COURT FILE NO.: CR 20-30000365-0000

DATE: 20210714

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RYAN MCQUINN

Defendant

R. Fried, for the Crown

A. Goldkind, for the Defendant

HEARD: June 1-3, 2021

Michael G. Quigley J.

Reasons for Decision

Overview

[1] Early in the morning of July 26, 2019, Ryan McQuinn confronted three men in the courtyard of a townhouse development in Scarborough. Two of the men are unknown, but the third was Steven Tennant, who lived in one of those townhouses.

[2] Mr. McQuinn believed they had insulted and assaulted his girlfriend, Jordan Rhora. He was armed with a partially loaded semi-automatic handgun. As he approached the men he was pointing the handgun at them. The two unknown men were afraid and ran away. Mr. Tennant did not move. Mr. McQuinn wanted to know why he had “hit on” his girlfriend. Mr. Tennant told him to “fuck off.” This made Mr. McQuinn angry and he attacked Mr. Tennant with a pistol whip punch to the side of his head. Just then, the gun discharged for the first time. Mr. Tennant lunged at Mr. McQuinn trying to get control of the gun. It fired a second time as they grappled with each other.

[3] Mr. McQuinn fell to the ground and was beaten and kicked extensively by Mr. Tennant and a friend, who had come to assist him. The gun discharged a third time into the ground. Ms. Rhora came to help Mr. McQuinn. She was kicking the other two men. A few moments later, they all regained their footing. When they were several feet apart, Mr. McQuinn appeared to rack the handgun again and point it in their direction, but the magazine was empty. Mr. Tennant and his friend fled away to the south.

[4] A resident called 911. Police arrived. They found three spent shell casings and one live round on the ground in the courtyard. The entire series of events, the initial contact between Ms. Rhora and Mr. Tennant, and the altercation in the courtyard some time later were captured by the video surveillance cameras.[^1] Mr. McQuinn went into hiding for some time but was found and arrested on September 26, 2019, along with an individual by the name of Damien Campbell.

[5] Mr. McQuinn faces an indictment consisting of 20 offences arising out of these events. He was initially charged with two co-accused, his girlfriend, Ms. Rhora and Damien Campbell, but the two charges, Counts 10 and 11 against Ms. Rhora were withdrawn at the commencement of the trial when Crown counsel advised it was not in the public interest to proceed with those charges in all of the circumstances. Counts 12 through 18 were joint charges against Mr. McQuinn and Damien Campbell, but Mr. Campbell has fled the jurisdiction and his whereabouts are presently unknown.

[6] Mr. McQuinn pleaded guilty to a number of charges when the trial started on June 1, 2021, all related to possession of two prohibited firearms. These were the FN Browning .32 calibre semi-automatic handgun used during the altercation with Mr. Tennant, and a Cobra Enterprises .42 calibre semi-automatic handgun found when Mr. McQuinn and Mr. Campbell were arrested.

[7] Four charges remain against Mr. McQuinn arising out of the July 26 altercation:

(i) Count 1: That he attempted to murder Steven Tennant by discharging a firearm, at him (ss. 239(1) Criminal Code of Canada (the “Code”))[^2];

(ii) Count 2: That he discharged a firearm at Steven Tennant with intent to endanger his life (ss. 244(1));

(iii) Count 3: That he committed an aggravated assault against Steven Tennant by wounding, maiming, disfiguring or endangering his life (ss. 268(2)); and

(iv) Count 4: That he pointed a firearm at another person, namely Steven Tennant, without lawful excuse (ss. 87(1)).[^3]

[8] Mr. McQuinn pleaded not guilty to attempted murder, to discharging a firearm, to aggravated assault, and to pointing a firearm, the charges relating to his altercation with Steven Tennant on July 26, 2019, and those charges were the focus of this trial.

Factual Background

[9] It must have been warm early in the morning of July 26, 2019. Mr. Tennant was outside the housing development across from the basketball court. He was not wearing a shirt and was clothed in gym shorts and running shoes. He was engaging in conversation with various people. One of them was Ms. Rhora.

[10] There were some words exchanged between them but there is no audio to the video surveillance footage. However, as defence counsel referred to it, Mr. Tennant does appear to be “hitting” on Ms. Rhora. The physical gestures and reactions suggest that Mr. Tennant was trying to make a move on Ms. Rhora. She later told Mr. McQuinn that he had propositioned her to have sex together.

[11] Ms. Rhora and a couple of her friends waved him off, as did, including a woman later identified as “Leah”, and then they walk away in the other direction toward McCowan Road and Eglinton Avenue. Mr. Tennant turned and walked back into the complex. Nothing happens for an extended period of time.

[12] The second video clip is taken from a vantage point close to where Mr. Tennant and several of his acquaintances were socializing in the courtyard an hour or two later. By this time, Mr. Tennant was wearing a t-shirt. He is leaning back against a steel railing. The surveillance video then records the action, which ultimately results in the discharge of three shots from a handgun and Mr. McQuinn being kicked and hit on the ground by Mr. Tennant and another acquaintance.

[13] At the start of the video clip, Mr. McQuinn is walking back and forth at the far end of the courtyard, like he’s looking for something. He talks to Ms. Rhora, who is behind him. After speaking with her he suddenly turns and walks quickly in a southerly direction on the opposite side of the courtyard from Mr. Tennant. He walks 30 or so feet. He appears to be holding a handgun in front of him pointed in their direction. As he approaches, the two acquaintances with Mr. Tennant seem alarmed, and quickly scurry for shelter away from Mr. Tennant and towards the bottom of the screen.

[14] Mr. McQuinn reaches the point where the courtyard opens into a clearing, turns on a partial right angle, and can be seen making a movement consistent with racking the receiver of the firearm, twice. He starts to run towards Mr. Tennant with his arms out in front of him holding the firearm, Mr. Tennant did not move, but he testified he saw that the person approaching him was carrying a handgun out in front of him, holding it with two hands, and pointing it at him. The Agreed Statement of Fact admits that was the Browning .32 calibre firearm that belonged to Mr. McQuinn.

[15] Mr. McQuinn reaches Mr. Tennant and attacks him physically, circling his right arm in a wide arc and then landing a punch, to the left side of Mr. Tennant’s head, in the area of his left ear.

[16] In the next second, we can see the muzzle fire of a gunshot. A scuffle quickly ensues, with Mr. Tennant moving aggressively towards Mr. McQuinn. It is noteworthy that Mr. Tennant is a materially larger person than Mr. McQuinn. He starts to fight back with a vengeance.

[17] I have viewed the videotape and this sequence of frames many times. As best as I can discern, when the physical altercation starts between Mr. Tennant and Mr. McQuinn, they grapple for control of the firearm. There is a momentary distancing between them of no more than a foot or so, and then we see the second muzzle flash from the second discharge.

[18] An unknown acquaintance of Mr. Tennant, wearing a grey hoodie (referred to for convenience as “GH”), emerged from a residence at the sound of the shots being fired. He joined Mr. Tennant in delivering a relatively severe beating to Mr. McQuinn, as he is thrown to the ground. Mr. Tennant had his knee and full body weight on Mr. McQuinn’s arm and neck, while GH viciously kicked Mr. McQuinn from the side, as Mr. Tennant and Mr. McQuinn continue to struggle for control of the firearm. There is a momentary break, when Mr. McQuinn tries to get up, but Mr. Tennant throws him back to the ground and jumps on him again. About this time, Ms. Rhora came forward to try to assist. She kicked GH several times, and perhaps Mr. Tennant.

[19] Then, quickly, the tables seem to turn. Mr. McQuinn is able to stand up. He is still holding the firearm. He backs up several steps with Ms. Rhora behind him. Mr. Tennant’s baggy blue gym shorts are falling off, so he pulls them up as he gets up from the ground, and turns south with GH to run away from Mr. McQuinn. Both of them look back over their shoulders at Mr. McQuinn as they flee the scene.

[20] After he backs up several steps, and while Mr. Tennant and GH run away to the south, Mr. McQuinn appears to be racking the firearm that he still holds. He can be seen pointing it, but it is very difficult to tell if the gun is actually pointed at Mr. Tennant and GH as they run away, or simply at the ground.

Admissions under s. 655 of the Code

[21] I thank Crown and defence counsel for their diligent work to narrow the issues for trial. The following facts are accepted and agreed without further evidence being adduced:

(i) The authenticity and accuracy of all videos is conceded.

(ii) The woman shown on video in a parking lot outside 410 McCowan Road in the morning of July 26th, 2019 wearing a blue top, pink shorts, and dark sandals is Jordan Rhora – the girlfriend of Ryan McQuinn.

