COURT FILE NO.: CR-20-300000022

DATE: 20210910

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Mahad Jama Ibrahim

Caolan Moore, for the Crown

Jennifer Penman, for the Defendant

HEARD: June 21, 22, 25, 2021

REASONS FOR JUDGMENT

NISHIKAWA J.

Overview and Factual Context

[1] In the early morning hours of December 18, 2018, police received reports of a gunshots in the area of 106 Crittenden Square in Scarborough.

[2] The defendant, Mahad Jama Ibrahim, was found lying in the backyard of 108 Crittenden Square by Jason Desousa, a resident of Crittenden Square. Mr. Ibrahim was shot in the abdomen and was bleeding. He was speaking to a 911 dispatcher on his cell phone.

[3] A few minutes later, Police Constable Michael Clarke, responding to a call regarding a shooting, arrived on scene. When PC Clarke was attending to Mr. Ibrahim, he observed a firearm on the ground by Mr. Ibrahim. PC Clarke directed Mr. Ibrahim not to move and picked up the firearm. The firearm contained two active rounds. After the paramedics arrived, Mr. Ibrahim was rushed to the hospital.

[4] Police located a total of 20 spent shell casings in three different locations around 104 and 106 Crittenden Square. The firearm found near Mr. Ibrahim was later found to have discharged nine rounds at the scene.

[5] At the time, as a result of previous Criminal Code convictions on January 27, 2010 and on April 13, 2013, Mr. Ibrahim was subject to two s. 109(3) orders prohibiting him from possessing weapons for life.

[6] Mr. Ibrahim stands charged with the following offences:

• Intentionally discharging a firearm, namely a handgun, while being reckless as to the life or safety of another person, contrary to s. 244.2(1)(b) of the Criminal Code;

• Unlawful possession of a loaded prohibited firearm, namely a handgun, without being the holder of an authorization or licence permitting such possession, contrary to s. 95(1) of the Criminal Code;

• Unlawful possession of a prohibited firearm while knowingly not being the holder of a licence permitting such possession, contrary to s. 92(3) of the Criminal Code;

• Possession of a prohibited device, namely a handgun, for a purpose dangerous to public peace, contrary to s. 88(1) of the Criminal Code; and

• Two counts of unlawful possession of a firearm, namely a handgun, while prohibited from doing so by reason of an order under s. 109(3) of the Criminal Code, contrary to s. 117.01(1) of the Criminal Code.

Issues

[7] The main issues in this case are as follows:

(a) Whether Mr. Ibrahim had knowledge and control of the firearm and therefore had it in his possession; and

(b) Whether Mr. Ibrahim intended to discharge the firearm and was reckless to the life and safety of people around him.

[8] The Crown’s position is that the direct and circumstantial evidence lead to only one conclusion: that Mr. Ibrahim was in possession of the firearm and discharged nine rounds from the firearm during a gunfight with other unidentified individuals that night.

[9] The defence disputes that the only reasonable inference available is guilt. It is undisputed that if Mr. Ibrahim is found to have been in possession of the seized firearm, he was in breach of the two orders prohibiting him from possessing a firearm.

Analysis

The Applicable Principles

[10] It is important to note at the outset that Mr. Ibrahim is presumed innocent. The Crown bears the burden of proving the elements of the offences charged beyond a reasonable doubt. The reasonable doubt standard is a high standard. It is not sufficient to prove that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, which would be impossibly high.

Assessing the Evidence

[11] Where, as here, the Crown’s case rests on circumstantial evidence, the question is whether the trier of fact could reasonably be satisfied that the accused’s guilt is the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 100, at para. 55. In Villaroman, at para. 35, the Supreme Court held that “[i]n assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” because such a requirement wrongly puts an obligation on an accused to prove facts. If reasonable inferences other than guilt are available, the Crown’s evidence does not meet the standard of proof beyond reasonable doubt.

[12] A gap in the evidence may result in inferences other than guilt. However, “those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.” Villaroman, at para. 36.

[13] Other plausible theories or other reasonable possibilities must be based, not on speculation, but on logic and experience applied to the evidence or the absence of evidence. In Villaroman, the Supreme Court acknowledged that the line between a plausible theory and speculation is not always easy to draw. “[T]he basic question is whether the circumstantial evidence viewed logically and in light of human experience is reasonably capable of supporting an inference other than that the accused is guilty.” (at para. 38).

[14] Similarly, the Court of Appeal has recently held, in R. v. Ali, 2021 ONCA 362, at para. 97, that “[a]n inference of guilt drawn from circumstantial evidence must be rooted in the evidence and must be the only reasonable inference available on the totality of the evidence.” In determining whether the Crown has met that burden in a circumstantial evidence case, the jury may apply its logic and common sense to the totality of the evidentiary picture, including gaps in that picture, and consider whether other reasonable possibilities not only exist, but preclude a finding that an inference of guilt is the only reasonable inference available: Ali, at para. 98.

