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
(Attempted Murder and Related Charges)
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 not far 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: Point Firearm at Police Officer
R. v. Creary #2: Charter Applications: Exclusion of Evidence and Stay of Proceedings
R. v. Creary #3: Opinion Evidence of Firearms Expert
R. v. Creary #4: 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.
[6] In this decision, I will deal with the charges against Mr. Creary in relation to the shooting of Mr. Haselsteiner. In R. v. Creary #2, I dismissed Mr. Creary’s Charter applications. In R. v. Creary #1, I found Mr. Creary guilty of possession of a firearm, pointing that firearm at a police officer, possession of ammunition, and other related charges. For reasons stated in R. v. Creary #3, I accepted the evidence of a firearms expert and found that the firearm in Mr. Creary’s possession at the time of his arrest was the weapon used to shoot Mr. Haselsteiner less than an hour before. The issue now before me is whether I am satisfied beyond a reasonable doubt that Mr. Creary was the shooter.
[7] For the reasons set out below, I am not satisfied beyond a reasonable doubt that the person who shot at Mr. Haselsteiner intended to kill him, as alleged in Count 1. I am satisfied beyond a reasonable doubt that the person who shot Mr. Haselsteiner intended to wound him or endanger his life, as charged in Count 2. However, I cannot be sure that Mr. Haselsteiner was that person.
[8] Based on the circumstantial evidence before me I am satisfied that the only rational inference from the whole of the evidence is that Mr. Creary either was the shooter or that he knowingly transported the gun away from the scene of the crime in order to assist the shooter to avoid detection. This means that I cannot be satisfied beyond a reasonable doubt that Mr. Creary was the person who shot Mr. Haselsteiner, which is the more serious of the two offences. The more troublesome issue is whether he can be convicted of being an accessory after the fact, given that this offence was not specifically charged. For the reasons that follow, I find I have jurisdiction to amend the indictment to allege the less serious offence of accessory after the fact, and that there is no prejudice to the defence by such an amendment. Accordingly, I have made that amendment to Count 2 on the indictment and I find Mr. Creary guilty of being an accessory after the fact in respect to the offence committed by an unknown person of discharging a firearm with the intent of wounding Mr. Haselsteiner.
B. THE EVIDENCE
Eyewitness Testimony
[9] I heard testimony at trial from one witness (Jeanette High), who heard the shots fired, called 911, and then tended to the victim. I found her to be a reliable witness. However, although she heard somebody running south past her home immediately after the shooting, she did not see the shooter and cannot assist in identifying him or her.
[10] In addition, on consent, a number of statements taken from other eyewitnesses, including the victim, were filed as exhibits at trial. If those witnesses called 911, the recordings of those calls were also filed. Some of those eyewitnesses saw or heard the shooting; others saw a person running away from the area.
[11] Finally, Mr. Haselsteiner was interviewed by police while he was in the hospital, and those statements were also filed on consent. Mr. Haselsteiner died not long after his release from hospital.
[12] Initially, apart from the testimony of Ms. High, the Crown did not plan to rely upon any of these other eyewitness accounts. However, the defence sought to have them introduced, and the Crown agreed, provided the defence also agreed to Mr. Haselsteiner’s statement being filed. No concessions were made as to the ultimate reliability of any of these statements. As is typically the case with eyewitness testimony, there are significant differences among them, some observations that cannot possibly be correct, and other observations that are likely unreliable.
Testimony of Jeanette High
[13] Jeanette High was the only eyewitness to testify in person. She lived on Ontario Street, just south of where the shooting occurred. Shortly before midnight, she heard shots outside her home. She described five shots: the first two a little bit apart, a slight pause, and then three in rapid succession. At the time, she was in her living room near the front window that looks out over Ontario Street. She stood up and looked out the window. She could not see anything, but heard someone running south along the sidewalk immediately below her window. She said it sounded like only one person. Her cell phone was in her hand and she immediately called 911. That call was received by 911 dispatch at 23:53:39. Ms. High then went outside onto Ontario Street, still in her bare feet. She could not see anyone running south. The victim was on the ground. She stayed with him, or within sight of him, until the police arrived. Nobody else was with the victim during this time. Another man came out to see what was happening and she asked him to watch for the ambulance at the corner of Ontario and Wellesley Streets, which he agreed to do. The first emergency responder on scene was P.C. Kevin Walker from 51 Division of the Toronto Police Force (“TPS”), who arrived at 11:55:45 p.m. Jeanette High was the only other person there at the time. While the officer was tending to the victim, Ms. High returned to her home to get her shoes. As she was walking south on the west sidewalk, her toe connected with an object she discovered to be a shell casing. She drew this to the attention of a police officer on scene.
[14] I found Ms. High to be a reliable witness. Her testimony about the number of shots and about hearing a person running is consistent with other witnesses. The shell casing she stumbled upon was examined by the police. Four other casings were also found in the near vicinity, south of the victim, but north of Prospect Street, towards which the shooter is believed to have gone. Forensic expert evidence, which I accept as reliable, establishes that these bullets were fired by the gun later in the possession of Mr. Creary.[^2]
Mr. Haselsteiner’s Statement
[15] D.C. Matt Gerry interviewed Mr. Haselsteiner at the hospital on September 11, 2018. Because of the damage done by the gunshot wound to his neck, Mr. Haselsteiner was unable to speak. The officer asked him questions, and Mr. Haselsteiner wrote down his responses. D.C. Gerry testified that Mr. Haselsteiner had no difficulty understanding the questions asked. When asked if he was prepared to give a statement, Mr. Haselsteiner wrote, “Yes, but at the same time I did not see who was shooting at me so I don’t know how much help that would be.” D.C. Gerry then asked Mr. Haselsteiner if he remembered that night and in particular: (1) what he was doing; and (2) where he was going. In response to these written questions, Mr. Haselsteiner wrote, “I don’t even remeber (sic).” Notwithstanding these initial negative answers, Mr. Haselsteiner proceeded to provide quite a bit of information about what happened that night, but nothing with respect to the identity of the shooter.
