COURT FILE NO.: 19-70000392-0000

DATE: 20210825

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEERON CREARY

Defendant

John C. Healy, for the Crown

O. Benjamin Vincents, for the Defendant

HEARD: April 12, 14, 15, 16, 19, 20, 21, 22, 26, 27, 28, 29, May 3, 4, 5 and 6, 2021

MOLLOY J.:

REASONS FOR DECISION

(Point Firearm at Police Officer)

A. INTRODUCTION

[1] Keeron Creary is charged with three offences in relation to the shooting of Kevin Haselsteiner on Ontario Street in Toronto shortly before midnight on August 14, 2018: attempted murder; discharging a firearm with intent to wound or endanger life; and pointing a firearm at Mr. Haselsteiner. Mr. Haselsteiner was shot in the neck and lost a lot of blood due to arterial spray. He survived that injury and was discharged from hospital on September 20, 2018. Sadly, he died 31 days later, from a drug overdose.

[2] Within an hour of the shooting, Mr. Creary was arrested a number of blocks away, hiding in a carport near Carleton Street. He is charged with a number of offences relating to his actions on Carleton Street immediately prior to his arrest and things in his possession at the time of his arrest, specifically: pointing a firearm at a police officer contrary to s. 87(1) of the Criminal Code; possession of a loaded prohibited firearm (the same one pointed at the police officer) contrary to s. 95(1) of the Criminal Code; possession of that same prohibited firearm contrary to s. 92(1) of the Criminal Code; possession of that same firearm while under a s. 110 prohibition order; possession of ammunition (found in his pocket) contrary to the s. 110 prohibition order; and breaching the term of a recognizance prohibiting him from being in possession of weapons or ammunition. That same firearm was used to shoot Mr. Haselsteiner.[^1]

[3] Mr. Creary elected to be tried by a judge without a jury on the Zoom platform, and pleaded not guilty to all counts. There were a number of Charter applications by the defence, the nature and extent of which were expanded upon significantly on the eve of trial. On April 12, 2021 the Crown brought a motion to dismiss those applications as being out of time or, in the alternative, for an adjournment of the trial. I dismissed the Crown’s motion and the trial started before me on April 14, 2021.

[4] I dealt with the Charter applications and the trial proper on a blended basis, and at the end of the evidence and argument, reserved my decision. There are many separate issues to be dealt with, as well as some issues that overlap. Rather than releasing one omnibus decision with every issue subsumed within it, I have written four separate decisions as follows, all released on the same day:

R. v. Creary #1, 2021 ONSC 4935: Point Firearm at Police Officer

R. v. Creary #2, 2021 ONSC 4936: Charter Applications: Exclusion of Evidence and Stay of Proceedings

R. v. Creary #3, 2021 ONSC 4937: Opinion Evidence of Firearms Expert

R. v. Creary #4, 2021 ONSC 4938: Attempted Murder and Related Charges

[5] While each of these decisions is meant to be a stand-alone, to fully understand the reasoning behind each decision, it may be necessary to refer to one or more of the other decisions. For me, the first step in the factual analysis was to determine what happened on Carleton Street. In large measure this is an issue of identification. This decision deals with that aspect of the charges against Mr. Creary, leaving aside for the moment what happened earlier on Ontario Street. In a nutshell, I found Mr. Creary to be guilty of pointing the firearm at the police officer on Carleton Street and of being in possession of that firearm and separate ammunition in his pocket (and therefore also being in breach of the prohibition order and recognizance).

[6] Ultimately, I dismissed the Charter applications.[^2] The evidence of the firearms expert is admissible and reliable. The firearm Mr. Creary had in his possession and pointed at the officer is the same gun used to shoot Kevin Haselsteiner.

[7] For reasons provided in R. v. Creary #4, I found that there is not sufficient evidence for me to conclude that the shooter intended to kill Mr. Haselsteiner. However, I am satisfied beyond a reasonable doubt that whoever shot Mr. Haselsteiner intended to wound him and would be guilty of discharging a firearm with intent to wound (as charged in Count 2 on the indictment). I cannot be satisfied beyond a reasonable doubt that Mr. Creary was the person who shot Mr. Haselsteiner. I am satisfied that, at a minimum, Mr. Creary was present or nearby at the time of the shooting and that he took the firearm, knowing it had been used in the shooting, and fled with it in order to assist the shooter to avoid liability for the shooting. He is therefore an accessory after the fact to the discharge firearm offence. I have amended Count 2 to reflect that and found Mr. Creary guilty on the amended Count 2.

