms. Sabourin is a correctional officer at the Central East Correctional Centre. She is the mother of Austin Murphy and the owner of the house on Garside Drive where the guns were found.

61Ms. Sabourin indicated that her son had a major drug problem starting from age 12 or 13. He started with marijuana before moving onto harder drugs. She advised she did not ask Mr. Murphy what drugs he was using because in her words she “did not want to know, the past is past” and she wished “to move forward”. She had no idea her son was selling drugs.

62Ms. Sabourin appeared as surety for her son at his bail hearing on January 5, 2017. He was released on that occasion and placed on house arrest in her home. He was subsequently returned to custody in May 2017 for unrelated offences.

63Ms. Sabourin testified that in the summer of 2017 she found out from one of the police officers in this matter that Mr. Murphy was potentially facing a charge of attempted murder as a result of the shooting.

64Ms. Sabourin agreed that she had assisted her son in determining that he had an alibi for the date and time of the shooting. She also agreed that she had spoken with Mr. Edwards about that issue. She even went so far as to take Mr. Edwards to the police station so that he could give a statement to that effect. She was unable to recall details of conversations she had with either Mr. Murphy or Mr. Edwards regarding the alibi issue.

65Ms. Sabourin also told the court about a telephone call she received from Mr. Hamre shortly after Mr. Murphy’s bail hearing. Mr. Hamre wanted to know why Mr. Murphy was “talking”.

(h) Mr. Hamre

66Mr. Hamre elected not to testify in this matter as is his absolute right. I draw no inferences or conclusions from that fact.

Second Agreed Statement of Facts

67A second agreed statement of facts was filed by counsel on September 16th, 2020. I include it here in its entirety for the sake of convenience:

(7) Damian Hall told police that the ‘sand niggers shot him’ with an ‘assault style rifle’. He said that the shooter was brown male, with hoodie pulled tight around the face exposing only a portion of the face and eyes.

(8) Robert Byrnes was upstairs at 266 McDonnell and heard ‘pop, pop, pop’. He ran outside and observed two males: one male with dark straight hair to the neckline, driving. The other male was blonde hair about 6’ or 5’11, white shirt. The males drove off in a small older style grey sedan.

(9) The Peterborough Police Service did not conduct any photo lineup(s) in their investigation into this matter.

Position of the Defence

68The defence submits I must be satisfied beyond a reasonable doubt of the following three things in order to find Mr. Hamre guilty:

(10) That Mr. Hamre was in possession of the Archangel machine gun.

(11) That he was at the scene of the shooting and discharged the weapon.

(12) That Damian Hall was injured by a shell from that firearm.

69The defence points out that the Crown attorney has no eyewitnesses to the incident. Furthermore, the police did no lineups.

70The defence submits that the Walmart video shows two people who merely resemble Mr. Hamre and Mr. Kennedy. The defence also points out that the evidence of Detective Reesor regarding the identification of Mr. Hamre in the video by other officers and the fact that Mr. Kennedy could not identify himself in the video when shown it by other officers was hearsay and therefore not reliable or admissible. I note that no objection was taken to that evidence when it was given.

71The defence further submits that the specificity of the content of Mr. Kennedy's description of the incident is suspicious given that Mr. Kennedy's statement was not made until April 2018 some 18 months after the incident. In particular, the defence points to Mr. Kennedy's evidence about the barrel of the gun being wrapped in a bandana, that the gun was in the gym bag and that Mr. Hamre opened the bag to show it to him, none of which can be discerned on the video.

72The essence of the defence position is that each of Mr Murphy and Mr Allison had ample opportunity to both collude with one another and to shape their evidence in such a way as to minimize their involvement in the incident while at the same time implicating Mr Hamre as the owner of the guns and the shooter.

73In support of this position the defence points to the evidence of the discussion of Mr Murphy's alibi in the intercepted communications and Ms. Sabourin's evidence about the lengths she went to in assisting her son with the development of that alibi and to bringing it to the attention of to the police. The defence also points to the fact that both men had the opportunity to review the Crown disclosure in their cases, including the ballistics report, before providing the police with their alibi.

74The defence also suggests that the fact Mr Murphy was not charged as a party to the shooting constitutes a benefit conferred on Mr Murphy by the Crown in exchange for his cooperation.