[16] D.C. Gerry asked, “Do you remember if you were walking or riding a bike?” This elicited the following detailed information:
I was riding my bike. I stopped by the light set my bike down and was readjusting my bag and headphones when I realized someone was shooting at me. By the time I realized I was getting shot at 3 shots had been fired. Then I ran like 5 steps and another shot and then the fifth shot which hit me in the neck. [I] grabbed my neck and turned in the direction the shot came from but lost all power and fell to the ground. I was shaking a lot but told myself to stop in case whoever was shooting had more ammo. I wanted them to think I was dead so I lay as still as possible until I blacked out.
[17] When D.C. Gerry asked if he saw anyone shooting at him, Mr. Haselsteiner wrote:
No I didn’t. I assume they were crouched behind one of those planters. There’s a few along the street. Allows them perfect view of me and perfect cover of themselves from me.
[18] Although Mr. Haselsteiner had initially said he could not remember where he was coming from that night, when D.C. Gerry asked him again towards the end of the brief interview, Mr. Haselsteiner said he was coming from “the place where [he] was sleeping” and provided an address on Ontario Street.
[19] He answered in the negative when asked: if he knew anyone who would want to shoot him; if he had a recent falling out with anyone; if he shot back at the person shooting him; if anyone had threatened him; and if there was anything else he could remember about that day.
[20] At the end of the interview, Mr. Haselsteiner asked, “Who was the guy that got arrested under the vehicle?” D.C. Gerry told him it was Keevon (sic) Creary, and confirmed when asked that he was a suspect in the shooting and was being held in custody. D.C. Gerry testified that Mr. Haselsteiner looked confused upon hearing Mr. Creary’s name. He asked Mr. Haselsteiner if he knew Mr. Creary, but Mr. Haselsteiner shook his head indicating he did not.
[21] The police were unable to determine whether Mr. Haselsteiner had been staying at the Ontario Street address he provided. He was not on the lease for any unit at that address, but the landlord told police that there was a “problem tenant” in the basement unit who sometimes let people stay there.
[22] The particulars provided by Mr. Haselsteiner with respect to his bicycle, bag, and headphones are consistent with the location of those objects found on the scene by the police. He said there were five shots, which is consistent with the evidence of Jeanette High, the evidence of many other 911 callers, and the forensic evidence. Five spent shell casings were found at the scene. The firearm that fired those bullets, which was in the possession of Mr. Creary immediately after the shooting, had the capacity to hold ten cartridges. Only five cartridges were in it when Mr. Creary abandoned it under a car on Carleton Street.
Joshua Coward and Alaa Sounni
[23] At the time of the shooting, Joshua Coward and Alaa Sounni were together on the balcony of a high rise on Wellesley Street, with a view of Ontario Street. They heard the gunshots and saw the shooter and victim. They called 911. They can be heard exchanging information with each other during the call. Because they were together at the time and sharing information, I have considered their evidence together. Their memories and impressions may well be affected by this shared information at the time of the event.
[24] In her 911 call, Ms. Sounni was clearly very upset. She reported having seen a man get shot. The operator asked if she saw who had done this, and she said that they were “kind of far” and that she could not see the shooter’s face, but was “pretty sure” it was a man. She said that the shooter went south on Ontario Street. When asked, she said she could not tell if the shooter was white, black, or Asian and could not see clothing. Before giving those answers, she appears to have asked Mr. Coward if he knew. Mr. Coward’s voice can then be heard telling the operator that they just saw the victim shooting and then getting shot, but did not see the person the victim was shooting at. Mr. Coward had also called 911, but disconnected the call (presumably because Ms. Sounni got through first). The 911 operator called him back immediately, and he told her he had just seen somebody get shot. He said he did not see a suspect, and that he only saw the person who was shot shooting south down the street, who was himself then shot.
[25] Both Ms. Sounni and Mr. Coward gave separate formal statements to the police – Ms. Sounni on August 15, 2018 and Mr. Coward on August 16, 2018. Both were cautioned about the importance of telling the truth and the consequences of providing a false statement. Both gave their statements under oath, and both were audio and video recorded. There is no question in my mind that these were neutral parties doing their best to help the police and telling the truth as they perceived it. However, that does not mean that their observations were completely accurate at the time they were talking to the 911 operator, nor later when they gave statements to the police. This was a stressful situation, it was dark, and their observations were from a 17th floor balcony on Wellesley Street with a view of Ontario Street that was partially obstructed by trees.
[26] In her police statement, Ms. Sounni said that while she was sitting on the balcony with her friend Josh, they heard a single gunshot. They both stood up and looked down. She said she saw two people on Ontario Street facing each other. She said the first person was facing south, and the second person was facing north from a position four to five meters further south on Ontario Street. She said she initially saw the first person standing and shooting south. This was the person that wound up on the ground. She did not see a bicycle. She heard a total of five shots: one at first, a pause, and then four in quick succession. The first person fell to the ground, and the second person ran south on Ontario Street. Ms. Sounni said she was 90% sure that the victim was shooting south before he was himself shot, stating that she based that on his posture, his arms, and the light or spark she described seeing as the shots were fired. She did not know if the person had two arms outstretched, or just one. She also said she saw the “spark” from the very first shot (which I note is inconsistent with her own evidence that she and her friend were sitting down and not looking in that direction until they heard the first shot). The only description Ms. Sounni could give of the second man (who was firing at the victim) was that he was wearing dark clothing, including what she thought was a hoodie. With respect to the man who had been shot, she believed he was wearing a white hoodie. She said he was still for a while, and then started rolling his legs around. Ms. Sounni said that she had some familiarity with guns as an army cadet and from having fired guns at ranches in the United States. She said she was “pretty sure” that she heard two different sounds, from two different guns.
