R. v. Ahmed, 2021 ONSC 2141

COURT FILE NO.: 16-M7875

DATE: 2021/03/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MUSTAFA AHMED

Accused

Matthew Geigen-Miller and Michael Purcell, for the Crown

Soloman Freedman and Vanessa Garcia, for the Accused

HEARD: January 11, 2021 to February 10, 2021

REASONS FOR JUDGMENT

Laliberté j.

INTRODUCTION

[1] The accused, Mustafa Ahmed, is charged with the second degree murder of Omar Rashid-Ghader, contrary to s. 235(1) of the Criminal Code. The offence is alleged to having been committed on August 14, 2016 inside the Sentral Nightclub located on Dalhousie Street in the City of Ottawa. On consent, the matter was heard as a judge alone trial.

[2] Through admissions and his testimony, the accused admits having shot the deceased and thereby caused his death but maintains having done so to defend himself. He also denies having shot him with the specific intent required for murder.

[3] The Crown’s submission is that the evidence establishes the accused’s guilt for second degree murder beyond a reasonable doubt.

[4] The trial has raised a number of distinct factual and legal issues but revolves mainly around self-defence, provocation and the cumulative effect of the evidence as a whole on the specific intent required for second degree murder.

[5] Ultimately, as in any criminal trial, the fundamental question is whether the Crown has proven beyond a reasonable doubt each of the essential elements of the offence alleged in the indictment or a lesser and included offence.

EVIDENCE

Crown’s Evidence

[6] The Court heard evidence from the following Crown witnesses:

• Staff Sergeant Cory Robertson: one of the first officers at the scene;

• David Jean: worked at the Sentral Nightclub as a security agent/bouncer;

• Forensic Pathologist Christopher Milroy: performed the post-mortem examination;

• Sergeant Ronald McFarlane: member of the Forensic Identification Unit;

• Amina Mohamed: deceased’s spouse;

• Michael Ross: expert in the field of forensic media examination;

• Detective Scott Ferguson: expert in the field of the characteristics of an armed person.

[7] There were a number of admissions made by counsel under sec. 655 of the Criminal Code as part of the Crown’s case. These were made in writing and filed as Exhibit #2. These can be summarized as follows:

1. the accused’s identity is not in issue;

2. the accused caused the deceased’s death on August 14, 2016 at the Sentral Nightclub by firing a .40 calibre handgun twice in his torso;

3. the accused took a Blue Line taxi on Dalhousie Street after he left the Sentral Nightclub and asked to be driven to “Riverside”; the driver told him to get out of the car when he noticed blood on his hands;

4. the accused walked west on Clarence Street and approached a West Way taxi; he was dropped off in the area of Lola Street and Presland Road; this taxi ride occurred from 3:22 a.m. to 3:54 a.m.; he was recorded sitting in the back seat and these images are found in Exhibit #1;

5. a warrant in the first instance was issued for his arrest on August 16, 2016;

6. he was arrested on February 15, 2018 by Toronto Police officers in a downtown Toronto restaurant where he was located;

7. the video recordings and images contained in Exhibit #1 are authentic;

8. the documents contained in Folder 8 of Exhibit # 1 (expert reports and statements of qualifications) are admitted on consent;

9. Dr. Christopher Milroy is qualified to give expert opinion evidence in the area of forensic pathology;

10. Michael Ross is qualified to give opinion evidence in the area of forensic video analysis and forensic imaging;

11. Scott Ferguson is qualified to give evidence in the area of characteristics of an armed person.

[8] Exhibit #1 is an electronic exhibit brief filed by the Crown.

[9] The Court will now summarize the evidence provided by Crown witnesses.

Staff Sergeant Cory Robertson

[10] Staff Sergeant Cory Robertson has been a member of the Ottawa Police since March 1999. On August 14, 2016, he was acting as a patrol supervisor in an area which included the By Ward Market in Ottawa. It was around 3:21 a.m..

[11] He had parked his cruiser along Clarence Street which is east of Dalhousie. He was outside his cruiser next to the driver’s door when he heard a lady coming from the rear of 295 Dalhousie, which is the bar, yelling that someone had been shot inside the nightclub.

[12] He made his way to the front entrance of the nightclub and could see people coming out onto the street. He then observed Constable David Brown arrive at the front entrance. Both he and Constable Brown made their way inside the nightclub being followed by 2 other officers. He had drawn his firearm as they were looking for someone who had a gun inside. There were other people around.

[13] He describes having gone down the stairs to get to the bar which is located in a basement.

[14] Once inside, he moved around wanting to secure the area.

[15] The officer is shown a scale diagram which is part of Exhibit #1 referred to as Folder 7, item A pages 2 and 3 which he identifies as the scene. He saw a male on the ground at the corner of the bar. The male was on his back with blood forming under him. There were 2 bullet holes on his left side. He could see the person’s face but did not recognize him. He was able to do so later by means of a photo I.D.. The male was identified as Omar Ghader.

[16] Together with Constable Brown, they attempted to revive the male. They were doing chest compressions. A defibrillator was used but there was no reaction. The paramedics had been contacted and arrived at 3:36 a.m.. They took over once at the scene. Omar Ghader was pronounced dead soon thereafter.

[17] The officer notes that he found what he believed to be a 9 m.m. cartridge casing from a .40 calibre next to the deceased.

[18] The officer is then shown excerpts from the videos which are part of Exhibit #1, Folder 6, Channels 13, 9 and 15. which depict the following:

• the main entrance of the bar;

• the police enter through this entrance;

• police going down the stairs to the bar area;

• the location of the deceased while on the ground at the corner of the bar;

• police doing chest compressions on the deceased and using the defibrillator;

• the arrival of the paramedics who take over;

• he is shown a still photograph at page 52 of the spent cartridge which was next to the deceased.

[19] Once the paramedics took over the care of the male, he focussed on securing the scene and set up a crime scene. He left at 7:15 a.m. once relieved by the daytime staff sergeant. He notes that Dalhousie street had been closed.

[20] In cross-examination, the officer explains that Constable Brown is the one who told him that the deceased’s name was Omar Ghader and he followed up on his police computer. There were a number of contacts with the police but he was not familiar with him nor the alias Esco.

David Jean

[21] Witness David Jean worked at the Sentral Nightclub as a security agent/bouncer for some 6 to 7 years. His duties as such included making sure people were sober, unarmed and verifying identification. He was on duty on August 13and 14, 2016 at the time of the shooting inside the club. There were a total of 6 bouncers on duty.

[22] He worked at the entrance from 11:00 p.m. to 1:00 a.m. at which time he went downstairs in the club where he walked around to ensure security. He describes the night as being quiet and nice. There was a rapper named Maino who was performing.

[23] He was close to the office near a pillar and observed a group of guys talking when a drink flew in his face which is what drew his attention. He noted an “Arabic” and “Somalian” getting in a fight. There was swinging and punching. He intervened and tried to separate them. He was 4 to 5 feet from this fight, got closer and touched both males.

[24] The witness states having heard 3 gun shots. He initially thought the first shot was a balloon popping. It was approximately 3:19 a.m..

[25] He notes that everybody was scared and ducking down including himself. The “Somalian” male was walking slowly to the door which led him to believe he was the shooter.

[26] He then made sure everybody was safe and directed people to leave from the back. Police and paramedics arrived at the scene.

[27] He states having seen the “Arabic” male before that night in bars, lounges and pubs. He was a regular customer at the Sentral Nightclub who would purchase bottles and drinks. There had never been any issues with him in the past.

[28] The witness is then led through a number of video clips captured at various times from 23:13:50 to 3:23:50 by surveillance cameras located at different areas inside the club and at the entrance. He is asked to describe what is shown on the clips and identifies himself and others.

[29] He is shown clips from the following cameras:

camera 13: front entrance area

camera 9: stairs leading down to the nightclub

camera 7: bar area

camera 14: office door area

camera 15: bar area

camera 4: VIP section in front of the entrance

camera 6: front bar area

[30] The witness goes on to describe the events as shown on the video clip from camera 6 starting at 3:19:30 as follows:

3:19:30

− there was a group of men at the end of the bar; he could not hear what they were saying

3:21:04

− there is a drink that flies into his face;

3:21:06

− two guys were fighting, he was 2 meters away; he tried to separate them; his hands were on both; he then heard a gunshot;

3:21:06

− this is the time he heard the gunshot based on the host Stephane clinching at that time; he believes having heard more gunshots but is unsure whether these were inside or outside the club.

[31] The following points were raised in cross-examination:

− he has worked for a number of years in various bars as a bouncer; he agrees that it is not an easy job and he can be called upon to do different tasks;

− some people who attended the Sentral Nightclub would purchase expensive bottles which could go up to $1,000; bottle service makes a lot of money;

− not everyone who attends the club is treated the same way; they get to know the individuals who spend a lot of money; they are known as VIPs;

− he denies the suggestion that VIPs do not get searched upon entering; he states that VIPs get searched at the Sentral; he is then shown video clips from camera 13 which show individuals being searched and others not being searched from 11:43:46 to 11:47; he ultimately agrees that not everyone gets searched;

− at 1:56:03 on camera 13, he identifies the male with a white shirt as the deceased known to him as Esco; he notes that he was a VIP who spent a lot of money at the club and bought bottles; he was not searched when he entered;

− he agrees that the nightclub environment is unpredictable and can be dangerous as people drink, it is loud, noisy and people can get from happy to dangerous; you must always be on your toes;

− he is shown the statement given to the police a few hours after the events and agrees that he could have heard only 2 shots; it sounded like there was something in front of the gun; he did not see any fire connected to the shots; when he heard the shots, his focus was not on breaking up the fight; he was not sure if the shots were connected to the fight as he was a bit disoriented when the drink splashed in his face;

− he agrees that there are bottles all over and therefore easily accessible; bottles may be dangerous;

− he is shown a video clip from camera 15 starting at 3:21:05 and agrees that Esco strikes the accused with a bottle, grabs him from behind, brings him to the ground and hits him 4-5 times; he agrees that he was unable to stop this violence.

[32] In re-examination, he confirms that nobody else was killed while he worked as a bouncer.

[33] With regard to people being searched, he states that at times people go in and out and that weapons can be transferred.

[34] Finally, he notes that his hand was under Esco’s elbow and that he removed it because of the gunshot. He would have intervened to stop the fight had it not been for the gunshot.

Doctor Christopher Milroy

[35] Doctor Christopher Milroy was qualified on consent as an expert forensic pathologist to provide his opinion as to what caused Omar Rashid-Ghader’s death which he identified as gunshot wounds of the chest.

[36] His October 19, 2016 report was filed as an Exhibit.

[37] Dr. Milroy explains that he attended the scene at the Sentral Nightclub at 1:00 p.m. on August 14, 2016 as he was the on duty forensic coroner. The deceased’s body was still at the scene on the floor. He could readily see bullet wounds. He organized a post-mortem examination for the following day.

[38] He notes the following findings:

1. the x-rays revealed 2 bullets in the chest area; there was one located in the left side of the upper chest and one in the right side of the torso with separation of the jacket and the bullet; he identified these in photographs number 132 to 143;

2. the location of the 2 gunshot wounds are shown on a diagram and photographs number 171, 172 and 173; he refers to these as wounds #1 and wounds #2;

3. wound #1 is on the left upper chest 20 cm from the midline; the entrance gunshot wound is 1.4 cm x 1.4 cm with surrounding soot, powder and stippling; the bullet passed through soft tissue to enter the posterior chest wall through the second left rib posteriorly; the upper lobe of the left lung was contused but not punctured; the bullet passed backwards and from left to right;

4. wound #2 is described as the principal fatal wound as it was unsurvivable; it is located on the left upper chest, 7 cm to the left of the midline; the entrance gunshot wound is 1.5 x 1.1 cm with surrounding soot and powder; the bullet passed through the second intercostal space anteriorly with facture of the second costal cartilage; it passed through the anterior mediastinum and the pericardium and into the anterior wall of the heart; there was massive damage to the posterior wall of the heart; the bullet then passed through the pericardium, diaphragm and left lobe of the liver with the jacket being found adjacent to the other and the lead core by the inferior pole of the right kidney;

5. he cannot state the order or sequence of wound #1 and wound #2;

6. the presence of soot, powder and stippling reveals that the firearm was at a range of 3 to 6 inches when fired; he refers to this as an intermediate distance meaning that it was close but not in contact;

7. collapse would have been almost immediate following the infliction of wound #2 which he quantifies as probably within 5 to 10 seconds when the bullet goes through the heart;

8. there was an injury on the left side of the head along the left ear described as an abrasion 0.3 cm long as well as a patterned bruise with abrasions 5 x 3 cm on the left side of the face; these are shown on photographs 177 and 178; he explains that this was caused by an impact with an object and that his heart was beating at the time of this impact and he was therefore alive;

9. he had no injuries to his left hand as shown on photograph 176;

10. there were minor scrapes on the right hand, on the base of the right thumb, between joints of the index and middle finger and the joint of the little finger; these are shown on photographs 174 and 175; he cannot say whether these were caused through punching and/or hitting;

[39] He confirms that samples of blood were taken for the purpose of determining the presence and level of alcohol and drugs. The September 23, 2016 toxicology report of the Center of Forensic Sciences confirms the presence of alcohol at a level of 75 mg per 100 ml of blood. The presence of cannabis was detected at a level of 2.3 nanograms. Dr. Milroy explains that the presence of these substances at such level would not have affected his behaviour.

[40] He also indicates that the deceased appeared healthy, was not intoxicated and that the gun shots are the only factors in his death.

[41] The following points were raised in cross-examination:

− the deceased was well-nourished, well built and nothing would limit his strength or movements;

− the level of alcohol and cannabis would not have caused impairment nor significantly impacted on his balance;

− he is unable to say which of wound #1 or #2 came first nor the lapse of time between the two; death was caused by wound #2; he would have collapsed within 5 to 10 seconds after wound #2;

− he cannot determine the exact distance between the firearm and the deceased but he believes the range was 3 to 6 inches; he agrees with the suggestion that there are variables such as the length of the barrel and the type of ammunition;

− looking at the relationship between the entrance of the bullets and where they were located inside the body, he explains that for both wounds, the firearm was above and pointing down; it was a downward trajectory; the angle is different for both so that the firearm was repositioned between the 2 shots;

− the injuries to the face and right hand were fresh and consistent with coming from the same event as the shooting;

− there was a bruise to the right knee;

− the patterned bruise shown to the left side of the face depicted on photograph #177 results from contact with a pattern surface such as a floor or clothing; he was never asked to compare same to a pattern;

− the injuries to the right hand are consistent with punches being thrown; it is consistent with the punches thrown by the deceased depicted on the video shown to him.

[42] In re-examination, Dr. Milroy explains that the different angles of both wounds could be explained either by the gun being moved, the movements of the shooter or the movements of the deceased. The 2 wounds are in the same area. He explains that the injury to the face could have caused the deceased to become incapacitated. He could have been able to move after wound #1.

Sergeant Ronald McFarlane

[43] Sergeant Ronald McFarlane is a member of the Ottawa Police assigned to the Forensic Identification Unit who attended the scene with Constable Kelly Menna. He was contacted at 5:00 a.m. on August 14, 2016 and arrived at the scene at 7:59 a.m.. Constable Menna was tasked with taking photographs. He notes that the area of Clarence and Dalhousie had been cordoned off and secured by officers. He confirms the outside to be as shown on photographs 1 to 8. He is brought through photographs 9 to 112 which he confirms show various areas inside the Sentral Nightclub as it was found by him.

[44] Photographs 73, 74, 75 and 76 depict the alleyway on the east side of the building leading to Clarence Street.

[45] The coroner/pathologist who he had requested at 11:59 a.m. arrived at 1:11 p.m. and left at 1:23 p.m..

[46] The deceased was searched at 2:33 p.m.. They found keys, a lighter and a wallet in his pocket. His body was removed at 3:06 p.m.

[47] They left the scene and returned on the same day at 8:00 p.m.. Photographs 77 to 112 were taken at that time. He notes the following items:

− a pair of pants marked as R.M. 327 shown on photograph 80;

− a beige hat marked as R.M. 3.28 shown on photograph 81;

− a casing marked as R.M. 3.29 shown on photograph 83; this shell case was found on the floor close to the deceased’s right shoulder as shown on photograph 52;

− a bottle of champagne and a ball cap were found on the floor behind the bar as shown on photographs 61, 62 and 87; the bottle was marked as R.M. 3.49; items are shown on photographs 157 to 163.

[48] Photographs 89 to 112 show where the surveillance cameras were located inside the Sentral Nightclub.

[49] The officer confirms having attended the post-mortem examination which commenced at 9:51 a.m. on August 15, 2016. He identifies the photographs of the deceased at such time as numbers 171 to 178.

[50] They then returned to the scene at 4:14 p.m. and seized a number of Exhibits.

[51] They would again return to the scene on August 16, 2016 to conduct further searches namely evidence of other gunshots having been fired and fingerprints. This further search did not reveal anything. There was no evidence of other gunshots.

