COURT FILE NO.: 15262/19
DATE: 20210122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Phillip Fullerton
Defendant
Sean O’Neill and Ken Polley, for the Crown
Ingrid Grant, for the Defendant Phillip Fullerton
And )
Daniel Lewis )
Defendant ) David Smith, for the Defendant Daniel Lewis
Justice verner
[1] Phillip Fullerton and Daniel Lewis stand charged with a total of fifteen offences in relation to a shooting that occurred outside a club in Pickering known as the Island Mix.
[2] The trial was heard via Zoom on December 7, 8, 9, 10, 11, 14 and 15. Each witness testified alone in a room, without objection or concerns from counsel.
[3] The Crown alleges that on July 20, 2018 at approximately 2:20 a.m., after the club closed, Mr. Lewis, who was 24 years old at the time, drove a vehicle through the club’s parking lot with Mr. Fullerton (age unknown) in the passenger seat. The car bumped into a pedestrian, the complainant Mr. Clayton Hall-Stephenson, who was crossing the parking lot on the way to his girlfriend’s car. Mr. Hall-Stephenson, who was 28, immediately approached the driver’s side window and exchanged words with the occupants. Within a minute, the two accused were pulling Mr. Hall-Stephenson into the vehicle and, within five seconds of the altercation turning physical, according to the Crown theory, the passenger shot Mr. Hall-Stephenson in the chest. The car left the area immediately after the gun was fired. Mr. Hall-Stephenson suffered a serious gunshot wound to his right chest. He was in an induced coma for a number of weeks and suffered multiple strokes. His eyesight has been permanently impacted by the incident, such that he was wearing glasses when he testified.
[4] Mr. Fullerton and Mr. Lewis were close friends, and the unchallenged evidence was that neither of them had ever seen or spoken to Mr. Hall-Stephenson prior to the minute-long encounter in the parking lot.
[5] The incident was caught on video. However, due to the distance of the incident from the security camera, the silent recording of the incident was very blurry. In addition to a video analyst and two police officers, the Crown called Mr. Hall-Stephenson and his girlfriend at the time (now fiancé), Ms. Carley Hess. Mr. Hall-Stephenson had little memory of the events due to the injuries he suffered. Ms. Hess, who was the main Crown witness, was standing within a few metres of the altercation. She did not see a gun.
[6] The only witness called on behalf of the defence was Mr. Lewis.
[7] Mr. Lewis, the driver, is charged with possessing the gun and being an accessory after the fact. Mr. Fullerton, the passenger, is charged with possessing and firing the gun.
Who brought the firearm to the altercation?
[8] The key factual issue in this trial is who brought the firearm into the altercation. The defence theorizes that Mr. Hall-Stephenson had the gun in a satchel that he was carrying over his shoulder and that it either accidentally discharged or accidentally fired in the midst of the scuffle between Mr. Hall-Stephenson and the two accused. The Crown theorizes that Mr. Lewis and Mr. Hall-Stephenson were struggling with each other, when Mr. Fullerton grabbed a firearm from within the car and fired the shot. The third and only other possibility is that Mr. Lewis fired the gun.
[9] None of the witnesses admitted to seeing a gun that evening until after the shooting. The three witnesses that can assist with where the gun came from are Ms. Hess, Mr. Hall-Stephenson and Mr. Lewis.
The Evidence
A. Ms. Hess
[10] Ms. Hess, who was 31 at the time of the offence, testified for the Crown. According to her testimony, on Thursday, July 19, 2018 she went to the club with her boyfriend Mr. Hall-Stephenson. He was carrying a satchel over his shoulder, which he carried everywhere with him and which held their keys, phones, cigarettes and identification. They did not know anyone at the club that night. They ordered food, had a few drinks and danced. They left the club at closing time.
[11] Ms. Hess remembered waiting by the car for Mr. Hall-Stephenson to cross the parking lot. She saw him get hit by Mr. Lewis’s vehicle. She noted that he was hit hard enough to feel it, but not hard enough to get hurt. She watched from a few feet away as Mr. Hall-Stephenson went to the driver’s side window. She heard words exchanged with the two occupants, which involved swearing, but she could not tell who was doing the talking.
[12] With the assistance of the video, she remembered that at one point Mr. Hall-Stephenson walked to the back of Mr. Lewis’s vehicle. It is apparent from the video, that in doing so, Mr. Hall-Stephenson walked away from Ms. Hess, even though she was apparently waiting for him. After nine seconds, he returned to the driver’s side window. According to Ms. Hess, she was two metres away from him at that point.