[27] Mr. Coward, in his statement to the police, confirmed that she and Ms. Sounni were sitting on the 17th floor balcony when they heard gunshots. He saw only one person on Ontario Street. He said this man was wearing dark clothing, but he could not see his face. He saw him standing beside a car, moving slowly, and firing south from behind the car. He did not remember if the man was using one or two hands when firing. After about four or five shots, that man was himself shot and fell to the ground. He said they did not have a clear view from the 17th floor and that there were a lot of trees in the area, but was “absolutely certain” he saw the victim firing a gun before he was shot.
[28] Both Ms. Sounni and Mr. Coward described seeing a third person who came out onto Ontario Street after the shots were fired and approached the victim lying on the ground. Ms. Sounni said that this person was dressed in black, explaining that she thought first it was a shadow and then realized it was a person. She did not see where this third person came from. Mr. Coward also mentioned this third person. He initially referred to this person as a man wearing a white shirt, but also said he was not sure if it was a “guy or a girl.” He thought this person could have been helping the victim. He said the third person arrived about five minutes after the victim went to the ground. He did not remember seeing the third person there after the police arrived, but was not sure.
Jim O’Hare
[29] Jim O’Hare called 911 at 23:56:08, just under three minutes after the call from Janette High. Mr. O’Hare was in his home near the intersection of Ontario Street and Prospect Street. Ontario Street is a north/south street and Prospect Street runs east/west from Ontario Street. Mr. O’Hare reported hearing five gunshots – three shots in succession, then a pause, and then two more. He said he saw a guy run east along Prospect and then run south on Rose Avenue “just seconds ago.” He described the man he saw as having dark skin. Initially he said the man was possibly Somalian. He then immediately corrected that himself, and said that the man was dark-skinned as if from India, rather than dark African skin. He said the man was wearing dark pants and a dark purple shirt and was “middle aged-ish.”
Analysis
[30] There were many 911 calls from people reporting the shooting. The majority reported hearing five shots, although a few put it at three to four shots. Several mentioned a gap between groups of shots, but the witnesses were inconsistent as to the number of shots before and after the pause. Police officers scoured the area after the shooting. Only five spent shell casings were found, all in the same approximate area on the east side on Ontario Street, about 115 feet south of where Mr. Haselsteiner was shot.
[31] The only people who actually saw the shooting itself were Ms. Sounni and Mr. Coward. I do not find their observations to be particularly reliable as to detail. For example, Ms. Sounni said the man who was shot was wearing a white hoodie, when in fact he was dressed in black. Both Ms. Sounni and Mr. Coward described a third person who approached the victim before police arrived. Ms. Sounni said the third man who arrived was dressed all in black. Mr. Coward also thought this was a man, but was unsure. Mr. Coward thought the person was wearing a white shirt. Neither Ms. Sounni nor Mr. Coward recalled this third person being there when the police arrived. Mr. Coward believed the third person arrived five minutes after the shooting. In fact, the first calls to 911 were at 11:53:59 and the first officer on scene received the call over his radio at 11:54. The officer was on scene at 11:55:45, about two minutes after the shooting. It is clear from the evidence that the person who approached the victim just before the police arrived was Jeanette High. She was wearing a light-coloured tank top. I am satisfied from the 911 evidence that Ms. High was outside checking on Mr. Haselsteiner within about 30 seconds of the shooting. She was definitely there when the first police car arrived, and she remained at the scene for several minutes thereafter. However, she did move to the side of the road at one point, and so might not always have been visible to people on the 17th floor balcony some distance away. Nothing turns on these discrepancies in Mr. Coward and Ms. Sounni’s recollections about the third person they saw. Time estimates are difficult under circumstances of great stress. Mr. Coward’s description of a man wearing a white shirt (as opposed to a woman in a light-coloured tank top) is not unreasonable given the lighting and the distance from which his observations were made. Obviously, these are honest witnesses. However, their recollection as to this third person is one aspect of their statements that can be verified by objective evidence. Given these inaccuracies, it is difficult to accept other aspects of their evidence for which there is no verification.
[32] One critical aspect of their recollections of this event is who was doing the shooting, in particular that there was an exchange of gunfire between Mr. Haselsteiner (shooting south) and another person (shooting north towards Mr. Haselsteiner). There is no other evidence to verify this perception, and it is inconsistent with other evidence, including the forensic evidence and the statement of Mr. Haselsteiner.
[33] There are many reasons for caution in accepting the truth or reliability of Mr. Haselsteiner’s statement to police. He gave that statement while in hospital and under medication. The statement was not given under oath or caution, and was not video-taped. Mr. Haselsteiner was a known drug addict and had a criminal record which included numerous crimes of dishonesty. Although he initially told the police he did not remember where he had been or where he was going that night, he later provided information about where he was coming from. That information might be true, but it could not be verified. As a drug addict, Mr. Haselsteiner may have been motivated to lie to the police about where he had been, where he was going, and why he was on Ontario Street that night. However, there are aspects of Mr. Haselsteiner’s evidence that are confirmed by objective forensic evidence. For example, he said he had been on his bicycle but had stopped by the light to readjust his earphones and his satchel. He was found lying beside the bike. His phone cord, phone, and satchel were also there. Mr. Haselsteiner described five shots: first three, then a pause, and then another two. The number of shots and the pause between shots is confirmed by other evidence. Mr. Haselsteiner said the shots were coming from south of him on the east side of Ontario and that the shooter may have been behind the planters there. That matches the forensic evidence as to where the five spent casings were found and Ms. Sounni’s account of the location of the man who was firing at Mr. Haselsteiner.