[52] The following Exhibits were referred to by the witness during his examination-in-chief:

− R.M. 3.27: pair of pants shown on photograph 80;

− R.M. 2.7: set of keys shown on photograph 113 found in deceased’s pocket (pants);

− R.M. 2.4: boots worn by the deceased shown on photographs 114 and 115;

− R.M. 2.6: pants worn by the deceased shown on photographs 116 to 117;

− R.M. 2.8: lighter found in deceased’s pocket as shown on photographs 118;

− R.M. 2.9: wallet found in deceased’s rear right pocket shown with content on photographs 119 to 124;

− R.M. 2.11: deceased’s stained shirt shown on photographs 125 and 126;

− R.M. 2.12: hair elastic band worn by deceased shown on photograph 127;

− R.M. 2.13: bullet jacket fragment found inside the deceased’s body shown on photographs 128 to 130;

− R.M. 2.14: bullet found inside the deceased’s body shown on photographs 131 to 135;

− R.M. 3.28: beige hat shown on photographs 146 to 149;

− R.M. 3:29: shell casing found close to the deceased’s right shoulder as shown on photographs 52 and 83; shown on photographs 150 to 156;

− R.M. 3.40: champagne bottle found behind the bar as shown on photographs 61, 62 and 87; shown on photographs 157 and 158;

− R.M. 3.41: ball cap found behind the bar as shown on photographs 61, 62 and 87; shown on photographs 159 to 163; the witness noted that there was no glass on this item.

[53] In cross-examination, the champagne bottle is entered as Exhibit #3 and the ballcap as Exhibit #4. He confirms having spent many hours inside the Sentral Nightclub searching the scene. He describes the bar as made of polish concrete and the floor as made out of hard tiles. He did not find any other shell casings inside or outside.

[54] In re-examination, he is asked to look at photographs 57 to 61 and confirms that the edges of the bar are rounded and not sharpe as suggested by defence counsel.

Amina Mohamed

[55] Amina Mohamed is the deceased’s spouse. They were married in March 2007 and lived together as a family in Ottawa with their 3 young boys born in 2007, 2009 and 2010.

[56] She describes him as a family man involved with their children. He would bring them to and from school daily. He was well known by the school authorities. He enjoyed the outdoor such as fishing and boating. She notes that he was an amazing cook.

[57] Her evidence is that both the deceased’s and accused’s families were extremely close and would participate in many types of activities such as religious events. This is how she got to know the accused. She knows his mother and sisters. In fact, they attended her wedding with the deceased. The accused’s mother use to refer to the deceased as her son.

[58] When asked to describe the relationship between the deceased and the accused, she states that they were friends who grew up together and were like family. She notes that a few years ago, the deceased had frantically left Ottawa and travelled to either Edmonton or Calgary for one week in order to help the accused with a medical emergency.

[59] She is aware that her husband had been in trouble with the law when he was younger and prior to their marriage. There were no such issues with the law after their marriage. There was some trouble but nothing significant. There was no significant jail.

[60] Exhibit #5 is a photograph containing 4 family pictures of the deceased with her and the children. Some were taken in July 2016.

[61] She explains that her husband had come home with steaks and was planning to watch a movie on the day he was killed. His phone kept on ringing and he was being asked to attend the 30th birthday of one of his friend’s at a bar where a rapper was performing. He kept saying that he did not want to go. The phone kept ringing.

[62] At around 11:00 p.m., she told him that his friend’s 30th birthday was important and he should go. He told her “you want me to go and party” and she told him to go.

[63] She notes that he would never drink alcohol around his family. He had not consumed any alcohol before leaving. His initial plan was to watch a movie with the children. He was happy and joking when he left. He left at 11:45 p.m. but he wanted to stay home.

[64] The witness became very emotional in explaining that she is the one who told him to go to the birthday party which led to his death.

[65] The following points were raised in cross-examination:

− She met the deceased a few years prior to their marriage in March 2007.

− She did not tolerate liquor in their home. He would only drink alcohol outside of the home. He also smoked weed. He did not consume alcohol or drugs prior to leaving on August 13, 2016.

− She states “yes and no” when asked if she had learned things about him following his death. She knew he was renting an apartment at 190 Lees Avenue which he used as a music studio. She had not signed the lease but someone else had co-signed. He was an aspiring rapper. They would go there on the weekends to swim. There was a bedroom and he would sleep there at times. She rejects the suggestion that he was renting two apartments. She does not know who lived there.

− She did not know his friends and he would not bring them home since he was very protective of his family. She does not know whether his friends were dangerous.

− A friend had told her years after their marriage that he was known as Esco which she thought was just a nickname. She found out it was a street name following his death through a newspaper article. She had never asked him about this.

− He treated her kindly and would not swear or use profane language in the home. She never heard him threaten anyone nor talk badly about anybody and the police other than in his rap songs. He was happy about their life.

− She knows that he had trouble with the police in his younger days. He told her he grew up on Ledbury in a bad neighbourhood. He wanted a different life for their kids. The accused also lived in this area. He never talked to her about the Crips but she did read about their gang connection in the news paper article.

− She never helped him file his tax return nor remembers seeing them. Her belief is that he was on disability and trying to make a living through his studio. She also mentioned him wanting to start catering and construction businesses. She did not take care of the family budget. As to how he could spend such money on liquor, she states that his friends would pitch in but does not know since she did not go to the bars. He would go to these with his friends.

− She knows he got in trouble with the law after she met him a few years before their marriage. She was 17-18 years old. The charges involved drugs and were immediately dropped. He may have spent time in jail following his arrest. He told her that he was innocent and not involved in drugs.

− She did not know which bar he was going to on August 13, 2016 nor the time he was getting together with his friends. He left at around 11:40 p.m. and she does not know what he did prior to his arrival at the bar at 1:57 a.m..

− He did carry cash on him which he got from the recording studio. There were many aspiring artists.

− She was shown a rap video and lyrics performed by the deceased which was posted on the internet in December 2007. These were filed as Exhibit #6 and #7. There are a number of individuals shown on the video but she cannot recognize any other than her husband. Nor does she know where the cash money shown therein comes from. It is noted that the words are of a violent nature. While she had seen this video, she never listened to the lyrics as she finds them extremely upsetting and does not like his image on this video. She never watched it for more than 30 seconds and does not want to see it again. She states that it is a rap video and all rappers do the same. It is not reflective of his life and rejects the suggestion that the money seen came from drugs and taxing people selling drugs.

− She was questioned whether the deceased was left or right handed. Counsel notes that when asked by Detective Hill on December 17, 2020, her response was that this was a tough question and thought he was both left and right handed. She explains that he could use both but his left hand was the strongest. She agrees that she had not seen the video showing him hitting the accused prior to the trial. Counsel then points to her statement given to Detective Benson on January 13, 2021 wherein she states that the deceased was left handed. The suggestion is that she changed her position on this subject-matter after viewing the said video clips and seeing the deceased striking the accused with his right hand.

− She is shown the deceased’s criminal record and confirms not being familiar with its content.

− She is unable to identify the individuals seen entering the Sentral Nightclub with him as shown on camera 13 at 1:56 a.m.. She identifies him and the accused during the altercation depicted on camera 15 at 3:20 a.m..

Michael Ross

[66] Michael Ross is a civilian member of the Ottawa Police as a forensic media examiner in the visual operations unit. On consent, he was qualified to provide expert opinion with regard to surveillance videos produced in this trial, including the extraction of images from these.

[67] The first part of his evidence is to be seen in the context of paragraphs 3 and 4 of the s. 655 admissions under the heading “After the fact conduct.” It consists of images of an individual sitting in the backseat of a Blue Line taxi and then a West Way taxi on August 14, 2016, between 3:22 a.m. and 3:54 a.m. He explains that the date and times are stamped on the images.

[68] These were captured by cameras located underneath the rear-view mirrors as per By-Laws. They are identified as photographs 164 to 170. He notes that the colours on same may be distorted when the lighting is low which triggers infrared lights.

[69] The witness then focused on the images extracted from the Sentral Nightclub. He explains that there were 16 channels (cameras) but that 15 were operable at the time. He produced a set of scale diagrams showing the various locations of the cameras and the direction (area) captured by these. He refers to the photographs while doing so.

[70] While going through these locations, he explains that colours may be distorted and that there is an issue of reliability as to colours. He refers to the changing ambient lights and how this triggers infrared lights which affects visual characteristics.

[71] He later explains, using a diagram and photographs 41 to 43, how the system operates through a monitor and a digital video recorder (DVR). He notes that modern technology is connected to old and that all of the wires are loose, bunched up together and next to the electrical wiring. He opines that such a set-up could affect the quality of the recording. There is a screen in the office area showing images from each camera.

[72] As for the speed of the recording, he explains that the cameras connected to the DVR record 30 frames per second.

[73] The witness prepared a frame by frame visual aid which synchronizes and places side by side frames from cameras 6 and 15 which shows the altercation between 3:21:02 to 3:21:25. Each page is one frame and 30 frames translates into one second. He has also added circular highlights to certain areas to improve visualization.

[74] In cross-examination, the witness agrees with the suggestion that the videos in this matter are known as compressed videos. The objective is to capture more through a compression process but less fine details. The process is such that it does not catch 30 frames or pictures per second. It creates one actual frame known as an I-frame followed by 29 frames which reflect changes to the I-frame. This results in events and movements not being captured. The point is made through a training video shown to the expert witness how a compressed video fails to show details of a basketball hitting the floor as oppose to a higher frame ratio video which provides fuller details.

[75] He is then questioned on the concept of motion blur which appears in lower definition videos. As in the present matter, objects can become blurry when moved by reason of insufficient light and a lower refresh rate resulting from compression. Oversaturation may also cause darker objects to lose their shape and disappear from view. The witness agrees that the bottle used by the deceased is subject to such limitations.

[76] In re-examination, he opines that the gaps may not be able to answer some questions, but one should look at series of frames as oppose to single frames. He explains that sometimes the proper approach is to look at the frames one by one backwards.

Detective Scott Ferguson

[77] Detective Scott Ferguson was qualified on consent as an expert to provide opinion evidence with respect to “characteristics of an armed person” in general and specifically in reference to video surveillance in the present matter. His statement of qualification and report were filed as part of Exhibit #1.

[78] He explains having reviewed 65 video clips from the Sentral Nightclub surveillance cameras with a view of identifying individuals who appear to be displaying characteristics of an armed person.

[79] His analysis is based of the notion that armed individuals show common behavioural patterns that distinguish them from unarmed persons. These characteristics must be viewed in the totality of the circumstances that give rise to the suspicion that a person may be armed. He identifies the following characteristics:

1. Determine the person’s dominant side. If a person has a firearm, they will usually conceal it where it is accessible to their dominant hand.

2. When carrying an illegal firearm, criminals must have it where it is accessible to use and also to discard. Criminals also must conceal the firearm in order to prevent detection from police.

3. The most common area for illegal firearm carriers to conceal a firearm is in the waistline area (accessible to the dominant hand), pocket accessible to the dominant hand, the weak side leg or under the weak side arm accessible to the dominant hand. There is a growing trend in the use of satchels to carry and conceal firearms. In almost all cases, criminals do not carry firearms in commercial holsters.

4. Body movements and behavioural patterns are consistent with all armed persons and more so in criminals carrying illegal firearms because they rarely (if ever) have the firearms in a holster. They must modify their behaviour to secure and conceal the firearm. These body movements and behavioral patterns are:

• security touch: the touching or brushing of the concealed firearm to ensure it is there;

• adjusting: using the hand, wrist or arm to keep the firearm in place; firearms tend to dislodge and shift with movement; handguns weigh between 1 to 5 pounds and need adjustment when moved;

• blading: tendency to shift the armed side away from view of the police;

• stiff or straight arms: an armed person tries to hold the firearm in place; keeping the arm close to the firearm is a protective movement and will do so; the dominant hand will stay close to the firearm; the movements are stiffer; the arm is not moving; may have an “asymmetrical gait” where the gun side leg may stride shorter than the other;

• protrusions: may occur when the firearm is concealed in clothing; the average handgun weighs between 1 to 5 pounds and pulls at material and due to the shape of a handgun may cause protrusions;

• clothing: armed criminals often dress to carry the firearm; multiple layers, bulky clothing, wrong clothing for conditions, all makes it easier to conceal the presence of a firearm.

[80] He explains having commenced his analysis from the altercation between the accused and the deceased and then going backwards looking for them through the videos. He notes that some of these were of very poor quality based on location and lighting. He reviewed 65 videos clips covering from 23:00:00 (August 13, 2016) and 03:21:52 (August 14, 2016), from 15 different surveillance cameras located throughout the Sentral Nightclub. In doing so, he focused on the accused and deceased as well as 3 males who appeared connected to them. He refers to these males as follows:

− male #1: identified as the accused

− male #2: black male wearing a green t-shirt with a large A on the chest and the number 24 on the back

− male #3: white male, large build with a beard and long hair pulled back in a pony-tail

− male #4: white male, large build with very short hair; he is wearing greyish shorts and has a satchel over his left shoulder

− male #5: identified as the deceased

[81] There was a large number of other individuals who appear in the clips but none displayed obvious behaviour or characteristics of being armed.

[82] He provided the following opinions with regard to the 5 males:

− male #1(accused): he entered at 23:46:58 and was not searched; he did not display characteristics of being armed prior to 02:57:44 after he wrestled with male #4 as shown on camera 15; the witness later corrected his conclusion at page 28 of his report where he had stated that the first display of characteristics was at 02:58:13 as shown on camera 6 when he exited an alcove; this was raised in cross-examination; starting at 02:57:44, he continuously appeared to be keeping the front area of his sweatshirt tight to his body and a protrusion (bulge) was evident indicating an object was concealed there; the consistent placing of his hand to the front waist area is for the purpose of preventing the firearm from dislodging or dropping while moving around.

− male #2: he entered at 23:46:58 with the accused and was not searched; his left hand swept his waist area when he goes down the stairs at the entrance but there are no other characteristics of him being armed.

− male #3: he entered at 23:46:24 and pulled his jacket towards the middle of his waist area just before entering; he is not searched; while walking down the stairs, he is clutching his left hand to his waist area; once in the bar area, he is not swinging his arms in a normal fashion; he appears to be keeping his jacket close to his waist with his right hand; appears to adjust his pants; he exited several times to smoke; he displayed no other characteristics after 00:12:40.

− male #4: he enters the premises at 01:05:30 and his satchel is searched but not his person; he does not display behaviour or actions consistent with being armed other than having a satchel which is becoming a common area to carry illegal firearms.

− male #5 (deceased): he enters at 01:55:59 and is not searched; he does not display behaviour and actions that would indicate he is armed from his entry to the altercation with the accused.

[83] In cross-examination, the witness believes that he avoided “confirmation bias” meaning that he would have formed his opinion from the start and filled everything so as to confirm his initial position. He agrees that having viewed some 67 hours of videos, he may have missed things. Counsel suggests that the accused was armed from the start and that he missed signs.

[84] The witness acknowledges that it is possible for a person to carry a firearm and yet display no signs or characteristics. The point is made that the videos are of low quality in this matter. There are lots of people, obstructions, the lighting is bad and there are many angles.

[85] He also agrees with counsel’s suggestion that a number of variables impact on the ability to detect or observe such characteristics, namely:

− some people are better at hiding firearms on their person;

− the clothing worn; and

− the style, size, and shape of the firearm.

[86] If the handgun is located on the side above the waistline with the barrel inside, it is possible to see the round or square handle protruding through the clothing.

[87] He is then shown a number of extracts from the videos of the accused. The suggestion is that these support a finding that he was carrying a firearm in his waistband area and that these indicators were missed by him. The extracts include the following:

1. camera 6 at 0:2:00:33

− witness rejects the suggestion that a bulge in the area of the accused’s abdomen under his sweater appears to be the protruding grip of a handgun; it is a possibility but he does not believe so;

2. camera 10 at 00:25:40

− while in the office, the accused places his left hand in front of his right pocket and takes something out with the right hand; he tugs down his sweater; he is positioned at an angle; witness states that it is possible;

3. camera 6 at 01:07:15

− witness does not believe that this clip which shows the accused walking in front of the bar area while holding a drink in his right hand discloses any characteristics;

4. camera 4 from 01:36:44 to 01:55:50

− the accused is seen dancing; the witness states that it is possible his hand movements and tugging of his sweater are consistent with characteristics; he notes however that they appear to be more like dance moves;

5. camera 6 at 01:57:30

− it is possible that the pulling of his sweater is a characteristic; the witness notes that the accused has a tendency to pull on his sleeves;

6. camera 9 at 23:48:06

− witness does not agree with the suggestion that the positioning and movement of his right hand while walking down the stairs is supportive of characteristics as it seems natural.

[88] The following points are also raised in cross-examination:

− it is possible that the play-wrestling with male #4 shown on camera 6 at 02:57:53 could result in a firearm loosening and becoming visible;

− the analysis requires a look at all the circumstances;

− it is possible that there could be a number of less obvious signs that must be looked at in the totality;

− he does not agree with the proposition that the signs would progressively become more obvious with time because of movements; he notes that it would have loosened as he was walking down the stairs at the start if that was the case;

− he did not see any firearms being transferred at any time throughout the night.

Defence’s Evidence

[89] The accused testified in his own defence in this trial.