[13] Ms. Hess testified that when the altercation turned physical, she approached the vehicle. The gunshot went off three or four seconds after she started her approach. In those few seconds, according to Ms. Hess, both occupants of the vehicle were grabbing at Mr. Hall-Stephenson. She testified that Mr. Hall-Stephenson was struggling to get away from the vehicle and that, in light of Mr. Hall-Stephenson’s size, both occupants of the vehicle must have been pulling him in. However, she was inconsistent on whose hands she actually observed grabbing him at the pivotal moment. In-chief she testified that at the time of the bang, she saw both of the driver’s hands on Mr. Hall-Stephenson and that she saw both of the passenger’s hands but, could not remember where they were. She answered the Crown’s questions as follows:
Q: If you could just focus on the driver for a second. Could you see the driver, specifically the driver, doing anything?
A: I could see him pulling Clayton.
Q: Alright and so when you say you could see him pulling Clayton, could you see his hands? Being the driver?
A: Yes.
Q: And where were the drivers' hands?
A: On his chest, on Clayton’s chest, pulling him close towards the car.
Q: And when you say his hands were pulling Clayton's chest, is it one or two hands?
A: Two hands.
Q: What about the passenger, what's he doing?
A: He was trying to grab at Clayton as well, and at one point he had grabbed him, but I can’t remember exact placement of his hands at times.
Q: Can you describe what if anything the passenger is doing with his body at that point?
A: He’s leaning over the driver’s; he’s leaning to get closer to Clayton to pull at him.
Q: And if you could think back to the best of your ability and look at each individual in the car separately, at the time of the flash and the bang, where were the drivers’ hands?
A: I believe the driver still had a hold of him.
Q: With one hand or two hands?
A: I believe both hands.
Q: And what were his hands doing?
A: Whose hands?
Q: The drivers' hands.
A: They were pulling Clayton close to the car.
Q: Was there anything about the hands, or can you describe why you thought those hands were the driver’s hands that were on Clayton at the time of the bang and the flash?
A: Because they were not reaching for him. They were close to Clayton.
Q: Could you see what if anything the driver was doing with his body at that time, separate and apart from his hands.
A: He was turned towards the window and was pulling at Clayton. I could see like his hair.
Q: Could you describe his hair?
A: I just know it was not short hair. He had longer hair.
Q: And focusing on the passenger, right of the time of the flash and the bang, where are the passenger’s hands?
A: I am not sure.
Q: Could you see the passenger’s hands?
A: I could see them, but I don’t know where they were. Everyone was moving around so fast.
Q: At the time of the bang and flash, are you able to say whether the passenger’s hands are on Clayton?
A: I’m not sure.
[14] In cross-examination by Mr. Fullerton’s counsel, she clarified that she was unsure if she saw any hands, on Mr. Hall-Stephenson at the pivotal moment:
Q: During the altercation between Clayton and the men in the car, you told us that you saw four hands on Clayton?
A: Correct.
Q: Which of course you concluded to be the driver’s two hands and the passenger’s two hands?
A: Correct.
Q: Now one of the things that you testified to earlier, was that you believe that the passenger fired the gun, because at the time you heard the bang, you couldn’t see the passenger’s hands. Is that right?
A: Correct.
Q: And you could see the driver’s hands on Clayton.
A: Everything was moving quite fast, but that is what I believe yes.
Q: So what you are telling us is that at the time of the bang, you could see two hands on Clayton?
A: I could see hands.
Q: You could see hands. You don’t know how many?
A: Not exactly. Everything was moving very fast. As you seen, it was seconds. People were moving around. I had seen them grab him.
Q: Right. You seen the passenger and the driver grab Clayton. Four hands?
A: Yes. It would have taken four hands to grab him ‘cause he was a big guy.
Q: So, at the time that you heard this bang and (inaudible) and saw the flash you don’t know how many hands were on him?
A: I don’t. I know they had him up against the car to shoot him.
Q: It could have been that there were no hands on Clayton at the time of the bang?
A: Quite possible.
Q: And there could have been zero to four hands on him at the time of the bang, you don’t know?
A: Well, technically, there could have been zero to three, because one of their hands had a gun.
Q: You didn’t see a gun?
A: Well he was shot, so there was a gun.
[15] Ms. Hess also adopted the following portions of her preliminary hearing testimony, in which she admitted that she could not keep track of the hands as she approached the vehicle:
Q: Okay. Now, the Crown asked you some questions about your observations of the driver’s hands, and you said you saw both of them on Clayton. And he asked you about the passenger’s hands and you said you weren’t quite sure, I believe, if he had both hands on Clayton or not. That’s my recollection of your evidence. Tell me if I’m saying it wrong.