[34] From the pattern of blood found at the scene, it is apparent that Mr. Haselsteiner fell to the ground when he was shot, and was found still in that location. The forensic evidence supports a finding that there was only one shooter who fired five shots from the east side of Ontario Street, firing north towards Mr. Haselsteiner at a range of about 115 feet. Obviously, that is at odds with the eye-witness account of Ms. Sounni and Mr. Coward, both of whom said they saw Mr. Haselsteiner shooting and could see muzzle flashes coming from the gun he was firing. Mr. Haselsteiner clearly would have had a motive not to disclose to the police that he had been shooting at the person who shot him. There was no other gun at the scene by the time Ms. High arrived within a minute of the shooting, but that does not rule out the possibility that somebody removed it before then and fled. There were no other shell casings found or bullets found, but that does not rule out the possibility that they were missed in the search or that Mr. Haselsteiner used a weapon that did not eject shells. What is difficult to reconcile, however, is the number of shots fired. Clearly, based on the spent casings recovered, at least five shots were fired in the direction of Mr. Haselsteiner from the location south of him on the east side of Ontario Street. Many eyewitnesses, including Mr. Haselsteiner, Ms. Sounni and Mr. Coward, reported a total of five shots. It is highly unlikely that this was a shootout with Mr. Haselsteiner firing multiple shots south and the other shooter firing multiple shots north.
[35] I note that this detail of the victim having fired shots was not initially reported by Ms. Sounni to the 911 operator. She described a shooter to the south who fled further south on Ontario Street. It was Mr. Coward who then interrupted her and said that the victim was himself shooting and that “they” did not see another shooter. In her sworn statement to the police, Ms. Sounni repeated her recollection of seeing the man shooting the victim from a position further south on Ontario Street, but also said that she had seen Mr. Haselsteiner firing a gun in the direction of that other man. She and Mr. Coward both reported seeing muzzle flashes coming from a gun held by Mr. Haselsteiner. I am sure they saw muzzle flashes. However, given their position, the fact that Mr. Haselsteiner would have had his back towards them, and the proximity between Mr. Haselsteiner and the man who shot him, it is entirely possible that the witnesses are mistaken as to where the muzzle flashes were coming from. In particular, Ms. Sounni said she saw flashes coming from Mr. Haselsteiner’s gun from the very first shot, which seems impossible as she said they did not look down onto Ontario Street until after hearing the first shot. Mr. Coward may have believed Mr. Haselsteiner was the one shooting because he did not see anybody else, only recognizing that there was another shooter when Mr. Haselsteiner was shot. This may have coloured his perceptions, and his perceptions may have coloured those of Ms. Sounni, who was clearly deferring to him during her conversation with the 911 operator.
[36] Based on the whole of the evidence, and in the absence of any evidence to corroborate Mr. Coward and Ms. Sounni’s perceptions, I find it highly unlikely that Mr. Haselsteiner was shooting a gun at the person who ultimately shot him.
C. IDENTITY OF THE SHOOTER
The Evidence
[37] Before turning to the essential elements required to prove attempted murder, I have considered whether I am satisfied beyond a reasonable doubt that Mr. Creary was the person who shot Mr. Haselsteiner.
[38] Forensic evidence establishes that five shots were fired in the direction of Mr. Haselsteiner at approximately 11:53 p.m. on August 14, 2018, one of which hit him in the neck. All were fired from the same gun. The shooter fired from the east side of Ontario Street, approximately 115 feet south of where Mr. Haselsteiner fell to the ground after being shot.
[39] Of the three eye-witnesses to the shooting, none can identify the shooter. Mr. Coward did not see the shooter at all. Ms. Sounni was only able to say she saw dark clothing, which in itself is not reliable given that she was incorrect about the clothing worn by both Mr. Haselsteiner and Ms. High. Ms. Sounni said she saw the shooter running south down Ontario Street. That seems likely, although still subject to the frailties of Ms. Sounni’s ability to accurately observe these events from her vantage point. Ms. High heard someone running south on the east sidewalk of Ontario Street immediately after the shooting. However, she was unable to see the person running. It might simply have been a bystander who fled upon hearing or seeing the shooting. I am confident that the shooter did not run north, as he or she would have been seen by Mr. Coward and Ms. Sounni if that were the case, and possibly also by Ms. High when she came out onto the street. No cars left the street immediately after the shooting.
[40] The only other eye-witness to the shooting is Mr. Haselsteiner, who may or may not have been telling the truth about not being able to see the man who shot him. He said in his statement that he did not know Mr. Creary. D.C. Gerry, who took his statement, testified that Mr. Haselsteiner seemed surprised to hear that name. It is possible that Mr. Haselsteiner was lying about that. It is also possible that he did have some connection with Mr. Creary, but did not know his legal name. Mr. Haselsteiner said he did not know anyone who might have a grudge against him. Again, this might not be true. Mr. Haselsteiner might have had a motive to lie about the identity of his shooter. Since Mr. Haselsteiner has since died, we may never know the truth of that matter. However, as the evidence now stands before me, there is no direct evidence connecting Mr. Creary to Mr. Haselsteiner, nor placing him at the scene of the shooting.
[41] The question then is whether the circumstantial evidence connecting Mr. Creary to the shooting is sufficient to enable me to draw the inference that he was the shooter. That evidence consists of the following:
(a) Somebody, likely the shooter, ran south on Ontario Street;
(b) Immediately after the shooting, Mr. O’Hare saw a man running away from Ontario Street, going east on Prospect Street and then south on Rose Avenue;
(c) Mr. Creary was spotted running east out onto Sackville Street (south and east of the scene of the crime) at 11:57 p.m., within minutes of the shooting;
(d) At that time, Mr. Creary was in possession of the gun used to shoot Mr. Haselsteiner;
(e) Mr. Creary ran from and hid from the police;
(f) Mr. Creary had gun powder residue on his hands; and,
(g) Mr. Creary had a bag with 11 bullets in the pocket of an inside pair of jeans, which were the same in calibre, appearance, and manufacturer as the bullets fired at Mr. Haselsteiner and four of the five remaining bullets in the gun when it was recovered by the police.
