COURT FILE NO.: CR-18-A10077

DATE: 2021/07/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Mohamed Ali and Everton Ambrose.

Matthew Geigen-Miller, for the Crown.

Leonardo Russomanno, for Mohamed Ali.

Mark Ertel, for Everton Ambrose.

HEARD: March 8, 2021 to March 16, 2021

REASONS FOR JUDGMENT

MARANGER J

Overview

[1]

Overview

On the 12th day of March 2018, a drive-by shooting took place at the corner of Midway Avenue and Hartleigh Avenue in the City of Ottawa. The person who was shot at was Mr. Ahmed Fahad.

2Mr. Fahad had just finished spending an evening visiting family at their residence located at 250 Hartleigh Avenue. Shortly before 9 p.m., he entered his black Hyundai motor vehicle. Moments later, a car drove by and the occupants shot at him several times. Fortunately, none of the shots met their mark.

3Mr. Fahad then decided to give chase to the suspect vehicle. While doing so, he contacted 911 to report the shooting to the Ottawa Police Service. His conversation with the 911 dispatch person was audio recorded and a transcript was provided.

4During the chase, the complainant came within close proximity to the suspect vehicle which stopped, and the occupants again shot at him.

5Shortly thereafter, the police become involved in the chase. At the insistence of the police, Mr. Fahad discontinued his pursuit. A highspeed chase involving several police officers followed. The suspect vehicle was eventually stopped forcibly by the police.

6The suspect vehicle had two occupants: the two accused, Mohamed Ali and Everton Ambrose. Mr. Ali was the driver and Mr. Ambrose was in the back-passenger seat. An aggressive arrest of Mr. Ali took place.

7The events of that evening resulted in the two accused being charged with a series of gun-related charges, and Mohamed Ali, the driver of the vehicle, being charged with dangerous driving, failing to stop for the police, and resisting arrest.

8The crux of this case, in my estimation, comes down to whether the testimony of Mohamed Ali has raised a reasonable doubt as to the degree of the involvement, if any, of both he and Everton Ambrose in the drive-by shooting which is the more serious of the charges faced by either of the accused.

9This narrowing of the focus arises because of a very compelling Crown case against both accused, which on the face of it appeared to be a situation where the two were caught red-handed in a drive-by shooting. Absent the testimony of Mohammed Ali, a finding of guilt, it seems, would have been a foregone conclusion.

10Mr. Ali testified and explained that two other people were in the car, that those two people were the shooters, that they got out of the car before Mr. Ali and Mr. Ambrose were stopped by the police, and that he and Mr. Ambrose were innocent bystanders who had no idea that a shooting was going to take place.

11This decision will be divided into the following five parts: a summary of the evidence of the Crown case, a summary of the testimony of the accused, the applicable legal principles, an analysis of the evidence juxtaposed to the principles, and my conclusion.

Summary of Crown Case

[12]

Summary of Crown Case

The Crown case consisted of the following evidence:

a) The testimony of several Ottawa police officers, including those involved in the high-speed chase, the arrest, and the gathering, processing, and photographing of relevant scenes and evidence in this case.

b) A series of admissions concerning the identification of the accused, the vehicle they were in, the seizure of two separate weapons, the analysis of the two separate weapons, and the testing of the weapons and matching thereof to discharged cartridge casings both at the scene and located inside the suspect vehicle.

c) The testimony of two civilian witnesses who located handguns in a construction work site and park located in the area along the route of the high-speed chase.

d) The testimony of the complainant, and the playing of an audio recording and the filing of transcripts of his 911 telephone conversation of March 12, 2018 with the Ottawa Police Service dispatch individual.

e) The testimony of the sister of Mohammed Ali.

13The Crown also filed a separate admission concerning a letter that was mailed to 250 Hartleigh Avenue, the address of the family of the complainant. This letter threatened to get him, so to speak, next time. The admission was that that letter could not have been mailed by either of the accused because they were incarcerated at the time it would have been delivered.

14The case put forward by the Crown can for the most part be summarized using some of the admissions made, the testimony of certain witnesses, as well as the physical and forensic evidence.

15The review in this instance also requires a more detailed summary of the evidence of four Crown witnesses: namely, Mr. Ahmed Fahad, Constable Chris Cochrane, Constable Gabriel Viera, and Constable Steve Eckland.