A: Just – there was lots of hands going, so I don’t exactly…
THE COURT: Sorry?
A: Like, there was lots of hands.
THE COURT: Okay.
A: So, there was – the placement could have been here one second, there another second.
Q: Okay. You saw a lot of hands and they are all moving?
A: Yes.
Q: So, Ms. Hess, I had put to you that passage from what you had told the police about seeing four hands on Clayton’s chest, grabbing at this shirt.
A: Yes.
Q: Okay. So do you accept that that would be accurate? You saw four hands grabbing at the shirt?
A: At a point in time, yes.
Q: Okay. And of course, that would mean two from the driver, two from the passenger?
A: Correct.
Q: Okay. And this struggle that’s going on with the driver and the passenger grabbing at Clayton’s shirt, this is the struggle that’s going on when you heard the bang?
A: This is just before the bang.
Q: All right. Well, when you heard the bang, all the hands had let go?
A: I’m not sure.
Q: Right. So, when you heard the bang, there’s still hands on Clayton, right?
A: I’m not sure.
Q: You’re not sure, okay. The hands are still moving all around at the time you hear the bang?
A; I’m not sure.
Q: Okay. You couldn’t keep track of the hands right before you heard the bang?
A: Because I was in motion before the bang had happened.
Q: Okay. So, you don’t know where any of the hands were specifically at the time you heard the bang?
A: Not specifically, no.
Q: Well, that’s what I’m asking you. What do you mean by “not specifically”?
A: Like I couldn’t tell you that his left hand was on his right shoulder. I couldn’t say exactly – and where – exactly where his right hand was. When there’s four hands flailing at someone, I’m not going to see whose hand is whose.
Q: So are you just saying on the body, you don’t know where they are specifically?
A: I knew that they were grabbing at his chest.
Q: Thank you.
A: But as – okay. Sorry, but as for like different quadrants of the chest, I – I just know it was on – somewhere on his torso.
Q: Whose hands were on his torso?
A: I know the driver’s were on his torso. I’m truly unaware of the passenger’s hands’ whereabouts.
[16] With respect to Mr. Hall-Stephenson’s hands, Ms. Hess testified they were flailing outside the vehicle, and that he was pushing against the vehicle to get himself out of the grip of the two occupants. However, she was not confident on that issue either. Her testimony was qualified as follows:
Q: Now you’ve testified that you saw Clayton’s hands on the outside of the car door at a point in time during this altercation?
A: Correct.
Q: But everyone was moving during the altercation. You agree with me on that?
A: Yeah.
Q: I mean you weren’t keeping track of Clayton’s hands any better than anyone else’s?
A: I could see that they were on the outside of the car.
Q: Okay. It’s possible his hands were on the part of the car door where the window goes down into the car?
A: Maybe to use as leverage.
Q: Okay. And its possible that his hands went into the car at some point?
A: I don’t believe so.
Q: I’m going to just read to you a passage from the preliminary inquiry and see if it accurately reflects your evidence…
Question: And just to be clear, I know we have gone through this before, but you disagree that his hands ever went into the vehicle?
Answer: Not that I remember, but I don’t believe so.
Question: Okay. And again, you don’t believe so, but you can’t be certain.
Answer: Correct. There’s lots of things I am uncertain of.
Q: Would that be an accurate reflection of your position today?
A: Correct.
[17] It is not surprising that Ms. Hess was unclear and uncertain in her testimony about the placement of hands at the pivotal moment, since she had less than four seconds to make these observations, while she was in motion, at night, after having consumed a few alcoholic drinks.
[18] After the shot was fired and the car drove away, Ms. Hess followed the car, got the license plate number and provided it to police when they arrived moments later. Police did not hesitate to start CPR. As they started, Ms. Hess bent down and took the satchel off Mr. Hall-Stephenson’s shoulder. She testified that she wanted her car keys from the satchel, as she was “terrified” and wanted to leave the area immediately.
[19] When Ms. Hess was asked at trial, “Did Clayton have a gun that night?”, she responded “no”. However, there is reason to believe that he would not have shared that information with her. According to her testimony, he never told her that he had multiple gun related offences on his criminal record. Most notably, unbeknownst to Ms. Hess, when she started dating Mr. Hall-Stephenson – and at the time of this offence – the reason he was on parole and wearing an ankle monitor, was because he had been sentenced to three and a half years for possessing a loaded, restricted or prohibited firearm. In fact, according to her testimony, she was still unaware of the nature of his conviction at the time of trial. I note that she did not appear to be surprised or concerned to learn about his involvement with guns:
Q: Ma’am, we spoke earlier about Clayton’s ankle monitor. Why was he wearing an ankle monitor?