[90] Defence also relies on Exhibit #11 which was filed on consent. It is identified as admissions made pursuant to the common law with regard to Ottawa Police occurrences related to Omar Rashid-Ghader. The admissions are formulated as follows:

1. “It is admitted that the Ottawa Police Service engaged in the investigations described below and were provided with the information as set out in this admission. Where a police officer reports information provided to him/her by others, that information is being tendered for the fact that the statement was made, not for the truth of its contents. Where a police officer reports his/her own observations or actions, that information may be considered by the Court for the truth of its contents in the same manner as if the officer had testified to those facts.”

[91] These occurrence reports relate to events dated July 17, 2001, March 9, 2002, September 21, 2003, November 6, 2004, April 2, 2004, October 30, 2004, March 26, 2008, May 20, 2013 and May 24, 2014. They describe purported acts of violence by the deceased Omar Rashid-Ghader.

[92] The Court will now review the accused’s testimony.

Mustafa Ahmed

[93] The accused person, Mustafa Ahmed, testified in his own defence. He was born in Egypt on May 1, 1988. He moved with his family to Ottawa in 1990 and grew up as of age 5 or 6 in a housing community on Ledbury. He lived there with his parents and siblings. They were not rich. He states that he liked living there as it was a big community where people knew each other and would share food. He had lots of friends. He left Ledbury at 18.

[94] He is familiar with the Ledbury Banff Crips (L.B.C.) which he first heard of when he was 13. It is a neighbourhood gang known as the “baddest” guys and most feared in Ottawa. They sold drugs, fought and took over houses. The group was created by the deceased Omar Rashid-Ghader who was known as Esco, which was short for the well known “big drug guy” Escobar.

[95] He had heard of Esco and knew who he was as of age 13. They were not friends, but he knew who he was. He idolized the L.B.C. and wanted to be like them.

[96] He joined the L.B.C. gang while in grade 9 by starting to break the law. He was selling weed and started to fight. The May 11, 2006 entry in his criminal record filed as Exhibit #12 results from violence against an individual around his age who he describes as “blood” wearing red in his neighbourhood which was associated to the colour blue. This was a beef. He was sentenced to jail and forced to change school.

[97] This fight made him worthy and he became a member of the L.B.C. His parents were not aware of this. Being a member of this gang meant that people wouldn’t mess with him as they were scared of this gang. He continued to commit crimes after his release from jail.

[98] His is then asked to provide his knowledge as to a number of Ottawa Police occurrences relating to the deceased which are set out in Exhibit #11. The Court will briefly describe these occurrences and the accused’s knowledge of same.

July 14, 2001

• The deceased attended a public pool as his sister had an altercation with a lifeguard; he became angry and punched the lifeguard in the bicep area of her arm causing bruising; when she tried to call 9-1-1, he took a rock and smashed a window.

• The accused’s evidence is that he was there in the pool and witnessed the deceased scaring the lifeguard and throwing the rock; he felt that he did the right thing as he was defending his sister from the lifeguard who had attacked her; people in the neighbourhood talked about it.

March 9, 2002

• The deceased became violent and struggled with security officers in an apartment complex; he pulled out a screwdriver and swung it at one of the guards causing a scratch to his cheek; he then punched the second guard in the face with his fist.

• The accused states that he heard about this the following day; he heard that he had stabbed the guard with a knife.

• This made him believe that the deceased was a tough guy; he believed the information received; he would never say bad things about him because he would get attacked; he would have to defend himself as the police wouldn’t help him.

September 21, 2003

• Police were called to a large fight involving a number of people from 2 gangs, namely the West End Bloods known to wear the colour red and the L.B.C., known to wear the colour blue; a girl had organized her birthday party and had been warned by the deceased not to invite West End guys as there was going to be trouble and someone was going to get hurt; this resulted in verbal confrontations and physical violence including an assault, someone being stabbed with a machete with multiple stab wounds and another male being stabbed; the deceased would have obstructed the police.

• The accused was home at the time but heard about it; he feels that the deceased is the one who orchestrated everything; he would have told his henchmen to stab people; nothing would happen if he didn’t allow it by giving the o.k.; he was becoming more organized meaning the drugs and the fights; the deceased was now Esco and no longer Omar; he was a very intimidating guy.

November 6, 2004

• The police attended the Ambassador Bar in response to a large disturbance where a window had been smashed, people being hit on the head with bricks, about 30 members of L.B.C. attacking people in the restaurant with big black guns, knives and bricks; people were injured; the deceased was identified as being involved and was charged with a number of offences but was ultimately not convicted as witnesses didn’t wish to proceed out of fear; the violence was directed at members of the Blood gang; the same type of incident occurred on October 30, 2004.

• The accused testified that he wasn’t present but heard about these incidents; he heard about Esco’s action as the owner had not let him in; they had taken over the bar with bricks and bats; he was trying to join the L.B.C. but wasn’t a member yet; he heard about what Esco did and believed it; he glorified him.

October 30, 2004

• This was the first incident at the Ambassador Bar where police were dispatched with regard to a large fight; members of the L.B.C. had thrown bricks at windows and swung crowbars causing windows to break; shots had been fired; the deceased was identified as being involved and was charged for mischief over $5,000 but was not convicted.

• The accused testified that Esco was involved in the shooting and heard this from everybody.

April 2, 2004

• This incident relates to members of the L.B.C. having trashed a home while the owner was sick at the hospital for past months; the home was being watched by 2 kids; the gang members would attend the home and party through the night; they would brandish a black handgun, use a machete and damage walls; they spray-painted L.B.C. on a wall and trashed the basement by breaking everything downstairs; while Constable Carvalho was in the residence, males started to congregate near the residence; the accused was one of these males and was described as belligerent and cocky with the officer; the officer was told by a male who approached him that the accused and deceased were always together going from a coloured Oldsmobile to the house; he assumed they were dealing drugs.

• The accused testified that while still not a member of the L.B.C., he had participated in this incident; he describes the taking over of a home as meaning that they would as a gang enter the home of mostly people addicted to crack/cocaine and doing whatever they wanted such as partying, smoking weed and drinking; he participated in such take-overs; he notes that in 2004, Esco was the guy with the drugs; he would sell it but his role was evolving in the game meaning the underworld; he was aware of that world and the rules.

• He was present at the April 2, 2004 take-over; the homeowner was upstairs pleading for her life as Esco had pointed a gun at her; he heard the lady scream and run away yelling, “don’t point it at me”; he was high on drugs, tripping out and wasn’t scared; he wasn’t surprised that Esco had pointed a gun at this lady; there were damages to the wall and L.B.C. had been spray-painted; there was a machete described as a long knife or a sword; Esco would carry a machete in the neighbourhood; he wasn’t surprised by this.

• He notes that this was the first time he had seen a gun; Esco was playing “hot potato” with it by passing it around; he passed it to him and he gave it back; it was heavy and made out of metal; he understood that it was owned by him.

[99] Counsel then leaves the subject matter of the occurrences set out in Exhibit #11 and asks the accused to describe his life and activities from ages 15 to 17. He states that he was selling drugs which started with weed but elevated to crack. He would get crack from Esco who ran the neighbourhood. He was not allowed to get same from someone else as he ran the area. He would have gotten hurt pretty bad had he done so. Esco was unpredictable. He would point a gun at you. He witnessed a kid being stripped of his clothes for not listening to him.

[100] After jail in 2006, he was 18 and left the neighbourhood. He moved to Vancouver where his brother lived and worked. He finished his high school but left Vancouver because of money issues. He moved to Alberta in 2007 wanting to work in the oil industry. However, he started selling crack in Alberta.

[101] He describes things as being different than with the L.B.C. There was no control and he could get the drugs anywhere he wanted.

[102] He goes on to describe the selling of drugs as not being safe. There is constant fear and worry of getting hurt. There is fear of the police and going to jail. One can get hurt, robbed and ambushed by a crackhead. There is constant fear of being shot or stabbed. He wasn’t carrying a firearm at that time which was 2007 and 2008. The April 29, 2008 entry on his criminal record from Calgary which was for possession of a weapon contrary to sec. 88(1) of the Criminal Code was not a firearm but a B.B. gun or a paintball gun.

[103] He was then asked to comment on the March 26, 2008 Ottawa Police occurrence found in Exhibit #11. He states that he wasn’t in Ottawa at the time but heard about it when he returned in September 2008. He had heard that Esco had shot and killed a “rat” and he believed this to be true.

[104] The summary describes an individual who had cooperated with police being assaulted by males who had pulled him inside a van. He was held by the hair and a silver double barreled shotgun was placed to his right cheek area and slid along his face. He was threatened and referred to as a “fucking rat”. He was warned to be careful who he spoke to. He was then thrown out and the gun went off near the right side of his face. He hit the ground and felt blood come from his face. He told the police that he recognized Esco as the front passenger.

[105] He was then asked to give his opinion as to whether the rap video performed by Esco and filed as Exhibit #6 reflects reality. He opines that it is 100% real in that he is the boss, he’s always been big; people not being loyal in the game is a problem and he is armed and dangerous. He had listened to it and watched it prior to 2016.

[106] He describes an incident when he was shot while in a bar in Calgary with his cousin in September 2008. His cousin had received a call to go to this club which was a place to network. They went there to have drinks. He wasn’t armed with a gun. There were bouncers and he got searched but not his cousin. Not everyone was being searched. He was shot within 5 to 10 minutes after he got there. He went to the bar and his right eye was glazed and he started to bleed. He heard more shots and couldn’t see who was shooting nor which direction they were coming from. He tried to run to an exit but got shot twice; once in the back of his leg and the back of his elbow. His cousin was shot and killed. He went through surgery and was in a wheelchair. His right elbow sustained real damage and required metal. The doctor had told him that he could have died.

[107] Lots of people from Ottawa, including Esco, attended his cousin’s funeral in Calgary. He flew back to Ottawa with his parents who thought he was working in oil fields.

[108] He doesn’t know why he was shot but believes it is connected to his cousin’s activities. They were both selling drugs at the time. He is shown photographs of his right elbow and left upper leg which show the exit wound. He explains that the mobility in his right arm was affected.

[109] He returned to Ledbury and was depressed. He had been shot in a club with bouncers who did nothing to help him. He never got back to 100% but was mobile some 3 to 4 months following his return to his parents. He eventually returned to the business of selling drugs within 4 to 5 months. He sold cocaine. He was not a member of the L.B.C.

[110] He is asked to describe the neighbourhood. He notes that it looked deserted and he didn’t see the gang. It seemed as if they had gone to a better place. The cops had made everyone leave. He did see Omar and heard things about him.

[111] He got the “lay of the land” as he didn’t want to make mistakes with regard to the picking up and selling of drugs. A mistake could cost him his life. He heard that Esco had more guys under him which meant that he couldn’t deal with him directly. Esco ran the neighbourhood.

[112] He got back into the game selling drugs which he describes as a business that involves violence. He himself used violence. He had no money and was fronted drugs. This comes with a price. The price would have been better had he been a member of the L.B.C. He heard stories of people being shot and stabbed if they didn’t pay. Esco had lots of cars coming from people who owed him money.

[113] He goes on to describe his life from 2010 to 2014. In 2010, he was going back to nightclubs to meet more people. He was also doing promotions for performers in Toronto, Montreal and Ottawa. This helped him with his drug business as it gave him a “little fame”.

[114] He heard that the L.B.C. was not as strong. In 2013, the word is that Esco is still at it and very active in the street life. He was still the boss and the L.B.C. was still his gang.

[115] As for himself, there were people working under him. He didn’t sell to people directly because it was too risky. He was more in the back. The risks related in part to the police. He chose who he dealt with.

[116] He was then questioned with regard to the May 20, 2014 Ottawa Police occurrence described in Exhibit #11 where it is alleged that the deceased would have threatened to shoot the owner and another individual while at the Layali Al Hilmiya Café, a shisha bar. His evidence is that he had been told about this by his sister whose husband ran the place. The threat was that he would shoot him. He states that he believed that Omar could do something like that.

[117] He was next asked to provide his knowledge of the May 24, 2014 incident described in Exhibit #11. The summary reveals that the deceased would have fired 6 to 7 shots in the area of a nightclub known as The Living Room on Elgin Street in response to having been denied entrance to the bar earlier in the night and had vowed to come back and shoot the bouncers. His testimony is that he had heard about it. The deceased had been refused entry in the club and threatened to shoot them.

[118] The next part of his testimony dealt with incidents of him being shot and stabbed and the consequences of these.

[119] Firstly, he describes having been shot in a club on Bank Street in December 2014. He had left the club and was outside when he heard a “bang”. He was hit in the back on the right side of his shoulder. He took a cab and went to the hospital where he underwent surgery. His collar bone would have been “shaved down” in order to get to the bullet. He reports that the doctor told him he had died and been brought back to life. He was unconscious for 2 days. There was lots of pain. This one had hit vital parts.

[120] He is shown photographs of his body depicting 3 scars on the right side. He thinks there were tubes as he couldn’t breathe. His lung was punctured. One of the photographs shows a scar going down the middle of his chest.

[121] As to the circumstances surrounding this shooting, he had gone to the club and was having a good time when he left. He did have a firearm but made the mistake of leaving it in his car because people were being searched by bouncers. He didn’t want to get caught with same. He notes that having a gun was important to defend himself. There are a few reasons why he would have been shot. He was making money selling drugs. He was afraid that the person would come back.

[122] The police had gone to speak to him at the hospital, but he didn’t cooperate and told them that he didn’t know who had shot him. He was “pissed off” that the officer was talking to him.

[123] He left the hospital and went to live with his mother until he recovered. He took off after 3 to 4 months for Montreal where he had a home.

[124] When asked to describe the physical effect of having been shot, he states that he felt like an old man with no strength. His body is weak and broken.

[125] He goes on to describe an injury to his left shoulder sustained in 2007 when the police would have thrown him downstairs as he was running away. He notes that his shoulder would “pop out” when he moved it or would fight. He could put it back in. It caused excruciating pain and had no strength. He underwent surgery in October 2018 while in custody on the present charge. He is shown a photograph and confirms that the scar on his left shoulder stems from the said surgery.

[126] He was then shown photographs of the left side of his face showing scars under his left eye and ear. This would have been the result of a knife attack in Montreal. He doesn’t know who attacked him. He states that he was leaving a friend’s house and that he was sleeping but this guy attacked him. His shoulder would have been dislocated and the guy caught his face and ear. He didn’t report it to the police, but he guesses they came but he didn’t know who had done this. He states that this was part of the rules of the streets.

[127] He has severe damage to his face and can’t feel part of it. This causes his face to twitch. He is then asked about the mental scars and states that they are worse than the physical scars. He knows that he is not safe anywhere he goes. He doesn’t feel safe and is always fearful that something is going to happen to him.

[128] Following this, he continued to sell drugs and be a promoter. He would carry a gun at all times. He bought it off the street. It was an FN Smith and Wesson but doesn’t recall its caliber. This is the same firearm he used on August 14, 2016.

[129] He carried this firearm illegally 95% of the time as you never know when someone will shoot you. He was more defensive.

[130] He was then asked to describe how he would carry the firearm. He notes that he didn’t use a holster and how he carried it depended on where he was. If going to a club, such as on August 13, 2016, he would wear 2 pairs of underwear with one being too small and really tight. He shows how he places the gun inside his waistband. One could see the handle above the pants. This would affect what he wore as it became part of his clothing. He would wear clothes which would conceal the gun better. It was tight on him. He took a lot of precautions to avoid detection by the police. He would be more polite as he didn’t want people to know. He would only use it if in danger.

[131] In 2015-2016, he lived in Toronto doing the same business and would come to visit his mother. He wouldn’t hear anything about Esco but states he was doing the same business, selling drugs, being loud and running his crew. He had heard that he was involved in music, but he was still in drugs as the two went together.

[132] The USB drive photographs of the accused (i.e. scars) were filed as Exhibit #13.

[133] He testifies having come to Ottawa in August 2016 as his father was hospitalized. He had brought his gun from Toronto since his life was in danger all the time and felt more comfortable with it. He carried it at all times. He had concerns with coming to Ottawa since he had been shot there.

[134] The next part of his evidence relates to the August 13 and 14, 2016 events at the Sentral Nightclub.

[135] He states that earlier in the day, he had gone to the Sentral Nightclub as he was asked to do so by the club as he was a promoter and an artist was set to perform. His being there “looked good”. It was still sunny outside, and he went to the office where he spent less than an hour chatting with friends.

[136] He had a rental car to ensure people couldn’t recognize him. He was concerned people would want to hurt him.

[137] He left the Sentral Nightclub and went to Dooly’s which he describes as an upper-class pool hall where his buddy was celebrating his birthday. They had a separate room where they played pool. Dooly’s is not frequented by gangs. Everyone there is a civilian. He felt safe there which is the only reason why he had left his gun in the car which was parked close by. People there were not dangerous.

[138] He indicates that he didn’t want to go to the Sentral Nightclub or any club in Ottawa since he had been shot the last time. He wasn’t planning on going to the Sentral. Everybody in the room were asking him to go but he was concerned with going there without his gun. He didn’t want to go there without it and thought he couldn’t do it. His buddy told him he wouldn’t be searched.