75The defence submits that Ms. Sabourin is a biased witness in that she made it very clear that she is trying to protect her son, Mr. Murphy.

76The defence also submits that Messrs. Kennedy, Murphy, Edwards and Allison have each demonstrated that they are unreliable witnesses, making it unsafe to base a conviction on any of their evidence.

Position of the Crown

77The Crown submits that there is direct evidence before the court, being the testimony of Mr. Murphy, to establish that Mr. Hamre was in possession of the Archangel machine gun for some time both before and after the actual shooting.

78The Crown further submits that there is a wealth of circumstantial evidence before the court from which one can legitimately infer that Mr. Hamre was, at a minimum, a party to the shooting if not the actual shooter. That evidence emerges from Mr. Kennedy's evidence about the so-called drug rip-off, which establishes a motive for Mr. Hamre, Mr. Murphy's testimony regarding the reconnaissance trip with Mr. Hamre to the scene of the shooting, which the Crown submits is evidence of planning by Mr. Hamre, and Mr. Hamre's post offence conduct involving concealment of the weapon used and his comments to Mr. Murphy about the incident itself.

79The Crown suggests that there are three critical stages to this matter, those being the drug rip-off, retaliation for the drug rip-off and then concealment of the weapons. The Crown notes that the evidence shows that Mr. Hamre was involved in all three of those stages.

80The Crown also submits that the audio intercept involving Mr. Hamre proves that Mr. Hamre responds to both Dylan and Astro, while his laughter at the notion of using a machine gun, and his imitation of the sound of that machine gun, all constitute circumstantial evidence tending to support an inference that he was responsible for the shooting.

81The Crown also points to the evidence of the tracking device as being consistent with the other evidence before the court about the attendance of that vehicle at the scene, that evidence coming in the form of the content of the second Agreed Statement of Facts.

82The Crown further submits that I need not find as a fact that Mr. Hamre actually pulled the trigger because the evidence at a minimum establishes that he was a party to the offence.

83With respect to Mr. Edwards the Crown attorney concedes that he struggled with his memory and admitted that he was heavily intoxicated on the date in question, but he insists that he was in Lindsay on the day of the shooting. The Crown notes parenthetically that the defence allegation that Mr. Murphy and Mr. Edwards fabricated that story was not put to them by the defence in cross examination.

84The Crown submits that Mr. Murphy has little motive to lie at this point in time given that his sentence has been served and he therefore has nothing left to gain. The Crown also points to the fact that Mr. Murphy claims that being arrested on these charges was the best thing that ever happened to him as it finally inspired him to get free of hard drugs.

85The Crown also suggests that Mr. Murphy's comment at the bail hearing to his mother was a spontaneous utterance which proves that he and his mother had already talked about the fact that the guns belonged to Mr. Hamre and not to Mr. Murphy.

86The Crown points to the fact that Mr. Murphy worked for Mr. Hamre at the time of these events and was apprised by him of the drug rip-off by Mr. Kennedy and that Mr. Hamre told him that he planned to retaliate. Mr. Hamre then followed up by asking for the gun before the shooting and then subsequently returning it to Mr. Murphy. He also points to Mr. Murphy's evidence about the comment made to him by Mr. Hamre after the shooting to the effect that he had ‘got” Mr. Kennedy. The Crown suggests all of these incidents are further circumstantial evidence tending to support the inference that Mr. Hamre was directly involved in the shooting.

87The Crown submits that there is no evidence before the court showing that Mr. Allison and Mr. Murray colluded in any way with respect to preparing their statements to police, nor is there any evidence before the court to support the defence position that Mr Murphy was rewarded for his cooperation by not being charged as a party to the shooting. The Crown also notes that Mr Murphy was not confronted by the defence with any alternate theory regarding ownership of the weapons in question.

Analysis

88This case involves an extremely potent mixture of drug addiction, drug trafficking, the street drug subculture and firearms. As might be expected it also involves some unsavory witnesses some of whom were clearly unsure about whether they were more afraid of their colleagues in the drug trafficking business than they were of the police who were investigating that business.

89As might also be expected, allegations of double dealing, fabrication of evidence, lying, deception and untrustworthiness permeate the case.