16Firstly, I would make the following findings of fact and summarize the bulk the case put forward by the Crown as follows:

• On March 12, 2018, sometime just before 9 p.m., a black Honda Fit motor vehicle being driven by Mohamed Ali together with at least one passenger, Everton Ambrose, drove by a black 2007 Hyundai Sonata vehicle that was parked at the corner of Midway Avenue and Hartleigh Avenue in the City of Ottawa.
• That Hyundai Sonata vehicle was owned by the complainant Ahmed Fahad who was visiting his parents and family who reside at 250 Hartleigh Avenue.
• Just after he entered his vehicle, he was shot at by occupants of the Honda Fit. At least six shots were fired: five from a Black Ruger LCP2 handgun and one from a Tan Ruger LCP handgun.
• Mr. Fahad then gave chase to the suspect vehicle and contacted 911 during the pursuit. At one point, he was shot at again when the Honda came to a stop near Isabella Street/Chamberlain Avenue.
• Mr. Fahad finally stopped his vehicle at Isabella/Chamberlain and Percy Street and described speaking to a police officer who then would have pursued the suspect vehicle.
• The Honda Fit was then followed by several police officers including Constable Chris Cochrane who described seeing the complainant’s vehicle which had dark, tinted windows and was a dark-coloured Hyundai.
• The Honda Fit ran red lights and stop signs while fleeing the numerous police officers who gave chase. The manner of driving described by the various police officers showed a wanton and reckless disregard for the lives and safety of pedestrians and other users of the roadway.
• Constable Cochrane testified to only losing sight of the vehicle for a few seconds. The path taken by the vehicle, from the time the officer saw the complainant’s vehicle to the time he gave chase to the suspect vehicle, was described and shown though the use of a map and colored arrows filed as Exhibit 2.
• Finally, the Honda Fit was forcibly brought to a stop on the off ramp from Bronson Avenue leading to Riverside Drive. There were two occupants in the vehicle: the accused, Mohamed Ali and Everton Ambrose.
• The following was found in the vehicle: four cell phones, with one owned by Mr. Ali and one owned by Mr. Ambrose; two Blackberry phones without user data; and two spent casings for cartridges that were forensically matched to the Tan Ruger LCP handgun. There were no handguns located in the vehicle.
• The arrest of Mohammed Ali was an aggressive arrest. Two officers indicated that he resisted arrest, but their description of the resistance to the arrest did not match. Mr. Ali sustained injuries, including deep abrasions on his face and a long cut across his forehead.
• The two accused’s hands were both swabbed for gunshot residue (“GSR”). The Centre of Forensic Sciences determined that three GSR particles were found on the swab from Mr. Ali’s hands, and more than 10 GSR particles were found on the swab from Mr. Ambrose’s hands.
• Mohamed Ali and Everton Ambrose were arrested and kept in custody at the Ottawa-Carleton Detention Centre.
• On March 21, 2018, a letter was delivered to 250 Hartleigh Avenue, the residence of the family of the complainant. It is a threatening letter that simply indicates, in bold red ink and in capital letters, the word danger. Then again in red ink it has a cartoon drawing of a pistol that says “pow”, followed by the words “we won’t miss next time” in blue ink.
• The envelope also contained white powder which was determined to be coffee whitener. Neither of the two accused could have been responsible for delivery of the letter and whitener. It came from a third party.
• On March 31, 2018, a citizen found a black Ruger handgun on the grounds of the Glebe Memorial Park around Glendale Avenue adjacent to Chamberlain Avenue. The precise location of where the gun was found was re-created and photographed because the citizen moved the pistol upon discovery, initially believing it to be a toy.
• On June 9, 2018, a building designer walking through a work site located at 277 Powell Avenue, a corner lot off Bronson Avenue, found the Tan Ruger handgun. He thought that it was a toy at first until he picked it up and actually shot it, and then he called the police.
• Muni Ali is Mohamed Ali’s sister. She testified that the Honda Fit was her vehicle and that it came into Mr. Ali’s possession on March 12, 2018 because she had asked him to go pick up their older sister at the Tremblay train station on that date.

17I would summarize Mr. Ahmed Fahad’s testimony as follows:

• He is married with children and has worked as an Uber driver since 2016. On March 12, 2018, he was visiting his family at 250 Hartleigh Avenue in the City of Ottawa. The visit was between 6 and 9 p.m. He parked his vehicle at the intersection of Hartleigh Avenue and Midway Avenue.
• He left the home just prior to 9 o’clock that evening. As he got inside his car, he was dealing with someone requesting an Uber driver. He then testified that he felt someone shooting a gun at him. He bent down to the right side to avoid being shot. When he got up, he saw a car speeding away and he followed that vehicle.
• While giving chase, he called 911 to report the shooting incident. His pursuit is in some measure caught in real time by virtue of the 911 call.
• He testified as to the route of the pursuit. While he testified, maps of various streets in the City of Ottawa were utilized. These maps indicated where he was first shot at, being the corner of Midway Avenue and Hartleigh Avenue. They also indicated the point where his vehicle and the vehicle driven by the people who shot at him come in close contact with his vehicle on Chamberlain and Lyon Street. During this time of close contact, he was shot at again by someone in the vehicle. Lastly, the maps indicated where he finally stopped by pulling over when requested to do so by the police.
• He acknowledged that at first, he believed he saw three or four people in the vehicle just after the first shooting and while he was giving chase.
• However, at the time of the second shooting, he said that he saw two people in the vehicle and could only say that they were dark skinned. He testified as to being able to see two people in the vehicle because he could see more clearly as they were closer to him.
• He testified as to how fast and dangerously the vehicle ahead of him was driving, including the running of red lights and, as he described it, the crazy driving.