[139] He is asked by counsel to confirm that his street name is HEFF and his buddy is known on the street as D.B., meaning Danny Boy. D.B. knows the bouncers and therefore would not be searched. He would have immediately left if the bouncer had wanted to search him.

[140] They were not searched by the bouncers.

[141] He was then asked why he wanted to go to the Sentral and he explains that he had been told that an investor of money for drugs would be there. He was now at a different level. He thought an investor would be there since the artist, Namo, who was performing is the type who attracts such investors.

[142] He brought his firearm inside the club. He states that he carried it the whole time contrary to Constable Ferguson’s assertion. His pants were tight at the waste to make sure the gun wouldn’t move. His shirt was tight and bottom longer to ensure the gun was concealed. It was normal to do so since baggier clothes makes it too obvious.

[143] He is asked what he was thinking when he came down the stairs at the entrance. His response is that he wanted to see if he recognized people, if they were looking at him and if there was anything suspicious. He was looking for anything out of the norm that would make him feel unsafe and was doing so inconspicuously.

[144] As the night went on, he met more people he knew. People would shake his hand, but he was very alert. He drank one drink per hour but was not intoxicated. He could feel it but wasn’t drunk.

[145] He went into the office just to see what was going on. He had a short conversation and left.

[146] Maino performed and the show went well.

[147] He notes that he didn’t see anyone he could do business with.

[148] He is then asked to describe his initial encounter with Esco. He didn’t know that Esco would be there. He has known him for a long time and was looking for a formal way to say hi when he got close to him. If Esco didn’t hug him, he would have thought that something was wrong because you never know if there is something wrong. He states that friends can become enemies in a blink of an eye. The fact that he was looking for an investor was not a concern.

[149] He was checking the “temperature” when he hugged Esco. The fact that he was hugged back meant that everything was o.k.. He didn’t’ want an issue with him.

[150] He explains that he is not loose and is alert when carrying a gun. He has to do lots of things as for example, avoid issues such as someone stepping on his shoes.

[151] He was a light fellow at the time, weighing 150 pounds and being 6 feet tall. Esco was a big guy and couldn’t put his arms around him.

[152] He believes that Esco was alone when he greeted him but saw him after with Buffalo and Ateena who he refers to as his henchmen meaning that they worked for him, are his “yes men”, go see people for him and deliver drugs for him. While not afraid of these individuals, he was afraid of Esco.

[153] The accused was then asked to describe the episode with the “guy with the satchel”. He notes that he was not a friend and they were going to get in a fight as he probably said something disrespectful. He came running at him and they wrestled. He wasn’t afraid of him since he was wearing shorts in a club and looked like a civilian. The wrestling moved his gun around. He wasn’t a threat so that he didn’t take his gun. It was aggressive and he wanted to go outside to fight. People heard they were going outside to fight. He went upstairs but came back down. There was a commotion with the bouncers. He did not want to use his gun since he was not a threat.

[154] The tussle affected his gun. It was now sticking out and he wanted to secure it which he did by going to the alcove. He qualified as absurd the suggestion that he had gotten a gun while he entered the alcove.

[155] Following this, he was at the bar having a cigarette and the guy just appeared. He states that he was the one he wanted to talk to. The business talk was going all right, and he was comfortable talking about it. People were listening as the music wasn’t loud. He was a potential investor. They were talking logistics such as pricing. They were negotiating.

[156] He explains that he didn’t have to buy drugs from L.B.C. at the time and had not purchased drugs from Esco. His turf didn’t stretch to the Sentral.

[157] He notes that Esco was not in the Sentral club at the time. He wouldn’t have talked if he knew that Esco was there because he would have wanted a large share.

[158] It was around 3:10 to 3:15 am and he was talking to the potential investor about a drug deal while at the bar. He explains that the two other guys must have heard what they were talking about as they stopped him. They were saying that they wanted in and wanted to make money. They kept coming and arguing. They were both pleading their case wanting in. He was assertive telling them they had no business. He was not giving them leeway. He states that Esco wasn’t in the club. The individuals did not threaten him nor was violence involved.

[159] They kept interrupting and Esco came behind him.

[160] When asked to describe what came to his mind when he saw Esco, he states the following:

• He was startled;

• He didn’t know what Esco had heard;

• He was afraid of Esco as he was trying to do business and Esco would want in; if he was in, he wouldn’t have made any money;

• He didn’t act as if he was afraid because you cannot show weakness or fear.

[161] He goes on to describe that he backed up a little bit and kept his head up high. He was talking to show he wasn’t scared and told Esco to “fuck off”, they were not on his turf and he had nothing to do in his business. Esco was asking what’s going on but he kind of knew what was going on and was asking him to explain the deal. His belief is that Esco wanted to take over the situation as he has seen him do before. He was trying not to make it easy for Esco and told him not to worry about what he was doing and to “fuck off”.

[162] The two guys were telling him not to be stupid which he saw as a threat and a reminder that he can be attacked and punished for not listening. He was arguing with them and felt they had no right to bug him in his deal. He was asking how he was being stupid. They were to his left by the bar. His gun was to his right in his waist. He states that Esco made the next move and describes the following:

• Esco was like behind him to his left side; he could only see his shoulder and face;

• He did not see him swinging; he was struck to the left side of his face but didn’t know it was a bottle, it felt as if it was a metal object; he thought he had been gun butted;

• Knowing Esco, he thought it was a gun; he refers to his reputation of never being searched and having spoken to bouncers who have confirmed this; he would have shot a bouncer who wanted to search him;

• Esco was also wearing a long shirt and baggy pants as a basis for believing he had been struck by a gun;

• His face felt as if it had been struck by a train; as if Esco wanted to cause lots of harm;

• He didn’t know where the bouncers were and, in any event, they have never helped him before;

• His firearm was still in his waist; he initially states that his hand was on his gun and then indicates that it wasn’t directly on it but close to it;

• He didn’t know if Esco still had a bottle in his hand as he couldn’t see it;

• His mindset was that something was happening to him, it was high danger and didn’t know what would happen next;

• He then got body slammed to the floor and ended up on the floor; Esco was smashing his head but he didn’t know what he was being struck with;

• He felt like he was in a lot of danger and that he was going to get shot as he believed that he had been struck with a gun; he felt as if his life was in jeopardy and he was going to die;

• Nobody tried to help him or intervened;

• He thought the two other guys might get involved and kill him;

• He was also thinking that his left shoulder could dislocate which would have impacted on his ability to defend himself;

• He was telling Esco to stop but he told him to “fuck off”; he is begging him, but he wouldn’t stop’

• He didn’t know what he was being struck with and couldn’t raise his arms to protect himself as Esco’s weight was on him; he was being hit to the face and head; these were not light hits; he is surprised that he did not loose consciousness;

• He then fired the first shot; he was on the ground on his back with Esco to his left who was beating him; he did not aim anywhere but just in Esco’s direction; he was terrified;

• Esco tried to grab the gun after the first shot and placed his hand on it; he is a strong guy and kept trying to grab the gun; he was 100% going to die if he grabbed it; they were wrestling for the gun;

• He wasn’t sure if he had hit him with the second shot, but he stopped; he somehow ends up on top of him and removed his hand from the gun;

• He states that he didn’t want to kill him; he just wanted to go home.

[163] Counsel provides him with scenarios and asks how he would have reacted if this is what had happened.

[164] The first is what if Esco would have only struck him with a bottle or a gun? He responds that he would have pointed the gun and walked away.

[165] The second is what if Esco would have also body slammed him but had not hit him? He responds that Esco could still be alive as he would have pointed his gun at him and left.

[166] He states that he never felt the bouncer’s hand nor see him at any time. His focus was on Esco while being beaten. He knew that Esco carried weapons such as guns, bats, machetes and bricks.

[167] Once Esco was no longer a threat, he got up, looked around and placed his gun in his pants. He looked around to see who was the next threat. He was looking if someone would shoot him. When asked to describe how he felt inside, he states that he just wanted to go home. He was panicking and explains that he panics differently than other people. He was quietly panicking and still felt in danger.

[168] He felt messed up and pain to his head and body. There was a lot of blood on him which he thought came from his head.

[169] He got in a cab and asked to be brought to the Riverside Hospital but the driver told him to get out. He states not having felt threatened by him.

[170] He was looking for a second taxi and touching his body and realized he wasn’t hurt which is why he didn’t go to the hospital. He took a second cab and went to a friend’s home. He wasn’t sure where to go and felt it wasn’t a good idea to go to his mom’s place.

[171] He was thinking people may go after him and didn’t know Esco was dead. He would have a problem if Esco had gotten up.

[172] He went to Toronto from his buddy’s place. He got rid of his clothes and his purpose was to get rid of evidence. He knew the police were looking for him for second degree murder. He didn’t think it was murder as he was defending himself. He also got rid of the gun again to get rid of evidence and knew it wasn’t a good thing to have the gun.

[173] Once in Toronto, he would have gotten a new gun to protect himself as he didn’t know who would retaliate. He didn’t have a plan and just wanted to fight the case and get a lawyer. He continued to sell drugs in Toronto and was eventually arrested there.

[174] Counsel completes his examination-in-chief by asking what emotions he felt when first struck by Esco. His responses are as follows:

• He doesn’t know what to say;

• He wasn’t angry at Esco;

• While one bullet went through his heart, he didn’t aim at his heart;

• His thoughts focused on getting out;

• He just shot in his direction;

• He just fired thinking he would stop.

[175] In cross-examination, the accused agreed with the suggestion that he understood all of his lawyer’s questions and tried to provide all of the relevant information. He gave details and did not pick and choose what looked best for him.

[176] He confirms having been involved in selling drugs since age 14 starting out with marijuana and progressing to crack. He remained a drug dealer for a period of 16 years until his arrest in 2018.

[177] The first part of his cross-examination revolved mainly around what is referred to as the unwritten rules and reality of the game, meaning the drug underworld and criminal lifestyle. He is confronted with a number of assertions which he agrees with for the most part. The Court notes the following:

• The first rule is that the main objective is to make money by selling drugs. Who you sell to depends on where you are in the game. The aim is to make cash money.

• The second reality is that the game can be violent. People get killed and hurt. Counsel refers to him being shot in Calgary as an example. He responds that he had never used violence in Calgary. He is reminded of his prior evidence when he had told his counsel that he used violence in Calgary. He maintains that he didn’t in Calgary but did use violence in the game.

• The third reality put to him is that you can’t show weakness or fear and essentially agrees with this proposition.

• The next suggestion is that you must deal only with people you know and trust. He doesn’t agree but states that it’s a good idea to do so. He then says yes when reference is made to dealing with the police.

• Next, he agrees that he dealt with people at his level in the game. In 2016, he wasn’t selling to crackheads but with people who sold to crackheads. By then, he was one step up the ladder in Montreal, Toronto and Ottawa.

• The next rule which he agrees with is the code of silence, meaning that you don’t provide any information to the police, namely names, beefs, and/or relationships. This applies even in matters of violence such as the ones he was involved in when he was stabbed or shot.

• Lastly, he doesn’t think there is a rule that you don’t snitch in Court. He thinks there is an exception and that he has to tell his story in this trial. He guesses that he is not following such a rule and not leaving out details.

[178] The accused was then questioned in relation to firearms. He confirms learning how to use guns on the street where he would acquire and dispose of these. The gun used to shoot the deceased was given to Zero in Toronto within a few days. He doesn’t recall the circumstances of how this took place.

[179] He carried a gun 95% of the time and hid same on his body if it couldn’t be carried in a bag. He agrees with the suggestion that he does so because carrying a gun is dangerous and risky. He explains that people’s reaction to seeing a gun depends on the circumstances.

[180] He would pick his clothing in order to hide his firearm. On August 13, 2016, he wore a long shirt which extended beyond his waist and halfway to his knees, underwear that was too tight and tight jeans. He did so to conceal his firearm. He opines that he was good enough to bring a gun and agrees that this was his expertise.

[181] This was followed by an exchange regarding the use of a firearm, namely the purpose of hiding and showing/flashing same. Crown counsel’s suggestion is that the purpose of pointing and flashing a firearm is to threaten and intimidate others. The accused initially rejects this suggestion and provides examples when doing so is not for such purpose, namely when it is shown to a friend or used by the police and members of the U.N. as a means of prevention. He ultimately agrees by saying yes when asked the same question.

[182] He acknowledges knowing how to use a firearm.

[183] He agrees that selling drugs is dangerous as one can get robbed, set up and caught by the police. This requires keeping activities secret from family and others. He therefore lied to family, friends and police. However, he doesn’t agree with the suggestion that his life was a constant lie and deceit up to his arrest in 2018. While he lived a double life with his parents with a few people around him, he states that he didn’t lie to everyone in the game.

[184] The gun he carried 95% of the time was a good size heavy metal handgun. Part of the steps he took to conceal his gun was to act differently by being more polite with people. The reason he was carrying a gun 95% of the time was because of the two shootings and stabbing in Calgary, Ottawa and Montreal. It is connected to these events. He wanted to defend himself. It is the reason why he was carrying a concealed firearm in the Sentral Nightclub on August 13, 2016.

[185] He thinks of these traumatic events regularly and is reminded by the scars on his body. He has a good recollection of these events.

[186] He is then confronted with his prior evidence when he told his lawyer that he was leaving his friend’s home when stabbed in Montreal and indicated he was sleeping. The suggestion is that he was misleading the Court and being selective as to the information he provides. His response is that he doesn’t have an explanation for this…he can’t explain it.

[187] The same suggestion is put to him with regard to the shooting in Ottawa in 2004. The suggestion is that he misled the Court by leaving out names and details even when asked by his counsel and that this is part of the rule against the disclosure of names, beefs and relationships. His response is that he is trying to be truthful and was never asked for names or more information by his counsel.

[188] In the same vein, he was questioned as to the shooting in Calgary and his prior evidence that he didn’t know why he was shot, there was lots of speculation and likely connected to his cousin. The suggestion is that he is trying to distance himself again in keeping with the rule against the disclosure of names, beefs and relationships.

[189] Crown counsel then wished to cross-examine the accused on the basis of reports obtained from Calgary Police relating to incidents which would suggest a connection between the accused and incidents involving firearms. This was opposed by defence counsel. The Court directed that this evidence be heard in a voir dire with arguments and a ruling to follow.

[190] The Calgary incidents can be briefly summarized as follows:

1. On August 1, 2008 the accused was in a room at a Travelodge Hotel with three other individuals from which a 9mm gun was tossed out of a window. This gun was connected to an earlier shooting. The accused was brought into custody.

2. The accused would have shown a gun and stated that he wouldn’t be disrespected at the Whiskey Night Club.

[191] Dealing with the first noted incident at the Travelodge, the accused denies any involvement in the shooting and states that he only found out about the shooting later while in jail. He wasn’t aware of this while in the hotel room. He was cross-examined as to the identity of the 3 individuals present with him but in essence refused to confirm whether they were members of the L.B.C.. His responses included “not all of them”, “I was”, “I’ll let you ask Zalal that”, “I know that I am” and “I’m not indicating anything”.

[192] As for the Whiskey Night Club, he denies having flashed a gun and said that he wouldn’t be disrespected. He explains that this was the incident shown on his criminal record and a B.B.

[193] The suggestion is that he again followed the same pattern of leaving out information to make himself look better when he responded to his counsel’s question as to why he was shot in Calgary. He responds that he did not do so and just answered the questions he was asked.

[194] This completed the evidence relating to the Calgary incidents heard in the voir dire.

[195] He was then challenged with the fact that he had only mentioned the name of the deceased when questioned by his counsel on the occurrences related to the deceased set out in Exhibit #11. The suggestion, which he denies, is that he is trying to portrait him in a certain way and is being selective in his testimony by not naming others.

[196] He again confirms having came to Ottawa in August 2016 to visit his family and father who was in the hospital. He had ran into the deceased at a grocery store during the same week. They said hello and greeted.

[197] He was now up the ladder and was dealing drugs to dealers in Montreal, Toronto and Ottawa. He was looking for investors in Ottawa which is why he went to the Sentral Nightclub that night.

[198] According to him, the deceased was higher than him but later agrees that he had a smaller turf in a smaller city than him.

[199] His purpose in going to the Sentral was to get money to grow. He also attended as it looked good to have a promoter present.

[200] He had told people he would go to the Sentral but didn’t want to go. One reason he went is because he had not been clubbing for a long time. He is then questioned as to why he would want to attend a club after having been shot twice in such a setting. The suggestion is that this is the last place he would want to go to. He responds that the reason he went is to see the investor. It was also his duty to go as a promoter.

[201] He went to the Sentral at 11:45p.m. with Danny Boy. He had many things to look out for when he entered and had to be alert since anything out of the norm could make him unsafe. He explains knowing how to put his stress down since he has been doing it for a long time.