(iii) The male shown on video in a courtyard at 410 McCowan Road in the morning of July 26th, 2019 in possession of a loaded firearm, and wearing a dark top, and blue jeans is the accused – Ryan McQuinn.

(iv) When Ryan McQuinn approached the complainant Steven Tennant armed with a loaded firearm in the courtyard at 410 McCowan Road in the morning of July 26th, 2019 - he did so without any valid self-defence “defence” or similar excuse, and when the gun went off in the altercation with Steven Tennant he did so without any valid self-defence “defence” or similar excuse in relation to Jordan Rhora.

(v) The woman shown on video in the courtyard at 410 McCowan Road in the morning of July 26th, 2019 is Jordan Rhora – the girlfriend of Ryan McQuinn.

(vi) When police officers attended the courtyard at 410 McCowan Road on July 26th, 2019, they recovered the following: (1) three .32 automatic calibre casings; and (2) one .32 calibre bullet.

(vii) A white cellular phone that was seized, examined pursuant to a Search Warrant and found to contain emails in Ryan McQuinn’s name and correspondence between Ryan McQuinn and Jordan Rhora.

(viii) On August 21st, 2019, officers who had been looking for Mr. McQuinn since July 26th, 2019, executed a search warrant at 5025 Four Springs Ave unit #2405, where Ryan McQuinn had been residing, and who was arrested nearby. During the search, police located two firearms in the residence: (1) a “Cobra Enterprises”, .45 calibre handgun; and (2) a “FN Browning” .32 calibre handgun.

(ix) The “FN Browning” .32 calibre handgun seized on August 21st, 2019 from 5025 Four Springs Ave unit #2405 was sent for forensic analysis and determined to be matched to the shell casings found at the courtyard at 410 McCowan Road on July 26th, 2019.

(x) Ryan McQuinn had no legal authority to possess any firearm on July 26th, 2019 or August 21st, 2019.

(xi) On July 26th, 2019, Ryan McQuinn was bound by a valid recognizance of bail prohibiting him from possessing any firearms.

(xii) On both July 26th, 2019 and August 21st, 2019 Ryan McQuinn was bound by a valid Criminal Code Prohibition Order, prohibiting him from possessing any firearms.

The Witnesses

[22] Five witnesses testified on this three day trial: Mr. Tennant; a local resident, Dustin Kelley, who heard the altercation in the courtyard; P.C. Ryan Furannz; and D.C. Ryan Smith, a firearms expert who tested the firearms and testified on his findings. Mr. McQuinn testified in his defence.

(a) Stephen Tennant

[23] Mr. Tennant is the victim in this case. He had a somewhat vague recall of the events, assisted by viewing the video evidence. He recalled talking to Ms. Rhora in the first video clip, but had no recollection of what he talked to her about, and said he did not know her. After the group walked away toward McCowan Road, including Ms. Rhora, he went back to his own house through the courtyard. When asked about his alcohol consumption, he said he had only “one drink” of Bacardi Gold rum that evening and does not use drugs.

[24] Mr. Tennant remembered seeing Mr. McQuinn running towards him pointing a handgun, but did not know who he was. He could not recall anything that was said. He did not recall and specifically, claimed he did not recall hearing Mr. McQuinn say “I'm sorry” as he and GH were kicking and beating him after the first two shots were fired. Mr. Tennant’s attitude and demeanour emerged when he refused to identify GH in court and added that GH’s identity was none of our business and we did not need to know his identity.

[25] After the altercation, Mr. Tennant went to the house where GH lived, covered the bullet wound with a towel, and called for an ambulance. He was taken to Sunnybrook. The medical record evidence show that he was ambulatory immediately after the incident, called the ambulance on his own, and got into the ambulance unassisted.

[26] Those records described Mr. Tennant as a 21 year old male with a 5 mm. gunshot wound from close range, less than 5’, sustained to his upper mid-back area, near the C-7, T-1 vertebra. The bullet exited from a wound located just beside his left ear. There were no major injuries sustained: no bruising, abrasions or swelling were observed and no significant injuries were noted on the CT scans. Mr. Tennant had a full range of motion.

[27] The wounds were closed with a couple of sutures. Mr. Tennant was discharged the same day, after he was provided with wound care instructions and given a prescription for a medication to counter or prevent inner and middle ear infections. The only residual effect on Mr. Tennant was reduced hearing in his left ear, but that returned to normal within six months.

[28] In cross-examination, Mr. Tennant told defence counsel that he had not bothered to read his transcript of evidence from the preliminary inquiry because he did not need to and it did not really interest him. That and other mannerisms as noted revealed plainly to me that he was neither a willing or interested witness.

[29] When asked about the alcohol he consumed that evening, he said it had been brought by one of his acquaintances, but this contradicted his evidence at the preliminary inquiry that the Bacardi Gold Rum belonged to him. He was dismissive when asked to explain why his evidence had changed, referring to the passage of time, but he did admit he had given different answers at the preliminary inquiry.

[30] Mr. Tennant explained that when he referred to “one drink”, he meant a very large drink, as he described it, a “waterfall.” He provided colourful clarification that when he said he had “one shot of rum”, he meant “a full mouthful – not a quick swig – but a mouthful of booze”, he said, like a “waterfall.” It was enough that he would not consider driving a car.

[31] Mr. Tennant also admitted that he experiences “blackout symptoms”, where he goes into a state of rage and “loses it”, but then does not remember what happened. He agreed that he was in such a state when he was grappling for control of the gun with Mr. McQuinn. He could not say if he was drunk.

[32] There was a lot Mr. Tennant did not remember about either what happened that night or what was said. He did recall that Mr. McQuinn had a clear path in his direction and could have fired at him at any time as he was moving towards him, but did not. He never heard any threat from Mr. McQuinn to kill him. He testified that the gun discharged the second time as he was pushing back towards Mr. McQuinn, as they grappled for the gun. At that point he had “blacked out” as he angrily started to beat Mr. McQuinn with assistance from his friend, GH.

[33] At the conclusion of his evidence, in a reply response, Mr. Tennant told Crown counsel that he was trying to get his hands on the gun, and that he thought that he and Mr. McQuinn both had their hands on the firearm at the same time.

[34] It was plain that Mr. Tennant did not want to testify in this case, but had little choice, so I found that explained why he did not present as a forthright witness. His evidence is credible, at least to the extent it is backed up by the video evidence, but his admitted blackout raises some question about the reliability of his evidence on several important issues.

[35] I also concluded that he had consumed more than the one rum “waterfall” than he was prepared to admit to, if not before the encounter with Ms. Rhora, then in the time that passed until Mr. McQuinn came to confront her assailants. Otherwise, in my view, it belies common sense that he would sit there when he saw an unknown person running at him, and pointing a firearm that had just been racked and was ready to fire. As defence counsel colourfully put it:

[A]s soon as the trouble comes, the two other guys immediately get out of Dodge. Mr. Tennant,… sits there as if Mr. McQuinn is coming up with a nerf water gun. That's peculiar.

[36] I agree, it is peculiar and that it does require caution on parts of his evidence. Happily, most concerns that arise from his evidence are resolved by the video footage and the testimony of other witnesses, so while people's words do matters, in this case it is really all about what is on the videotape. There is no real disagreement on that.

(b) Dustin Kelley

[37] Dustin Kelley is 31 years old. He was at home at 410 McCowan Road when this altercation took place early on July 26, 2019, between 4:30 and 5:00 a.m. He was not sleeping. He was talking with a friend on the phone. He heard angry shouting and then gunshots, scuffling and running and then a calm eerie silence. This was followed a few moments later by more arguing and another gunshot sound. He said he heard 2 to 3 gunshots the first time – Pop! Pop! Pop! – and two shots fired the second time, less than five minutes apart. His evidence is limited to what he heard because he did not look out to see what was going on.

[38] Mr. Kelley heard a loud male voice saying “[W]hy are you on my girl?!?”, but did not recall hearing anyone say “I'm sorry”. He also heard words that he could not discern. Some voices were speaking on top of each other. He thought he heard the words “Yo!” and “What the hell!” but could not be certain. He did not recognize any of the voices. He called 911.

[39] Mr. Kelley’s evidence was credible and reliable. He had no reason to embellish it. He comes out of civic duty to testify to events that he heard but did not see. He knows none of the participants. We know from the video evidence that the altercations occurred in a shorter timeframe, and that only three shots were fired, with one unspent cartridge found.