90That said though there are a number of pieces of evidence in this matter that I found very compelling. They are as follows:

(i) Exhibit 8 - the intercepted conversation between Mr. Hamre and Ms. Wright

91The first such evidence comes in the form of the intercepted communication between Mr. Hamre and his girlfriend Ms. Wright, being exhibit 8. The fact that Ms. Wright refers to the person to whom she is speaking as “Dylan” and then “Stro”, and the fact that Mr. Hamre refers to himself by name, leaves me with no doubt that Mr. Hamre is a party to the conversation.

92In the course of that brief conversation the two discuss the shooting and the fact that a machine gun was used. Mr. Hamre insists that he had told Ms. Wright that a machine gun was used in the shooting, in his words “a very pretty one”. He then imitates the sound of a machine gun, before starting to laugh.

93In my view, Mr. Hamre’s utterances in that intercepted conversation come perilously close to an outright admission that he was involved in the shooting.

(ii) Exhibit 14 - the Walmart video

94Andrew Kennedy told police at the time of the shooting about an encounter he had with Mr. Hamre at Walmart earlier that day. That encounter was captured by the store’s video surveillance system. Police officers obtained a copy of the relevant excerpt two or three days after the shooting incident. That video largely confirms Mr. Kennedy's account of the meeting. While I appreciate that it is not possible to determine the identity of the parties shown in the video with certainty, the fact remains that the video does show a man holding the hand of a small child speaking to another man just inside the main entrance of the store at the appropriate point in time just as described by Mr. Kennedy in his statement to the police on the night of the shooting.

95In my view, the chances that the people depicted in the video are persons other than Mr. Kennedy and Mr. Hamre are miniscule. I am satisfied beyond a reasonable doubt that the video shows the encounter described by Mr. Kennedy.

(iii) Exhibit 6 - the ballistics report

96The ballistics report from the Centre of Forensic Sciences confirms that the shell casings found at the scene of the shooting were fired by the Archangel semi automatic weapon in question.

(iv) The evidence of Lucas Allison

97Lucas Allison knew Mr. Hamre, having sold drugs for him for a period of time in 2016. Mr. Allison was also familiar with the firearms in question, having seen and handled them while staying with Austin Murphy.

98Mr. Allison testified that Mr. Murphy referred to Mr. Hamre as “Stro”.

99Mr. Allison also testified that he overheard Mr. Hamre tell Mr. Murphy that “one of the guns had a body on it”. He also testified that that he overheard Mr. Hamre tell Mr. Murphy he wanted the guns buried.

100The defence urges me to reject Mr. Allison's evidence because he was in the throes of a profound drug addiction at the time of these events and because he agreed to testify for the Crown in this matter apparently so that his charges would be dropped.

101Mr. Allison appears to have been little more than a dupe used by others involved in this matter to further their own ends. He has no criminal record. He turned 17 in the midst of these events. He is so afraid of the other individuals involved in this matter that he relocated to another province. His charges were withdrawn, apparently long before the preliminary inquiry and the trial. Nevertheless, Mr. Allison did testify for the Crown in this proceeding.

102During his testimony Mr. Allison was candid about his drug problem at the time of these events. He also acknowledged that his lawyer received Crown disclosure in the matter following his arrest and advised him of its contents. Defence counsel urges me to reject Mr. Allison’s evidence because of those factors and submits further that Mr. Allison testified as he did because he remains afraid of Mr. Murphy.

103In my view, the fact that someone has reviewed Crown disclosure in a case does not automatically and inevitably lead to the conclusion that their evidence in the matter has been somehow compromised or tainted by whatever knowledge they gleaned from that review. Apart from defence counsel’s suggestion to that effect there is no evidence before me upon which one could conclude such were the case.

104Mr. Allison made it very clear that he is afraid of everyone involved in this matter which would include Mr. Murphy. Given his description of his treatment at the hands of Mr. Murphy Mr. Allison's fear may be justified. There is however no evidence before me to support the contention that his fear of Mr. Murphy caused Mr. Allison to be less than truthful.

105Mr. Allison agreed with defence counsel's suggestion that his drug use may have affected his ability to accurately recall events. Nevertheless, he did not demonstrate any obvious memory lapses during the course of his testimony nor was he challenged about his description of the telephone conversations he over-heard between Mr. Murphy and Mr. Hamre. I accept that evidence.