[202] The next part of the cross-examination dealt with the investor. The suggestion is that he wanted to talk to this individual as soon as possible but waited until after 3:00am to do so. His explanation for doing so given in examination-in-chief was that the investor had showed up while he was having a cigarette and talking to a guy as shown on the video clip captured by Camera 15 starting at 03:12:03. The accused was then shown a number of clips depicting prior encounters between himself and the investor which include handshakes, hugging, dancing and being in close proximity in the same areas for periods of time. The video clips shown to him include:

• Camera 15: 00:59:13 to 01:03:47

• Camera 15: 01:04:24 to 01:05:00

• Camera 15: 01:06:11 to 01:07:30

• Camera 14: 01:38:25 to 01:38:42

• Camera 4: 01:38:42 to 01:40:42

The suggestion is that he had plenty of time to talk to the investor since he had greeted him two hours earlier and had spent time with him. So that the investor had nothing to do with wanted to speak to him. He responds that this individual became the investor. Counsel suggests that this was the first time he had mentioned this and was in fact changing his story.

[203] He was then questioned with regard to his evidence that he had been startled by the deceased when he saw him at the bar and had no idea where he came from and this contributed to his fear. As far as he knew, he wasn’t in the club and had left. It is possible that he had seen him after the initial encounter when they hugged shortly before 2:00am but hadn’t seen him in a while.

[204] He is shown a video clip captured by Camera 4 at 03:10:15 of an individual who he believes to be the deceased. Reference is made to the camouflage pants, long sleeved white shirt, boots, beret and bottle.

[205] He identifies himself on the same video clip at 03:11:42 as the individual walking towards the person standing that he had earlier indicated he thought was the deceased. The accused is seen walking between this person and another individual. The suggestion is that he couldn’t have been closer to the deceased, some 10 minutes prior to him being shot. The accused’s response is that he cannot be sure that this is Omar since you cannot see his face on the video. You can only see his body so that he rejects the suggestion that he walked by the deceased soon before the shooting. The guy shown on the video wears the same clothing but can’t say it’s him 100%. He thinks the Crown is tricking him by not showing him the person’s face. He is again shown Camera 4 video clips and states that you can assume it is Omar, but you can’t really see him. He maintains that he can’t know for sure.

[206] Upon resuming his cross-examination on the next sitting day, he responds yes when asked if he is prepared to admit that the deceased is the person seen on Camera 4 video clip at 03:10:40 to 03:10:50. He also acknowledges being shown himself in the same clip from 03:11:41 to 03:11:52 when he appears to walk directly in front of the deceased.

[207] He was questioned as to why he would want to walk so close to the deceased in the context of the need to be more polite and avoid stepping on people’s shoes while carrying a gun. Why did he not walk around and take a different route to the bar area. He states that he could have taken a different path, but it would have been way longer. He is asked why he had walked right in between the deceased and the other individual wearing a blue shirt.

[208] He denies having done so deliberately. The deceased just happened to be there. Nor does he agree with the suggestion that he was showing no fear of the deceased. He was afraid of him.

[209] The accused is shown a series of video clips from different cameras showing his interactions with the individual identified by him as Eminem. These show that Eminem was close to him for a good part of the time. The suggestion, which is dismissed by him, is that Eminem was his henchman.

[210] The next questions concerned Ateena and Buffalo who he identified as the deceased’s henchmen. The Court notes the following:

• He was talking with the investor at 03:10:00 when they arrived and started to talk to him. He assumes they must have heard what was being discussed. They were saying that they wanted to be in the deal and pleading why they should be in same. He didn’t want them in. He states that they were working for the deceased.

• Buffalo appeared at 03:16:45 on the Camera 15 video clip while he was speaking to the investor. He seemed to come from the alcove. He can’t say whether the individual seen walking at a distance is the deceased but notes that he is not at the end of the bar when Buffalo appears at 03:16:45.

• At 03:18:20, the accused is seen on video clip Camera 15, pushing Buffalo with his left arm, and causing him to take a few steps back. He agrees that this wasn’t a polite way to act. Counsel notes that this was the same arm that pop’s out. It didn’t pop out nor does it cause any problem. The deceased and Ateena were not close by yet.

• Ateena appears on the same video clip at 03:19:23. The point is made that Ateena was the opening act for Namo that evening.

• There had been no interaction between the deceased and his two henchmen prior to 03:19:48 (Camera 15). At 03:21:00, Ateena was gone from the bar area. At 03:19:57 Buffalo is seen laughing which the accused describes as him instigating and trying to get in the deal.

• He doesn’t agree with Counsel’s suggestion that Ateena and Buffalo were not part of his fear once on the ground. Counsel raised the fact that Ateena had left the area and he had pushed Buffalo. He explains that he didn’t know at that time that Ateena had moved away. They remained a factor in his mind.

[211] He was then cross-examined regarding the individual referred to as “some drunk kid with a satchel”. The Court notes the following points:

• He maintains throughout that he doesn’t know him;

• The conflict was started by this kid who was disrespectful to him. There was a tussle and his gun came loose. He then went to the alcove to replace same. Counsel suggests that it would have been better for him to go into the washroom to do so in a stall.

• He thought this person was a civilian and not part of the game. He doesn’t know him nor whether his friends know him. There is no connection.

• He was shown a number of video clips from Camera 4 at 03:00:36 in front of the office where they are shaking hands and talking. He states that they were actually threatening each other at that point and negotiating the terms of the fight. The kid was trying to tell him who he was.

• He is challenged on the fact that he threw his glass at the kid while armed with a concealed firearm for an insignificant reason, namely, having been disrespected.

[212] The last part of the cross-examination was focused on the altercation at the end of the bar which led to the shooting. The Court notes the following points:

• The accused agrees with the suggestion that he was standing there not knowing that he would be struck. He did not see the deceased swinging. It caught him by surprise. He felt it on his face but didn’t see it coming.

• It felt like he was hit by a train as the impact was very significant. He rejects the suggestion that the blow consumed all of his attention and became his only focus. He was disorientated but took the blow.

• He maintains that he had not yet pulled the gun out of his waist prior to being struck. His evidence is that it was still on his waist, his hand was close to the gun but not on it.

• He states that it is possible that he had the gun in his hand as shown in the split screen between Cameras 15 and 6, from frames 31 to 51.

• The accused rejects the following suggestions put to him by Counsel:

▪ That it was impossible for him to remove his gun within roughly a second in the context of having been struck by what felt like a train and the gun being on his waist covered by a long shirt;

▪ That the gun was out prior to being hit;

▪ That the deceased reacted upon seeing the gun by striking him with the bottle;

▪ That following the bearhug, he was hit with minor strikes to the face which had little impact on him;

▪ That he shot the deceased twice in the torso almost immediately;

▪ That the deceased was defending himself because he had pulled his gun out.

[213] The accused explains that he was unable to get his arms up because of the deceased’s weight on him. He didn’t know what the deceased was hitting him with. It is put to him that he hadn’t seen a weapon and must have known that the deceased was unarmed. He responds that the deceased’s hand was on his gun and he shot him when he tried to get the gun out of his hand.

[214] As to how he positioned the gun, the accused states that he just aimed in his general direction and did so to save his life. The deceased was to his left within arm’s reach before the first shot. He was also close for the second shot.

[215] His purpose when he shot in the deceased’s general direction was to stop him.

[216] He acknowledges that based on his own experiences of having been shot twice and nearing death, he knew the consequences of using the gun on the deceased. He doesn’t dispute the suggestion that he knew that he would kill him with the first shot as well as the second shot.

[217] He rejects the suggestion that he killed the deceased because he didn’t want to look weak. He did so because he felt his life was in danger. He also dismisses counsel’s assertion that the only thing he cared about when he left the scene on August 14, 2016 was himself.

[218] The following points were raised in re-examination:

• Eminem :

▪ Eminem was not his henchman;

▪ Eminem never intervened;

▪ He was not in his thoughts while being attacked by the deceased.

• Ateena:

▪ He didn’t know where Ateena was at all times;

▪ His attention was on the deceased.

• Investor:

▪ He had to stay since the investor had told him they could talk later; this is what he meant when he stated that he became the investor.

• Turf:

▪ Turf means a lockdown area where drugs flow;

▪ Montreal was not his turf; he didn’t have a turf;

▪ He understood that the deceased had a turf until 2016 but wasn’t as big as before 2010.

• Training with firearms:

▪ He felt comfortable handling guns;

▪ He can pull a gun out;

▪ Places gun on his right side and can pull it out faster;

▪ Had placed guns in such a position some 30 to 40 times as of August 2016.

POSITION OF THE PARTIES

[Crown](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[219] The Crown’s position is that the evidence establishes beyond a reasonable doubt that the accused committed the offence of second degree murder when he shot Omar Rashid-Ghader twice in the chest. He did not act in self-defence nor under provocation. His purpose was to look strong and powerful.

[220] The Court should reject the accused’s claim that he acted out of fear and self-defence. He is described as not credible, unreliable, selective and misleading. The following points are raised by crown counsel in his submissions:

− his criminal record is such that it reveals a lack of respect for the law and the Court;

− he has lived a life of lies and deception;

− he lives under a “code of silence” which makes it such that he is unwilling and unable to tell the truth about events in his life; he does not provide names, relationships and conflicts; the Calgary and Ottawa shootings, the Montreal stabbings and the disposal of the firearm in Toronto are raised as examples of this;

− examples of internal and external inconsistencies in his evidence are said to include:

• the “investor”

• “satchel boy”

• being startled by Omar

• his concern with the shoulder injury

[221] The Crown maintains that the voir dire evidence regarding the accused’s activities in Calgary should be admitted as other discreditable conduct adduced incidentally to proper cross-examination of the accused or his credibility. It is said to be probative on how he is selective and biased in his testimony. The prejudicial effect of this evidence is low as this is a judge alone trial. It is not worse than what he testified to in describing his criminal activities through the years.

[222] The Court is asked to find that the following facts have been proven:

− the accused was armed when he exited the washroom at 2:57:30 a.m. and not when he entered the nightclub;

− the accused had pulled his firearm out of his waistband before the bottle strike;

− only the first two blows could have struck the accused;

− none of the blows had significant force;

− the shots were fired very close in time; they were fired within two seconds;

− the bouncer was holding back the deceased’s right arm at the time of the shooting.

[223] The Court is reminded that these individual facts need not be proven beyond a reasonable doubt as they are not essential elements of the offence charged.

[224] For the most part, the Crown’s argument with respect to self-defence revolves around the third prong (i.e. response), namely that the accused’s act was not reasonable in the circumstances.

[225] It is argued that this is so whether the two shots are analyzed as a single connected event or as separate distinct acts. Crown counsel highlights the following points on the issue of the reasonableness of the accused’s act in the circumstances:

− while the force used by the deceased was enough to arouse anger and hostility, it was not serious;

− the bouncer would have broken off the fight had it not been for the gunshots;

− the accused played a significant role in the incident;

− save for the use of the bottle, the deceased was unarmed in the altercation; the accused was armed with a firearm;

− this was not a significant mismatch notwithstanding the apparent size difference;

− there is no history of violence against each other;

− the lethal force used by the accused was profoundly out of proportion to the force and threat he was facing.

[226] The Court should therefore reject that the accused acted in self-defence. His act was not reasonable in the circumstances.

[227] With regard to the partial defence of provocation, the Crown argues that while there is an air of reality to same, it is disproved beyond a reasonable doubt.

[228] The Crown’s submission is that when considered as a whole, the evidence establishes beyond a reasonable doubt that the deceased’s wrongful act would not deprive an ordinary person of self-control nor did it actually deprive the accused of self-control. The essence of the argument is that the ordinary person would have reasonably anticipated a violent escalation. From a subjective perspective, the accused would have also anticipated such a response. The deceased’s actions were not sudden in that the accused would have expected same in the circumstances, including the fact that he removed his firearm from his waistband. He did not act on the sudden. The way he calmly left the nightclub is said to support the fact that he remained in self-control.

[229] Finally, it is submitted that there is no basis to draw a negative inference against the Crown for not having called Ateena and Buffalo as witnesses. Counsel notes that the Crown’s theory of the case is not based on the accused having pulled his firearm prior to being hit with the bottle. In any event, the drawing of such negative inference is rare and to be done with caution. There is no basis for doing so in this matter. Specifically, the Crown has shown that such evidence would not have contradicted the Crown’s theory of the case nor favor the defence’s theory.

[230] The Court should therefore reject the partial defence of provocation and find the accused guilty of the second degree murder of Omar Rashid-Ghader as charged.

Defence

[231] Defence’s primary position is that the Crown has not shown beyond a reasonable doubt that he did not act in self-defence. He must therefore be acquitted of second degree murder.

[232] The Court is reminded that the events of August 14, 2016 cannot be looked at in a vacuum. The accused’s fear of the deceased must be assessed in the context of his life experience and his exposure to violence as of the age of 14. He was also well aware of the deceased’s propensity for violence.

[233] It is argued that his exposure to violence and having been seriously injured in 2 shootings and a stabbing have given him valuable lessons. He knowns firsthand how dangerous what is referred to as “the game” can be.

[234] This is further reinforced by his personal knowledge of the deceased and how violent he can be. Reference is made to what he has personally observed and things he has heard from others which he believes to be true. These are confirmed by the police reports.

[235] This life experience and knowledge of the deceased are said to support his belief that he had to go to extremes in order to defend himself.

[236] Counsel submits that the accused is a credible witness. He was candid and did not downplay his own character and criminality. He readily admitted his use of violence in the game. The fact that he did not name individuals does not detract from such a finding. He chose not to mention names as he is in jail and this could put his life in jeopardy. Furthermore, as he explained, he was not asked to provide such details in examination-in-chief. Crown counsel chose to focus on this subject matter during cross-examination since there was nothing else he could be challenged on. The video clips disclose that he is not guilty and acted in self-defence.

[237] Counsel argues that the accused’s encounter with the “satchel kid” is a salient point. It is said to show that the accused will not readily use his firearm even in the face of conflict. He did not use it against this individual since he did not feel he was in danger. In turn, this provides insight as to his state of mind when attacked by the deceased. He used his firearm against the deceased as he felt danger.

[238] Counsel submits that the video evidence shows that the accused never had the opportunity of gaining possession of the firearm while inside the Sentral Nightclub.

[239] His evidence of how he greeted the deceased by hugging him in order to “test the temperature” is indicative of the fact that he did not want any problems with him.

[240] Counsel makes the point that the Crown did not call as witnesses the individuals who were close to the scene at the end of the bar, namely Eminem, the investor, the kid with the jacket, Buffalo and Ateena. He suggests that they should have been called as witnesses by the prosecution. He also challenges why the Crown did not ask the expert Detective Ferguson to provide an opinion with regard to the removal of the firearm by the accused while at the end of the bar based on the videos.

[241] Counsel notes that prior to the altercation, the deceased is seen standing at a distance watching the accused who was unaware of this. He then walks close to the accused and just stands there watching him. The suggestion is that the deceased had sent both of his henchmen to watch over the accused and subsequently got closer.

[242] The accused’s body language is said to be consistent with his testimony in that he is ignoring Buffalo, pushes him and gets closer to the investor. Ateena also tried to get involved in the discussion.

[243] Counsel disputes the suggestion that Eminem was acting as the accused’s henchman. The video clip shows that he remained on his phone, left the area and never intervened to help the accused who was being confronted.

[244] The Court is asked to find that the accused had not removed his firearm from his waist prior to being struck with the bottle. It is noted that there is no movement by the accused to support otherwise. Furthermore, the people around showed no reaction consistent with the gun having been removed and seen by them.

[245] The accused’s right hand was close to the gun but was only drawn when he was struck with the bottle. This is said to be confirmed by the fact that no one, including the deceased, was looking in the direction where the gun would have been seen if pulled prior to him being struck with the bottle. The deceased’s eyes were looking at his target.

[246] The Court is told to keep in mind while reviewing the video clips and frames that same should be looked at through the accused’s eyes and life experience.

[247] Things are happening very quickly. The deceased is moving his hand quickly and hitting the accused with force and not gently as suggested by the Crown. Of significance, is the fact that the accused did not use any lethal force up to that point. His evidence is that his belief was that he had been struck by a metal object believed to be a gun. Even if he was incorrect, it was reasonable for him to believe this based on his knowledge of the deceased, his own history and the fact that the deceased would never be searched prior to entering nightclubs. It was therefore reasonable for the accused to believe that the deceased was armed with a firearm.

[248] Counsel then goes through the three constituent elements for self-defence under sec. 34(1) of the Criminal Code and submits that the Crown has not shown the absence of these beyond a reasonable doubt. He raises the following points for the Court’s consideration:

− that the accused’s subjective belief that force was being used against him was based on reasonable probabilities; in fact, the application of force was not only imminent but was being applied;

− that his motive in shooting the deceased was to defend himself from a violent attack; he did so to save his life as he subjectively believed he would be killed; his act was not motivated by anger but fear;

− that the accused’s act in shooting the deceased was reasonable in the circumstances:

• even if he was wrong in his belief, there was a reasonable basis for same;

• the Court cannot hold the accused to a standard of perfection; these were stressful and dangerous circumstances; the accused was not expected to weigh his response to a nicety;

• his belief was that he was going to be killed; the Court must consider his life experience and knowledge of the deceased’s propensity for violence;

• the force was being applied by the deceased;

• the accused was not looking for a fight; the deceased was the aggressor; his only role was to tell the deceased to “fuck off”;

• he used a gun in response to what he believed was violence by means of a gun;

• the deceased was significantly larger than the accused;

• the accused had a number of physical ailments including his left shoulder which could dislodge;

• there was a concern that Buffalo and Ateena could get involved to assist the deceased;

• the history between the parties and the accused’s knowledge and belief with regard to the deceased’s propensity for violence which includes the use of weapons;

• his response was proportionate to being struck with a bottle (which he believed was a gun), being swung to the floor and struck to the head and face;

[249] It is submitted that the accused is therefore entitled to a complete acquittal based on self-defence.