A: He was on parole.
Q: And when we spoke about this at the preliminary inquiry, you weren’t sure about what he was on parole for. In the intervening twelve months, thirteen months, have you learned what he was on parole for?
A: No.
Q: You have made no inquiries in the intervening thirteen months.
A: No, ‘cause he got his ankle monitor off shortly after. It was not a topic of discussion.
Q: Okay. And so, if I told you he was on parole for possession for a loaded, prohibited or restricted firearm and an assault, you would have no basis to disagree with that?
A: If that’s what you are telling me.
Q: And you’re aware that he had a previous conviction for possession of a firearm or not?
A: I am not.
Q: You have no insight into Mr. Hall-Stephenson’s criminal past?
A: No. At the time we had only been dating a very short amount of time and he was a very nice guy and worked an honest job.
Q: Okay. In the intervening two and a half years, you are now engaged, correct?
A: Correct.
Q: And you live together, correct?
A: Correct. And he has an honest job.
Q: You have made no inquires in two and a half years about his criminal record?
A: No.
[20] I must note that in addition to having issues with Ms. Hess’s reliability, I also have some issues with her credibility. In particular, she testified in chief that neither she, nor Mr. Hall-Stephenson, knew anyone at the bar. In cross-examination, portions of the video footage were played to her showing a parade of nine different individuals who clearly knew Mr. Hall-Stephenson and greeted him accordingly. Instead of admitting that she was mistaken or that her memory was faulty, Ms. Hess maintained that she was unsure whether Mr. Hall-Stephenson knew any of these individuals. Crown counsel submitted that she may have given this clearly less than forthcoming testimony as a result of the stress of cross-examination. I understand that testifying in court may be stressful and emotional, especially so when the trial pertains to the shooting of a loved one. However, that does not discount the difficulty in the court relying on a witness’s testimony when it is apparent that she gave evidence that she must have known was inaccurate.
B. Mr. Hall-Stephenson
[21] Mr. Hall-Stephenson denied that he had a firearm on him that evening. He notably was searched on his way into the club. However, there was no search of the satchel under his arm. Defence counsel suggested that the search may have been “for show”, as there was evidence that Mr. Hall-Stephenson knew employees at the club. In particular, the video showed that after Mr. Hall-Stephenson entered the club, he spoke to a security staff member and then bypassed the table where other patrons were paying a cover charge.
[22] I accept Mr. Hall-Stephenson’s testimony that as a result of his injuries, he did not remember much of the evening. He remembered being “bumped” by Mr. Lewis’s vehicle, but could not remember how hard. He recalled that his reaction to the bump was to approach the driver and say “something like, ‘what are you guys doing?’” He remembered words were exchanged, but according to his testimony, could not remember who said what.
[23] Although Mr. Hall-Stephenson testified that he could not remember what if anything he said to the occupants of the vehicle, he denied threatening them on the basis that threatening was not in his nature. However, it was pointed out in cross-examination that he had two convictions for uttering threats. He could not remember the details. In fact, when he was asked if he made the following threat in 2011, he said he could “not recall”:
“I swear to god before I go to jail I am going to come and shoot you and everyone in your house. I am going to send people to your house. I’ll dome (sic) you. I will shoot you in your face and I will come and kill off everybody in your house”
[24] Thus, although I cannot find that he made such a threat, the fact that he could not say one way or the other whether he made that threat, somewhat negates his evidence that threatening was not in his nature. Mr. Hall-Stephenson further suggested that it would not have made sense for him to threaten to shoot Mr. Lewis, since he did not bring a firearm to the club that night.
[25] Mr. Hall-Stephenson remembered that the exchange of words escalated into a physical altercation. He claimed that he remembered being pulled towards the car and that he was trying to push off the vehicle, when he felt and heard the gunshot. He had no further memories of the evening.
C. Mr. Lewis
[26] Mr. Lewis testified that on July 19, 2020 he made plans with Mr. Fullerton to go to a club called the Island Mix for Caribbean Night, which happened every Thursday. He picked up Mr. Fullerton after a full day of work (Mr. Lewis was the Fraud Process Manager for Capital One Bank in Toronto). Mr. Lewis testified that Mr. Fullerton was not carrying anything as he got in the car and that it would not have been possible for Mr. Fullerton to conceal a gun in his clothing.
[27] Upon arriving at the Island Mix, Mr. Lewis parked in a parking lot across the street from the club. Video security footage confirmed his evidence of where he parked. It also confirmed that both occupants exited the vehicle at the same time, crossed the road and entered the club.