[40] However, as recalled two years later, those discrepancies do not reduce the importance or reliability of his testimony. Most significant was his recollection of hearing a loud male voice yelling “[W]hy are you on my girl?!?”, or words to that effect, just before he heard the first gunshots. He would have had no reason or basis to invent it if those words were not said, and what he reports hearing is very close to the words Mr. McQuinn testified he used when he confronted Mr. Tennant, just before he pistol-whipped him and the firearm discharged.

(c) P.C. Ryan Furanz

[41] P.C. Ryan Furanz gave evidence relative to his participation as one of the officers who executed the search warrant at the condominium in Mississauga where the two firearms were located, and where Mr. McQuinn and Mr. Campbell were apprehended. He is a member of the Guns and Gangs Task Force who had been involved in surveillance of the building, and who saw Mr. McQuinn. When the warrant was executed, he found the firearms and apprehended Mr. Campbell. Another officer apprehended this accused. This officer’s evidence simply establishes continuity relative to the firearms.

(d) D.C. Ryan Smith

[42] D.C. Ryan Smith is a member of the Toronto Police Service and an expert in the forensics of examining and testing firearms. On September 26, 2019, D.C. Smith tested the .32 calibre FN Browning and the .45 calibre Cobra firearms located and seized in this investigation. His technical findings are set out in the admissions. In addition, D.C. Smith explained how the different components of the firearm work together to permit it to be discharged.

[43] Generally, a semi-automatic firearm contains a magazine of live rounds of ammunition within the handle of the gun. When the receiver of the firearm is “racked”, that is, pulled back and activated to prepare the firearm for shooting, a round of ammunition will move up from the magazine into the chamber ready to be fired. With this FN Browning firearm, however, the receiver can only be racked if the “slide lock lever” is depressed. That button is on the side of the body of the handgun. Once depressed, it permits the receiver to be racked as many times as the shooter wishes. In addition, the FN Browning handgun has a “safety tang”, or lever, located on the back of the handle. In order to discharge the firearm, the safety tang must be depressed. As a safety mechanism, it is specifically designed to prevent the firearm from discharging if that lever is not depressed.

[44] D.C. Smith explained the interaction of these mechanisms. The evidence showed the accused racking the handgun twice as he was approaching Mr. Tennant. The officer testified that Mr. McQuinn would only need to have racked twice, as he did, if the receiver or the chamber was blocked. Otherwise once racked, it automatically reloads with rounds from the magazine every time the trigger is depressed. This action by Mr. McQuinn explains not only his surprise that a cartridge popped up out of the chamber, but also the location of the unspent round of ammunition near the point in the courtyard where he turns to head directly at Mr. Tennant.

[45] The safety tang located on the back of the handle of the handgun is meant to prevent the firearm from being discharged automatically. D.C. Smith testified that both the slide lock lever must be pushed down and the safety tang must be depressed to permit the handgun to be fired repeatedly. When he tested it, D.C. Smith explained that he only pulled the receiver slide back once, and then he was able to fire three rounds one after the other automatically by depressing the trigger.

[46] D.C. Smith’s evidence made clear that on this semi-automatic handgun, the trigger must be pulled for each discharge of a round, as compared to a fully automatic handgun, where the shooter could continue to keep the trigger depressed and the handgun would keep on firing until the magazine was empty, once the safety was depressed and the receiver racked.

[47] It should be emphasized that while he gave evidence having tested the firearms, D.C. Smith was not qualified to and did not testify at this trial as an expert. He provided no opinions on whether the firearm could discharge accidentally, or if it could be fired if two people both had their hand on the gun at the same time, one on the trigger and the other on the safety tang. There was no evidence presented addressed to either of these or other uncertainties relative to how the firearm might operate in different circumstances or conditions.

(e) Ryan McQuinn

[48] In his testimony, Mr. McQuinn denies that he intended to shoot and discharge the firearm he had with him on July 26, 2019, much less to kill Mr. Tennant, or anyone else. He has been in jail since the end of September 2019. He claimed to have a vivid recollection of what happened in the courtyard of 410 McCowan Road that day.

[49] Mr. McQuinn is very committed to his girlfriend Ms. Rhora. At the time of these events, they lived together at an apartment at Midland Avenue and Eglinton Avenue in Scarborough. They have been involved together for two years and she is the mother of his child, now 15 months old. These events occurred was because Mr. McQuinn wanted to confront and scare the assailants who Ms. Rhora said had insulted and assaulted her earlier on the morning of July 26, 2019.

[50] Mr. McQuinn was not present when the first clip recorded the exchange between Mr. Tennant and Ms. Rhora. He was at their apartment, a 15 minutes to a half hour away. As he viewed the first video clip, Mr. McQuinn identified Ms. Rhora and the lady who pushed Mr. Tennant away from Ms. Rhora, as a friend of Jordan’s, a woman he knows as Leah.

[51] Ms. Rhora and Mr. McQuinn had a disagreement earlier that evening. Afterwards, he stayed home, but she went out to Leah's house and then drinking with her friends. She called him twice. In the first call, she told him that she was drinking with Leah. He hung up the phone on her. But then in the second call, 20 minutes later, she sounded scared and told him that she had been jumped and beaten up by several men. He said she sounded in danger and he was worried and scared and immediately left to go to help her. He said it took two calls before the taxi arrived.

[52] Mr. McQuinn grabbed his black satchel as he left the apartment. The Browning handgun was in that satchel, but Mr. McQuinn said he did not have a specific recollection of it being there. His satchel was simply the bag that contained the belongings he would want with him. He said he never specifically thought about taking the gun with him to confront the people who had assailed Ms. Rhora.

[53] It took 15 minutes for the taxi to drive him to 410 McCowan Road. He was worried. When he got there, Ms. Rhora told him that a group of men had been trying to come on to her. They told her they “wanted to fuck her.” Then they followed her, called her “a white bitch”, and said “[S]ure she'll fuck you.” She told him that they started to beat and punch her, and he could see that her shirt and one of her shoes was torn, and that she had dirt and a bruise on her face. He said he had no reason to disbelieve what she had told him, but he still did not know who the men were. He started to become more upset. They talked for 2 to 3 minutes, walking as they were talking. She was in tears as they entered into the courtyard at the townhouse development.

[54] As he walked into the courtyard, Mr. McQuinn paces back and forth looking for Leah's house, but then Ms. Rhora speaks to him and he looks south to the bottom of the courtyard where he saw three men socializing. He asked her whether those three men were the people who had assaulted her. She said that they were.

[55] Mr. McQuinn wanted to go after all of them. He wanted to scare them and make them feel the same way Ms. Rhora had felt when they had assaulted her. He “wanted to run up and wave the gun at them and make them run away and then fire shots into the air.”

[56] As he approached, he racked the gun because he said he wanted to shoot it into the air to scare them away. While he was heading in their direction, two of the three men ran away, but Mr. Tennant did not. He did not seem to care that Mr. McQuinn was running at him pointing a firearm. He did not move. Mr. McQuinn could not understand why he did not run away like the other two.

[57] That upset him. As he got closer to Mr. Tennant, he wanted to “hit him with the gun”. He wanted to “pistol whip him on the head”, like he recalled having seen in the movie “Goodfellas.”

[58] In a loud voice he asked Mr. Tennant, “[W]hy did you beat up my girl?!?” He asked him twice. He testified that Mr. Kelley had correctly heard the words he used.

[59] When Mr. Tennant did not move and told him to “fuck off” and “get lost”, or words to that effect, Mr. McQuinn rushed at him and hit him on the side of the head with the gun, in what was described as a “haymaker” type of “whallop.” Mr. McQuinn circled his right arm and hand in an arc to strike Mr. Tennant on the right side of his head, but just after he made contact with the punch, the handgun discharged causing Mr. Tennant’s gunshot wound.

[60] Mr. McQuinn testified that he was surprised when the pistol discharged, and he was insistent that did not intend to pull the trigger, that he did not intend to shoot Mr. Tennant, and that he did not intend to kill him or anyone else.

[61] Right after the firearm discharged, in his surprise, Mr. McQuinn moved back slightly from Mr. Tennant, but Mr. Tennant reached out to grab for the gun and started punching Mr. McQuinn. They were grappling for the gun and as they did the gun went off a second time.

[62] GH, the man in the grey hoodie, came out from the neighbouring townhouse and started to help Mr. Tennant beating Mr. McQuinn. He was lying on the ground with Mr. Tennant's knee pressed down on his neck. Mr. McQuinn said he was calling “Stop! Stop!”.