[250] Alternatively, counsel submits that if the Court rejects self-defence, the Court should consider the partial defence of provocation which would lead to guilt for manslaughter as oppose to murder. The submission is that the Crown has not shown beyond a reasonable doubt that the accused’s act was not the result of provocation as provided for under sec. 239 of the Criminal Code. This is true even if the Court finds that he displayed the firearm prior to being struck with the bottle. It is submitted that the following establishes provocation:

− the deceased’s action in hitting the accused with a bottle amounts to an indictable offence punishable by 5 years or more;

− the deceased’s action would have caused an ordinary person to lose control;

− the accused acted in response to the provocation;

− the accused acted before his passion cooled.

[251] In the further alternative, it is submitted that the accused did not have the requisite specific intent for murder. This submission is based on the cumulative effect of the evidence as a whole. The Court is asked to consider the following:

− the accused was not aiming for a specific part of the deceased’s body;

− he had no time to think as the altercation unfolded quickly;

− he shot the deceased to save his life;

− his actions were taken in fear for his life.

[252] With regard to the Calgary occurrence reports which were the subject of a voir dire, Defence argues that these should not be admitted in evidence for the purpose raised by the Crown in that the accused did not assert that he did not use violence in Calgary. Nor did he downplay his involvement in crime or violence. He readily admitted this. Furthermore, he was never questioned on this subject-matter by his counsel. In light of his cousin’s activities in Calgary, his response that there was lots of speculation as to why he was shot and that it probably had something to do with his cousin’s situation is said to make sense in the circumstances. He went further and explained in chief that in his mind there was a connection between this shooting and illegal activities. It was related to selling drugs. He stated: “this kind of stuff happens when you’re in the game.” Alternatively, this evidence should be rejected on the basis that it has very little probative value and is highly prejudicial as it amounts to unproven and uncharged acts of violence and criminality.

[253] Finally, in response to the Crown’s submission, counsel for the accused raised the following points:

− the Crown is asking the Court to make a number of factual findings without having put these to the accused in cross-examination; this is unfair and contrary to the law; the Court should reject these proposed facts;

− the Crown is mistating a number of facts from the actual evidence;

− the Crown’s submissions as to self-defence cannot stand in light of the Ontario Court of Appeal’s decision in R. v. R.S., 2019 ONCA 832.;

− the Crown is asking the Court to assess the circumstances separate from the accused’s perspective which is contrary to the law of self-defence; the true lens is from the accused’s perception and eyes.

THE LAW

[254] In deciding this matter, the Court is guided by the following principles:

i. BASIC TENETS OF OUR CRIMINAL LAW

[255] The accused is presumed innocent of the charge brought against him by the prosecution as well as any lesser and included offence. He is presumed to be innocent from the start of the trial and so remains unless the Crown proves his guilt beyond a reasonable doubt. An accused bears no burden in a criminal trial and need not prove anything. The burden of proof remains on the Crown throughout and never shifts to the accused.

[256] The Crown’s burden is to prove each of the essential elements of the alleged offence or lesser and included offence beyond a reasonable doubt. The standard of reasonable doubt is inextricably linked to the presumption of innocence.

[257] As explained by the Supreme Court of Canada in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, a reasonable doubt is not a doubt based upon sympathy or prejudice. It must be based on reason and common sense. It is logically connected to the evidence or absence of evidence. More is required than proof that the accused is probably guilty. It does not however require proof to an absolute certainty. It is not proof beyond any doubt. Nor is it an imaginary or frivolous doubt.

[258] In assessing the evidence given by a witness, the measures are credibility and reliability. Credibility is whether the witness was honest with the Court. Reliability refers to accuracy. Even if honest, a witness can be unreliable as good faith and honest witnesses can be wrong. Through the lens of credibility and reliability, the Court may accept some, none or all of a witness’ testimony.

[259] The Court is mindful that the framework set out by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742 on how to analyze cases when an accused testifies must be modified in matters of self-defence. (see R. v. Reid, 2003 CanLII 14779 (ON CA), [2003] O.J. No. 2822). As stated by the Ontario Court of Appeal in R. v. Khill, 2020 ONCA 151, at paragraph 108:

“[108]…As the definition of self-defence includes objective components, the jury must understand that the availability of that defence cannot be determined exclusively by an assessment of Mr. Khill’s credibility…”

ii. ESSENTIAL ELEMENTS OF SECOND DEGREE MURDER

• sec. 222(1) Criminal Code.: A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being

• sec. 222(5) Criminal Code.: A person commits culpable homicide when he causes the death of a human being,

(a) by reasons of an unlawful act;

• sec. 229 Criminal Code.: Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.

[260] The essential elements of second degree murder which the Crown must prove beyond a reasonable doubt are:

Actus Reus

1. that the accused caused the deceased’s death

• and -

2. that the accused caused the deceased’s death by an unlawful act

Mens Rea

1. that the accused meant to cause the deceased’s death

• or -

2. meant to cause him bodily harm that he knew was likely to cause his death, and was reckless whether death ensued or not.

• The question of the specific intent required for murder must be looked at in the context of the cumulative effect of the evidence as a whole. As explained by the Ontario Court of Appeal in R. v. Srun, 2019 ONCA 453, at paragraph 91:

“[91] to ensure that jurors do not take a compartmentalized or siloed approach to evidence relevant, material and admissible on more than one issue, considering it only in relation to a particular defence, justification or excuse, then never considering it again, we expect judges to ensure that jurors understand that the use of this evidence is not spent. In the end, what jurors must understand…is that in deciding whether the Crown has proven either state of mind necessary to make an accused’s unlawful killing murder, they are to consider all the evidence that illuminates the issue, even if they have rejected the specific defences, justification and excuses in play, to which that evidence also relates…”

iii. DEFENCE OF PERSON

• sec. 34(1) Criminal Code.: A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

• sec 34(2) Criminal Code.: When determining whether the act committed is reasonable in the circumstances, the Court shall consider the relevant circumstances of the person, the other parties and the act, including but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

• In R. v. Khill, op.cit., the Ontario Court of Appeal described the three essential elements of self-defence as the trigger, the motive and the response. The Court notes the following instruction on each element:

“(a)The Trigger

[44] Section 34(1)(a) focuses on the accused’s state of mind. The accused must have a subjective belief that force is being used or threatened against them. Absent that belief, the defence is not available. That belief, however, does not itself trigger the defence. For the defence to be triggered, the belief must be based on “reasonable grounds”.

[45]… Because an act done in self-defence justifies as morally acceptable an act that would otherwise be criminal, the defence cannot depend exclusively on an individual accused’s perception of the need to act. Put another way, killing another cannot be justified simply because the killer believed it was necessary. Justification defences demand a broader societal perspective. Consequently, self-defence provisions contain a reasonableness component…

[50] Contextualizing the reasonableness inquiry to take into account the characteristics and experiences of the accused, does not, however, render the inquiry entirely subjective. The question is not what the accused perceived as reasonable based on his characteristics and experiences, but rather what a reasonable person with those characteristics and experiences would perceive..

(b) The Motive

[54] Section 34(1)(b) looks to the motive of the accused. Why did he do the “act” which is said to constitute the offence? This inquiry is subjective…Absent a defensive or protective purpose, the rationale for the defence disappears. Vengeance, even if righteous, is blameworthy and cannot be camouflaged as self-defence.

(c) The Response

[56] This element examines the accused’s response to the perceived or actual use of force or the threat of force. That response – “the act” – which would otherwise be criminal, is not criminal if it was “reasonable in the circumstances”.

[57] Section 34(2) directs that, in determining the reasonableness of the accused’s act, the court must consider “the relevant circumstances of the person, the other parties and the act”. This language signals that the reasonableness inquiry in s. 34(1)(c), like the reasonableness inquiry in s. 34(1)(a), blends objective and subjective considerations….”

• Where the accused relies on self-defence, the burden of proof lies on the Crown who must prove beyond a reasonable doubt that the defence does not apply. The Crown can do so by proving beyond a reasonable doubt the absence of one or more of the three constituent elements of self-defence (i.e. trigger, motive, response). The only burden on the accused is the evidential one of pointing to evidence that puts the defence into issue meaning that there must be an air of reality to the defence.

− R. v. Cunha, 2016 ONCA 491.

− R. v. R.S., 2019 ONCA 832.

− R. v. Paul, 2020 ONCA 259.

iv. PROVOCATION

• Sec. 232(1) Criminal Code: Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

• Sec. 232(2) Criminal Code:

• The Crown bears the burden of proving beyond a reasonable doubt that the partial defence of provocation, which reduces murder to manslaughter, does not apply. The defence will fail if the Crown disproves one or more of the constituent elements of provocation beyond a reasonable doubt. These elements are:

1. the person killed engaged in conduct that constituted an indictable offence punishable by five years or more;

2. the conduct of the person killed was sufficient to deprive an ordinary person of the power of self-control;

3. when the accused killed the person, he had lost the power of self-control as a result of the person’s conduct;

4. the conduct of the person killed was sudden;

5. the accused’s act that caused the person’s death was committed suddenly and before there was time for his passion to cool.

• The Ontario Court of Appeal provided the following relevant instructions with regard to provocation in R. v. Johnson, 2019 ONCA 145:

“[93] The “ordinary person” is a legal concept, usually assimilated to the “reasonable person”. It reflects the normative dimensions of the defence. In other words, behaviour which comports with contemporary society’s norms and values worthy of the law’s compassion. That said, the “ordinary person” does take into account some, but not all, of the individual characteristics of the accused…

[95] The wrongful act or insult must be sudden, in the sense that it strikes on the mind of an accused who was unprepared for it. Likewise, the response of the accused to the sudden provocation must be equally sudden. In other words, suddenness must characterize both the provocation and the accused’s response or reaction to it…

[96] A final point concerns the availability of provocation where the evidence tends to show that an accused was prepared for an insult or initiated a confrontation and received a predictable response which he later asserts amounted to a wrongful act. No absolute rule forecloses the availability of provocation in those circumstances. But such a result may usually follow because of the application of appropriate contextual factors to the question of whether an ordinary person would have lost the power of self-control…”

DISCUSSION

[261] As noted at the start of these reasons, this trial has raised a number of distinct factual and legal issues. The Court will first deal with these as well as provide an assessment of the accused’s credibility and reliability.

Admissibility of the Calgary Police Reports

[262] The Crown proposed to introduce as part of the accused’s cross-examination evidence of his connection, while in Calgary, to incidents involving firearms. This is said to be admissible incidentally to proper cross-examination as set out by the Supreme Court of Canada in R. v. S.G., 1997 CanLII 311 (SCC), [1997] 2 S.C.R 716, at paragraph 63:

“63. It is trite law that “character evidence which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible…However, there are three general exceptions under which evidence of bad character of the accused can be adduced:

(3) where the evidence is adduced incidentally to proper cross-examination of the accused on her credibility…”

[263] The Court is of the view that the impugned evidence is properly adduced as incident to proper cross-examination of the accused on his credibility. The weight to be given to same is distinct from its admissibility.

[264] Fundamental to the Court’s ruling on this issue is the fact that the accused having been shot in Calgary, the reason for same and his illegal activities in Calgary were introduced during his examination-in-chief. The Court notes that defence counsel had successfully objected to Amina Mohamed’s testimony that the deceased had travelled to Calgary to help the accused who had been shot. It is also noted that these events form part of defence’s submissions as part of the accused’s life experience and how the Calgary shooting is significant to his subjective belief when he shot the deceased in self-defence. The fact that the accused did not downplay is involvement in illegal activities or violence and is said to have testified candidly about his own illegal acts does not serve to shut the door to cross-examination on a subject-matter raised during examination-in-chief and ultimately relied upon in final submissions.

[265] To be clear, this evidence is not admissible for the purpose of propensity and/or bad character. Its use is limited to assess the accused’s credibility and reliability, specifically whether he is selective in his evidence and his stated belief as to why he was shot in Calgary.

The [Crown](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)’s failure to cross-examine the accused on certain points

[266] Defence’s submission is that the Crown has failed to cross-examine the accused on a number of points that the Court is now asked to consider in assessing the accused’s credibility and reliability.

[267] The Court agrees that this is a factor the Court must consider in assessing the accused’s evidence. In doing so, the Court will be guided by the following principles:

• The rule in Browne v. Dunn applies to the failure to cross-examine a witness on a specific issue and then, inviting the Court to disbelieve the witness on the specific point;

• The rule is one of fairness, thus not a fixed or invariable rule, much less a rule of admissibility; the extent of its applications rests within the sound discretion of the trial judge;

• It requires a cross-examiner to confront the witness with matters of substance, not inconsequential details, on which the cross-examining party seeks to impeach the witness;

• When it is apparent from the tenor of counsel’s cross-examination of a witness that the cross-examiner does not accept the witness’ version of events, the confrontation is general and known to the witness, and the witness’ view on the contradictory matter is apparent, then specific confrontation of the witness is not necessary;

• As a rule of fairness, the impact of the failure to cross-examine may be considered in the assessment of the witness’ credibility and reliability;

• See: - R. v. McCarroll, 2008 ONCA 715.

• R. v. Quansah, 2015 ONCA 237.

• R. v. Vassel, 2018 ONCA 721.

The [Crown](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)’s failure to call witnesses

[268] Defence is asking the Court to draw an adverse inference against the Crown for having failed to call witnesses, including Ateena, Buffalo, Eminem, the investor and the jacket kid all of who were near the end of the bar at the time of the altercation.

[269] The Court finds that there is no basis to draw the inference sought by defence. The Ontario Court of Appeal has expressed the governing principle as follows in R. v. Ellis, 2013 ONCA 9, at paragraph 44:

“[44] As a matter of general principle, Crown counsel is under no obligation to call a witness whom the Crown considers is unnecessary to the Crown’s case: R. v. Lemay, 1951 CanLII 27 (SCC), [1952] 1 S.C.R. 232; R. v. Jolivet 2000 SCC 29, [2000] 1 S.C.R. 751…It is all the more where Crown counsel does not know of the existence or identity of the witness, or considers the evidence of the witness unworthy of belief…”

[270] The Crown’s response with regard to Eminem, the investor and the jacket kid is that they have never been identified. This assertion is not challenged by defence counsel.

[271] As for Ateena, Crown counsel indicated that while he gave a sworn video recorded police interview on August 15, 2016, he maintained that he was too drunk to remember anything, was reluctant to cooperate with police and stated that he had nothing to say. This assertion was not challenged by defence counsel.

[272] Defence did challenge the Crown’s explanation with respect to Buffalo. To that end, the Court was provided with a transcript of his August 23, 2016 sworn video interview with police. Having reviewed this transcript, the Court finds that there is a reasonable basis to support the Crown’s decision that it was not necessary to do so. Quite simply, this individual would not have added anything. The Court noted the following:

• He was drunk at the time;

• He was not looking at them; he didn’t know that the deceased had struck the accused with a bottle;

• He was intoxicated and can only remember little things;

• He didn’t see the bottle…he just saw Esco slouch over to this guy;

• He just saw them on the ground…he’s pretty sure they grabbed each other…he didn’t see no weapons or nothing…he just saw them scuffling;

[273] The Court agrees with the Crown’s submission that this individual would not have contradicted nor supported its case. It is very telling as to his credibility, ability to observe and/or recollect, that he had not seen the accused being struck with the bottle by the deceased.

Credibility and reliability assessment of the accused

[274] The parties are at opposite ends of the spectrum on this issue. Both paint a very different picture of the accused. Defence submits that he is credible and should be believed. The Crown’s view is that he is not believable nor reliable and that his evidence should be rejected.

[275] As already noted, the Court is mindful that since the definition of self-defence includes objective components, the availability of self-defence cannot be determined exclusively by an assessment of the accused’s credibility. However, this remains an important aspect of the overall analysis.

[276] Is the accused a credible and reliable witness?

[277] Overall, the Court agrees with the defence’s submission that the accused admitted unsavoury facts about himself and did not minimize his own involvement in illegal activities. Doing so is generally found to bolster a witness’ credibility.

[278] The Court is also alive to the accused’s reality that naming extraneous people involved in such activities may jeopardize his safety. There is no question that the accused failed to provide names, relationships and basis for conflicts (i.e. beefs) in his testimony, including the L.B.C., members of this gang, activities in Calgary, his stabbing in Montreal and shootings in both Calgary and Montreal. A witness’ failure to deliberately provide particulars will, in the normal course of any trial, impact on credibility and reliability. A code of silence, however based, cannot be allowed to supersede a witness’ obligation to answer questions. However, its effect in the present matter, save and except for the events of August 14, 2016 at the Sentral Nightclub, is found to be tempered by the ultimate relevance and probative value of such particulars. While the Court is mindful that the claim of self-defence opened the door to extrensic acts of violence of both the accused and the deceased, the particulars of names, relationship and conflicts withheld by the accused bordered collateral facts which were non-essential. It is also noted that the Court had ordered the vetting of names from police records in the context of a pre-trial disclosure Application brought by defence.