[8] This decision deals with the charge of pointing a firearm at a police officer, which is alleged to have occurred at 308 Carleton Street in Toronto. I am satisfied beyond a reasonable doubt that the man seen by Detective Constable Walker crouching behind a BMW at 308 Carleton was the accused, Keeron Creary. I am also satisfied by this evidence that D.C. Walker saw Mr. Creary pointing a firearm at him, and that this was the firearm subsequently recovered from under the front bumper of the BMW. It follows that Mr. Creary was in possession of that firearm, putting him in breach of the s. 110 prohibition order and a term of the recognizance to which he was subject at the time. After Mr. Creary was arrested and searched as an incident to that arrest, 11 rounds of ammunition were found in the pocket of one of the three pairs of pants he was wearing. In R. v. Creary #2, I found that evidence to be admissible. Further, I am satisfied that these bullets were real, putting Mr. Creary in breach of a term of his recognizance that he not be in possession of ammunition. My reasons for these findings are set out below.

B. FIRST CENTRAL ISSUE: IDENTITY

[9] At approximately 11:53 p.m. on August 14, 2018, shots were fired on Ontario Street just north of Prospect Street in Toronto. One of those shots hit Mr. Haselsteiner in the neck. The shooter fled on foot, heading south down Ontario Street. D.C. Paul Walker was one of the many officers from Toronto Police Services (“TPS”) 51 Division who responded to the call. At 11:57 p.m., he was in his cruiser at the corner of Winchester and Sackville (east and south of the crime scene) when he saw a man running east across Sackville and then south on Sackville towards Carleton Street. He gave chase and had an interaction with the man, who had hidden behind a BMW in the driveway between 308 and 314 Carleton. The man then vaulted the fence and D.C. Walker heard him running through the yard in a northeasterly direction.

[10] At midnight, numerous members of the TPS on scene set up a perimeter around the area to fence in the suspect. The TPS Emergency Task Force and Canine Units were called out to assist in locating him.

[11] At 12:45 p.m., members of the Toronto Police Emergency Task Force (“ETF”) arrested Keeron Creary. He was lying on the ground behind a car parked in a carport in an alleyway known as Woodcock Lane, which runs north/south, parallel to and one block east of Sackville Avenue, ending at Carleton Street to the south. The carport was immediately behind 314 Carleton, which is the house next door to 308 Carleton Street.

[12] The first central issue for me to decide is whether Keeron Creary is the man spotted by P.C. Walker running on Sackville and then hiding behind the BMW next to 308 Carleton.

C. SECOND CENTRAL ISSUE: POSSESSION OF THE GUN

[13] D.C. Walker testified that he saw a firearm in the suspect’s hand. After the suspect fled, a firearm was found by the front of the BMW where the suspect had been hiding. The second central issue to be determined is whether there is sufficient evidence to conclude that the suspect was in possession of that firearm and pointed it at D.C. Walker.

D. ISSUE ONE ANALYSIS: IDENTIFICATION OF KEERON CREARY

Keeron Creary’s Actual Appearance on August 14, 2018

[14] Keeron Creary was 26 years old in August 2018. His skin is black and he is about 5’9” tall. At the time of his arrest, he had a thin build, and weighed approximately 150 pounds. His hair was done in dreads that were short to medium in length. When arrested, Mr. Creary was wearing dark blue jeans, and a black jean jacket.

The Chase Down Sackville Street

[15] D.C. Walker was alone in his cruiser when, shortly before midnight, he heard the call over his police radio about the shooting on Ontario Street. He immediately headed north on Parliament Street with his siren and flashing lights activated. As he approached Carleton, he received further information over his radio that a suspect was seen running southbound in a laneway east of Parliament. He knew the laneway ended at Carleton Street, so he headed east on Carleton, hoping to intercept anyone running down that laneway. There was a police car ahead of him on Carleton and another one coming south down the laneway. D.C. Walker did not see any person in the laneway. He therefore headed further east and then north along a side street up to Winchester, again searching for the suspect. On Winchester, he headed east again. D.C. Walker testified that when he got to the corner of Winchester and Sackville, he looked south on Sackville and saw a man run out onto Sackville from a laneway on the west side. He said the man looked right at the police car, and then ran “at full speed” south down Sackville. According to D.C. Walker’s in-car camera, this was at 11:57:39 p.m.