[63] We know a third shot was fired, because of the number of spent cartridges collected from the crime scene, but there was no muzzle flash that can be seen in the video. The only likely explanation is that the gun discharged into the ground while Mr. Tennant and GH were on top of and beating Mr. McQuinn as he laid on the ground. Mr. McQuinn was insistent that he did not have his finger on the trigger when either the second or third shot went off. He said that it must have gone off accidentally or for other reasons, or as a result of him grappling with Mr. Tennant for control of the gun.

[64] In cross-examination Crown counsel asked a lot of questions about the gun, and Mr. McQuinn’s intentions. He suggested that Mr. McQuinn got increasingly angry as he came to the scene in the taxi, bound and determined to exact revenge for the assault these unknown men had allegedly caused to his girlfriend. Mr. McQuinn denied that suggestion. He was more concerned and scared for her as he came in the taxi. It was only later as he was approaching Mr. Tennant across the courtyard that he started to become angry.

[65] When questioned about how he obtained the Browning firearm, Mr. McQuinn provided an unlikely explanation that he found that firearm in a black bag underneath a bush in the landscaping around his apartment building. He had taken his dog for a walk to do his duties, late one afternoon a couple weeks before these events. The dog relieved himself under a bush. Mr. McQuinn bent down to pick up after his dog. He said that was when he discovered the black bag underneath the bush. He opened the bag and saw that it contained a firearm. He said he planned to keep it for himself. He thought that there were five bullets in the magazine.

[66] As improbable as this explanation may be, throughout his testimony Mr. McQuinn was adamant that he knew very little about guns or about how to use them. Interestingly, and apropos of that, the double racking of the Browning firearm as he headed across the courtyard toward Mr. Tennant does provide some evidential support for a lack of experience with firearms. Mr. McQuinn seems to have been surprised to find that an unspent shell was ejected from the gun when he racked it at that time, so he had to rack it again a second time to put a second live cartridge into the chamber. He insisted he knew little about guns, did not know exactly how they worked, and that he did not know that this firearm had a safety mechanism on it, as D.C. Smith confirmed in his evidence.

[67] However, Mr. McQuinn did candidly admit that he did intentionally strike Mr. Tennant with a view towards injuring him. When he struck him with the punch, he admitted that he wanted to injure him, but insisted he did not want to shoot him and had no intention to kill any of them. Mr. McQuinn was aware that the gun hit the side of Mr. Tennant’s head as Mr. McQuinn swung his arm at him and then fired.

[68] He vividly recalled that Mr. Tennant turned on him just after the muzzle flash, grabbed the muzzle of the gun, that the two of them struggled, and that it then went off the second time. In that moment, Mr. McQuinn testified that Mr. Tennant had put his hand over top of Mr. McQuinn’s hand so that the two of them both had their hands on the firearm. Mr. McQuinn testified that he did not intentionally pull the trigger.

[69] It was put to Mr. McQuinn that he did not say “I’m sorry” as he was being beaten by the other two men. Despite the fact that Mr. Kelley did not hear that utterance, Mr. McQuinn insisted that he had apologized and asked them to stop beating him. He suggested, reasonably in my view, that perhaps it was not loud enough to be heard by Mr. Kelley, since Mr. Tennant had his full weight bearing on Mr. McQuinn’s neck at the time he was saying that, but he continued to maintain that he had asked them to stop and said he was sorry.

[70] It was put to him that he became angrier and angrier en route to the scene in the taxi, and that it was always his intent to inflict injury. He was unequivocal in his denial of both assertions. He only became angry in response to Mr. Tennant’s non-responsive reaction just before he punched him, but he did admit he was certainly angry then, and that he did want to cause him injury. Nevertheless, while admitting that he wanted to confront whoever was responsible for hurting his girlfriend, he allowed that he was not thinking clearly but was insistent that he did not mean to shoot anyone, much less did he intend to kill anyone.

[71] Mr. McQuinn could not say for certain whether he ever had his finger on the trigger at any point. He simply could not recall. He said he did not believe that his finger was on the trigger, but rather on the trigger guard.

[72] Crown counsel’s final line of cross-examination questioning related to Mr. McQuinns actions after he and Mr. Tennant and GH get back up off the ground. Mr. McQuinn backs away, appears to be racking the handgun, and then the other two flee in a southerly direction. There was some contradiction in Mr. McQuinn's testimony relating to those events. On the first day of his evidence, he said that he had racked the gun at that point in order to enable it to fit in his pocket before he and Ms. Rhora ran to the north, perhaps forgetting that he had carried it to the site in the satchel.

[73] The next day, in continuing cross-examination, he altered his evidence and testified that he racked the gun because it would make the distinct racking sound and cause the two assailants to believe that there were still bullets in the gun that he could fire at them. However, even though he performed that action, he already knew that the magazine was empty.

[74] Crown counsel suggested that made no sense and that it was always Mr. McQuinn's intention to discharge the firearm: that his actions as seen right at the end of the second video clip establish an intention to shoot the two assailants in the back as they fled. It was put it to him that the only reason he did not shoot was because he learned, to his surprise when he racked the gun that the magazine was empty. Mr. McQuinn rejected that suggestion.

[75] Finally, Crown counsel also sought to impeach Mr. McQuinn’s credibility on the basis of a letter written to the board of the condominium where Mr. Campbell lived, allegedly to take responsibility for both handguns so that Mr. Campbell would not be evicted. Plainly, Mr. McQuinn was not telling the truth when he stated in that letter that Mr. Campbell knew nothing about the guns. But they were housed in the same cell together for three days, and I accept that Mr. Campbell threatened Mr. McQuinn if he did not write what Mr. Campbell told him to write. He knew he was in trouble and Mr. McQuinn was scared at that time and he did not want to make it worse.

[76] Mr. McQuinn specifically denied the Crown's suggestion that Mr. Tennant's hand was not on the gun at the time that they were struggling, and insisted that both his and Mr. Tennant’s hands were on the firearm at the time the second muzzle flash is visible.

[77] My assessment of Mr. McQuinn’s evidence under the tests in W. (D.) is set out below, but I note that Mr. McQuinn was not shaken in his denial that he ever threatened to kill anyone, that he ever wanted to shoot them, or that he had any intent beyond that he “just wanted to scare them, as they had scared Jordan, and make them run away.”

Analysis

(i) Relevant Principles

[78] Before I commence my analysis, I have reminded myself, first, of Cory J.’s instructions in the R. v. W. (D.)[^4] on assessing the evidence of the accused, and second, of the principles that apply to crimes of specific intent, including the charges in this case of attempted murder and discharging a firearm with the intent to endanger the life of Mr. Tennant.

(a) The test in R. v. W. (D.)

[79] Where the accused testifies in his defence, as Mr. McQuinn did here, W. (D.) instructs that if I believe his evidence, including other defence evidence if any, that he did not intend or attempt to murder Mr. Tennant, and his evidence that did not intend to discharge a firearm at him with the purpose of endangering his life, or it at least leaves me in a state of reasonable doubt, then I must acquit him of that charge or those charges.

[80] However, even if I do not accept his evidence and it does not leave me in a state of reasonable doubt, before convicting him of an offence, I must be satisfied on the rest of the evidence that I do accept that Crown counsel has proven the elements of the offences beyond a reasonable doubt. In applying those tests and determining whether either the first or second of the W. (D.) steps are met, I may accept, some, all, or none of his or that evidence.

[81] If I am not sure that an offence has been made out on the basis of the evidence that I do accept, then an acquittal must be entered. That follows because even if I reject Mr. McQuinn’s evidence, he cannot be convicted unless the remainder of the evidence that I do accept and believe, considered in the context of the entirety of the evidence and absence of evidence, causes me to be sure that Crown counsel has proven the offence beyond a reasonable doubt.

[82] As I consider whether the Crown has made out the elements of the offence, I have also reminded myself of the presumption of innocence, that the burden of proof rests exclusively on the Crown, that the accused is not required to prove anything, and that proof beyond a reasonable doubt lies closer to a certainty than it does to a mere balance of probabilities. It requires that I be sure of my decision.

(b) Specific Intent

[83] Counts 3 and 4 in this case, pointing a firearm and aggravated assault, are both general intent offences in contrast to the offences of attempted murder and discharging a firearm with the intent to endanger life. They are both crimes of specific intent, involving a heightened mental element.