(v) The evidence of Austin Murphy

106Mr. Murphy testified about a number of events that are of significance. Mr. Murphy was familiar with both Mr. Kennedy and Mr. Hamre. Mr. Murphy also sold drugs for Mr. Hamre who he regularly referred to as “Stro”. Mr. Murphy told police that Mr. Hamre had told him about Mr. Kennedy's theft of his drugs and the fact that he wished to retaliate.

107Mr. Murphy described accompanying Mr. Hamre to the scene of the shooting a week or two before hand in order to do a reconnaissance.

108Mr. Murphy also described a conversation he had with Mr. Hamre the day after the shooting during the course of which Mr. Hamre advised that “we got him” and further, “pop, pop, pop”.

109Mr. Murphy also testified that he stored Mr. Hamre’s guns at Mr. Hamre’s direction for an indeterminate time, a service for which he was paid by Mr. Hamre. He further testified that he gave Mr. Hamre the gun in question, being the Archangel, a week or so prior to the shooting and then took it back from him a week or so after the shooting.

110Mr. Murphy's account of his handling of the guns and his evidence that they were the property of Mr. Hamre went largely unchallenged. He was not confronted with any alternate theory of ownership of the guns.

111Mr. Murphy was also very candid about his drug history both in terms of his addiction and his involvement in the trafficking of street drugs. He admitted that he lied to his mother, Laurie Sabourin, about the quantity of drugs he consumes and about other activities. He testified that while he initially thought that Mr. Hamre had “set him up” with the firearms he has since changed his mind. He also told the court that getting arrested was probably the best thing that ever happened to him as it allowed him an opportunity to confront and deal with his drug addiction. He said he has not used hard drugs since his arrest.

112Defence counsel submits that Mr. Murphy received considerable benefit for giving his statement to the police over and above a reduced sentence. The defence suggests that Mr. Murphy's actions in storing the firearms used in the shooting make him a party to that incident and therefore render him liable to much more significant penalties than he received for possession of the guns. It is submitted that the fact Mr. Murphy was not charged with more serious offences was in fact the benefit conferred upon him by the police for his cooperation. That notion was not put to either of the police witnesses who testified.

113Detective Reesor testified that Mr. Murphy's lawyer did get involved on his behalf in negotiations with the police and the Crown attorney for a lower sentence in exchange for Mr. Murphy's cooperation. That is a very common practice in matters of this nature which occurs regularly in the Canadian criminal justice system. It is an accepted practice which, in this particular case, did result in a lower sentence for Mr. Murphy. There is however no evidence before me to support the notion that any other consideration of any kind, was given to Mr. Murphy by the police. In the absence of such evidence any suggestion that such a consideration was extended to Mr. Murphy can only be described as speculative.

114Mr Murphy is certainly no angel. He has a criminal record. He freely admits to having been involved in the use, purchase and sale of street drugs. He was candid about having lied to his mother about his consumption of drugs. However, Mr. Murphy's evidence is corroborated by, and is consistent with, the evidence of Mr. Allison. Apart from defence counsel’s own suggestion, there was no suggestion made of collusion between the two men. Moreover, almost four years had elapsed since the shooting by the time Mr. Murphy testified in this trial. His sentence had long been served. He had nothing to gain by testifying. He did however have a great deal to lose given that his testimony has no doubt put him into disfavor with some of his former colleagues in the drug subculture, which is eloquently emphasized by Mr. Hamre’s telephone call to Ms. Sabourin. In my view these factors enhance the reliability and credibility of Mr. Murphy's testimony. I accept his evidence.

(vi) The evidence of Jonah Edwards

115I found the evidence of Jonah Edwards to be of limited utility. Mr. Edward’s evidence provided Mr. Murphy with an alibi for the day of the shooting. Given that Mr. Murphy was not charged with anything directly flowing from the shooting incident that alibi did not prove to be necessary. I note parenthetically that the fact that Mr Murphy and Mr Edwards discussed the potential alibi with Ms. Sabourin is not necessarily inappropriate nor does it lead inexorably to the conclusion that the alibi was a fabrication.

116The fact that Mr. Edwards was prepared to lie for Mr. Murphy at his bail hearing is also of little value given that Mr. Edwards ultimately did not appear as a proposed surety on behalf of Mr. Murphy.

(vii) The evidence of Laurie Sabourin

117Laurie Sabourin’s evidence about her son’s sudden and unexpected outburst at his bail hearing tends to confirm that she and Mr. Murphy discussed who owned the guns prior to that bail hearing. That fact would appear to rebut any suggestion that Mr. Murphy was fabricating his evidence when he testified that Mr. Hamre owned the guns in question.