In cross-examination

In cross-examination

He testified to never having anything like this happen before and to having no prior history or connection with the two accused.

• He acknowledged that he kept chasing the vehicle that shot at him despite being told not to by the 911 operator. He acknowledged that this was risky.
• He agreed that he was giving the best information he could during the 911 telephone call because he wanted them to be caught.
• He agreed that on March 12, 2018, he also gave the best interview he could with respect to what transpired.
• There was confusion as to where the Honda vehicle came from when he was parked during the first shooting, with Mr. Fahad finally settling on the fact that it came from the west and went east. The driver was coming towards him from the front.
• He maintained that the vehicle slowed down just prior to the shooting and then he followed it. He agreed that, in the 911 call and in his prior statement to the police, he never said anything about the car slowing down.
• He acknowledged that at the first shooting, he did not see the driver and could not tell if he was white or black.
• He acknowledged saying in the 911 call that he thought he saw three or four people and that he thought he saw three heads moving in the car, but he then corrected it later.
• He lost sight of the car for one minute during the chase. That is why he called 911.
• He then described when he met the car the second time. There was a shot from the other vehicle, but he could not say where it came from. He believed that it was from the back of the car, from the back seat adjacent to the driver. He provided a drawing suggesting that during the encounter, the front of the Honda was pointing to his vehicle’s passenger side.
• He could not recall if the windows were opened or closed.
• He agreed that he was highly emotional at the time.
• He maintained, under persistent cross-examination, that there were two people in the car.
• He could not say if someone was in the passenger seat. He did not tell the police that when the police car stopped.
• He does not recall if the police asked him how many people were in the car when they drove by.
• He could not really say why, in the prior statement to the police on March 12, 2018, he said that there were two or three people in the car and that during his testimony he maintained there were two people in the car at the time of the second shooting.
• He described pulling over and being parked, and that the first policeman who passed by rolled down his window and spoke to him. He further described that he told a police officer the direction that the car went and that the police car then left him to go after the suspect vehicle.

In re-examination

In re-examination

He maintained that he saw two people in the car at the point of the second shooting. He drew a diagram showing the positions of the two vehicles at the point of the second shooting.

18I would summarize Constable Christopher Cochrane’s testimony as follows:

• Constable Cochrane testified that he has been a police officer for 18 years. On March 12, 2018, he was patrolling the central part of Ottawa in a marked police cruiser when a shots fired call involving two vehicles came in over the police radio.
• The vehicles in question had made their way to the Isabella Street/Chamberlain Avenue/Catherine Street area of the City of Ottawa.
• He made his way to that area and saw a black Hyundai vehicle travelling in the wrong direction on Isabella Street which is a one-way street. He activated his roof lights and siren.
• It appeared that the vehicle was fleeing from him. It turned southbound on to Percy Street and then westbound onto Powell Avenue towards Bronson Avenue. At that point, it put its four-way lights on and pulled over the right shoulder.
• The window came down and the driver’s arm waved forward. He noticed that another vehicle was in front of the Hyundai. He then followed that vehicle.
• It was a small Honda vehicle. He did not see any vehicles in between the two cars. He described it as a small car, a compact-style hatchback.
• He then activated his emergency warning systems and flashing lights and audible siren in pursuit of the Honda.
• He described the route of the vehicle. Exhibit 2 was a diagram showing the route described. It turned northbound onto Bronson Avenue then eastbound to Chamberlain Avenue at a high rate of speed. It then turned southbound onto Bank Street, ran a stop sign at Bank Street and Chamberlain Avenue, and just missed a stopped vehicle. The driving was reckless and at a high rate of speed.
• The officer described the neighbourhood and manner of driving. There was a moderate amount of pedestrian traffic in the area which is typically known as the Glebe, where there are shops, restaurants, etc. The vehicle was driving at a high rate of speed and weaving in and out of traffic. It ran traffic lights and stop signs.
• He testified that several other police vehicles became involved in the pursuit. He described the route that was taken using Exhibit 2 as a reference point to show where Hyundai came to a stop and when and where he started to follow the Honda hatchback. The blue arrow lines on the map reflected the path that he took in following the Honda.
• Along the route, there is a park known as Glebe Memorial Park.
• He testified that during the pursuit, he never lost sight of the vehicle for more than two or three seconds and that the loss of sight of the vehicle would happen when the vehicle would take corners.
• He testified that during this entire time, he did not see anyone exit the vehicle. Nor did he think, based upon his observations and his pursuit of the vehicle, that there would have been time for someone to exit the vehicle.