[84] In R. v. Tatton[^5] the Supreme Court of Canada clarifies that general intent crimes do not require an intent to bring about certain consequences that are external to the actus reus itself. Instead, the mental element simply requires the intentional performance of an illegal act. The court refers to assault as a classic example, since the accused must intentionally apply force, but there is no requirement that he intend to cause injury. In this case, aggravated assault follows the same principle because there is no specific required intent to “wound, maim, disable or endanger life.” An aggravated assault is simply an ordinary assault that is aggravated by the results it produces, regardless of intent.[^6]

[85] In contrast, the Crown must prove the existence of a specified underlying ulterior motive to the criminal standard, as a separate element, before the specific intent requirement will be met.[^7] The accused must not only intend to do the act that constitutes the actus reus of the crime, but he or she must also act with the requisite ulterior purpose in mind. For attempted murder, there must be evidence that the accused acted with the ulterior motive to kill. For the charge of discharging a firearm with the intent to endanger life, there must be evidence that the accused had the ulterior purpose to endanger the life of the victim. It is irrelevant whether he actually succeeds in achieving the purpose. What is required is that the trier be satisfied to the criminal standard that when the accused acted, he did so with the specific intention to achieve those ulterior purposes.[^8]

[86] Crown counsel noted an interesting interaction of the two offences. While the mens rea for attempted murder is higher, the specific intent to kill, there is no requirement in a case like this that the gun actually be fired in order for a finding of guilt to be made. In contrast, the offence of discharging a firearm with intent does require the gun to be fired, even though the charge of attempted murder does not.

[87] The point is illustrated in the 2008 decision in R. v. Innocent[^9], oxymoronic given the outcome. In that case Mr. Innocent was found guilty of attempted murder. He held a gun to a police officer's head and pulled the trigger, but the gun would not fire. Nevertheless, he could be and was found guilty of attempted murder because he plainly had the specific intent to kill the officer.

[88] It was certainly a stroke of life saving good luck for the officer that the gun would not discharge. On the other hand, it seems equally logical that Mr. Innocent could not have been found guilty of discharging a firearm with the intent to endanger life, because apart from and even if he had the requisite intent, the actus reus of discharging a firearm was not present.

[89] I draw attention to this case because Crown counsel argues it is directly applicable here. After the shots are fired, and after Mr. McQuinn takes a beating, the parties get back to their feet. Mr. McQuinn is holding the handgun. Ms. Rhora is standing behind him. Mr. Tennant and GH are several feet away, and stumbling to get to their feet, regain their balance and flee the scene by running to the south.

[90] Crown counsel argues that Mr. McQuinn specifically racks the Browning handgun and points it at Mr. Tennant and GH as they run away to the south because he intends to shoot them in the back, and that he could have pulled the trigger but cannot achieve the ulterior purpose of killing them because there were no rounds of ammunition left in the handgun’s magazine. In those circumstances it was his argument that Mr. McQuinn could not have been convicted of discharging a firearm with intent to endanger life at that moment, but that he can be convicted of attempted murder. I address this argument in the analysis that follows.

[91] To complete this review, I note the language in s. 239 of the Code that provides that every person who attempts by any means to commit murder is guilty of an indictable offence. “Attempt” is an offence separate and distinct in itself from the crime alleged to be attempted.[^10] The Crown must prove mens rea, the specific intent to commit the offence, and an action beyond mere preparation towards the commission of the offence attempted. Plainly, as the Supreme Court of Canada confirms in R. v. Ancio[^11], it is the specific mental intention to achieve the specific ulterior purpose, the killing of a person, that is the more significant of the two elements. Plain and simply, to prove attempted murder the accused must have had the specific mental intent to kill, and have taken steps in furtherance of that intent, even if unsuccessful.

[92] Count 2, the charge of discharging a firearm with intent also requires a specific intent. Section 244 of the Code provides in part that every person who discharges a firearm at another person “with intent to wound, maim or disfigure any person or to endanger the life of any person” is guilty of this indictable offence. In this case, however, the ulterior purpose specified is more limited. While the offence can be made out where the Crown adduces some evidence, direct or circumstantial, from which it can be determined that the accused intended to “wound” or “maim” or “disfigure” the complainant together with evidence of that ulterior purpose having been achieved, in this case the charge is more narrowly drawn. Here, the charge specifically contemplates the ulterior specific purpose of “endangering the life” of the victim.

(ii) Pointing a Firearm (Code, s. 87(1))

[93] Count 4 charges Ryan McQuinn with pointing a firearm at Steven Tennant. In order to be found guilty of this offence, I must be satisfied beyond a reasonable doubt that Ryan McQuinn intentionally pointed a firearm at Steven Tennant, and that he had no lawful excuse for doing so.

[94] First, plainly the FN Browning .32 calibre handgun is a firearm, within the meaning of the Code, that is, a barreled weapon that can fire a bullet and can cause serious bodily injury or death to another person, and there is no dispute that Ryan McQuinn had no lawful excuse to possess a firearm, much less point a firearm at Steven Tennant.

[95] The only issue here is whether I am satisfied beyond a reasonable doubt that Mr. McQuinn pointed the firearm he held at Steven Tennant, that is, that he directed or aimed the firearm at Steven Tennant intentionally, not accidentally, absent-mindedly or simply by chance.

[96] Mr. McQuinn admitted that he pointed the firearm at two of the three alleged assailants as he headed towards Mr. Tennant, in order to scare them. He said they cowered and crouched down and scurried away as he said had been his plan, but Mr. Tennant did not move. He saw them look back towards Mr. Tennant, and that was when his attention shifted exclusively to Mr. Tennant. He said he pointed the gun at Mr. Tennant – but not to shoot him, but only to scare him. Mr. McQuinn acknowledged in his cross-examination that he “planned to point the gun” at them to scare them, and to then discharge the gun into the air.

[97] I review and consider Mr. McQuinn’s evidence under the W. (D.) tests later in these reasons, but on this charge, Mr. McQuinn’s admission that he did intentionally point the FN Browning .32 calibre semi-automatic handgun at Mr. Tennant, as well as the other two assailants establishes the offence beyond doubt, so I find Mr. McQuinn guilty as charged of pointing a firearm without lawful excuse.

(iii) Aggravated Assault (Code, s. 268(1))

[98] Count 3 charges Mr. McQuinn with aggravated assault by wounding, maiming, disfiguring or endangering the life of Mr. Tennant. In order to find Mr. McQuinn guilty of aggravated assault, Crown counsel must prove beyond a reasonable doubt that Mr. McQuinn intentionally applied force to Mr. Tennant, knowing that he did not consent to the application of that force, and that Mr. McQuinn’s intentional use of force wounded, maimed, disfigured or endangered Mr. Tennant’s life.

[99] The seminal decision of the Supreme Court of Canada in R. v. Godin[^12] shows that the mens rea of the offence is the intentional infliction of the assault itself and the objective foreseeability of the bodily harm. As well, however, the Crown also has to prove that that bodily harm, the wound, the endangering of life actually did occur.

[100] The violent action of hitting Mr. Tennant on the right side of his head with the handgun that Mr. McQuinn was holding was certainly an application of force against Mr. Tennant, apart from the application of force that resulted from the discharge of the firearm that followed a nanosecond later. However, it is clear from the video clip and Mr. McQuinn’s testimony that their altercation happened “intentionally” and on purpose. He admitted it. He meant it to happen.

[101] Mr. McQuinn was angry at the physical abuse he believed had been sustained by Ms. Rhora. His intent is evident from the violence of the attack, and his own evidence of his state of mind at the time that he “pistol whipped” Mr. Tennant, just like he remembered from the movie “Goodfellas.”

[102] Mr. Tennant never consented to receive that blow from Mr. McQuinn, any more than Mr. McQuinn ever consented to the beating he received afterwards from Mr. Tennant and his acquaintance, GH, as they struggled to take the gun away from Mr. McQuinn, and potentially turn it on him. The only remaining issue is whether Mr. McQuinn’s intentional action wounded, maimed, disfigured, or endangered the life of Steven Tennant.

[103] To “wound” means to injure someone in a way that breaks or cuts or pierces or tears the skin or some part of the person’s body. It must be more than something trifling, fleeting or minor, such as a scratch.

[104] Mr. McQuinn’s actions did not cripple, mutilate or disable Mr. Tennant, nor did they cause him to lose the use of some part of his body. However, the Sunnybrook Hospital medical records do show that he sustained a penetrating wound in the lower neck, between the scapular bones, and that the bullet discharged near his left ear. The wound was seemingly minor, and was repaired with a couple of sutures. Evidently, Mr. Tennant was fully mobile with a full range of motion and neurological function after this incident. He was discharged home from Sunnybrook and did not require a return visit, although he did suffer temporary hearing loss from the point blank discharge of the Browning handgun. He has no other residual disability from this attack.