[16] D.C. Walker gave chase in his cruiser. As he was driving down Sackville after the suspect, he put over the radio that he had a “a guy running” heading south on Sackville. D.C. Walker did not give a description of the suspect at that time. He testified that he did not have time to do that while in pursuit.

[17] When the runner got to Carleton, he turned left onto that street and D.C. Walker lost sight of him briefly. D.C. Walker testified that when he got to the corner of Sackville and Carleton, the only person he could see was a man walking his dog. He called out to the man, “Where’d he go? Where’d he go?” This can be heard on the in-car camera video at 11:57:54 p.m. The house located on the northeast corner of Sackville and Carleton is 308 Carleton. D.C. Walker testified that the dog-walker pointed to the front of the BMW parked in the driveway on the east side of 308 Carleton and said, “Right there.” D.C. Walker investigated and could see a man crouched down between the front of the BMW and a high fence separating the yard from the driveway.

Admissibility of the Communications by the Man with the Dog

[18] The Crown seeks to rely on what the man with the dog said, and the direction in which he pointed, as proof that the man who ran around the corner and hid in front of the BMW was the same man pursued by D.C. Walker down Sackville Street.

[19] Immediately upon ascertaining that the suspect was crouched behind the BMW, D.C. Walker got out of his car with his gun drawn and advanced towards the driveway. Understandably, the man with the dog ran in the opposite direction. His identity remains unknown. He is not available to testify and his observations cannot therefore be tested by cross-examination. Both his words and his gesture of pointing towards the car are therefore hearsay, and they are being tendered for their truth. Presumptively, such evidence would not be admissible.

[20] As noted by the Supreme Court of Canada in R. v. Khelawon,[^3] at para. 60, in determining whether to admit hearsay evidence for its truth, the first step is to determine whether that evidence fits within an already recognized exception to the hearsay rule. If so, there is no need to embark upon an analysis of the various factors that might make the evidence admissible under the principled exception to the hearsay rule developed in R. v. Khan[^4] and the many cases that have followed it. Statements and gestures that fit within a traditional exception to the hearsay rule are presumptively admissible.

[21] In this situation, there is a long-standing exception to the hearsay rule that applies. Although sometimes, and confusingly, referred to as res gestae, the more accurate nomenclature is “spontaneous utterance.” Essentially, this exception applies to statements or gestures that are contemporaneous to and wrapped up in an event, particularly an event that is sudden or shocking in some way. Spontaneous utterances in this situation are thought to be reliable, even though they are hearsay, because the person making the statement has not had a chance to concoct or misrepresent the event, nor to forget the particulars.

[22] In the recent Ontario Court of Appeal decision in R. v. Nurse, Trotter J.A. reiterated the basis for the spontaneous utterance exception as follows:

In my view, it is important to explore why the evidence is admissible under the two common law exceptions in play in this case, and how those exceptions themselves address reliability concerns associated with hearsay evidence. As I will discuss further, and Iacobucci J. noted in Starr at para. 212, evidence falling within a traditional exception to the hearsay rule is presumptively admissible, as these exceptions “traditionally incorporate an inherent reliability component.” Both exceptions engaged in this case are rooted in an acceptance that the circumstances in which the exception will be met are ones in which there is only a remote possibility of fabrication or concoction. The requirements or “test” for meeting these exceptions are strictly adhered to by courts, presumably in an effort to ensure that the exception is only applied in cases that remain true to the rationale underpinning the exception.[^5]

[23] In Nurse, the Court of Appeal adopted its earlier decision in R. v. Khan, which in turn relied on the reasoning of the Privy Council in Ratten v. The Queen.[^6] In Khan, Robins J.A. stated:

[A] spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.[^7]

[Emphasis added in Nurse.]