In cross-examination

• Counsel for Mr. Ali cross-examined Constable Cochrane on when and where he first saw the Hyundai vehicle and at which point he activated his emergency lights and when the vehicle stopped.
• He acknowledged that he did not observe or see any shooting and that at that juncture he was not certain whether the Hyundai was the suspect vehicle or the victim’s vehicle.
• He reiterated that at that point the vehicle pulled over, that an arm came out of the window and waved him by, and that he then saw the suspect vehicle from that point on. He did not stop to speak to the occupant. And that was when he first saw the suspect vehicle, the Honda Fit. He did not see any other police vehicles at that point.
• He acknowledged that he had to obey, to some extent, the rules of the road despite being in pursuit. He acknowledged that there are number of stop signs on Powell Avenue and Percy Street all the way to Bronson Avenue and that it is a residential area with a speed limit of 40 kilometres an hour.
• He was then shown photographs of various city streets from Google Earth, including the intersection of Percy and Powell in the City of Ottawa.
• The officer was taken through the route described by use of the photographs. He acknowledged that he was not keeping a constant visual on the vehicle.
• In cross-examination by counsel for Mr. Ambrose, the route taken was cross-examined upon at length and whether he could have lost sight of the vehicle for longer than two or three seconds or for long enough to allow for two people to exit the suspect vehicle.
• He acknowledged that when he had to slow down, the Honda Fit did not slow down. He acknowledged that the suspect vehicle was travelling at a higher rate of speed that he was, and that he would stop or at least slow down for stop signs, while the Honda would not.
• It was put to him that he could have lost sight of the suspect vehicle for four seconds rather than two or three seconds, but he maintained that he never lost sight of the vehicle for more than two or three seconds.

19I would summarize Constable Gabriel Viera’s testimony as follows:

• Constable Viera testified he was a member of the Ottawa Police Service and that he heard over his police radio that there was a shooting incident occurring at about 9 o’clock in the evening on March 12, 2018.
• He learned that Constable Chris Cochrane had found the suspect vehicle, being a Honda Fit, and that it was travelling eastbound. He testified that he was going north on Bank Street and that he saw the suspect vehicle come from Chamberlain Avenue and turn south on to Bank Street. The two vehicles were opposite each other. He said that he tried to cut off the suspect vehicle and it veered away from him and went on to a curb, essentially dodging him.
• He said that he saw one or more other police vehicles involved in the chase. He was following behind two other police vehicles that were pursuing the suspect vehicle.
• He testified that the suspect vehicle was going at a very high rate of speed, that it went through several stop signs without even slowing down, that ultimately there were four officers involved in the pursuit, that it ran a red light at Sunnyside Avenue and Bronson Avenue, and that it may have run a red light at Madagascar.
• The suspect vehicle then from Bronson Avenue got onto an offramp to go on to Riverside Drive. Then two cruisers positioned themselves one in front of and one behind the vehicle and prevented it from continuing.
• They believed the two people in the car were the suspects involved in the shooting.
• They pulled the driver out through the window at gunpoint. The suspect had no firearm, so Constable Viera holstered his firearm and then prepared to arrest the driver.
• Constable Viera testified to putting him to the ground and yelling at him to do so. He further testified that the driver was not complying so Constable Viera forced him to the ground because he was not facilitating his hand for the purposes of being handcuffed. Once on the ground, he resisted by trying to get back to his feet.
• He said the suspect attempted to get up, that the suspect pushed the officer back, and that he yelled at the suspect to stop resisting. The suspect then reached for his waist area with his left hand towards his stomach area. Constable Viera thought that the suspect was going for a gun.
• Constable Viera then kneed the suspect in the waist and gave him two closed-hand strikes and got him down to his stomach. Constable Viera thought it urgent to get his left hand. Constable Viera was only involved in the initial arrest; someone else processed the accused.
• Constable Viera did not recall the accused saying anything.

In cross-examination

• In cross-examination, it was brought out that during the arrest there was a pat down and nothing was located on the accused.
• Constable Viera could not tell if the windows were rolled up or down. Constable Viera did not recall as his focus was on the driver. Constable Viera did not observe the rear passenger.
• The accused ended up being removed from the vehicle by two officers having hands on the accused and physically controlling him and bringing him to the ground.
• Constable Viera expected the accused to go to the ground. It was suggested that the accused was partially handcuffed before he was grounded. Constable Viera said that this was not what he recalled. His recollection was that he was not handcuffed at all.
• Constable Viera reiterated the account of the accused putting his left hand to his stomach and the officer kneeing and punching him twice on the left side of his face.
• Photos were shown regarding Mr. Ali’s facial injuries. Constable Viera agreed that they were likely caused by his punch.
• Regarding the scrape on Mr. Ali’s face, Constable Viera said that he did not see this when Mr. Ali was handed over to the next officer. Constable Viera did not make note of any injuries.