[105] Crown counsel argued that this attack endangered Mr. Tennant’s life, whether he had the intent to do so or not. But whether or not that is so, it will suffice for these purposes and this count for me to find, as I do, that Mr. McQuinn intentionally wounded Mr. Tennant by his actions. Crown counsel concedes he did not intend that the firearm would discharge, but he plainly did intend to injure Mr. Tennant by delivering that “haymaker”, “Rocky Balboa” type punch, as Mr. Goldkind described it, when he pistol-whipped the side of Mr. Tennant’s head. Apart from whether that blow endangered Mr. Tennant’s life Mr. McQuinn must necessarily have realized that the action he took against Mr. Tennant would be likely to cause Mr. Tennant the kinds of wounds and injuries that he experienced as a result of that conduct.

[106] I am satisfied beyond a reasonable doubt on the basis of Mr. McQuinn’s evidence, combined with the video and medical records evidence, that the Crown has made out the elements of the offence of aggravated assault under Count 3 as charged. In light of this finding and the duplication inherent in the Count 10 charge of simple assault, I accept the Crowns recommendation that Count 10 be dismissed, but I find Mr. McQuinn guilty of Count 3.

(iv) Attempted Murder and Discharge Firearm with Intent (Code, ss. 239(1) and 244(1))

[107] I turn finally to the principal offences charged. They are more nuanced, and more difficult, but the standards are clear. Counts 1 and 2 charge Mr. McQuinn with attempted murder and discharging a firearm with intent to endanger the life of Steven Tennant. My analysis of the remainder of Mr. McQuinn’s evidence under the tests established in R. v. W. (D.) is interwoven with my consideration of these charges. I consider these charges together because they are factually and legally intertwined.

[108] In order for me to find Mr. McQuinn guilty of attempted murder, Crown counsel must prove beyond a reasonable doubt that Mr. McQuinn had the specific intent and meant to kill Mr. Tennant by discharging a firearm at him. In order to find Mr. McQuinn guilty of having discharged a firearm at Mr. Tennant with intent to endanger his life, Crown counsel must prove beyond a reasonable doubt that Mr. McQuinn intentionally discharged that firearm at Mr. Tennant with the specific intent of endangering his life.

[109] The case law establishes that a person intentionally discharges a firearm at another person when he deliberately, as opposed to accidentally, points the firearm in the direction of someone and fires the gun by depressing the trigger. Here, Mr. McQuinn was adamant in his evidence that although he did point the firearm, he did not deliberately fire it by depressing the trigger.

[110] The parties agree that the video evidence essentially tells the whole story, but the story that each of them says is told by that video footage is very different. Their difference of views lies in what they say they are able to see, in the way they regard or interpret that evidence, and in the inferences they draw from it.

[111] As in R. v. Dematas[^13], the defence takes the position that there is no direct or circumstantial evidence here capable of supporting an inference of guilt against Mr. McQuinn on either of the principal charges. In R. v. Foti[^14], the Manitoba Court of Appeal cited the very old, but still respected decision of the Court of Appeal of this province in R. v. Connop[^15], as instructive on the point. In that decision Roach J.A, concurred in by Laidlaw J.A, concluded that it is insufficient to meet the standard of proof for this offence to merely have an intention to threaten, scare or frighten someone. Neither is it sufficient to objectively foresee that there is a risk of harm. Much more is required.

[112] A person intends to endanger life when they put someone in a situation or condition that could cause that person to die. Logic demonstrates that a person usually knows the predictable consequences of his or her actions, and means to bring them about. Whether an accused has formed the requisite intention, whether it is to wound or to endanger life or to kill, will call upon the trier of fact to determine whether that intention can be inferred from the entirety of the evidence, both direct and circumstantial. However, I am only permitted to draw an inference that the accused intended to kill, or endanger life by the discharge of the firearm, if I find on the whole of the evidence that I accept, that it is the only reasonable inference to draw.

[113] Against this background, I turn to the submissions of counsel on the case as a whole, and the evidence of Mr. McQuinn, considered against the tests mandated in R. v. W. (D.).

[114] At the outset I note an important concession made by Crown counsel in argument. He admits that he is unable to prove beyond a reasonable doubt that Mr. McQuinn was trying to kill Mr. Tennant when the first gunshot discharged, that is, when that first muzzle flash is seen immediately after Mr. McQuinn punched or pistol-whipped Mr. Tennant in the side of the head. The discharge of the first bullet does not make out either offence because Crown counsel concedes he is not pointing the firearm at Mr. Tennant in those last seconds and he does not intentionally pull the trigger. Rather, it is the accidental discharge of the firearm as Mr. McQuinn was completing the action of pistol-whipping Mr. Tennant.

[115] Mr. McQuinn testified in this case in his defence. There were certainly some problems with his evidence that I will address. In particular, his story about how he came to possess the firearm is improbable and hard to believe, and there is the question of lying in relation to the letter written on behalf of Damien Campbell. Nevertheless, defence counsel argues that I can and should believe Mr. McQuinn on the central elements of his evidence relating to the events of the courtyard altercation itself, and accordingly acquit him applying the tests in R. v. W. (D.).

[116] To summarize, the Crown’s ultimate theory was that Mr. McQuinn arrived there with a loaded gun, angry, ready to do something. Crown counsel acknowledges that he cannot and does not need to establish that Mr. McQuinn had a specific intent to kill somebody at the time when he gets to that courtyard. All he needs to establish beyond a reasonable doubt is that when Mr. McQuinn pulled that trigger the second time, if I find that he did, and the firearm discharged and the second muzzle flash is visible, that he had the specific intent at that moment to kill Mr. Tennant, or the intent to discharge the firearm with the intent to endanger his life.

[117] His position is that Mr. McQuinn knew he had the firearm in his satchel when he went by taxi that morning to help Ms. Rhora, that he was becoming increasingly angry during that taxi ride and had reached a state of “full boil”, so to speak, once he arrived at 410 McCowan Road, spoke to Jordan, and she pointed him in the direction of Mr. Tennant and the other two acquaintances. He racks the handgun twice, and runs towards Mr. Tennant. The other two acquaintances clear the scene, but Mr. Tennant does not move.

[118] Yet while it is undisputed that Mr. McQuinn had a clear and unobstructed line to shoot Mr. Tennant as he approached him, he did not fire the gun. Instead, he asked why Tennant had harassed his girlfriend, but it was only when Tennant summarily dismissed him that Mr. McQuinn swung his right hand that was holding the pistol and pistol-whipped the side of his head. It is conceded that the first discharge of the firearm that occurred a split second later cannot make out either of the offences.

[119] In the Crown’s theory, however, it is the second shot and subsequent actions, which establish the elements of the offences. This position is based upon Crown counsel’s contention that the video shows Mr. Tennant pushing himself off the railing to attack Mr. McQuinn and trying to get control of the gun, but that there is distance, a couple feet, between Mr. McQuinn and Mr. Tennant when the second muzzle flash is seen.

[120] Since Crown counsel argues that the videotape shows distance between them, he asserts that only Mr. McQuinn could have had his hand on the firearm at that point, and only he could have pulled the trigger. In the Crown’s submission, the specific intent to kill and to discharge the firearm intending to endanger Mr. Tennant’s life is present because he argues that the only reasonable inference to draw at that moment was that Mr. Tennant’s hands were not on the gun, that it was Mr. McQuinn who did intentionally squeeze the trigger, and that he did so as he pointed the gun at Mr. Tennant.

[121] The core of these charges relates to what was in Mr. McQuinn's mind. That is the crucial element. There are three potential evidential pathways into Mr. McQuinn's mind to determine what he intended. The first is Mr. Tennant’s evidence, but it cannot reveal what was in Mr. McQuinns mind, but only what Mr. Tennant saw before him. The second source is Mr. McQuinn’s evidence, which must be assessed in the same way as the evidence of any other witness. The third and possibly most important evidential pathway to Mr. McQuinn’s intent is the content of the videotapes. In addition, however, two other witnesses provide important testimony: Dustin Kelley, and D.C. Ryan Smith.

[122] Dustin Kelley provides a small but important piece of corroboration. He is not involved in the case at all, but testifies to what he heard. He also confirms why Mr. McQuinn was at that location. It is because his girlfriend, Ms. Rhora, called him. His response to her puts him there in that courtyard. Dustin Kelley corroborates that the reason was because something had happened to Ms. Rhora, and he heard what it was that had happened. Someone had “hit up on his girl.” In my view, that animates and informs Mr. McQuinn’s state of mind as he approaches Mr. Tennant, and explains why he is there, why he does not shoot, and why he instead comes right up to Mr. Tennant and asks him for an explanation.