118As I have already observed, the fact that Mr. Hamre apparently saw fit to telephone Ms. Sabourin after the bail hearing in order to inquire why Austin Murphy was “talking” is a timely and eloquent illustration of the potential consequences facing a member of the drug subculture who elects to testify on behalf of the Crown at the trial of a fellow member of that drug subculture. It is also possible to infer from the fact of the call, occurring as it did before Mr. Hamre was arrested and charged with the shooting, that it was an attempt by Mr. Hamre to control the narrative.

(viii) The second Agreed statement of Facts

119Mr Hall told police that the shooter was a brown male. Mr Hamre could be said to fit that description.

Summary

120The evidence of Mr. Murphy regarding Mr. Hamre’s comments about having been ripped off by Mr Kennedy and his stated desire to retaliate, coupled with Mr. Kennedy's description of the encounter in the Walmart store, satisfy me beyond a reasonable doubt that Mr. Hamre had the motive to commit the offences charged.

121The evidence of Mr. Murphy and of Mr. Allison about the ownership of the weapons in question, when taken together with the evidence of Mr. Kennedy about what he saw in the duffel bag at the Walmart store, as well as Mr. Hamre’s own comments in the intercepted communication excerpted above, all leave me satisfied beyond a reasonable doubt that Mr Hamre had the means to commit the offences charged.

122The evidence provided by Mr. Murphy about Mr. Hamre's post offence conduct, being the transfer of the weapons in question back to Mr Murphy as well as his comments to Mr Murphy on the day following the shooting, which are detailed above, leave little, if any, room for any inferences other than the inference that Mr. Hamre participated in the shooting.

123The defence submits that in order for me to find Mr. Hamre guilty of counts one and two, being the offences of discharging a firearm and aggravated assault, I must first be satisfied beyond a reasonable doubt that he was in possession of the gun in question, that he was present at the scene of the shooting, and that Damien Hall was injured by a shell fired from that weapon.

124The evidence of Mr. Murphy and Mr. Allison leaves me satisfied beyond a reasonable doubt that Mr. Hamre was the owner of the gun in question and was in actual or constructive possession of the gun at all material times, including when it was in a loaded condition at the scene of the shooting.

125The intercepted communication between Mr. Hamre and Ms. Wright, Mr. Kennedy's description of his encounter with Mr. Hamre at Walmart, the Walmart video, the ballistics report and the evidence of Mr. Murphy regarding the reconnaissance trip and his various conversations with Mr. Hamre about the shooting, when taken together, satisfy me beyond a reasonable doubt that Mr. Hamre both planned, and was in attendance at, the shooting and that Mr. Hall was injured by a bullet fired from the gun in question.

126On the evidence before me, including the utterances of Mr. Hall at the scene, the post offence comments of Mr. Hamre as described by Mr. Murphy, and the evidence of the Walmart encounter between Mr. Kennedy and Mr. Hamre, I am satisfied beyond a reasonable doubt that Mr. Hamre actually fired the bullet that hit Mr. Hall.

127I am satisfied beyond a reasonable doubt by the evidence of Mr. Murphy that Mr. Hamre transferred the weapon in question when he gave it back to Mr. Murphy following the shooting.

128I am also satisfied beyond a reasonable doubt by the content of the first Agreed Statement of Facts that at the time of these events Mr. Hamre was bound by 4 separate court-imposed Weapons Prohibition Orders, each of which prohibited him from the possession of any firearm or ammunition.

125No evidence was called, nor were any submissions made, on the issue of whether or not Mr. Hamre was the holder of a license under which he was legally entitled to possess any of the weapons in question at the material times. However, as it is common ground that Mr. Hamre was bound at all material times by 4 court-imposed Weapons Prohibition Orders the issue is rendered moot by operation of s. 116 of the Code.

Conclusion

126The Crown has met its onus. I find Mr. Hamre guilty of each of the six counts in the indictment. Convictions will be registered on each

C.M Smith, J

Released: November 24, 2020

R. v. Hamre, 2020 ONSC 7162

COURT FILE NO.: CR-2317/17

20201124

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN v. Dylan Hamre

REASONS FOR JUDGMENT

C. M. Smith, J

Released: November 24, 2020