[28] At approximately 2:20 a.m., as the club was closing, both men exited the club and returned to the vehicle. Mr. Lewis and Mr. Fullerton discussed the attractive women they had met that night. They decided to drive across the street back to the Island Mix parking lot, in hopes of seeing the women they had met, to offer them a drive. As Mr. Lewis pulled into the Island Mix parking lot, Mr. Hall-Stephenson, who was on foot exiting the club, crossed the path of his vehicle. Mr. Lewis waited for Mr. Hall-Stephenson to clear his path, before proceeding forward. However, after Mr. Hall-Stephenson cleared the car’s path he stumbled backwards or turned back and was hit by the car. Crown counsel did not challenge the evidence that Mr. Lewis hit Mr. Hall-Stephenson accidentally.
[29] According to Mr. Lewis, Mr. Hall-Stephenson approached his window and yelled “You fucking hit me. Do you know who I am? Do you know who I am?” Mr. Lewis responded with, “I don’t know you. You don’t know me. Relax.” According to Mr. Lewis, Mr. Hall-Stephenson was “sliding his fanny pack thing like up to him and he’s hitting it” as he said, “I pop niggas for less”. Mr. Hall-Stephenson was visibly very angry and upset. As Mr. Lewis repeatedly directed Mr. Hall-Stephenson to “chill”, Mr. Hall-Stephenson stormed off mid-conversation. The security footage showed that, consistent with Mr. Lewis’s testimony, Mr. Hall-Stephenson quickly approached the driver’s side window after being hit by the vehicle, and that twelve seconds later, Mr. Hall-Stephenson walked away from the driver’s side window and to the back of the car. He then looped back to the driver’s side window nine seconds later.
[30] While Mr. Hall-Stephenson was behind the vehicle, Mr. Lewis released the car brake and inched forward. However, a pedestrian crossed the vehicle’s path and Mr. Lewis stopped. Two seconds after the pedestrian got out of the way, Mr. Hall-Stephenson was back at the window.
[31] According to Mr. Lewis, when Mr. Hall-Stephenson returned, he put his head almost inside the vehicle and threatened, “pussy, you’re dead”. He then reached towards his satchel. Mr. Lewis, in a state of fear, grabbed Mr. Hall-Stephenson’s right arm with both his hands in an effort to prevent Mr. Hall-Stephenson from pulling anything out of the satchel. As the two men struggled, Mr. Lewis turned to look at Mr. Fullerton for assistance. Mr. Fullerton then became involved. He reached in front of Mr. Lewis and grabbed Mr. Hall-Stephenson. Mr. Lewis noted at that moment there was nothing in Mr. Fullerton’s hands. As Mr. Fullerton got involved, he elbowed Mr. Lewis in the face. The hit disoriented Mr. Lewis momentarily. He could not see anything at that point. While Mr. Lewis was still disoriented, he heard a bang and saw a flash out of the corner of his eye. He knew it was a gunshot. It came sixteen seconds after Mr. Hall-Stephenson had returned to the driver’s side window.
[32] Mr. Lewis flung his arms up over his head pushing away anyone who was in front of him. He saw that Mr. Hall-Stephenson was standing, squatting or leaning over at that point, but still on his feet. Mr. Lewis drove away.
[33] Mr. Lewis testified that he left the scene immediately and drove around the building, which was a block long and a block wide. Before he exited the parking lot, which went all the way around the building, he saw or felt a gun near his left foot. He opened the vehicle door and kicked the gun out without touching it with his hand. He then drove Mr. Fullerton home, who was intoxicated, and got to his own house 35 minutes after the shooting. Mr. Lewis was walking to his front door from his car when he was arrested by multiple police officers with guns drawn. He learned for the first time from police that Mr. Hall-Stephenson had been shot.
[34] When asked during cross-examination if Mr. Fullerton could have fired the shot, Mr. Lewis admitted that it was a possibility since his view was obstructed at the moment the gun was fired and he never actually saw the gun in Mr. Hall-Stephenson’s satchel or hands.
Analysis of Mr. Lewis’s testimony
[35] The first issue for me to consider is whether I believe Mr. Lewis, or his testimony leaves me with a reasonable doubt (R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; 63 C.C.C. (3d) 397).
[36] I find that Mr. Lewis gave his testimony in a credible way. He remained relaxed throughout cross-examination, he did not hesitate before answering questions and he asked for clarification at appropriate times. In many ways his testimony was consistent with the Crown’s evidence. It was in large part consistent with the video recording of the incident and it was in many ways corroborated by Ms. Hess, who described a struggle in which both occupants of the vehicle were grabbing at Mr. Hall-Stephenson in the few seconds before the gun went off. And although she said she saw the hands of both occupants of the vehicle, she admittedly never saw a gun.