[123] I agree with defence counsel that if Mr. McQuinn wanted to shoot Mr. Tennant, not that that alone would have sufficed – but if he wanted to kill him – he had a much better opportunity by firing the Browning than by pistol whipping him. Beyond that, I find it is simply not possible to know with precision how it happened that the two remaining shots were fired after the first.

[124] Initially, we see the firearm, with Mr. McQuinn's arm extended, pointed right at Mr. Tennant. He plainly has a clear and unobstructed shot. He's walking up towards Mr. Tennant, who would not have been able to defend himself at that moment. He had the opportunity to fire a point blank shot, but Mr. McQuinn did not fire the handgun. Apart from Mr. McQuinn’s own evidence, to my mind those facts call into question that the requisite specific intent was present.

[125] If he did intend to fire the gun, it would make more sense to do it when he had a clear shot and a clear approach. If he was intending to fire the gun it makes no sense that he would do so only at the moment when he was pistol-whipping Mr. Tennant. Mr. McQuinn did not fire the gun when he was some feet away from Mr. Tennant, despite having an unobstructed line of fire. If he had the specific intent, he would have fired earlier, instead of yelling at him, “[H]ey, yo, why you on my girl or beating my girl”, and then pistol whipping him.

[126] That leaves aside Mr. McQuinn's own evidence that he did not intend to shoot, much less to kill anyone. I will turn to that soon, but before doing so, I note, as defence counsel emphasized, that there is no evidence from any firearm examiner that the trigger was actually pulled at that moment. There was no video expert to say what ammunition was left in the gun at the moment that the Crown says Mr. McQuinn re-racked it – other than McQuinn's evidence. On his evidence, he knew that the gun was empty by that point. I will return to that point as well.

[127] To my mind, accepting that the gun discharged unintentionally on the punch, the offences can only be made out by the discharge accompanied by the second muzzle flash if, in the several nanoseconds before the second muzzle flash, Mr. McQuinn suddenly formed the specific intention to kill Mr. Tennant and to discharge the firearm as shot two is seen and then shot three occurs but is not seen in the video. In order to succeed in that proposition, the Crown would have to satisfy me beyond a reasonable doubt that while he admittedly did not have the intention a split second before, when the firearm discharged accidentally, a nanosecond later his intent has inexplicably but definitively changed. He now wants to and intends to kill Mr. Tennant.

[128] I find this argument to be very problematic. If it is conceded that Mr. McQuinn did not have the intention to kill or discharge the firearm before he punched Mr. Tennant, then the only time when he would have been able to form the intention to commit the illegal act would have been as Mr. Tennant admittedly reached out and tried to grab the gun. Mr. Tennant confirmed in his testimony that he reached for and tried to grab the gun from the second after the first discharge took place, and he can be seen in the video propelling himself off the railing to attack Mr. McQuinn and trying to gain control of the firearm.

[129] The problem with that theory, in my view, is that it cannot be reconciled with Mr. McQuinn’s evidence on how shocked and surprised he was when the gun went off from the punch. It frankly, suddenly and completely scared him, and less than a split second later, that shock would have been compounded when Tennant reacted very quickly, grabbed for the gun, they scuffled for a second, and then the gun went off again the second time. It is not surprising that it would have scared him, because he could not have expected the gun to go off as he was punching Mr. Tennant in the head, perhaps even endangering himself.

[130] In my mind, this brief and dynamic sequence of events, lasting no more than two seconds, does not provide evidence capable of establishing that Mr. McQuinn suddenly formed the specific intent to kill, to endanger Mr. Tennant’s life by firing the gun. It is much more consistent with a defensive reaction, and the accidental discharge of the gun.

[131] The importance of this is that Crown counsel focuses on the trigger, and the improbability of the gun going off three times unless it was because Mr. McQuinn’s finger was on the trigger. I acknowledge that argument, and the inferences it raises, but they are not definitive, because both Mr. McQuinn and Mr. Tennant testified they both had their hands on the firearm as they grappled just after the first shot and just before the second. Moreover, in my repeated viewings of the seconds following the first muzzle flash, I am unable to satisfy myself beyond a reasonable doubt that only Mr. McQuinn held the gun.

[132] It does appear to my eye, as difficult as it is to be certain, that both Mr. McQuinn and Mr. Tennant were in a struggle for the gun, engaged with each other with both men's arms up, struggling, after Mr. Tennant pushed up off the railing and attacks Mr. McQuinn, but before we see the second muzzle flash. I find that they were engaged struggling before that happened, or at least I cannot say they were not.

[133] There was no evidence presented to establish that the gun could not have discharged accidentally. It is said that both the trigger must be pulled and the safety tang depressed to fire the gun. However, given (i) the struggle that commences between Mr. McQuinn and Mr. Tennant right after the first discharge, (ii) the evidence of both that they both had their hands on the firearm, (iii) that there is no evidence that establishes that the gun could not have discharged exactly as the video appears to show, that is, accidentally from hitting, or from a struggle, or from a fracas, (iv) the absence of video evidence that shows Mr. McQuinn's finger on the trigger, and (v) the absence of definition to the video to permit a determination to the criminal standard that Mr. Tennant’s hands were not also on the gun when it discharged the second time, I cannot conclude that the second discharge was not also accidental. I certainly cannot conclude safely that only Mr. McQuinn held the gun, as I would need to in order to establish guilt on both of these remaining charges.

[134] Let me turn briefly to Mr. McQuinn’s evidence and the tests under R. v. W. (D.). His evidence is described in considerable detail above. I am entitled to accept some, none or all of Mr. McQuinn’s evidence. In the result, I accept some and reject some:

(i) I accept Mr. McQuinn’s denial that he became increasingly angry as he came to the scene in the taxi, bound and determined to exact revenge for the assault these unknown man had caused to his girlfriend Jordan Rhora. I find that he was more concerned and scared for her as he came in the taxi, and that it was only later, as he was approaching Mr. Tennant across the courtyard, that he started to become angry.

(ii) I reject as highly improbable that Mr. McQuinn found that firearm in a black bag underneath a bush in the landscaping around his apartment building as he bent down to scoop his dogs poop. It was much more likely that he did obtain it himself from some source that he wished to continue to conceal. This conclusion together with his lie in relation to the letter to Damien Campbell’s condominium corporation could have had an undermining effect on my acceptance of any of his evidence, were it not for the confirmatory effect of the video.

(iii) I also reject Mr. McQuinn’s explanation that he did not know that the firearm was in the satchel when he grabbed the satchel to take it with him. As soon as Mr. McQuinn grabbed his black satchel he certainly would have known from the weight of it that the firearm was in the satchel.

(iv) I do, however, accept Mr. McQuinn’s evidence that he wanted to “scare the three men and make them feel the same way Jordan had felt” when they had assaulted her, and that his original intention was indeed “to run up and wave the gun at them and make them run away and then fire shots into the air.”

(v) I accept that he was upset as he got closer to Mr. Tennant, and that he wanted to “hit him with the gun”, that he wanted to “pistol whip him on the head”, and that as he approached Mr. Tennant, he loudly asked him “[W]hy did you beat up my girl?!?”, that he asked him twice, and that Mr. Kelley correctly heard what Mr. McQuinn said to Mr. Tennant.

(vi) It is obvious from the video that Mr. McQuinn then rushed at Mr. Tennant and hit him on the side of the head with the gun, but I also accept that Mr. McQuinn was surprised when the pistol discharged, and I accept his evidence that he did not intend to shoot Mr. Tennant, and that he did not intend to kill him or anyone else at that moment.

(vii) It is plain to me that Mr. McQuinn accurately describes what followed because it is all there in the video. Right after the firearm discharged, in his surprise, Mr. McQuinn did move back slightly from Mr. Tennant, but Mr. Tennant reached out to grab for the gun and started punching Mr. McQuinn.

(viii) I accept that Mr. McQuinn may well have known relatively little about guns. I am supported in that finding by the double racking of the FN browning firearm as he headed across the courtyard toward Mr. Tennant, where one live bullet is ejected and he had to rack the receiver twice. Mr. McQuinn seems to have been surprised to find that an unspent shell was ejected from the gun when he racked it at that time, so he had to rack it again a second time to put a second live cartridge into the chamber. Unless my eyes are deceiving me, this hiccup is visible as he turns to head towards Mr. Tennant. I also accept that he did not know that this firearm had a safety mechanism on it, as D.C. Smith confirmed in his evidence. There was no evidence to the contrary.