[24] The Court of Appeal in Nurse also referred to and adopted the House of Lords decision in R. v. Andrews in which that Court applied a functional approach to the spontaneous utterance exception and provided guidelines for trial judges in determining the admissibility of such evidence. The five factors set out in Andrews can be summarized as follows:

(1) The primary question the judge must ask herself is whether the possibility of concoction or distortion can be disregarded;

(2) To answer that question, the judge must consider the circumstances in which the statement was made. If the event was so unusual or startling or dramatic that the utterance was an instinctive reaction, the judge might conclude that the pressure of the event would exclude any possibility of concoction or distortion. For this to apply, the statement must be approximate to the events, if not exactly contemporaneous;

(3) To be considered “spontaneous” an utterance must be closely associated with the event giving rise to the statement, such that it can be fairly stated that the declarant was still dominated by the event. That event must still be operating on the declarant’s mind;

(4) Apart from timing, the trial judge must consider other factors relating to the possibility of concoction or distortion, such as a motive to fabricate, malice, or the hope of advantage to the declarant or disadvantage to the accused;

(5) The possibility of human error is more a question of weight than admissibility. Issues such as level of intoxication, opportunity to observe, and defective eyesight must be considered.[^8]

[25] Applying these principles, I find that the evidence about the man pointing out the suspect hiding between the BMW and the fence is admissible for its truth. This man was out after midnight walking in his dog on a residential street. He would have been able to hear the siren of the police car on Sackville, and then a man came tearing past him, rounding the corner on Carleton and hiding in front of the BMW. Within in seconds, the police car with lights and sirens blazing rounded the same corner and the police officer inside demanded to know “Where did he go?” This would be an unusual and shocking experience for anybody. The man with the dog immediately pointed out where the running man had gone. This was, in my view, almost a reflexive action to the question asked by the police officer. The utterance was made within seconds of the event. The man would have no time to make up a story and no reason to do so. The suspect was a matter of feet away from him and although it was night, he clearly would have seen where he went. Indeed, in the area in which he pointed, there was a man hiding. This cannot have been coincidence, nor can it have been manufactured. The statement and gesture meet all the criteria for the spontaneous utterance exception to the hearsay rule. I accept D.C. Walker’s evidence about what this man said and did, and I accept the man’s utterances as admissible for their truth.

[26] Alternatively, even if I had not found this evidence to fall within the spontaneous utterance exception, I would have admitted it under the principled exception to the hearsay rule as developed in the jurisprudence of the Supreme Court. I must consider the twin requirements of necessity and reliability. The man, very understandably, fled before D.C. Walker could obtain a name and contact information from him. His identity is unknown. The necessity requirement is met. Further, I find the statement to be reliable for essentially the same reasons as stated above. It was uttered reflexively, there was no motive to lie and no opportunity to fabricate, and the information he provided was corroborated by the fact that there was a man hiding in front of the BMW.

[27] Accordingly, I find on these facts that the man D.C. Walker chased down Sackville is the same man that was hiding in front of the BMW at 308 Carleton.

[28] Even without the evidence of the man with the dog, it might be possible to draw an inference that the man in front of the BMW is the same man D.C. Walker saw running down Sackville based merely on timing and the improbability of coincidence. However, with the additional evidence of the man with the dog, the evidence is overwhelming. This man ran out from the west side of Sackville, saw the police car, ran south on Sackville and east on Carleton, and then hid between the BMW and the fence in the driveway of 308 Carleton.

Direction in Which the Suspect Headed

[29] D.C. Walker testified that, upon being advised of the location of the suspect, he got out of his car with his gun drawn and approached the driveway. There was a large flowering bush between him and the car, and he was dodging from side to side around the bush at the same time as the man between the car and the fence also moved back and forth. D.C. Walker was pointing his firearm at the suspect. He could see that the suspect was also pointing a gun at him. D.C. Walker shouted, “I can see you. Drop the gun.” He testified that, at that point, the suspect ducked down low in front of the car, then turned and jumped over the fence. He could hear noises from the yard behind the fence that sounded like the suspect was heading northeast. He immediately broadcast over the police radio that the suspect had gone north over the fence.

[30] Included in the evidence at trial were a number of photographs of the fence in front of the BMW and of the yard adjacent to 308 Carleton. There are torn vines in the area of the offence beside the BMW where D.C. Walker said the man went over the fence. Inside the yard there is other damage, torn greenery and some upended planters that support D.C. Walker’s evidence that the suspect went over the fence, and then headed northeast and went over the fence at that corner of the yard.