[37] Mr. Lewis’s account is also largely consistent with the physical evidence. There was gun shot residue detected on Mr. Lewis, which was consistent with him being close to the shooting. There was a shell casing found on the ground where the gun was fired, which is consistent with (but not determinative of) the gun being outside the vehicle at the time it was fired. And there was no gun found at the scene, which supports Mr. Lewis’s testimony that the gun ended up inside the car.
[38] The Crown submits that Mr. Lewis’s testimony is completely incredible for four main reasons:
(1) Mr. Lewis described Mr. Hall-Stephenson as reaching across is own chest with his right hand to put his hand in the satchel, which would suggest the satchel was on Mr. Hall-Stephenson’s left side. However, the video shows that the satchel was in fact under Mr. Hall-Stephenson’s right armpit (with the strap over the left shoulder) both before and after the altercation;
(2) Mr. Lewis testified that Mr. Hall-Stephenson was still standing after the gunshot, but the video revealed that Mr. Hall-Stephenson dropped immediately as the gun was fired;
(3) Mr. Lewis claimed he feared Mr. Hall-Stephenson from the moment of the first encounter, but then did not drive away when he had an opportunity to do so; and,
(4) Mr. Lewis’s post shooting conduct is indicative of guilt. He claimed he was a victim, yet he did not contact 911, or attend the nearby police station. It is furthermore implausible that he would have opened the car door to kick the weapon out of the vehicle, when he could have picked it up and thrown it out. If he truly was a victim, he would have delivered the gun to authorities.
[39] I accept the defence position that these issues do not render Mr. Lewis’s testimony incredible.
[40] At first glace, there may appear to be a discrepancy between Mr. Lewis’s testimony as to the placement of the satchel with what can be seen on the video. Mr. Lewis implied that the satchel was on the left side of Mr. Hall-Stephenson’s chest, and the video, although somewhat unclear, suggests that both prior to the altercation and immediately thereafter the satchel was near the right armpit with the strap over the left shoulder. However, Mr. Lewis testified that during the altercation, Mr. Hall-Stephenson was “sliding his fanny pack thing like up to him and he’s hitting it” (emphasis added). That testimony may explain how the satchel twisted around Mr. Hall-Stephenson’s body and moved from under the right armpit up to the left shoulder. Mr. Lewis further testified that the physical altercation was a struggle over that satchel with all three men grabbing at it and thus it most likely would have moved around the body throughout the encounter. Finally, the satchel may have moved after the attack as Mr. Hall-Stephenson keeled over from the gunshot. In these circumstances, it is difficult to find that Mr. Lewis was inaccurate as to the placement of the satchel based on video from before and after the altercation.
[41] I further note that the alleged contradiction regarding the placement of the satchel was not put to Mr. Lewis, and accordingly he had no opportunity to explain the contradiction. Crown counsel conceded that the failure to give Mr. Lewis an opportunity to explain could impact the weight given to this alleged weakness with his testimony (Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.); R. v. Quansah, 2015 ONCA 237, leave to appeal denied [2016] S.C.C.A. No. 203). Given the number of explanations Mr. Lewis could have provided to explain the discrepancy, as are outlined above, I cannot find that his evidence on this issue is undermined by the video.
[42] The Crown argued that the video showed that Mr. Hall-Stephenson dropped at the moment the gun was fired and thus, Mr. Lewis’s testimony that he saw Mr. Hall-Stephenson standing after the gunshot cannot be accurate. I accept that the video shows Mr. Hall-Stephenson’s head drops below the top of the car, and out of site, at the moment the shot was fired. However, it is not clear from the video that he drops to the ground. He may have keeled over in pain but stayed on his feet. The next moment he is seen on the video is five seconds later, after the car moves out of the way, when he is kind of sitting, and kind of squatting, as he is standing back up to walk away from the area. Mr. Lewis’s testimony on this issue is not necessarily inconsistent with the video. He said:
When I see the bang, I kind of fling up my hands and try to clear the, my vision space and I look over and he’s either what looks like not, he’s still standing, or squatting or leaning. He’s not on the ground.
[43] I cannot find based on the video, that Mr Lewis’s testimony regarding Mr. Hall-Stephenson’s stance after the shot was fired was inaccurate.