Analysis: Not Guilty of Being a Party to the Offences Charged
[42] There are various ways in which Mr. Creary could have been a party to the offences charged in relation to the shooting of Mr. Haselsteiner. Section 21 of the Criminal Code provides:
21 (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
[43] There is no evidence connecting Mr. Creary to Mr. Haselsteiner. Although motive is not a required element of the offence charged, it can often be useful in supporting inferences with respect to identity. That is not possible in this case.
[44] Mr. Creary was running across Sackville Street when spotted by P.C. Walker and continued to flee south on Sackville. He then hid from P.C. Walker behind a car on Carleton Street, and fled from behind the car to over a fence when challenged by P.C. Walker. Further, he attempted to hide from other officers searching the area. The Crown relies on this conduct as circumstantial evidence of guilt. I do not agree that this evidence can be used as after the fact conduct supporting an inference of guilt in respect of the offences charged. I have not taken this conduct into account in determining whether Mr. Creary was the shooter. Mr. Creary had many reasons to run away from the police including: (1) he was on a recognizance for another offence; (2) there was a bench warrant for his arrest in 41 Division for another unrelated matter; (3) he was in possession of a weapon just used in a shooting; and (4) he had 11 rounds of ammunition in the pocket of one of his pairs of pants, in breach of his recognizance. Given these circumstances, it would be improper to draw any inference that the reason for his flight was that he had shot Mr. Haselsteiner.[^3]
[45] Mr. Creary had two grains of gun powder residue (“GSR”) on the back of his hand when he was examined at 51 Division after his arrest. Gun powder residue is left behind after a gun has been fired. However, it can easily be transferred from one source to another. Mr. Creary was in possession of the gun that shot Mr. Haselsteiner. That fact alone is sufficient to explain the residue. It does not mean that he was the one who fired the gun. He also could have picked up the residue in the course of being arrested by the ETF, or when he was searched at the roadside by officers who had recently handled their own guns. The presence of GSR in these circumstances is not determinative of whether Mr. Creary was the shooter. It can be taken into account as one piece of evidence in the overall constellation of circumstantial evidence, but given the situation here, it adds no weight.
[46] On the evidence before me, I cannot be satisfied beyond a reasonable doubt that the person who shot Mr. Haselsteiner was alone. Ms. Sounni only saw one person shooting in the direction of Mr. Haselsteiner and then running, and Ms. High only heard one person running south. However, there were parked cars, large planter boxes, and trees along the side of the street, all of which could have obscured the view of witnesses. Ms. High could not see who was running because of the runner’s position on the sidewalk. It is entirely possible that there was another person there who walked more quietly south next to the houses, or stepped into one of the houses on the street, or crossed quickly and unobtrusively to the other side of the street. None of these reasonable scenarios can be ruled out on the evidence before me.
[47] Given that I cannot be satisfied that the person who shot Mr. Haselsteiner was alone, it follows that I cannot be satisfied beyond a reasonable doubt that Mr. Creary was the shooter. It is entirely possible, indeed likely, that he was there, but that does not put the gun in his hand. Therefore, criminal responsibility for the shooting cannot be established beyond a reasonable doubt under s. 21 (1)(a) of the Criminal Code.
[48] Neither is it possible for me to be satisfied beyond a reasonable doubt that any person with the shooter would have known the shooter had a gun, or that he intended to shoot Mr. Haselsteiner, at any point before the shooting actually started. There is no known motive for the shooting and no reason to believe that Mr. Creary knew, or had any prior connection with, Mr. Haselsteiner. Therefore, if there were two people, there is no evidence from which I could conclude that they shared a common purpose so as to fix them both with criminal responsibility under s. 21(2).
[49] Likewise, if there was a second person there, there is no evidence as to what that person was doing, and therefore no basis for concluding that he or she was aiding or abetting the shooter within the meaning of ss. 21(1)(b) or (c).
[50] Therefore, I find there is no basis to convict Mr. Creary of being a party to the shooting perpetrated by another person on any of the bases provided for in Section 21 of the Criminal Code. Accordingly, I find that the Crown has failed to meet its onus of proving the offences charged under Count 1 (attempted murder), Count 2 (discharge firearm with intent to wound) and Count 3 (point firearm at Haselsteiner).
D. ACCESSORY AFTER THE FACT
Factual Findings
[51] Notwithstanding my findings on the counts charged in the indictment, I am convinced that there is a clear connection between Mr. Creary and the shooting of Mr. Haselsteiner. As I have already noted, the evidence connecting Mr. Creary to the shooting is entirely circumstantial. Before I can be satisfied of Mr. Creary’s guilt, I must find that there is a reasonable inference consistent with his guilt that can be drawn from the evidence, and that on the whole of the evidence there is no available rational inference inconsistent with that guilt.[^4] I am satisfied that this test is met.
[52] At 11:57 p.m., a police officer saw Mr. Creary running east onto Sackville Street, moving in a direction away from where the shooting occurred. That location is approximately six blocks from the scene of the shooting. At that time, just four minutes after the shooting, Mr. Creary was in possession of the gun used to shoot Mr. Haselsteiner.
[53] It is possible that Mr. Creary was the person Mr. O’Hare saw running east along Prospect and south down Rose Avenue immediately after the shooting. The timing and direction of that flight would fit with Mr. Creary emerging onto Sackville at 11:57 p.m. I appreciate that the age, skin shade, and clothing colour are not a perfect match to Mr. Creary. However, it was dark, the man running was moving quickly, and it was a stressful situation. Obviously, the details are not sufficiently consistent to conclude it was definitely Mr. Creary that Mr. O’Hare saw, but under the circumstances, I find that the discrepancies do not necessarily rule out Mr. Creary.