20I would summarize Constable Steve Eckland’s evidence as follows:

• Constable Eckland testified that he was involved in the arrest of Mr. Ali on the night in question. He was also in one of the vehicles that was in pursuit of and involved in stopping the Honda Fit.
• He explained that he moved forward onto the driver and asked the driver to show his hands.
• He smashed the window with his baton and pulled the driver out of the vehicle. Then the driver was arrested. When the driver was taken out of the window, he was put on the ground. The driver would not give Constable Eckland his hands for handcuffing. Mr. Ali clenched his hands, interlocked them, and placed them under his stomach.
• Constable Eckland pulled Mr. Ali’s hands to his back and handcuffed him. To Constable Eckland’s knowledge, that was the end of it. All the other processing was done by someone else.
• He testified that when shown the photographs of the facial injuries, he did not recall seeing these injuries.
• Constable Eckland could not say whether Mr. Ali looked like this when he was put into custody.
• He was cross-examined and testified that he could not recall any other police officer hitting Mr. Ali or striking him in the face.
• His memory was the accused’s hands were both interlocked under his stomach and that he needed to use force to stop the accused’s hands from being interlocked. He did not need to use any physical force beyond unhinging the hands to affect the arrest.
• Constable Eckland testified that he could not speak to what anyone else was doing that day, and that he could not comment on the nature and extent of the injuries sustained by Mr. Ali.

Summary of Defence Evidence

[21]

Summary of Defence Evidence

The testimony of Mohammed Ali can be summarized as follows:

• On March 12, 2018, he was residing with his parents and two sisters. On that date, his sister Muni asked him to pick up their older sister Shamsa at the Tremblay train station at 10 o’clock at night and he was to use her motor vehicle to do so.
• The motor vehicle in question was a four-door Honda Fit.
• He took the car that afternoon and met up with his friend, the co-accused Everton Ambrose, at a mutual friend’s place off Carling Avenue and Bayshore Drive. Once there, they smoked weed and listened to music.
• They made their way to a Tim Hortons to purchase coffee and then he noticed two friends of his who were walking through a path into the parking lot.
• They started a conversation and they told him that they were heading to a restaurant not too far away. The two friends jumped into the vehicle and sat in the back.
• Mr. Ali testified that he only knew their first names and nicknames but was not prepared to tell the court these names for security reasons. Or, as he put it, he was not prepared to tell the court these names “because of what they did to a random civilian”.
• The restaurant they headed to was on Carling Avenue and was approximately 20 minutes away from their original location.
• He testified that the two passengers then indicated to him that they wanted to be dropped off in Westboro without specifying an address.
• The path he took to go from Carling to Westboro brought him on Midway Avenue.
• He then testified that as he turned right onto Midway Avenue, he heard gunshots. He was in shock. He saw Everton Ambrose crouch forward with his hands covering his ears in the front passenger seat. He said that he thought they were being shot at. They did not know what was going on, his ears were ringing, and he could not hear momentarily.
• He then said that he made a right on Richardson Avenue and proceeded south. Just prior to getting onto Carling Avenue, he said that he regained his hearing.
• He then said that there was an argument between Mr. Ambrose and the two backseat passengers. This argument took place because he realized that they had just shot at someone in a parked vehicle.
• He then said that he made a U-turn on Carling Avenue and headed east. He wanted the two passengers out of his vehicle.
• He testified that just as he was slowing down for this purpose, another vehicle came racing down Richardson Avenue, and one of the rear passengers said “that’s the guy”.
• That vehicle, a Hyundai, then performed the same U-turn that he did, and he sped away thinking that the other driver was going to shoot at their vehicle.
• He said that his goal was to get away from this vehicle to stay alive.
• He then testified to making a right on Woodroffe Avenue in a southerly direction. The vehicle was still following. The vehicle was racing behind him.
• He then testified to taking the 417 E. and exiting at Kirkwood Avenue. Then he made a left and performed another U-turn to evade the pursuing vehicle.
• The Hyundai continued to follow. Mr. Ali testified as to the route he took until he reached Arlington Street at which point the Hyundai was a couple of car lengths behind him. He said that he then made a right turn on Percy Street, a right on Catherine Street, and a left on Bronson Avenue all with a view to trying to lose the vehicle.
• He then made a left on Chamberlain Avenue and another left to go on to Renfrew Avenue. He believed at that point that he had lost the other car.
• He ended up on Lyon Street going in the wrong direction as it is a one-way street. He then saw the Hyundai on Chamberlain Avenue. He saw the other car head towards their vehicle. He said that he tried to put his vehicle in reverse, but inadvertently put it in neutral. The vehicle was in front of them; they were facing the passenger side of the vehicle.
• He said that he thought the vehicle was going to shoot at him. Further, he said the passenger door then opened – he believes on the driver side – and shots were fired towards the other vehicle.
• He then testified to making a right on Renfrew Avenue, a left Percy Street, and then a right on Powell Avenue. He then testified that when he was at the corner of Powell Avenue and Bronson Avenue, the two rear passengers exited the vehicle.
• He testified that Everton Ambrose would have been in the front passenger seat when all this took place. He remained in the vehicle because as far as he was concerned, he did not do anything wrong.
• He then testified to turning right on Bronson Avenue, heading north towards the overpass and then making a right on Chamberlain Avenue. He no longer saw the Hyundai vehicle, nor did he see any police vehicles at that time. He was travelling at a normal speed.
• He then said that as he was making his way to Bank Street, he saw police sirens in the distance on Chamberlain Avenue. He turned right onto Bank Street. He said that he saw a vehicle on Bank Street attempting to block his vehicle. He evaded the police cruiser.
• He testified that he did not know that the two passengers he had picked up were going to shoot at anybody. Nor did he know that they had guns when they got into his car.
• He said that he was evading the police because of his previous interactions with them, including having previously been beaten by police officers during his life. He feared a violent interaction if they caught up to him.
• He said that at that point Everton Ambrose was telling him to stop because there were casings on the back seat; he then said that Mr. Ambrose climbed over onto the back seat using his phone as a flashlight to look for the casings.
• He then said that he made a right on First Avenue, that police cars were still chasing his vehicle, and that Mr. Ambrose was yelling at him to stop the vehicle.
• They then went west on Second Avenue. He then made a left on Bronson Avenue. He said he attempted to pull over, but there were police vehicles behind him and one jumped in front. They hit the vehicle and boxed him in.
• He then described the arrest, including that the police then broke the driver side window while pointing guns at him; that he was then pulled out of the vehicle and thrown onto the ground and struck repeatedly, including being punched and kicked in the head and torso; that he did not know how many officers were involved in this; and that he was laying on the ground on his stomach with his hands cuffed behind his back.
• He testified that he did not make any attempt to resist arrest, that he did not pull his hands away or try to avoid being handcuffed, that he did not lock his fingers behind his back, and that he blacked out a couple of times during the arrest because of being hit. He did not receive any medical attention.
• He then testified that he reached out to the two passengers he said were the shooters to come and testify on his behalf and they refused to do so.
• He testified to having no knowledge of any kind as to the letter being delivered to 250 Hartleigh or Mr. Fahad.