[44] The Crown suggested that Mr. Lewis should not be believed since he claimed to be fearful and yet when he had an opportunity to drive away after Mr. Hall-Stephenson went behind his car, he did not take it. However, when Mr. Hall-Stephenson first walked away, Mr. Lewis inched forward as if he was about to leave, when he noted a pedestrian crossing his path. The pedestrian only cleared his path two seconds before Mr. Hall-Stephenson returned. I note that the altercation with Mr. Hall-Stephenson started because Mr. Lewis moved forward too soon after Mr. Hall-Stephenson cleared his path and Mr. Hall-Stephenson stumbled back and got hit by the car. It is therefore not surprising that Mr. Lewis waited an extra two seconds after this second pedestrian cleared his path before inching forward. I give no weight to the suggestion that Mr. Lewis’s failure to leave in those two seconds undermines his credibility.
[45] Finally, there is the post shooting conduct. I have a hard time putting much weight on the evidence of what Mr. Lewis did or did not do within the thirty seconds after a shot was fired inches from his head. His decision to open the car door and kick the gun out, rather than pick the gun up and throw it out a window, may have been to avoid getting his fingerprints on the gun. Or it may be completely irrational. However, it would not be surprising if Mr. Lewis acted irrationally in that moment. I also do not give much weight to the idea that if Mr. Lewis was a victim as he described, he would have gone to the police and provided the gun to authorities. Driving to the police station after the shooting with the gun would have been a risky move and would only have been done if Mr. Lewis was confident he would be believed by police. I note that Ms. Hess similarly testified that as a victim, she was “terrified” and wanted to flee, even though police were there with her at the scene. I do not find that Mr. Lewis’s post shooting actions are evidence of a guilty conscience.
[46] There are several reasons to believe Mr. Lewis and no overwhelming reason to find him incredible. Thus, although some of his testimony may be inaccurate, I find that his overall version of events is credible. I in fact believe him.
The charges against Mr. Lewis
[47] Since I believe Mr. Lewis, I make the following conclusions with respect to the charges against him.
[48] With respect to the counts of possessing a firearm (counts 5, 9 and 11), the Crown must prove that Mr. Lewis had consent, control and knowledge of the gun (R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357, 4 C.C.C. (3d) 193). On the basis of Mr. Lewis’s testimony, I find that he had no knowledge of the firearm prior to the moment he opens the door and kicks it out. I further find that at no point did he consent to the firearm being in his vehicle.
[49] With respect to the charge of being an occupant of a motor vehicle knowing there is a firearm in the car (count 7), a driver is not guilty if he removed the gun from the vehicle at the earliest opportunity (R. v. Swaby (2001), 2001 CanLII 2829 (ON CA), 155 C.C.C. (3d) 235 (Ont.C.A.)). Mr. Lewis did just that and is therefore not guilty of an offence under s. 94.
[50] Finally, since on Mr. Lewis’s evidence, he did not see, know or believe that Mr. Fullerton shot Mr. Hall-Stephenson, he cannot be guilty of accessory after the fact to any offence, as he is charged in counts 14 and 15.
[51] I find Mr. Lewis not guilty on all charges against him.
The charges against Mr. Fullerton
[52] Turning now to the case against Mr. Fullerton, I start by addressing whether my acceptance of Mr. Lewis’s testimony determines the outcome against Mr. Fullerton. Mr. Lewis’s testimony allowed for the possibility that Mr. Fullerton fired the shot, since he did not see the gun or the hands of either Mr. Fullerton or Mr. Hall-Stephenson at the time the shot was fired, and never saw a gun in Mr. Hall-Stephenson’s hands or satchel.
[53] Crown counsel argues that even if I believe or have a reasonable doubt that Mr. Lewis’s version of events is true, I must still find that Mr. Fullerton was the shooter, since the only possible way for Mr. Hall-Stephenson to get shot was from either Mr. Lewis or Mr. Fullerton. Crown counsel submits that it would have been impossible for Mr. Hall-Stephenson to get shot in the chest accidentally from his own gun. According to the Crown’s argument, if Mr. Hall-Stephenson had had a gun and it fired while he was trying to get it out of his satchel, then the barrel of the gun would necessarily have been facing away from his chest. I cannot accept this argument.
[54] Mr. Lewis described the few seconds before the shot as a serious physical struggle between three men in which it was unclear whose hands were where. He testified that he was grabbing Mr. Hall-Stephenson’s right arm with both his hands until the final second, when he was elbowed in the face by Mr. Fullerton, who was also grabbing, or attempting to grab Mr. Hall-Stephenson. It is unclear on Mr Lewis’s testimony, whose arms, if any, were pulling or pushing Mr. Hall-Stephenson at the time of the shot; whose finger, hand or arm hit the trigger; or which way the gun was pointing. Arguably, this portion of Mr. Lewis’s testimony was corroborated by Ms. Hess. In these circumstances, I can not exclude the possibility, nor assess the likelihood, that Mr. Hall-Stephenson was shot by his own gun during a struggle as described by Mr. Lewis. Mr. Lewis’s testimony does not assist the Crown in proving that Mr. Fullerton was the shooter.