(ix) I find that Mr. Tennant did grab the muzzle of the gun just after the first muzzle flash, and that two of them struggled for a second before it went off the second time. Mr. McQuinn testified that Mr. Tennant had put his hand over top of Mr. McQuinn’s hand at that moment so that both had their hands on the firearm. Mr. McQuinn testified that he did not intentionally pull the trigger. I accept that evidence. The alternative construction of an instantaneous Paulian moment, which caused Mr. McQuinn to want to kill makes no sense, as I have explained above.

(x) I find that Mr. McQuinn did say that he was sorry as he was being beaten by the other two men, and that the reason that Mr. Kelley had not heard that being said was because the full weight of Mr. Tennant was on top of him with Mr. Tennant's knee on his neck at the time he was saying that, not unlike the George Floyd matter that we are all aware of, and that this would have muffled and made the utterance difficult to hear.

(xi) There was some contradiction in Mr. McQuinn's testimony about his actions after he and Mr. Tennant and GH get back up off the ground relating to racking the handgun as the other two flee in a southerly direction. However, I cannot conclude, as the Crown invites me to, that the only reasonable inference to be drawn from that evidence is that it was always Mr. McQuinn's intention to discharge the firearm: that his actions as seen right at the end of the second video clip establish an intention to shoot the two assailants in the back as they fled. Further, if I reject that the specific intent came into existence just before the second muzzle flash, as I have, then there is no evidence that I saw or heard that could establish how such specific intent was formed thereafter, and that the only reasonable inference would support conviction.

(xii) Mr. McQuinn emphatically denied at the conclusion of his testimony that he had any intention to discharge the firearm, which he claimed went off accidentally, immediately after he pistol whipped the side of Mr. Tennant's head, or that he wanted to kill either Mr. Tennant, or the other two men because of their conduct towards Ms. Rhora. Despite other problems with his evidence, that I have noted, he was not shaken on his insistence that he never threatened to kill anyone, that he did not want to shoot them, and that he “just wanted to scare them, as they had scared Jordan, and make them run away.” I believed him when he said that.

[135] So, plainly, I have accepted parts of Mr. McQuinn’s evidence and rejected others. Crown counsel argued this should cause me to reject his evidence outright. He says that when too many implausibilities are present, it calls the truth of the entirety of Mr. McQuinn’s evidence into doubt.

[136] I accept that proposition in general theory, but cannot reach that conclusion here because even if I rejected most of his evidence, and I do not, I do find his evidence on what happened in the courtyard to be strong, believable, and consistent with what I see happening in the video evidence.

[137] The contrary interpretation that would be needed to convict is not present, in my view, and as Crown counsel properly acknowledges, if his evidence leaves me in a state of reasonable doubt with respect to his intent, then he must be acquitted on Counts 1 and 2.

[138] However, there is a further uncertainty that I have struggled with. I would add that even apart from that question of intent, I find I cannot be certain whose finger was on the trigger at the time of the second muzzle flash, when there was a struggle involving two sets of hands, nor was there evidence the firearm could not discharge accidentally, or with one person’s hand on the safety tang and another’s on the trigger. Crown counsel endeavored to show that there was distance between them when that second muzzle flash went off, and as such, that only Mr. McQuinn’s hands were on the firearm, but I cannot be certain that only Mr. McQuinn’s hand was on the firearm at that time

[139] Crown counsel focused on the question of how could the firearm discharge without the accused’s finger on the trigger? He says the trigger is located in a small hole and questioned the probability or likelihood of the gun discharging three times without Mr. McQuinn’s finger being on that trigger. Otherwise, he asks, how did it happen? If Mr. McQuinn did not have his finger on the trigger, then he says there was no evidence of that firearm just going off without anyone pulling the trigger – “the trigger was pulled somehow.”

[140] That was a surprising submission to me, not only because it seemed to invite speculation given what I consider to be the uncertainty of that evidence, but also, as I have noted before, because there was no expert opinion evidence presented in this case about whether, how, or why that handgun can be discharged accidentally.

[141] Before concluding, I need to briefly address Crown counsel’s submissions on self-defence. As an experienced and highly respected Assistant Crown Attorney, who is always welcome in my courtroom, Mr. Fried expressed the need to raise that question. He notes that while the Agreed Statement of Fact discounts self-defence, the Court of Appeal has said on a number of occasions that if there was an air of reality to self-defence as a viable defence in a case, then I must consider it, as odd as that may seem in these circumstances. Mr. Fried posits that in the case of the second muzzle shot, the circumstances might be regarded as being more consistent with Mr. McQuinn trying to defend himself as Mr. Tennant attacks him, than being the result of an accidental discharge. That theory, accepting that the first muzzle flash is accidental, would be that Mr. McQuinn intended to discharge the firearm when it went off the second time, but only in self-defence as Mr. Tennant was moving towards him in a fit of rage.

[142] Even if that were the case, however, and I find that it is not, I do nevertheless accept the Crown’s submission that there would have been other less serious ways of defending himself, including running away. More importantly, though, ss. 34(2)(c) of the Code would require, as the trier of fact, that I consider “the person's role in the incident”, that is, Mr. McQuinn’s role in precipitating the entire sequence of events. In my view, that would necessarily quash any relevance of self-defence, because it was Mr. McQuinn who initiated these events, and both he and his counsel admit that he was not acting in self-defence.

[143] To come full circle, as I noted at the outset, both counsel agreed that the video speaks for itself. The difference is that I am unable to accept the Crown’s core position that if Mr. McQuinn had not testified, he could nonetheless have been convicted of Counts 1 and 2, of attempted murder of Mr. Tennant and of discharging the firearm with the intent to endanger his life, on the basis of the video footage alone. In my view, the video footage of the second muzzle shot, and taking account of the two seconds before and after, cannot support findings of guilt on either charge beyond a reasonable doubt.

[144] As such, despite the skilled advocacy of both counsel, for which I am obliged, I am not satisfied beyond a reasonable doubt that Mr. McQuinn (i) intended to shoot Mr. Tennant, (ii) that he had the specific intent and meant to pull the trigger, or (iii) that he had the specific intent and meant to kill Mr. Tennant or endanger his life by discharging the Browning handgun. It follows that he must be acquitted of Counts 1 and 2.

Disposition

[145] In the result, for all the reasons set out in my formal judgment, which I have signed and now provide to you:

(i) I am satisfied beyond a reasonable doubt that Mr. McQuinn pointed a firearm at Mr. Tennant and committed an aggravated assault against him. I find Mr. McQuinn guilty of Counts 3 and 4.

(ii) I am not satisfied beyond a reasonable doubt that Mr. McQuinn intended to kill Mr. Tennant, nor am I satisfied beyond a reasonable doubt that he intended to endanger Mr. Tennant’s life, by intentionally discharging a firearm at him. Mr. McQuinn will be acquitted on Counts 1 and 2.

COURT FILE NO.: CR-20-30000365-0000

DATE: 20210714

ONTARIO

SUPERIOR COURT OF JUSTICE

Between

HER MAJESTY THE QUEEN

– and –

RYAN MCQUINN

Defendant

REASONS FOR DECISION

Michael G. Quigley J.

Released: July 14, 2021

[^1]: The three video clips recorded by the video surveillance cameras located as 410 McCowan Road in Scarborough were entered as Exhibits 3-A, 3-B, and 3-C. [^2]: R.S.C. 1985, c. C-46. [^3]: Count 10 of simple assault became superfluous once charges were dropped against Ms. Rhora. At the Crown’s invitation, that charge was dismissed. [^4]: 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26. [^5]: R. v. Tatton, 2015 SCC 33, [2015] 2 S.C.R. 574 (S.C.C.), at para. 35. [^6]: Ibid., at para. 35 and cases referenced there. [^7]: See Sopinka J. in R. v. Daviault, refered to in Manning and Sankoff, at p. 386, and referenced in R. v. Tatton, at para. 37. [^8]: These concepts and their interplay are discussed by Allen J. of this court in the recent similar decision to this in R. v. Dematas, 2019 ONSC 1777. [^9]: 2008 O.J. No. 312, aff’d. 2012 O.J. No. 4560 (C.A.). [^10]: See Code, s. 21, regarding modes of participation. [^11]: 1984 69 (SCC), [1984] 1 S.C.R. 225 (S.C.C.), at para. 30. [^12]: 1994 97 (SCC), [1994] 2 S.C.R. 484. [^13]: 2019 ONSC 1777. [^14]: 2002 MBCA 122 (Man. C.A.), at para. 24. [^15]: 1949 Carswell Ont 373 (Ont. C.A.)], 1949