[54] However, regardless of what specific route Mr. Creary took, within four minutes of the shooting he and the gun were six blocks away, south and east of the scene of the crime. In my view, the inescapable conclusion is that Mr. Creary was running from the scene of the crime, or from a location very close to it. Any possible innocent explanations for Mr. Creary’s possession of the gun (e.g. he picked it up from the ground without knowing where it came from, or a stranger passed it to him without any request for assistance) are negated by the presence of the 11 bullets in Mr. Creary’s pocket. Those bullets were identical in calibre and appearance to nine of the bullets originally in the gun (all five that were fired at Mr. Haselsteiner and four of the five that were still in the gun). Those bullets were not in Mr. Creary’s jacket or in his readily accessible outer pants pocket. They were in a pocket of a second pair of pants worn under his exterior pants. In my view, the presence of those 11 bullets cannot be a mere coincidence. The bullets link Mr. Creary to the gun in a manner that goes beyond him finding the gun from happenstance. I find there are only two rational inferences that can be drawn from the whole of the evidence – either Mr. Creary was himself the shooter, or he was knowingly assisting the shooter by running away from the scene with the “smoking gun.”
[55] Being an accessory after the fact to an offence is itself a crime, pursuant to s. 463 of the Criminal Code. Section 23(1) of the Criminal Code defines an accessory after the fact to an offence as “one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.” Disposing of, or hiding, key evidence relating to an offence assists the perpetrator to escape detection and meets the definition of accessory after the fact.[^5] A person can be convicted of being an accessory after the fact without anybody having been convicted of the crime itself.[^6]
[56] If the principal perpetrator of the offence is liable to a life sentence, a person who is an accessory after the fact to that offence is guilty of an indictable offence and liable to imprisonment to a maximum of 14 years.[^7] If the main offence is one for which the perpetrator would be liable to a maximum sentence of 14 years, an accessory after the fact to that offence is guilty of an indictable offence and liable to imprisonment for a term that is one-half the longest term to which a person guilty of the main offence would be liable.[^8]
[57] There are three charges on the indictment relating to the shooting of Mr. Haselsteiner: Count 1 (attempted murder by wounding with a firearm); Count 2 (discharge firearm with intent to wound or endanger life); and Count 3 (point firearm). Clearly, the shooter did more than point a firearm at Mr. Haselsteiner. He discharged the firearm five times, hitting him once in the neck. Therefore, Count 3 is subsumed within the other two counts. On the evidence before me, I am not satisfied beyond a reasonable doubt that the shooter had the necessary specific intent to kill Mr. Haselsteiner. I do not know the motivation for the shooting. The wound to Mr. Haselsteiner’s neck could easily have been fatal, and likely would have been but for the prompt intervention of the police officer and paramedics who first arrived on scene. However, the shooter was over 100 feet away and only one of the five shots hit Mr. Haselsteiner. In these circumstances, I am not convinced that the shooter was specifically targeting an area of the body likely to, or designed to, kill Mr. Haselsteiner. I do not agree with the Crown submission that there is an available inference that the gap between the two groups of shots is evidence of deliberation supporting the charge of attempted murder. I have no way of knowing why there was a gap of a few seconds. The reasons could have been completely inconsequential. It would be speculative to attribute those few seconds to the formation of the specific intent to murder. I would therefore not have convicted the shooter of attempted murder. However, I have no doubt whatsoever that the shooter intended to wound Mr. Haselsteiner. If I had been satisfied that Mr. Creary was the shooter, I would have convicted him under Count 2 (discharging a firearm with intent to wound). Although I cannot be satisfied that he is the shooter, I am satisfied beyond a reasonable doubt that, at a minimum, he removed the weapon used to commit the offence and attempted to hide it from police, with a view to assisting the shooter to escape liability for the offence.
[58] The defence relied on the Ontario Court of Appeal’s 1998 decision in R. v. Duong[^9] as authority for the proposition that before a person can be convicted of being an accessory after the fact, the evidence must establish that he had knowledge of the specific offence committed by the principal. The 1998 decision in Duong must be read in conjunction with the Court of Appeal’s subsequent 2001 decision in that same case.[^10] The case relates to two homicides committed in 1993 which were allegedly committed by Chinh Lam. There was press coverage linking Mr. Lam to both homicides. Mr. Lam was a friend of Mr. Duong. He called Mr. Duong and asked if he could stay in Mr. Duong’s apartment because he was “in trouble for murder” and had no place to go. Mr. Duong agreed to that request. Two weeks later, acting on a tip as to Mr. Lam’s whereabouts, police raided Mr. Duong’s apartment and found Mr. Lam hiding in one of the bedrooms. Mr. Lam was charged with murder and was convicted at trial. Mr. Duong was charged with being an accessory after the fact to murder. Mr. Duong told the police that he knew Mr. Lam was in trouble for murder but did not ask him anything about the offence.
[59] By the time of Mr. Duong’s trial, Mr. Lam had been convicted of murder, but had filed an appeal from that conviction. The Crown filed the record of Mr. Lam’s conviction, even though it was under appeal, and the trial judge held the conviction to be sufficient proof of the underlying offence. Mr. Duong did not testify. He appealed on the grounds that the underlying murder offence had not been properly proven and that the trial judge had erred in applying the doctrine of wilful blindness to fix Mr. Duong with knowledge of that underlying offence.
[60] In Duong 1998, the Court of Appeal held that the Crown must prove that the accused had knowledge of the specific underlying offence, rather than “a more generalized knowledge that the principal had committed some crime.” However, the Court also held that wilful blindness could be used to fix the accused with that knowledge, and further that this principle applied to Mr. Duong on the circumstances of the case. With respect to the proof of the underlying offence, the Court of Appeal deferred that aspect of its decision until Lam’s appeal was determined.
[61] By the time Duong 2001 was heard in the Court of Appeal, Mr. Lam’s murder conviction had been quashed and a new trial ordered. At that trial, Mr. Lam pleaded guilty to, and was convicted of, two counts of manslaughter. The issue was whether Mr. Duong’s conviction for accessory after the fact to murder could stand, as it had originally been based on Mr. Lam’s conviction for murder. The Court of Appeal held that Mr. Duong made a tactical decision at trial not to challenge the facts underlying the murder charge against Mr. Lam and the situation would have been no different if Mr. Lam’s conviction for manslaughter had been led. Accordingly, the Court amended the indictment to charge Mr. Duong with accessory after the fact to manslaughter, and substituted a conviction for that offence.