In cross-examination

In cross-examination

He was questioned as to the length of time he would have known the two passengers. He testified to knowing one of them for 10 years and the other for seven years.

• He maintained that the route he had taken to Westboro ended up on Midway Avenue and Hartleigh Avenue by chance, and that no one in the vehicle, including the two passengers, directed him to that street. His explanation for being there was that he intended to drive to Richmond Road.
• He agreed that 250 Hartleigh Avenue was not visible from where he was driving.
• He was shown the photographs of the bullet holes in the vehicle and he maintained that he did not see any of the shooting. He did not know where the shots were fired from.
• He agreed that there were several shots fired and that one could infer that there was an intention to kill somebody.
• He maintained that there was no warning whatsoever and that it happened out of nowhere.
• He was questioned about the use of his phone and that no messages were sent or use made of it from 7:27 p.m. onward. He said that he may have been charging it in the car. He said that he turned his phone off to charge it.
• He was asked about the route he took while being chased by the Hyundai vehicle. At various times, he would have slowed down while the vehicle was pursuing him. He agreed that no one from the Hyundai vehicle shot at him at any time. He maintained that he believed that the vehicle which was in pursuit could possibly shoot at his vehicle.
• He was questioned about opportunities to insist that the two shooters leave the car before the second shooting event took place.
• He was questioned about the notion of accidentally putting his car in neutral, resulting in the second shooting at the Hyundai vehicle and whether it was purely coincidental.
• He acknowledged that the Honda Fit was a small car which would accelerate slowly.
• He was cross-examined on the reason for which Mr. Ambrose went into the back seat.
• He agreed that they drove past the construction site where one of the guns was found, as well as the park where the second gun was found. He had no idea as to how the guns happened to be found where they were found.
• He maintained that he had no idea the police were pursuing him when he was on Powell Avenue, where he says the passengers exited.
• He was cross-examined on his manner of driving. It was put to him that his testimony concerning turning right on First Avenue then left on Lyon Street and then right on Second Avenue was a random detail to contradict the police officers. He maintained that is what happened and that he disagreed with the evidence of the two police officers who testified otherwise.
• He acknowledged that the manner he was driving on Second Avenue was dangerous to anyone using that street or sidewalk.
• The threatening letter that was sent to 250 Hartleigh Avenue was shown to the witness. His evidence was that no one in the car that night knew that they were going to drive by that address, and that he had never heard of any of the people involved in this incident or anyone that lived at 250 Hartleigh Avenue.
• He was cross-examined about the injury and abrasions and his version of how he was arrested.
• He was questioned on attempting to get a message to the shooters to testify on his behalf, and the fact that they could have come forward and testified and not have been prosecuted based on their testimony because of the Canada Evidence Act, R.S.C. 1985, c. C-5.
• It was brought out that there was no tinting on the windows in the Honda Fit so that one could see in that car with the right lighting. Photos, at pp. 78-79 of the exhibit photo-book, were referenced for this purpose.
• Finally, several questions were put to him suggesting that this was a conspiracy to murder the complainant by doing a drive-by shooting. The accused denied each suggestion. He maintained, as well, that the police pursuit only began at Bank Street.