Keeron Creary is the Man D.C. Walker Pursued

[31] At approximately 12:45 a.m., ETF officers found Keeron Creary a short distance northeast of the 308 Carleton yard. There are no houses between 308 and 314 Carleton. To the east of 314 Carleton is a north/south laneway (Woodcock Lane) with garages and fences on each side. Mr. Creary was hiding in front of a car parked in a carport on the west side of that laneway, just north of 314 Carleton. He was lying flat on the ground between the front of the car parked there and the back wall of the carport.

[32] Based solely on proximity and timing, it is an almost inescapable inference that the man in the carport was the same man seen by D.C. Walker going over the fence at 308 Carleton.

[33] Defence counsel submits that Mr. Creary could not have been the man at 308 Carleton because he was found by ETF officers rather than by the sniffer dog. I reject that argument. After the perimeter was sealed off, the Canine Unit handler took the dog to the backyard of 308 Carleton. The dog was then taken to Sackville where the dog handler and ETF officers proceeded north and went in and out of yards on the east side of Sackville. At the same time, other ETF officers headed north up the laneway. As it happens, Mr. Creary was hiding in the laneway, northeast of 308 Carleton, rather than in a backyard due north of 308 Carleton. The fact that he was spotted by an ETF officer before the dog got to that area is completely irrelevant.

[34] The defence also relies on discrepancies between the description of the suspect given by D.C. Walker and the actual physical appearance of Mr. Creary, arguing that these were two different people. I do not agree.

[35] D.C. Walker testified that the person he saw and chased on Sackville St. was the same man that was in front of the car and went over the fence. When he first saw that man on Sackville, he was running and D.C. Walker was driving a scout car at a high rate of speed on a residential street. He said he did not have time to broadcast a description of the man while driving. I find that completely understandable. After the man went over the fence, D.C. Walker put out a description to dispatch saying that the suspect was a black male, 6’1” to 6’2”, with short dark hair, a thin build, and wearing black pants and a black sweater with no logos on any of the clothing. He testified that this was the description of the man as he saw him on Sackville and also at 308 Carleton.

[36] There is a clear discrepancy between the height of the suspect given by D.C. Walker (6’1” to 6’2”) and the actual height of Mr. Creary (5’9”). D.C. Walker himself recognized the inaccuracy of his height estimate and provided some explanations for it. He testified that he typically estimates height based on how much taller a person is compared to himself. He further explained that when he was young, he was 5’5” and that he recently learned that over time he has lost an inch and a half. He offered the opinion that his estimation could have been off, in part because he was basing it on how much taller the suspect was when compared to 5’5” rather than 5’3½”. He also stated that when attending the scene later, he noticed that there is a slight uphill grade to the driveway at 308 Carleton. Since the officer was at the bottom of the driveway and the suspect was at the top, this also could have thrown off the height estimate. I note as well that when the officer first saw the suspect, the officer was sitting in a cruiser and the suspect was running, which is not a good position from which to get an accurate height assessment. When the officer next saw the suspect, he was crouched behind the car, making it impossible to judge height. Then the suspect jumped over the fence, again not a good perspective from which to judge height. In my view, the combination of all these factors provides a satisfactory explanation for the height discrepancy and does not indicate that the suspect could not have been Mr. Creary.

[37] D.C. Walker described the suspect as wearing a black sweater and black pants, both without any logos. Mr. Creary was wearing all dark clothing, none of which had logos. However, it was a black denim jacket, not a sweater, and his pants were dark blue denim, not black. Given the lighting conditions and the brief period of time when the officer was able to observe the clothing, I also do not consider this feature as something that would enable me to rule out Mr. Creary as being the man who jumped the fence at 308 Carleton.

[38] In the description D.C. Walker put over the car radio and was broadcast by dispatch, he described the suspect as having “short hair.” In cross-examination before me, D.C. Walker was shown a photograph of Mr. Creary after his arrest and acknowledged that his hair was in dreadlocks and could not be described as “short.” I agree that the description “short hair” is not an accurate description of Mr. Creary that day: he had dreadlocks that went to about one inch above his eyebrows in the front and were approximately chin-length on the sides. At trial, D.C. Walker testified that he did not recall seeing the dreads on the suspect that night.