[62] I accept that Duong makes clear that knowledge of the underlying offence, rather than generalized knowledge of criminal conduct, is an essential element of the accessory after the fact offence. However, as also demonstrated in Duong, wilful blindness will apply to attribute knowledge if the accused is in a situation where he has been put on notice of the wrongdoing and deliberately avoids acquiring the information. I am satisfied beyond a reasonable doubt that Mr. Creary was at or near the scene of the crime and knowingly fled with the gun that had just been used in a shooting. If he did not have specific knowledge of the precise offence committed, he had sufficient notice of its nature to require him to make inquiries. Further, it is an inescapable conclusion that he knew that the gun had been used in a shooting. In my opinion, that is sufficient. There is no requirement that he be fixed with the knowledge that the discharge of the firearm was with the intent to wound Mr. Haselsteiner.
[63] Accordingly, if the indictment had included a count of being an accessory after the fact to the offence of an unknown person discharging a firearm with the intent to wound Mr. Haselsteiner, I would have convicted Mr. Creary on that charge.
Amending the Indictment
[64] Clearly, discharging a firearm with intent to wound is a more serious offence than being an accessory after the fact to that offence. The principal offence attracts a potential sentence of 14 years in prison, whereas the accessory offence is subject to a maximum of only seven years. However, the accessory offence is not a lesser included offence within the discharge firearm offence, and it is not specifically charged on the indictment. The question is whether I have the jurisdiction to amend the indictment to allege this offence.
[65] I raised this issue with counsel during the course of the trial. Crown counsel took the position that I have the jurisdiction to make such an amendment and should do so to conform to the evidence at trial and my factual findings on that evidence. Defence counsel argued that I cannot amend the indictment in circumstances that result in adding an offence not originally charged.
[66] I am persuaded by the argument of the Crown that I do have the jurisdiction to amend in the circumstances before me. That jurisdiction flows from s. 601(2) of the Criminal Code, the relevant portion of which states:
601 (2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein … to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and
(a) a count in the indictment as preferred;
[67] The language of this section is clearly discretionary, and is to be contrasted with other provisions which direct that the Court shall make an amendment in certain situations (which do not apply here). There are also provisions which apply to how the discretion to amend should be exercised, notably ss. (4) and (5) as follows:
(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider
(a) the matters disclosed by the evidence taken on the preliminary inquiry;
(b) the evidence taken on the trial, if any;
(c) the circumstances of the case;
(d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and
(e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.
[68] The Crown theory prior to and throughout the trial was that Mr. Creary shot Mr. Haselsteiner, intending to kill him. Alternatively, the Crown alleged that Mr. Creary shot at Mr. Haselsteiner with an intent to wound him. It was always the Crown’s position that Mr. Creary acted alone and that he fled the scene immediately following the shooting, taking the gun with him.
[69] Mr. Creary pleaded not guilty. He elected not to testify. As the trial evolved, it was apparent that the defence was relying on an alternate suspect. It was at the behest of the defence that the Crown agreed to enter into evidence many of the statements of 911 callers, as I referred to above. The defence relied on different descriptions of the man seen on Ontario Street and the man by Mr. O’Hare to assert that this could not have been Mr. Creary. The defence also relied on the fact that the TPS Canine Unit continued to search for a possible second suspect even after Mr. Creary had been arrested. Further, the defence position was that Mr. Creary was never in possession of the gun, was not the man seen by D.C. Walker running across Sackville Street, and was not the person pointing a gun at D.C. Walker from behind the car in the driveway on Carleton Street. In R. v. Creary #1,[^11] I found that Mr. Creary was the man D.C. Walker saw running across Sackville Street, that Mr. Creary had the gun in his possession, that he pointed that firearm at the officer, and that he then abandoned that weapon under the parked car where he had been hiding when he again fled. This was the gun used to shoot Mr. Haselsteiner.[^12]
[70] I do not accept the defence argument that there is sufficient evidence on a criminal standard of proof to support the conclusion that somebody other than Mr. Creary shot Mr. Haselsteiner. However, given the absence of direct evidence identifying Mr. Creary as the shooter, I accept the possibility that Mr. Creary did not act alone, and I am therefore not able to be certain that he was the shooter.
[71] In R. v. Kelly, the Ontario Court of Appeal held that the Crown is “not bound to prove its case according to any factual or legal theory.”[^13] It is open to the Crown to advance alternative theories of liability throughout, or to advance a theory of liability at the end of the trial that accords with the evidence. This general proposition may yield to concerns about trial fairness if particular undertakings or other particulars are provided by the Crown, the defence relies upon these particulars, and is then prejudiced. However, as a general rule, the Crown is not bound by any particular theory of liability. As stated by Doherty J.A. at para. 31:
The defence must be taken to know that liability depends on an application of the applicable legal principles to the evidence. There is nothing per se unfair in the Crown relying on different or alternate theories of liability, as long as each is rooted in the evidence. The argument that the Crown should be bound by the particular theory it advances is essentially an argument in favour of a formalistic pleadings-type approach to criminal justice, or perhaps a plea for the return of the now discredited “sporting theory” of criminal justice. The contemporary approach favours the adjudication of criminal allegations on their merits.[^14]
[emphasis added]
[72] The approach taken in Kelly is consistent with the Court of Appeal’s earlier reasoning in R. v. Irwin,[^15] dealing specifically with the jurisdiction of a trial judge to amend an indictment under s. 601(2) of the Criminal Code. In Irwin, the Court of Appeal rejected the argument that the amending power under s. 601(2) could not be used to substitute a different charge for a charge on the original indictment. Doherty J.A. held that broad powers of amendment served two important goals: (1) the determination of criminal cases on their merits, in so far as this can be done consistently with procedural fairness; and (2) avoiding a multiplicity of proceedings arising out of a single event or transaction.[^16] In holding that an amendment could change the offence charged to a different Criminal Code offence, Doherty J.A. noted that there were earlier cases taking the contrary view. However, notwithstanding those cases, he held, at paras. 25-26:
On a plain reading, the section contemplates any amendment which makes a charge conform to the evidence. The limits on that amending power are found, not in the nature of the change made to the charge by the amendment, but in the effect of the amendment on the proceedings, and particularly, on the accused's ability to meet the charge. The ultimate question is not what does the amendment do to the charge, but what effect does the amendment have on the accused?