The Evidence

[15] At trial, the Crown called as witnesses PC Michael Clarke, PC Jean-Guy LaFrance, DC Leslie Wyard and DC Scott Aikman. The Crown also called three residents of Crittenden Square, Justin Desousa, Linda Bluthner, and Shannon Miller. The defence called no evidence.

Justin Desousa

[16] Justin Desousa and his spouse, Linda Bluthner, live across the street from 106 Crittenden Square. On December 18, 2018, Mr. Desousa was watching television in the living room, which is at the front of their house. Ms. Bluthner had gone upstairs to bed. Mr. Desousa heard what he believed to be gunshots. He jumped up from his chair and looked out the front window. Mr. Desousa saw a silver-grey Nissan with its headlights on, facing the street, in the driveway of 104 Crittenden Square. Mr. Desousa ran upstairs and threw the phone to Ms. Bluthner. He told her there was a shooting and to call 911.

[17] On examination in chief, Mr. Desousa testified that when he looked out his front window, he saw two individuals shooting guns and that he saw the outline of the guns. Mr. Desousa had not previously given this evidence in his statement to police or at the preliminary inquiry.

[18] On cross-examination, Mr. Desousa admitted that he had not previously advised police that he had seen two individuals shooting guns and that this would have been a significant fact. Mr. Desousa admitted that if he had seen two people shooting at each other, he would have told the police. Mr. Desousa accepted defence counsel’s suggestion that over time, his memory may have filled in certain gaps. He admitted that he was not 100 percent sure that he saw two people shooting. Mr. Desousa testified that it had been a traumatic event and that he had nightmares after the occurrence.

[19] After Mr. Desousa told Ms. Bluthner to call 911, he went outside to the end of his driveway. By then, the Nissan was gone. Once outside, Mr. Desousa heard what he believed to be moaning. He crossed the street to 106 Crittenden Square and went in the direction of the sound, to the backyard of 108 Crittenden Square. The backyard was overgrown with brush. Mr. Desousa pulled out his cellphone to use the flashlight. Eventually, Mr. Desousa found Mr. Ibrahim lying on the ground near a shed in the backyard of 108 Crittenden Square. Mr. Desousa could not get closer to Mr. Ibrahim because of the fence and overgrowth.

[20] Mr. Ibrahim was on a cell phone with 911, using the speaker. Mr. Desousa testified that Mr. Ibrahim had the phone in one hand and his other hand was holding his lower abdomen area, where he was bleeding. Mr. Desousa was not certain whether Mr. Ibrahim dropped the phone at some point.

[21] The recording of the 911 call made by Mr. Ibrahim (the “911 recording”) was entered into evidence. The recording is 6 minutes and 41 seconds long. Mr. Ibrahim communicated with the 911 dispatcher but was unable to provide useful information about his location or injury. When asked for his name, he said he did not know.

[22] Mr. Desousa, who recognized his voice on the 911 recording, could hear the dispatcher and responded to her questions. Mr. Desousa provided the address, Mr. Ibrahim’s status and the location of his injury. He is heard reassuring Mr. Ibrahim, telling him that help is on the way. When the dispatcher asked Mr. Desousa what happened, Mr. Desousa stated that he had “no idea.” Mr. Desousa explained that his response might have been as a result of “adrenaline.”

[23] When he saw flashing red lights, Mr. Desousa went to the front of 108 Crittenden Square. He waved his hands to direct the police vehicle. When PC Clarke came out of the vehicle, he led him to the backyard of 108 Crittenden Square to show him where Mr. Ibrahim was. A few seconds after PC Clarke came upon Mr. Ibrahim, Mr. Desousa heard him say that Mr. Ibrahim had a gun. He then left the backyard to return to the front of 108 Crittenden Square to await emergency services. Mr. Desousa testified that he had not seen a gun at any point. When he went back with PC Clarke, he did not see Mr. Ibrahim or his hands, because PC Clarke was in front of him.

[24] Toward the end of the 911 recording, Mr. Desousa is heard again when he returns with PC Clarke. He advises the 911 dispatcher that a police officer arrived and was attending to Mr. Ibrahim.

[25] I do not accept Mr. Desousa’s testimony that he saw two shooters when he looked out of his window. His evidence on this point is not reliable because he failed to mention it previously when it would have been important to recount it. On cross-examination, Mr. Desousa admitted to the frailties of his memory and that over time, he may have filled in gaps.

[26] The fact that Mr. Desousa gave inconsistent testimony about having seen two shooters does not negatively affect my assessment of his credibility. Mr. Desousa was a very credible witness who attempted to answer all of the questions to the best of his ability. He readily acknowledged that he had not previously provided the information about having seen two shooters and that his memory may have filled in gaps over time. He had no reason to fabricate or to alter his testimony. Mr. Desousa’s only involvement in the incident was to try to render assistance. He ran out of his house because he believed that someone might be hurt as a result of the exchange of gunfire. Other than his testimony that he saw two shooters, I Mr. Desousa’s evidence, which is also largely corroborated by the 911 recording.