[279] However, his failure to provide particulars of names and relationships of the individuals who are connected to the events at the Sentral Nightclub is found to impact more significantly on his credibility. These include the investor, the jacket kid, Eminem and the Satchel kid. This is particularly true with respect to the investor who is introduced by the accused as a central character in his narrative of what led to the shooting.

[280] The accused’s criminal record is found to have some but limited significance to his credibility. It is somewhat dated and not voluminous. There are no entries for crimes of dishonesty. However, some of the entries such as for breaches of Court orders and intimidation of a justice system, which he identified as a peace officer, suggest some lack of respect for the justice system.

[281] The fact that the accused lied to his family regarding his criminal activities is not found to weigh to any significant degree against his credibility. While previous lies can undermine the general credibility of a witness, the circumstances and substance of these must be taken into account. In the present matter, the lies were directed to family members and did not pertain to issues before the Court. He readily admitted his involvement in criminality during his testimony. The Court must also be cautious in considering such bad character evidence and propensity reasoning.

[282] There are internal and external inconsistencies in the accused’s evidence which raise significant concern with respect to his credibility and reliability. The Court notes the following:

1. The first one relates to his clear and unequivocal evidence in examination-in-chief that he was afraid of the deceased, that the deceased wasn’t in the club when he spoke to the investor and wouldn’t have spoken to the investor if the deceased was there because he would have wanted a large share. The presence or absence of the deceased inside the club is therefore very important to the accused as it is linked to the investor which is a fundamental purpose of why he went to the Sentral. The accused’s evidence as to the deceased not being inside the Sentral is contradicted by the video clips on Cameras 4 and 5 at around 03:10:15. More importantly, the accused is seen walking in the deceased’s direction and coming in close physical contact with him as he walked between him and the individual standing close by. This encounter was at 03:11:54 which was shortly prior to when he spoke to the investor at the end of the bar. The second layer of this evidence going to the accused’s credibility is the refusal to admit the obvious when confronted with the contradiction. The long-sleeved sweater, camouflage pants, hat and boots, in the circumstances allowed for no other reasonable conclusion. Yet, the accused resisted the obvious and suggested that Crown counsel was tricking him by not showing him the person’s face.

2. The evidence relating to the person referred to as the investor raises concerns. These are as follows:

• The investor is presented as an important fixture in the accused’s narrative and unfolding of events leading to the shooting. He is one of two reasons why he reluctantly attended the Sentral and remained there past 3:00 a.m.. The investor is also said to be at the heart of the altercation. It is of concern to the Court that the accused would fail to properly identify him and describe the nature of their relationship. The interactions between them, which commenced soon after the investor’s arrival at around 1:00 a.m. and included hugging, handshakes, dancing and talking support familiarity.

• These interactions with the investor which are shown as early as 1:00 a.m. on the videos, contradict the accused’s evidence in examination-in-chief that he remained at the Sentral because the investor showed up at 3:00 a.m. When confronted with this in cross-examination, he responds that “…he wasn’t the investor…he didn’t know he wanted to be the investor…with time he became the investor…” The confusion is further compounded by his response in re-examination to the effect that he had mentioned this to the investor during the evening and the investor had responded that “they would talk about it later”. If this is true, he would have known the identity of the investor prior to 3:10 a.m..

3. Similar concerns are raised with the accused’s evidence regarding the individual referred to as the Satchel kid, namely:

• He also remains unidentified notwithstanding that he is presented as having some degree of significance to the accused’s narrative and unfolding of events. The wrestling encounter is provided as an explanation why his firearm was moved and thereby becoming visible. The Satchel kid is also presented as an example showing that he would only use his firearm in response to a threat of danger.

• His description in examination-in-chief of his encounter with Satchel kid is not supported by the video evidence. He testified that the Satchel kid must have said something disrespectful; they were going to fight; the Satchel kid came running to him and they wrestled; it was aggressive and they wanted to fight; they went inside the alcove and agreed to fight. Other than the accused having thrown a glass on the floor, the video evidence does not disclose violence and/or animosity. At 02:57:45, the videos from Cameras 6 and 15 show the Satchel kid walking slowly towards the accused, both extending and shaking hands followed by the Satchel kid placing his arm around the accused more in the nature of play fighting. They then gently separate and walk closely towards the washroom area. They are shown at 02:59:17 on Camera 14 walking close to each other and stand in front of the office door talking with again no sign of animosity and/or violence. The accused’s explanation that they were negotiating the terms of the fight, the Satchel kid was trying to tell him who he was, and they were actually making it appear as if they were friends is found to be dubious at best. They would have then gone up the stairs to go and fight outside but he would have changed his mind and came back down.

4. The accused asserted in both examination-in-chief and cross-examination that his state of mind while carrying a firearm is such that he is not loose and must do lots of things including avoid issues as someone who steps on his shoes. He is more polite when carrying a firearm and avoids confrontation. Yet, some of his actions at the Sentral on August 14, 2016, do not appear consistent with his assertions. The Court notes the following:

• He states that he wanted to fight with a person he believed to be a “civilian” meaning that he wasn’t in the game because he had been disrespected by him;

• He threw a glass on the floor in the direction of the Satchel kid;

• He planned to go outside the nightclub and fight the Satchel kid; he testified that this caused a commotion and the bouncers got involved;

• He was at times walking around the nightclub with his firearm being clearly visible through his shirt;

• He walked very close to the deceased as described earlier;

• He pushed Buffalo with his left arm causing him to take a few steps back;

• He argued with both Ateena and Buffalo when they told him not to be stupid which he interpreted as a threat and a reminder that he could be attacked and punished for not listening;

• He negotiated with the investor knowing that the deceased was close by and attempted to continue notwithstanding that the deceased and his henchmen were now next to him. In fact, he told the deceased to fuck off. His actions are not consistent with his professed deep fear based on his knowledge of the deceased’s long standing history of violence which includes the use of firearms. It is also inconsistent with his assertion that he remains polite when carrying a concealed firearm.

5. The next point deals with whether the accused was carrying a concealed firearm when he entered the nightclub. The accused maintains that he did as he would not have entered the nightclub without same. He went on to explain the steps he takes to conceal his firearm which he carries 95% of the time and does so out of fear for his life. According to the Crown’s expert Detective Scott Ferguson, the accused did not display any characteristics of an armed person up to his tussle with the Satchel kid at 2:57am. The expert explained having reviewed all of the videos showing the accused’s actions throughout at various locations inside the nightclub. While he agrees with some of the suggestions put to him by counsel in cross-examination of possible characteristics prior to 2:57am, he ultimately stands by his opinion. In the end, while unlikely, the Court is unable to exclude the possibility that the accused was armed with a concealed firearm from the start. However, a review of the videos would support otherwise and affirm the expert’s finding. It is only after the tussle that the firearm is clearly visible and protruding through his clothing. His right hand appears to the right side of his waist thereafter and at times relodging the firearm. Why the firearm would thereafter remain so plainly obvious is somewhat difficult to appreciate in light of the accused’s evidence that he went to the alcove following the tussle in order to relodge the firearm. There is no reasonable explanation why it wasn’t properly concealed as before. He was wearing the same clothes which he wore specifically for the purpose of concealing his firearm. He agreed with the suggestion that he was an expert at doing so which is 95% of the time. Why then did the firearm remain visible? Why would he continue walking around the nightclub while carrying a firearm which was now so obvious if concealing same is so important to him? His evidence on this subject-matter is suspect.

6. The question of whether the accused removed his firearm from his waist prior to being struck with the bottle by the deceased is highly contentious. Defence counsel suggest that the Crown’s theory revolves around this and that proof beyond a reasonable doubt is required for same. While the Crown agrees that this fact is significant, it disputes the assertions made by defence. There is no question that this fact is highly relevant and probative to self-defence, provocation and specific intent amongst other facts. However, it is not an essential element that the Crown must prove or disprove beyond a reasonable doubt. The Court’s view is that it is more likely than not that the accused had removed his firearm from his waist prior to being struck by the bottle. This finding is based on the following:

• After careful and repeated review of the video clip from Camera 15 at 03:21:00, the Court finds that it shows that the firearm could not have been removed after the bottle strike. The flow of events shows otherwise. This is reinforced by a frame by frame analysis from frames 31 to 82. Since he was struck at frame 31 and the firearm is readily visible in his right hand at frame 61, this would allow for one second or less from being struck to its removal from his waist which was covered by his shirt. This is made even more doubtful by his evidence that he was unexpectedly struck and the severity of the impact which he describes as if he had been hit by a train.

• The Court notes that the accused provided little in terms of evidence as to when the firearm was removed from his waist during examination-in-chief. He initially indicated that his hand was on the firearm but then corrected himself and stated it was not on it but close. This is found to be a contradiction on a very significant fact. Furthermore, he did not provide more particulars as to when he removed the firearm during examination-in-chief. In cross-examination, he remained somewhat vague and stated, “it was possible” when asked if he could see the firearm following the bottle strike when shown relevant frames. The scarcity of his evidence on this significant subject-matter is odd.

• It would stand to reason that he would remove and display his firearm in light of the difficult predicament he was facing while standing at the bar negotiating with the investor. He was startled by the deceased who he feared deeply and knew to carry guns. He was also being confronted by Ateena and Buffalo who he knew to be the deceased’s “yes men” or henchmen. They would have told him not to be stupid which he understood as threats against him that he would be attacked and punished for not listening. His professed reason why he carries a concealed loaded firearm 95% of the time is to respond to such dangerous situations. It is reasonable to find, as supported by the video evidence, that he acted accordingly as the circumstances required him to do so.

The accused’s assertion that he had not removed the firearm prior to being struck with the bottle is not found to be supported by the evidence and impacts on his credibility.

[283] The cumulative effect of concerns raised in terms of inconsistencies, failure to disclose particulars and implausible assertions is found to impact on the accused’s credibility and reliability. On the whole, he is found not to be credible nor reliable.

[284] This finding stands notwithstanding Defence’s submission that the Crown failed to confront the accused with specific propositions during cross-examination which are now raised in final arguments. The Court is of the view that the accused would have been well aware of the prosecution’s position on the salient points through the opening remarks, the evidence and his cross-examination. These salient points include: that he did not have the firearm when he entered but gained possession of same later on following his tussle with the Satchel kid ; that he drew his firearm prior to being struck with the bottle ; that he wasn’t struck with significant force by the deceased ; that the bouncer attempted to intervene ; that 2 shots were fired very close in time. The accused provided evidence on each of these factual propositions put forth by the Crown. Fairness does not require the Court to remedy the situation by giving less weight to the evidence as sought by Defence.

[285] The Court’s task is now to look at the whole of the evidentiary record and decide the fundamental question which is whether the Crown has proven each of the essential elements for second degree murder or alternatively, the lesser and included offence of manslaughter.

1. Second Degree Murder

a. Did the accused cause the death of Omar Rashid-Ghader?

[286] Amongst the admissions made by the accused under sec. 655 of the Criminal Code filed as Exhibit #2 is that he caused the deceased’s death on August 14, 2016 at the Sentral Nightclub by firing a .40 caliber handgun twice in his torso. This admission is well founded in the expert opinion evidence of Forensic Pathologist Dr. Christopher Milroy who performed the post-mortem examination and concluded that death was caused by gunshot wounds to the chest.

b. Did the accused cause Omar Rashid-Ghader’s death by an unlawful act?

[287] If the accused was acting in lawful self-defence when he shot the deceased twice then he did not cause his death by an unlawful act.

[288] The Court finds, and this is not contested by the Crown, that there is an evidential basis which provides an air of reality to self-defence in this matter. As explained by the Supreme Court of Canada in R. v. Cinous, Op. cit., the trier of fact must consider this complete defence if there is evidence upon which a properly instructed jury, acting reasonably, could acquit if it believed the evidence to be true.

[289] As noted previously, the accused does not have to prove that he was acting in self-defence. Rather, the burden of proof rests with the Crown to prove otherwise beyond a reasonable doubt. The Crown can do so by proving the absence of one or more of the three constituent elements of self-defence (i.e trigger, motive, response).

[290] The Court will now analyze these three self-defence components.

i. Did the accused believe on reasonable grounds that force was being used against him or that a threat of force was being made against him?

[291] While the extent of the force used by the deceased is in dispute, the video evidence and the accused’s testimony establish such use of force. This provides a reasonable ground basis for the accused’s stated subjective belief. At a minimum, he was struck with a bottle to the head/face area, brought to the ground and punched to the head/face area. This is true irrespective of the accused having removed the firearm from his waist prior to being struck by the bottle.

[292] The Court therefore finds that the trigger component of self-defence is subjectively and objectively established by the evidence. The Crown has not shown otherwise beyond a reasonable doubt.

ii. Did the accused shoot the deceased for the purpose of defending himself?

[293] The Court accepts as a fact that the accused shot the deceased for the purpose of defending himself. The Crown has not shown beyond a reasonable doubt that he was motivated by a purpose other than self-defence.

[294] The Court notes the following in support of the accused’s subjective purpose:

• There was a long-standing relationship between these individuals with no indication of prior violence and/or motive for the use of violence against each other;

• There was a positive and friendly encounter between them at a grocery store a week prior to the incident;

• They are seen hugging when they first meet at the nightclub a few hours prior to the shooting;

• The accused did not display violence towards the deceased prior to the altercation;

• The shots were fired in the course of the altercation;

• He did not fire shots after the deceased appears to be disabled;

• He immediately left the Sentral without more.

[295] The Court is mindful that the accused appears to become agitated prior to the altercation. This video evidence coupled with the accused’s testimony to the effect that the deceased was intervening with his dealings with the investor and that he told him to “fuck off”, support an inference that something was brewing between the two. As he stated himself during his testimony, the game is such that friends can quickly become enemies. However, this does not allow for a finding, beyond a reasonable doubt, that the accused’s purpose for shooting the deceased was to show that he was strong. While this may be a reasonable inference to be drawn as to the accused’s state of mind and subjective motivation, it cannot be seen as the only reasonable inference. Motive other than self-defence must be proven by the Crown beyond a reasonable doubt.

iii. Was shooting the deceased reasonable in the circumstances?

[296] To state the obvious, the question of whether it was reasonable in the circumstances for the accused to shoot the deceased twice in the torso extends beyond what transpired from the time the deceased got close to the bar area at 03:19:20 and 03:21:25 when the accused walks away placing his firearm in his waist area. As explained by the Ontario Court of Appeal in R. v. Cunha, 2016 ONCA 491, at paragraph 10:

“[10] It is trite law that in assessing self-defence, the trier of fact must pay close attention to the entire factual context…”

[297] The Court must also be mindful that determining reasonableness requires that the circumstances be analyzed through the blending of objective and subjective considerations. This point is reinforced by the Ontario Court of Appeal in R. v. Khill, op.cit., at paragraph 60, the Court incorporates its “blending of objective and subjective considerations” analysis set out at paragraphs 43 to 52 regarding the sec. 34(1)(a) trigger component to the sec. 34(1)(c) response component. The following pronouncements are relevant to the response component:

“[45] Self-defence has traditionally been regarded as justificatory defence rooted in necessity found on the instinct for self-preservation. Justification treats an act that could normally be regarded as criminal as morally right, or at least morally acceptable in the circumstances…Because an act done in self-defence justifies as morally acceptable an act that would otherwise be criminal, the defence cannot depend exclusively on an individual accused’s perception of the need to act…”

“[46]…Reasonableness is ultimately a matter of judgment. A reasonableness assessment allows the trier of fact to reflect community values and normative expectations in the assignment of criminal responsibility…

[47] My colleague, Paciocco J.A., writing extrajudicially in his influential article, “The New Defence Against Force” (2014) 18 Can. Crim. L. Rev. 269, describes the purpose of the reasonableness component of the defence in these terms, at p.278:

“When the law uses an objective component, it does so to ensure that the acts or beliefs it accepts are “reasonable” ones. It is a quality control measure used to maintain a standard of conduct that is acceptable not to the subject, but to society at large”.

“[48] Canadian courts consistently interpreted the reasonableness requirement in the previous self-defence provisions as blending subjective and objective considerations. Reasonableness could not be judged from the perspective of the hypothetically neutral reasonable man, divorced from the appellant’s personal circumstances…Instead, the Court contextualized the reasonableness assessment by reference to the accused’s personal characteristics and experiences to the extent that these characteristics and experiences were relevant to the accused’s belief or actions…”

[298] It is also clear that the circumstances of the deceased must be considered in the overall assessment of whether the accused’s act was reasonable in the circumstances.

[299] What are the relevant characteristics and circumstances of the accused and deceased in the present matter?

[300] A good part of the evidentiary record in this trial relates to the presumptively inadmissible character and propensity evidence which is usually not admitted in criminal matters. However, such evidence is commonly found to be relevant and probative in cases where an accused relies on self-defence.