I see no useful purpose in absolutely foreclosing an amendment to make a charge conform to the evidence simply because the amendment will substitute one charge for another. As long as prejudice to the accused remains the litmus test against which all proposed amendments are judged, it seems unnecessary to characterize the effect of the amendment on the charge itself. If the accused is prejudiced, the amendment cannot be made regardless of what it does to the charge. If no prejudice will result from the change, why should it matter how the change to the charge is described?
[emphasis added]
[73] Part of the reasoning in Irwin is the importance of avoiding multiple proceedings. Under s. 609(1)(b) of the Criminal Code, an accused is entitled to plead autrefois acquit or autrefois convict in a subsequent trial if he might have been convicted in the first trial “if all proper amendments had been made that might have been made.” If I am not able to amend the indictment now to charge Mr. Creary with accessory after the fact, then the Crown could charge him again, this time with the offence of being an accessory after the fact to the discharge firearm offence upon which I have acquitted him in this trial. Essentially the same issue would have to be tried again on all the same evidence. This is not consistent with the principle that all matters arising from an event should be dealt with in one proceeding wherever possible.
[74] Further, in my view it is clear on the evidence that Mr. Creary is guilty of the accessory charge. He should not escape all liability on that charge merely because it was not specifically included in the original indictment as drafted, the Crown at that time not having contemplated the possibility of there being a second person at the scene of the shooting.
[75] Accordingly, I am satisfied that I have the jurisdiction to make the amendment now sought, in the alternative, by the Crown. It is clear that my discretion in that regard must take into account any issues of unfairness to the accused. If the accused has been prejudiced in his conduct of his defence in this trial because of the amendment, and if that prejudice cannot be remedied, then the amendment should not be made.
[76] In my opinion, there is no such prejudice. There was no jury in this case. Defence counsel did not seek to introduce any different evidence to address this issue, nor was it suggested that any of the cross-examination would have proceeded differently if the accessory charge had been on the indictment. Defence counsel did assert that it might have been relevant to the decision of the accused not to testify. I find no merit in that assertion given that the accused would have had to admit being in possession of a loaded firearm. His defence throughout was based on identity: he was not the man whom D.C. Walker chased; he was not the man who hid behind the car on Carleton Street; he was not the man who pointed a firearm at D.C. Walker; and he was never in possession of that firearm. Simply asserting that there is prejudice in that regard; there must be some logic to the assertion. As noted in Duong:
Appellant’s counsel contends that Lam’s subsequent convictions for manslaughter put the appellant in a better position to contest Lam’s culpability for even the offence of manslaughter. Counsel suggests that Lam may now be “a compelling witness for the defence” and that the appellant “may take a different view of testifying”.
Nothing was placed before the court that would raise either of these submissions beyond the level of pure speculation. I see no reason to assume that were Lam to testify he would contradict his pleas to the charges of manslaughter. Nor do I understand how the fact that Lam was convicted of manslaughter rather than murder would alter the appellant’s decision not to testify. At trial, the appellant was faced with evidence that he had admitted knowing that Lam was involved in a killing and that he knew he would be in trouble for hiding Lam. He chose not to testify. The fact that Lam now stands convicted of manslaughter rather than murder does not change the nature of the decision the appellant had to make at the end of the Crown’s case.[^17]
[77] I find that there is no prejudice or procedural unfairness to the accused if I amend the indictment to reflect a charge of being an accessory after the fact to the charge now asserted in Count 2. On the contrary, in my view it is in accordance with the interests of justice that such an amendment be made. Therefore, I will make that amendment.
E. CONCLUSIONS
[78] I find Mr. Creary not guilty on Counts 1 and 3. Count 2 is amended as stated above. I find Mr. Creary guilty on the amended Count 2 of being an accessory after the fact in respect of the offence of an unknown person discharging a firearm with the intent to wound Mr. Haselsteiner.
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]: R. v. Creary #3, 2021 ONSC 4937 (Expert Evidence); R. v. Creary #1, 2021 ONSC 4935 (Firearm Possession). [^3]: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para.27. [^4]: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. [^5]: R. v. Knott, [2006] O.J. No. 886 (S.C.), at para. 14; R. v. McRae, 2005 CanLII 26592 (ON CA), [2005] 77 O.R. (3d) 1. (C.A.), at para. 4; R. v. Dhillon, 2017 ONSC 900, at paras 146-147. [^6]: Criminal Code, s. 592. [^7]: Criminal Code, s. 463(a). [^8]: Criminal Code, s. 463(b). [^9]: R. v. Duong (1998), 1998 CanLII 7124 (ON CA), 39 O.R. (3d) 161 (C.A.) (“Duong 1998”). [^10]: R. v. Duong (2001), 2001 CanLII 21276 (ON CA), 160 C.C.C. (3d) 467 (C.A.) (“Duong 2001”). [^11]: R. v. Creary #1, 2021 ONSC 4935. [^12]: R. v. Creary #3, 2021 ONSC 4937. [^13]: R. v. Kelly, 2017 ONCA 920, 138 O.R. (3d) 241, at para. 30. [^14]: Ibid, at para. 31. [^15]: R. v. Irwin (1998), 1998 CanLII 2957 (ON CA), 38 O.R. (3d) 689 (C.A.). [^16]: Irwin, at paras. 8-11. [^17]: Duong 2001, at paras. 22-23.