[39] In my view, D.C. Walker is simply mistaken about his recollection. It is clear that he gave the description “short hair” to dispatch. However, it is also clear to me that D.C. Walker also described the hair to other officers on the scene that night as “short dreadlocks.” After the suspect fled over the fence, D.C. Walker waited at the driveway for the ETF and Canine Unit to arrive. He then briefed those officers before they headed out to conduct their search. Officer Ron Willers was one of the ETF officers involved in Mr. Creary’s arrest that night. He testified that he had been given a description of the suspect as being a black male with dreads, 6’1” to 6’2” and 170 pounds. He could not recall if he received that description from dispatch or from an officer at the scene. P.C. Sebastian Aciu is the ETF officer who spotted Mr. Creary hiding in the carport on Woodcock Lane. He testified that he shouted out, “Police. Come out with your hands up.” He said this man matched the description they had been given of the person who fled from D.C. Walker in that he was a black male with “short dreads.” He estimated Mr. Creary’s height as 6’1” to 6’2” but was not sure if that was his own observation or based on a description he had been given. However, he was clear that he had been told by a 51 Division officer who briefed them prior to the search that the suspect had short dreads. He said that all during the search he was looking for a black man with short dreads. The only 51 Division officer who saw the man in the driveway at 308 Carleton was D.C. Walker. It was D.C. Walker who briefed the ETF and Canine officers. Logically, the description of “short dreads” can only have come from D.C. Walker, even if he has no recollection of that now.

[40] After Mr. Creary was arrested in the laneway and brought out in handcuffs, D.C. Walker saw him in the custody of two officers and confirmed that he was the man who had been in front of the BMW at 308 Carleton. I attach no weight to an eye witness identification in those circumstances. However, I do note that at that point in time D.C. Walker was not struck by Mr. Creary’s hair being different from that of the person he saw in the driveway.

[41] In short, I do not find the discrepancies in physical description and clothing to be sufficient to cause any doubt in my mind as to Mr. Creary being the man D.C. Walker saw in the driveway at 308 Carleton, and also running south on Sackville just seconds before that.

[42] I also find no reliable evidence of there being a second suspect in the area. Nobody ever saw a second suspect, nor had any reason to believe there was a second suspect. However, at one point after Mr. Creary’s arrest, there was information put over the police radio that the dog may have picked up on another scent and officers were investigating that. The canine handler was not called as a witness. The mere fact that the dog might have started following some other scent is not evidence that there was a second suspect in the area who could have been the man seen by D.C. Walker. In any event, even if there was a second man involved in the shooting who may have been in the general area, I am satisfied on the evidence that the man D.C. Walker saw, both on Sackville Street and on Carleton Street, was the accused Keeron Creary.

[43] Based on the whole of the evidence I have reviewed above, I am completely satisfied that Mr. Creary was the man D.C. Walker saw in the driveway. In addition, for the reasons set out below, I am satisfied beyond a reasonable doubt that the man D.C. Walker saw in the driveway pointed a firearm at him, which firearm was found at the front bumper of the BMW exactly where the man had been hiding. When Mr. Creary was arrested, there was a bag of bullets in his inside pants pocket[^9] that were exactly the same make, calibre, and appearance as the four of the five bullets found in the handgun. In R. v. Creary #2, I found that evidence to be admissible at trial. Further, for the reasons set out in R. v. Creary #3, I am satisfied that this was the same firearm used to shoot Mr. Haselsteiner. The shell casings from the five shots fired at the scene of that shooting are the same as those found in Mr. Creary’s pocket. I find this evidence of the gun and ammunition reinforces my conclusion that the man D.C. Walker saw was, in fact, Mr. Creary.

E. ISSUE TWO ANALYSIS: POSSESSION OF AND POINTING A FIREARM

[44] D.C. Walker testified that he saw the man crouched behind the BMW point a firearm directly at him. He said that when he first got out of the car and approached the area to which the man with the dog had pointed, there was a large flowering bush partially obstructing his view. He was moving from one side to the other of the bush, and the man behind the car also kept ducking from side to side. However, D.C. Walker said that at one point he had a clear view of the man and could see the gun in his hand. He shouted out, “I can see you. Drop the gun.” This can be heard on the in-car video at 11:58:09 p.m. The man ducked down briefly, then turned and jumped the fence. At 11:58:13 p.m., D.C. Walker called out that the man had gone over the fence.