[301] The Court was presented with fairly detailed evidence of the accused’s history and how he grew up in the Ledbury area in Ottawa which was home to the criminal gang L.B.C. said to have been founded by the deceased and associated to drugs, guns and violence. The accused testified that he was exposed to the activities of the L.B.C. gang and in fact became a member. As such, he got involved in the “game” and the use of violence. His belief is that the deceased was a dangerous individual. This is based on things he would have seen and heard from others. This includes the use of weapons such as firearms, machetes and bricks. He describes himself as being extremely fearful of the deceased.

[302] The accused describes how he was the subject of two shootings in clubs and stabbed in Montreal. Photographs of his injuries were filed as Exhibits.

[303] He testified that all of this resulted in his having deeply rooted fear when he enters nightclubs. This is why he carries a loaded concealed firearm 95% of the time. He agrees with the suggestion that he is an expert at doing so. The essence of his evidence is that he carried this deep subjective fear when he reluctantly entered the Sentral Nightclub on the night in question.

[304] The Court was also provided with an Exhibit setting out 9 summaries of Ottawa police occurrences related to the deceased. These cover the period of July 17, 2001 to May 24, 2014 and reveal how the deceased would have used violence and weapons in different settings. As already noted, the accused expanded on this subject-matter and described his fear of the deceased.

[305] In fairness, the Court notes that the deceased was painted in positive terms by his wife Amina Mohamed. According to her, he was no longer involved in criminality and was a dedicated father to his young children.

[306] The accused’s personal characteristics and experiences are certainly relevant and logically probative to the question of the reasonableness of his response when faced with the deceased’s violence. These are subjectively and objectively supportive of reasonableness. It is part of what he brought to his encounter with the deceased.

[307] On the other hand, he is found to have brought more. Of his own admission, he brought years of involvement in the game and the use of violence which is deeply rooted on how this game operates. He admits to using violence. He was by then higher up in the hierarchy and involved in the drug trade in Toronto, Montreal and Ottawa. To be clear, the Court is not expressing the view that the accused is not entitled to the provisions of self-defence under sec. 34 of the Criminal Code because of his criminality. The point is that looking at the characteristics and experiences of both the accused and deceased, the reasonable inference is that they were on a similar level playing field and governed by the same set of rules. There was no clear imbalance between the accused and deceased in terms of their respective characteristics and experiences. This is found not to support reasonableness.

[308] Contextualization of the reasonableness inquiry requires the Court to take into account all of the circumstances surrounding the shooting. This includes consideration of the role played by the accused in bringing about the conflict. (see R. v. Khill, op.cit.) As stated by Justice Forestell in R. v. Sparks, 2021 ONSC 126, at paragraph 141:

“[141] The role of the accused in the incident is therefore not limited to the role at the moment of the act of self-defence. The context is broader and encompasses the actions of the accused leading up to the confrontation.”

[309] The conduct of the accused in the entirety of the circumstances is found to colour the reasonableness of the ultimate act. He is found to have played a significant role in instigating and escalating the incident. This finding is based on the following:

• He was walking around the Sentral Nightclub with a concealed, at most times, very visible loaded firearm tucked at his waist. He would not have entered the club without his firearm. He does so 95% of the time out of deep fear.

• His primary reason for being there was to talk to an investor for drug money. He could not negotiate with the investor if the deceased was inside the club. He wouldn’t do so because he knew the deceased would intervene and was very fearful of him.

• While he initially stated during his examination-in-chief that the deceased was not in the club, the evidence shows otherwise as already discussed in these reasons.

• Notwithstanding knowledge that the deceased was inside the club and relatively close by, he proceeded to negotiate with the investor.

• He continued to do so even if Ateena and Buffalo, who he knows to be working as henchmen for the deceased were standing close to him and, in essence, threatening him. He physically pushed one of them.

• He was startled by the deceased who walked up behind him. He told the deceased to fuck off as he would not be pushed around and show fear.

• As found by the Court, he then removed his firearm from his waist which prompted the deceased to strike him with the bottle.

[310] When looked at in its entirety, the accused’s conduct is found to be provocative and as having fueled the final confrontation that culminated in the act giving rise to the charge. This conduct is not found to support reasonableness.

[311] As things unfolded, it would have been subjectively and objectively apparent to the accused that things were brewing and that a probable confrontation with the deceased and his henchmen was imminent. In keeping with his subjective frame of mind regarding the deceased, he would have known that such impending clash would likely be violent. Importantly, it would likely require him to use his firearm as such danger is the reason why he was carrying a concealed loaded firearm 95% of the time. In such a setting, retreat and avoidance were means available to him in response to the potential use of force by the deceased. Simply leaving as opposed to standing up to the deceased and his henchmen was a reasonable and realistic option for him. His failure to do so weighs against the reasonableness of his having ultimately shot the deceased once the imminent altercation culminated.

[312] The accused’s role in the incident is found to distinguish this matter from the Court of Appeal’s decision in R v. R.S., 2019 ONCA 832. While the accused in that case was carrying a loaded gun as protection because he was previously shot twice, the facts reveal that he was standing in a lobby waiting for an elevator when he was unexpectedly attacked by 5 individuals from behind and struck in the back with a baseball bat. Unlike the present matter, there is no indication that the accused had a role in what led to the altercation.

[313] As already discussed, the reasonableness requirements demand that the Court, as the trier of fact, consider whether the impugned act reflects community values and normative expectations. To use the words of Justice Paciocco in his above noted article, reasonableness “is a quality control measure used to maintain a standard of conduct that is acceptable not to the subject, but to society at large”. It is fair to say that the carrying of a concealed loaded firearm, with the intent of using same if needed as protection, in a public setting such as a nightclub in the pursuit of illegal drug activities, is not reflective of essential community values and norms.

[314] The evidence revealed a longstanding relationship between the accused and the deceased which was devoid of any violence against the other. They had a friendly encounter at a grocery store a week prior to the shooting. The video clips show them hugging when they first met at the Sentral Nightclub on the night in question. The Court notes that the deceased’s wife Amina Mohamed testified that he had frantically left Ottawa and travelled to Calgary for one week in order to help the accused with what was described as a medical emergency by reason of counsel’s objection but later confirmed by the accused as a shooting. The Court is mindful of the accused’s evidence that he had little contact with the deceased at that time.

[315] While not an overly significant consideration in the present matter, the nature, duration and history of the relationship between the accused and the deceased, in light of the absence of any animosity and/or violence, tends to support that the shooting was unreasonable.

[316] While the size and physical capabilities of the parties tend to favour the accused’s assertion that his act was reasonable in the circumstances, the significance of these disparities and the accused’s physical ailments is tempered by the introduction of a firearm in the mix. The deceased was shot within a short period of time once both on the floor. Also, there is no indication that the accused’s left shoulder dislodged so as to render him more vulnerable. In fact, he had pushed Buffalo with his left hand causing him to take a few steps back.

[317] The Court’s finding that the accused removed the loaded firearm from his waist and held it in his right hand prior to being struck with the bottle is an important factor in the Court’s overall assessment of reasonableness. The introduction of the firearm was certainly unreasonable and served to inflame an already volatile situation. Irrespective of the ultimate use of the firearm in shooting the deceased, the production of the firearm is, in and of itself, found to be highly unreasonable in the circumstances. What followed, namely the use of a bottle as a weapon by the deceased to violently strike the accused, forcefully slam him to the floor and then punch him, is found to have been responsive to the accused’s action. However, it should be clearly understood that the accused remains entitled to rely on self-defence notwithstanding the Court’s finding that he played a significant role in instigating the violent encounter and was the initial aggressor in the altercation. This principle was reaffirmed by the Ontario Court of Appeal in R. v. Pandurevic, 2020 ONCA 798. In commending the trial judge’s instructions to the jury, the Court stated the following at paragraph 21:

“[21]…In considering the third element of the defence, the trial judge instructed the jury to consider all the relevant circumstances leading up to, surrounding and following the encounter in the elevator and the lobby, not simply the commencement of the altercation between the appellant and Mr. Savenkov. The trial judge made it clear that if the jury concluded that the appellant was the initial aggressor, the appellant was not by that fact alone disentitled from using force to defend himself, if the appellant reasonably feared from Mr. Savenkov’s response that he was in danger of death or serious bodily harm…”

[318] The Court will now focus on the deceased’s shooting death. In doing so, the Court is mindful of the following:

• The accused’s actions cannot be judged from the perspective of the hypothetically neutral reasonable person divorced from his personal circumstances;

• Consideration must be given to the accused’s personal characteristics and experiences, and what a reasonable person with those characteristics and experiences would perceive;

• Relevant circumstances of the accused can include mistaken beliefs held by the accused but based on reasonable grounds;

• The Court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection; errors in interpretation and judgement will be made;

• A person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety the exact measure of necessary defensive action;

• The person acting in self-defence is not to be held to a standard of perfection.

[319] Undoubtedly, if found to be credible and reliable, the accused’s assertion as to his subjective state of mind at the relevant time, would support the reasonableness of his ultimate act in the circumstances. His stated beliefs were as follows:

• The deceased was a dangerous individual capable of killing him; he was likely carrying a firearm;

• The deceased could rely on his two henchmen who would likely intervene;

• He was unexpectedly struck to the head with what he believed to be the butt of a firearm; this meant that the deceased was likely in possession of a firearm;

• He was at risk of losing consciousness because of the blows while on the floor;

• The bouncers would not intervene to help him as they had not done so in the past when he was shot;

• There was a risk that his left shoulder might dislodge;

• He would not survive a third shooting;

• The deceased was trying to get a hold of his firearm and he placed his hand on same following the first shot;

• He had no option other than shooting him a second time and kill him.

[320] While the focus must remain on the accused’s subjective belief, the Court notes that a frame by frame review of the events reveal that a number of his stated beliefs were incorrect, notably:

• The deceased did not have a firearm in his possession;

• He was struck with a bottle and not the butt of a firearm;

• The video clip from Camera 6 shows that he was not punched the number of times and with the force described by him;

• The bouncer David Jean did intervene within seconds until the first shot was fired.

[321] More importantly, the Court rejects the accused’s evidence as to his professed subjective state of mind and beliefs which he provides in order to explain his thought process which led to shooting the deceased twice.

[322] As already stated, the accused in found not to be credible and reliable. His evidence is not believed. Nor does it raise a reasonable doubt. This finding is compounded by his testimony with respect to his professed subjective beliefs and bases for same at the crucial point of the encounter. These are found to be implausible and self-serving. It is again seen as an after-the-fact attempt at building a reasonable basis for his action. He is in essence saying that he was able to think this through to a nicety and identify a number of reasons why he needed to do what he did. The reality is that within 10 seconds of being struck with the bottle, the deceased had been shot twice.

[323] It is also telling that the video evidence from Cameras 6 and 15 reveal that the accused was in control within a few seconds and certainly after the first shot. The sequence and times are as follows:

• 03:21:04: accused is struck with the bottle

• 03:21:06: accused’s body hits the floor

• 03:21:09: first shot is fired (based on the reaction of people around); deceased appears to become limp; the accused is now on top of deceased

• 03:21:14: second shot is fired; deceased is visibly disabled and stops moving; the accused had remained in control of the firearm.

[324] The action of the accused in shooting the deceased is found to have been precipitous and disproportionate.

[325] When looked at in the whole of the circumstances, which includes the longstanding relationship of the parties devoid of any violence one against the other, the role played by the accused in the building of the confrontations, the Court’s finding that the accused introduced a firearm in the mix, the similar characteristics and experience of both parties in violent criminality and the avoidance that was available to the accused prior to the ultimate confrontation, the accused’s act of shooting twice in the deceased’s torso is found not to be reasonable in the circumstances.

[326] The Crown has thus shown, beyond a reasonable doubt, that the accused’s act was not reasonable in the circumstances. Such finding is seen as reflective of community values and norms.

[327] The accused is therefore found the have caused the death of Omar Rashid-Ghader by an unlawful act. The last prong goes to the accused’s state of mind.

c. Did the accused have the intent required for murder, namely meant to cause the deceased’s death or meant to cause him bodily harm that he knew was likely to cause his death, and was reckless whether death ensued or not?

[328] The Court is satisfied beyond a reasonable doubt that the accused subjectively meant to kill the deceased. At a minimum, he meant to cause him bodily harm knowing that death was likely and was reckless whether death ensued or not.

[329] In fact, the accused did not dispute that such was his intent. His evidence went to his motivation for doing so, namely to save his life. His purpose was to stop the deceased as he felt his life was in danger. However, his professed motivation does not negate his specific intent to cause death or bodily harm knowing that death was likely and was reckless whether it did or not.

[330] Proof of such intent is supported by the following:

• His use of lethal force;

• Through his stated personal experiences, he was aware of the danger associated to firearms;

• He carried a loaded firearm 95% of the time in response to such danger;

• He shot the deceased twice in a vital area of the body;

• He is presumed to intend the natural and probable consequences of his actions.

[331] The Court’s finding as to the accused’s intent when he shot the deceased stands even when assessed in the context of the cumulative effect of the evidence as a whole. The Court is not left with a reasonable doubt with respect to his intent. In fact, the cumulative effect of the evidence strengthens the Court’s view on the subject-matter of the accused’s intent. The Court notes the following:

• The accused entered the Sentral Nightclub armed with a loaded firearm;

• He did so in response to having been shot twice in clubs; his intent was to use same if confronted with danger;

• He was well aware of the risk to life associated with firearms;

• In many ways he fueled and instigated the confrontation with the deceased for who he professed a deep fear and knew to carry weapons including firearms;

• He is found to have introduced his firearm in the confrontation prior to being struck with the bottle;

• His stated motivation was to shoot the deceased in order to save his life;

• He is shown to have calmly left the Sentral Nightclub after the shooting and relodge the firearm in his waist area.

[332] The added component of provocation argued by defence does not change the Court’s view regarding the accused’s intent.

[333] The Court therefore finds that the Crown has proven each of the essential elements of second-degree murder beyond a reasonable doubt. He is found to have caused the death of Omar Rashid-Ghader by means of an unlawful act and did so with the required subjective intent.

[334] The remaining question for the Court is whether the Crown has proven beyond a reasonable doubt that he did not do so under provocation pursuant to sec. 232 of the Criminal Code and thereby criminally liable for the lesser and included offence of manslaughter.

2. Provocation/Manslaughter

[335] There is certainly an air of reality to the defence of provocation in the present matter requiring consideration by the Court. However, it fails when looked at in the context and the relevant circumstances. The Crown is found to have proven the absence of some of the essential elements of provocation beyond a reasonable doubt. Going through the essential elements, the Court notes the following:

• The deceased is found to have engaged in conduct which may trigger provocation. The bottle strike amounts to an indictable offence punishable by imprisonment of more than 5 years under sec. 267(1)(a) of the Criminal Code;

• The deceased’s conduct was reasonably capable of depriving an ordinary person of self-control. This is an objective measure. The reasonable person who is struck with a bottle, then projected to the floor and punched, could reasonably be deprived of the power of self-control;

• The accused is found not to have lost the power of self-control as a result of the deceased’s conduct. This is a subjective measure. The Crown has proven the absence of this essential element beyond a reasonable doubt. This finding is based on the following considerations:

▪ He did not indicate in his testimony that he had lost the power of self-control nor did he suggest having been unable to exercise control over his actions;

▪ He was motivated by fear and his actions were responsive to this fear;

▪ His evidence is that his mind was assessing the risk and the reasons why he had no choice but shoot the deceased;

▪ He shot the deceased twice and stopped once the deceased had collapsed and no longer a risk;

▪ He stood up and calmly left the nightclub; he relodged his firearm to his waist and covered his head with a hoodie;

▪ He took a taxi and was driven to his friend’s home;

▪ His belief was that he had not committed an offence as he acted in self-defence.

− When looked at in proper context, the use of violence by the deceased cannot be seen as sudden. Nor could the accused have been subjectively unprepared for it and caught by surprise. As discussed in these reasons, the accused is found to have played a significant role in the ultimate confrontation. Through his actions, he is found to have received a predictable response. His own evidence negates the element of suddenness:

▪ He came to the Sentral armed with a loaded firearm;

▪ He knew the risk associated to such clubs;

▪ He was well aware of the danger associated to the deceased;

▪ He knew that it was risky to speak to the investor if the deceased was in the Sentral

▪ He knew that the deceased and his henchmen were close by;

▪ He was threatened by the henchmen but stood his ground as he could not show fear;

▪ He pushed one henchman and told the deceased to fuck off;

▪ As found by the Court, he removed his loaded firearm from his waist prior to being struck with the bottle by the deceased.

[336] The cumulative effect of all these circumstances leads the Court to find that the Crown has proven beyond a reasonable doubt that the accused’s act of shooting the deceased was not the result of provocation.

CONCLUSION

[337] The accused Mustafa Ahmed is therefore found guilty of the second-degree murder of the deceased Omar Rashid-Ghader contrary to sec. 235(1) of the Criminal Code.

Justice R. Laliberté

Released: March 29, 2021

COURT FILE NO.: 16-M7875

DATE: 2021/03/29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

MUSTAFA AHMED

Accused

REASONS FOR JUDGMENT

Justice R. M. Laliberté Jr.

Released: March 29, 2021