Applicable Legal Principles and Analysis

[22]

Applicable Legal Principles and Analysis

The core principles in a criminal trial in Canada, that the accused is presumed innocent and that the Crown has the burden of proving an alleged offence, beyond a reasonable doubt, cannot be overstated. It is a heavy onus. To be convinced beyond a reasonable doubt means to be certain or sure that an offence has been made out before convicting someone of the offence: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. A finding of not guilty is required where the evidence only convinces the decision-maker that an offence probably or even very likely occurred: Lifchus.

23Reasonable doubt has been defined in the following terms: A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence, in proof of the charge: Lifchus.

24Section 21(1) of the Criminal Code provides:

Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

25The Crown case here is in large part based on circumstantial evidence. The court must carefully assess any reasonable inferences that are inconsistent with guilt when considering the evidence. The Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, summarized the principles regarding the assessment of circumstantial evidence at paras. 37-42:

37When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

38Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

39I have found two particularly useful statements of this principle.

40The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]

41While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.

42The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.

26The evidence presented by the Crown, in my estimation, supports the following propositions concerning what occurred on March 12, 2018:

a) On March 12, 2018, a motor vehicle namely a Honda Fit driven by Mohamed Ali and occupied by Everton Ambrose drove by the corner of Midway Avenue and Hartleigh Avenue. Shortly before 9 p.m., two occupants of that vehicle discharged firearms aimed at Ahmed Fahad. Mr. Fahad was visiting his family who reside at 250 Hartleigh Avenue.

b) Mr. Fahad pursued the Honda Fit and while in pursuit reported the shooting by calling 911 and speaking to a dispatch operator. His pursuit and some of what transpired was in part captured during the 911 telephone conversation.

c) At one point, the Honda Fit came to a stop and once again one or two shots were fired by one of the occupants, a passenger of that vehicle, in the direction of Mr. Fahad’s vehicle.

d) Shortly after the second shooting, Mr. Fahad’s vehicle was pulled over at the insistence of a police officer, Christopher Cochrane, who then engaged in a high-speed pursuit of the Honda Fit. Several other police vehicles also engaged in the pursuit.

e) Mr. Ali drove his vehicle through stop signs, through red lights, and at a high speed in the circumstances, all to evade capture by the police. His manner of driving was dangerous to the public within the meaning of s. 249(1) of the Criminal Code.

f) The Honda vehicle was stopped forcibly by being boxed in by three separate police cruisers. The only occupants in the vehicle were the two accused: Mohammed Ali, the driver, and Everton Ambrose, who was in the back seat on the passenger side.

g) The two weapons used in this drive-by shooting were found weeks later in a construction site and a park situated along the route of the high-speed chase.

h) An aggressive arrest took place in respect of Mohammed Ali. The arresting officers gave inconsistent accounts of what took place. Mr. Ali sustained some injuries during his arrest. It is unclear, in my view, as to whether he in fact resisted the arrest.

i) On March 21, 2018, a letter was delivered to 250 Hartleigh Avenue threatening to get the occupant of 250 Hartleigh next time with a rudimentary drawing showing someone being shot. The letter could not have been prepared or mailed by either of the accused.

j) At the time of the incident, Everton Ambrose was subject to a lifetime prohibition Order pursuant to s. 109(2) of the Criminal Code.

27These factual findings, standing alone, allow for only one inference: that Mohamed Ali and Everton Ambrose were the perpetrators of a drive-by shooting. They either both discharged a firearm at Mr. Fahad or Everton Ambrose fired the two weapons while Mohamed Ali knowingly drove his friend to the location of the victim. Furthermore, at the second shooting, Mr. Ali stopped purposely, and Everton Ambrose shot at Mr. Fahad’s vehicle a second time.

28However, an alternative theory was presented through the testimony of the accused Mohamed Ali. It is not a reversal of onus for a court to have to examine an alternative theory derived exclusively from the testimony of an accused person in circumstances such as these, since without that testimony there simply was no other possible inference. As the Court of Appeal for Ontario indicated in R. v. S.B.1, 2018 ONCA 807, 143 O.R. (3d) 81, at paras. 123-124 and 138:

123The appellants point to para. 93 of the judge’s reasons, arguing that he reversed the burden of proof by requiring the defence to establish through affirmative evidence an alternative theory inconsistent with a planned killing. They say that reasonable doubt existed by virtue of alternative explanations that were available from “gaps in the evidence”. They suggest that the trial judge failed to consider any scenario in which the murder was not planned because he found nothing in the evidence pointing to that scenario.

124With respect, I do not agree. Villaroman reminds us that in a circumstantial evidence case such as this, the trial judge must consider “other plausible theories” and “other reasonable possibilities” that are inconsistent with guilt. Those theories must be based on logic and experience applied to the evidence or absence of evidence, not on speculation.

138Decisions of this court since Villaroman demonstrate that merely because a trial judge rejects an alternative theory inconsistent with guilt does not mean that he or she committed a so-called Villaroman error. It may simply mean that there was no available inference, other than guilt, that was reasonable, given the evidence and the absence of evidence, and in light of human experience and common sense: R. v. Arnaud, 2017 ONCA 440, at para. 17. Nor does the use of expressions such as “no evidence to the contrary” or “no competing narrative” signal a “Villaromanerror” or a misplacement of the burden of proof: R. v. Pun, 2018 ONCA 240, leave to appeal refused, [2018] S.C.C.A. No. 133; R. v. Caporiccio, 2017 ONCA 742.