[45] D.C. Walker looked briefly under the car from the rear passenger side, and did not see anything. However, shortly after that, D.C. Jason Ferreira arrived on scene. He was armed with a C8 rifle with a high-powered flashlight attached. When he looked under the vehicle with the use of that flashlight, he saw a handgun at the front of the vehicle near the driver’s side bumper. The gun was found at approximately 12:12 a.m., prior to the arrival of ETF, the Canine Unit, or the forensic identification service (FIS) officers. Nobody touched it. D.C. Walker kept watch over the gun until FIS took charge of the scene. Photographs were taken of the firearm before it was moved. It was in the precise position where D.C. Walker described the suspect crouching at the front of the car. FIS proved the gun safe. There were five rounds of ammunition in the gun: four 9mm Luger manufactured by GECO and one 9mm manufactured by Remington. One of those rounds was in the chamber, ready to fire. Mr. Creary’s fingerprints were not found on the gun or the ammunition inside. This is not evidence that Mr. Creary never handled the gun; it is merely an absence of evidence proving that he did.

[46] D.C. Walker testified that he told the ETF and Canine officers about the suspect pointing a gun at him. There is no evidence to contradict that. He also discussed it with the FIS officers who arrived later to process the scene. This would normally be treated as a prior consistent statement and inadmissible. However, it is relevant and admissible on the issue of recent fabrication. I have considered it only for that purpose, and not to buttress the credibility of the officer.

[47] D.C. Walker was cross-examined extensively about whether he really saw a gun, or whether he just saw a flash of something that he thought might have been a gun. D.C. Walker was adamant that he saw a gun. I note that he immediately called out to the man behind the car, “I can see you. Drop the gun.” He was confronted on cross-examination with his testimony from the preliminary hearing when he said a number of times that he “believed” it to be a gun. I accept D.C. Walker’s testimony that he believed what Mr. Creary was pointing at him was a gun. I do not consider the use of the word “believe” as evidence that he was tentative about that conclusion. Of course, nobody could be sure it was a real gun until it was examined and test-fired. However, I accept D.C. Walker’s evidence that he saw what he honestly believed to be a gun in Mr. Creary’s hand and that the gun was pointing right at him. Indeed, the seizure and subsequent forensic examination of the gun found at the front bumper of the BMW establishes that it was a real gun.

[48] D.C. Walker was unable to say whether the person with the gun was wearing gloves. I do not find that surprising given the location of the person, the fact that he was crouched behind the car, and the poor lighting. D.C. Walker did not notice any jewellery on the individual with the gun. Mr. Creary was wearing a number of rings on his fingers and chains around his neck. Again, I do not find this surprising. Rings on fingers holding the grip of a gun would not likely be visible and there is nothing to suggest any of the chains were visible under the jacket Mr. Creary was wearing. Further, D.C. Walker candidly stated that, after he saw the gun, his eyes were trained on the gun and he saw little else. Again, unsurprising.

[49] D.C. Walker saw the gun for only a matter of seconds in poor light. I take nothing from the fact that, in those circumstances, he was unable to determine its colour, nor to say which part of the gun some light glinted across. I also draw no inference from the fact that D.C. Walker did not fire his own weapon at the man he saw. It was suggested to this officer in cross-examination that if in fact he had seen a gun, he would have opened fire. I reject that suggestion, as did D.C. Walker. He ordered the man to drop the gun, whereupon the man crouched back behind the car, then ran and vaulted the fence. I most certainly do not fault the officer for failing to shoot a fleeing man in the back, nor do I take any inference from his failure to do that. As D.C. Walker stated in his evidence, it is a “big leap from seeing a gun to killing another human being.” He said he was sure he saw the gun, which is why he ordered the man to drop it, but he was not sure he wanted to kill this person, something he had never done before. In my opinion, that is commendable conduct. D.C. Walker testified that it would take a few seconds to process a decision like that and, by then, the man had jumped the fence. The in-car video confirms that it was four seconds from when D.C. Walker ordered the suspect to drop the gun to when the suspect had jumped over the fence. D.C. Walker was candid about being shaken up and emotional about having a gun pointed at him in this manner, and said it was tough seeing the actual gun afterwards and talking to FIS about the bullet being in the chamber, and he took some time to sit in his cruiser and calm himself.

[50] I am sure D.C. Walker saw the gun in Mr. Creary’s hands and that Mr. Creary pointed it directly at him, before dropping it at the front of the car (as, indeed, he had been ordered to do by the officer). Mr. Creary then jumped the fence in an attempt to escape and hid in a nearby carport, where he was found soon after by ETF officers.