[55] Indeed, I find just the opposite. Mr. Lewis testified that Mr. Fullerton was not carrying a gun when he picked him up on the way to the club, and there was nowhere on his person where Mr. Fullerton could conceal a gun. The video security footage revealed that Mr. Lewis and Mr. Fullerton exited the vehicle before entering the club at the beginning of the night at the same moment. Thus, Mr. Fullerton did not have an opportunity to hide the gun in Mr. Lewis’s vehicle without Mr. Lewis knowing. Mr. Fullerton was searched on his way into the club and therefore, apparently did not keep a gun on him. Mr. Lewis saw Mr. Fullerton’s hands within a couple of seconds of the gunshot and there was no gun in his hands. Finally, and perhaps most importantly, although Mr. Lewis did not see a gun in Mr. Hall-Stephenson’s satchel, his testimony strongly supports an inference that one was there.
[56] At first glance, Ms. Hess’s description of events appears to lend support to the theory that Mr. Fullerton fired the fatal shot. In particular, she testified that Mr. Hall-Stephenson’s hands were outside the vehicle the whole time and there was nothing in them, and she said the only hands she could not see were those of Mr. Fullerton. However, she clarified that she was uncertain about her observations of Mr. Hall-Stephenson’s hands, and although she said at one point, she could not see Mr. Fullerton’s hands at the crucial moment, at another point in her testimony she said she could. Ms. Hess had a total of a few seconds to make these crucial observations, while she was in motion, at night, after having consumed alcohol. It is not surprising that her ability to assist with whose hands were doing what is unclear. Her description of the encounter does not assist in finding that Mr. Fullerton was the shooter.
[57] Both Ms. Hess and Mr. Hall-Stephenson testified that he did not have a gun on him that evening. However, as I already mentioned, I am not confident that Ms. Hess would have been aware if Mr. Hall-Stephenson had a gun. I similarly do not put much weight on Mr. Hall-Stephenson’s evidence since he has a significant motive to deny carrying a loaded restricted or prohibited firearm that night. He was in fact on parole for that very offence at the time of this shooting.
[58] The strongest piece of evidence that Mr. Hall-Stephenson did not have a gun in his satchel is the fact that he was searched on the way into the club. Although it is apparent from the security footage that his satchel was not in fact searched, the fact that he likely knew he was going to be searched makes his decision to carry a gun, according to Crown counsel, brazen to the point of completely implausible. There are three reasons, why I do not give this reasoning much weight:
(1) I accept there is a reasonable possibility that Mr. Hall-Stephenson did not expect to get searched since he knew employees of the club and the search, as it was, was “for show”. In support of this theory I note that the most obvious place to hide something (the satchel) was not searched and note that Mr. Hall-Stephenson greeted a security employee inside the club and then, unlike the other patrons, bypassed the woman taking cover charge;
(2) It is possible that someone passed Mr. Hall-Stephenson the gun after he entered the club; and,
(3) On the Crown theory, Mr. Fullerton pulled out a gun while sitting in a car in a crowded parking lot within a few seconds of an altercation turning physical and then shot a stranger in the chest, a stranger he had no reason to want harmed or dead. I find this action to be extremely brazen. In other words, it is difficult in this case to fully discount a theory on the basis of what I believe is too brazen.
[59] Since I believe Mr. Lewis’s testimony, there is good reason to believe that the gun came out of Mr. Hall-Stephenson’s satchel. There is no evidence that significantly undermines that conclusion and accordingly, I have at least a reasonable doubt that Mr. Fullerton shot Mr. Hall-Stephenson. I therefore must acquit Mr. Fullerton of counts 1, 2, 3, 12 and 13.
[60] I further find that the Crown has not proven that Mr. Fullerton ever consented to or had control over the firearm. In other words, the Crown has not proved he had legal possession of the firearm and therefore I must also acquit Mr. Fullerton of counts 4, 8 and 10.
[61] Finally, with respect to whether he was an occupant of a vehicle knowing there was a gun inside, there is no evidence that Mr. Lewis informed Mr. Fullerton that he saw the gun by his feet before he opened the door and kicked the gun out. Therefore, on the evidence I accept, there is no basis to find that Mr. Fullerton was in a vehicle knowing that there was a firearm in there as well. I acquit Mr. Fullerton of count 6.
[62] I find Mr. Lewis and Mr. Fullerton not guilty on all counts.
Justice Verner
Released: January 22, 2021