29The accused testified and provided a version of what took place where he and his close friend Everton Ambrose were unaware that there were firearms in the vehicle or that a shooting was going to occur.

30In the decision of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 758, the Supreme Court of Canada set out the manner in which a court is to consider and approach testimony from an accused person and evidence called by an accused: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

31Mr. Ali testified that two other persons were involved, that the entire shooting event was unknown to both him and Mr. Ambrose, and that they were for all intents and purposes innocent bystanders caught up in the drive-by shooting.

32If I accept Mr. Ali’s testimony or if it raises a reasonable doubt about his and Mr. Ambrose’s involvement in the shooting, then they must both be acquitted of the firearm counts.

33After considering the testimony of Mr. Ali and juxtaposing it to all of the evidence presented at this trial, I come to the conclusion that I do not believe Mr. Ali, nor does his evidence raise a reasonable doubt about his and Mr. Everton’s responsibility for this drive-by shooting. I reach this conclusion based upon the following:

a) Mr. Fahad’s testimony about there being two dark-skinned occupants at the point of the second shooting, while not determinative, was nonetheless persuasive and believable and undermines Mr. Ali’s account.

b) The testimony of Constable Christopher Cochrane and what opportunity may have existed during the course of the high-speed chase to permit the Honda Fit to come to a full stop and allow two passengers to exit unnoticed by any of the pursuers, again while not determinative, was nonetheless persuasive and served to undermine Mr. Ali’s account.

c) Mr. Ali’s testimony about the two unnamed passengers, how he knew them, how they came to be in the car, how they got out of the car, and his refusal to name them was not believable. The entire account came across as contrived.

d) Mr. Ali’s explanation for how Mr. Everton Ambrose ended up in the back seat of the car upon their arrest was not believable.

e) Mr. Ali’s explanation for coming to a stop at the point of the second shooting by accidentally putting the vehicle in neutral was not believable.

f) Mr. Ali’s evidence about when the police pursuit began and when he would have noticed the police was contradicted by the police evidence and Mr. Fahad’s testimony.

g) The locations in which the two weapons used in the shooting were found was far more likely the result of them having been thrown out of the vehicle by one of the accused than them having been coincidently dropped there by Mr. Ali’s two passengers.

h) The explanation offered by Mr. Ali as to why they ended up at the corner of Midway Avenue and Hartleigh Avenue and why Mr. Fahad was shot at was neither credible nor believable based on the following analysis:

• Mr. Ali testified that he was never directed to that area of the city by anyone in the motor vehicle, including the two passengers he said were responsible for the shooting.
• That means that he would have driven by 250 Hartleigh Avenue and fallen upon a drive-by shooting with a specific target, namely Mr. Fahad, by pure accident.
• The threatening letter sent to that specific address allows for the inference that it was not a random drive-by shooting but a targeted individual.
• The evidence was far more consistent with a planned drive-by shooting than an accidental one.

34Therefore, I am satisfied beyond a reasonable doubt that Mohamed Ali and Everton Ambrose either both discharged firearms at Ahmed Fahad or aided and abetted the other in doing so.

Conclusion

[35]

Conclusion

The two accused are charged with the following offences:

Count 1: That on March 12, 2018 Mohamed Ali and Everton Ambrose pointed a firearm at Ahmed Fahad contrary to s. 87 of the Criminal Code.

Count 2: That on March 12, 2018 that Mohamed Ali and Everton Ambrose occupied a motor vehicle knowing that there was a firearm in that vehicle contrary to s. 94(2) of the Criminal Code.

Count 3: That on March12, 2018 Mohamed Ali and Everton Ambrose did with intent to endanger his life discharge a firearm at Ahmed Fahad contrary to s. 244(2) of the Criminal Code.

Count 4: That on March 12, 2018 Mohamed Ali did operate a motor vehicle in a manner dangerous to the public contrary to s. 249(2) of the Criminal Code.

Count 5: That on March12, 2018 Mohamed did fail to stop for the police contrary to 249.1(2) of the Criminal Code.

Count 6: That on March 12, 2018 Mohamed Ali did resist a peace officer in the execution of his duty contrary to s. 129(a) of the Criminal Code.

Count 7: That on March 12, 2018 Everton Ambrose possessed a firearm while prohibited from doing so by an order of the court made under the Criminal Code pursuant to s. 117.01 of the Criminal Code.

36Therefore, based upon the analysis provided, I find Mohamed Ali and Everton Ambrose guilty of counts 2 and 3; I find Mohamed Ali guilty of counts 4 and 5 and not guilty of count 6; I find Everton Ambrose guilty of count 7. Count 1 is stayed by reason of the rule in Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

July 5, 2021