F. CONCLUSIONS

[51] For the reasons stated above, I am satisfied beyond a reasonable doubt that:

• the man D.C. Walker saw running south on Sackville was Keeron Creary;

• upon reaching Carleton, Mr. Creary ran east and hid between the front of the BMW parked in the driveway adjacent to 308 Carleton and the backyard fence;

• D.C. Walker saw Mr. Creary behind the car, and saw a gun in his hand;

• Mr. Creary pointed the gun at D.C. Walker;

• after being ordered to drop the gun, Mr. Creary did so, but he then jumped over the fence and fled through the yard, hiding in the nearby carport where he was later apprehended.

[52] Accordingly, I find Keeron Creary guilty on Count 4 (pointing a firearm at D.C. Walker). Clearly, he was also in possession of that firearm. The firearm was loaded and was a fully operational Walther 9 mm handgun. Mr. Creary did not have an authorization or license to possess it. He is therefore also guilty of possession of that loaded firearm contrary to s. 95(1) of the Criminal Code, as charged in Count 5. On the date in question, Mr. Creary was subject to a s. 110 prohibition order dated October 22, 2013. He was also on bail at the time, with a term that he not be in possession of a weapon. His possession of the firearm that night constituted a breach of the prohibition order and the recognizance, so I also find him guilty on Counts 7 and 9.

[53] Count 6 (possession of the same firearm contrary to s. 92(1) of the Criminal Code) is duplicative and is therefore stayed pursuant to the principles in R. v. Kienapple.[^10]

[54] Under Count 8, Mr. Creary is charged with being in possession of ammunition contrary to section 110 prohibition order made on August 14, 2018. Count 9 charges him with breaching a term of his recognizance that he not be in possession of a weapon or ammunition. The subject matter of both Counts 8 and 9 are the 11 rounds of ammunition found in Mr. Creary’s pants pocket at the time of his arrest. In R. v. Creary #2, I found this evidence to be admissible.

[55] At trial, and prior to the close of the evidence, defence counsel argued that the expert evidence tendered by the Crown failed to establish that the 11 bullets in Mr. Creary’s pants (as opposed to the five bullets that had been in the firearm) met the definition of real ammunition under the Criminal Code, capable of being fired. I find the reason for the objection to be technical. The expert who test-fired the ammunition did not appreciate that it came in two parts: 5 bullets from the gun and 11 bullets from Mr. Creary’s pants pocket. He lumped all of these 16 bullets together without differentiating them and without testing any of the 11 from the pants pocket. Upon discovering the nature of this objection, Crown counsel arranged for the expert in question to test this ammunition and to submit a supplementary report. He also made the officer available for cross-examination. I offered an adjournment to the defence if they were in any way prejudiced by the late disclosure of this evidence, but the defence declined. Defence counsel was unable to point to any way in which the defence case was prejudiced by the timing of this disclosure. I find this to be a mere oversight. If the nature of the objection had been appreciated earlier, a corrected report would have been filed and the defence would be in precisely the same position. In these circumstances, I permitted the supplementary evidence of the expert to be tendered at trial. There is no doubt this was actual live ammunition capable of being fired. Accordingly, I find Mr. Creary guilty on Count 8, as well as Count 9 which relates to both the ammunition and the weapon.

Released: August 25, 2021 Molloy J.

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEERON CREARY

Defendant

REASONS FOR decision

Molloy J.

Released: August 25, 2021

[^1]: See R. v. Creary #3, 2021 ONSC 4937. [^2]: See R. v. Creary #2, 2021 ONSC 4936. [^3]: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. [^4]: R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531. [^5]: R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at para. 63. [^6]: R. v. Khan (1988), 1988 7106 (ON CA), 42 C.C.C. (3d) 197, at p. 207, aff’d 1990 77 (SCC), [1990] 2 S.C.R. 531; Ratten v. The Queen, [1972] A.C. 378 (P.C.). [^7]: Khan, at p. 207, a; Nurse, at para. 80. [^8]: R. v. Andrews, [1987] A.C. 281, [1987] 1 All E.R. 513 (H.L.) at p. 520; Nurse, at paras. 84-85. [^9]: Mr. Creary was wearing three pairs of pants: blue jeans as the outer layer; black jeans under that; and basketball shorts under that. The bullets were in the pocket of the black jeans. [^10]: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.