Linda Bluthner

[27] Ms. Bluthner testified that on December 18, 2018, she had taken her medication and gone upstairs to bed. She was lying in bed when she heard “popping” sounds, which she thought was a car back-firing. Mr. Desousa then came into the room and told her it was gunfire. He threw her the phone and told her to call 911.

[28] As she was calling 911, Ms. Bluthner went to look out the window. She saw a man run from the backyard of 108 Crittenden Square, across the driveway and across the yard to the next house. He got into the driver side of the grey/dirty white vehicle that was in the driveway, and drove off. This was the vehicle that Mr. Desousa had identified as a Nissan. Ms. Bluthner could not see if the man had anything in his hands or whether there was anyone else in the car.

[29] At some point, Mr. Desousa told Ms. Bluthner that he found someone behind 108 Crittenden Squre and Ms. Bluthner conveyed this to 911 dispatch.

[30] Ms. Bluthner was also a very credible witness. Her testimony was not shaken on cross-examination. She candidly acknowledged that she did not see clearly out of her window because she did not have her eyeglasses. I accept her evidence.

Shannon Miller

[31] Shannon Miller resided at 104 Crittenden Square. She was awoken in the early morning hours of December 18, 2018 by what she believed were gunshots. She looked at the clock and saw that it was 1:28 a.m. Ms. Miller testified that she heard five to six continuous shots. Ms. Miller went to check on everyone in the home. By the time she was going to call 911, police and emergency services had arrived.

[32] Ms. Miller testified that the following morning, she had to clean up the broken glass that was on the driveway. She testified that the broken glass was not there when she came home from work around 5:30 p.m. or when she went out to walk the dog at approximately 11:00 p.m.

[33] Both Mr. Desousa and Ms. Bluthner testified that the grey/white vehicle they saw parked in the driveway of 104 Crittenden Square on the night of the incident was a vehicle that they had previously seen at that address or on the street. Ms. Miller testified that other than her own 2015 silver Nissan Altima, she did not know anything about a white Nissan regularly parking in her driveway. While there is a discrepancy in the evidence, nothing turns on this evidence.

PC Michael Clarke

[34] At approximately 1:30 a.m. on the night of December 18, 2018, PC Michael Clarke responded to a call reporting gun shots in the area of 106 Crittenden Square. PC Clarke arrived in three minutes. PC Clarke testified that when he got there, Mr. Desousa motioned to him to the backyard of 108 Crittenden Square, which was dark and looked abandoned.

[35] PC Clarke testified in chief that he made his way into the backyard of 108 Crittenden Square on his own. On cross-examination, PC Clarke maintained that Mr. Desousa did not go with him to the backyard. When he got to the backyard, he could hear moaning and groaning. PC Clarke testified that he climbed over a chain link fence into a backyard that was overgrown and covered with brush. He had a flashlight but had difficulty maneuvering because of the bushes and trees.

[36] PC Clarke located Mr. Ibrahim lying on the ground in the back yard, between the fence and a shed. He approached from Mr. Ibrahim’s feet. Mr. Ibrahim was wearing a dark jacket and a white shirt. PC Clarke noticed that he was bloody in the abdomen area. Based on reports of gunshots, he assumed that Mr. Ibrahim had been shot and was in medical distress. PC Clarke had put on gloves to assist Mr. Ibrahim while approaching him.

[37] PC Clarke observed a hat and cell phone between them, by Mr. Ibrahim’s feet. PC Clarke testified that the cell phone was within a foot or two of Mr. Ibrahim, and he did not appear to be using it.

[38] As noted above, toward the end of the 911 recording, Mr. Desousa advises the dispatcher that the police have arrived. Another person is heard speaking to Mr. Ibrahim. PC Clarke confirmed that this was his voice.

[39] After listening to the 911 recording, PC Clarke testified that he did not remember anyone else being in the backyard with him. PC Clarke maintained that Mr. Ibrahim was not holding a cell phone and that the phone was by his feet. The 911 recording contradicts PC Clarke’s testimony in two respects: (i) PC Clarke was led to Mr. Ibrahim by Mr. Desousa, and did not make his way on his own; and (ii) Mr. Ibrahim was in fact using his cell phone at the time.

[40] PC Clarke testified that he believed Mr. Ibrahim to be in medical distress because he was thrashing from side to side as if in severe discomfort or pain. PC Clarke testified that Mr. Ibrahim had both arms out to the sides as he thrashed and that as he moved, the leaves and debris on the ground were disturbed. PC Clarke then observed a small, black firearm “inches away” from Mr. Ibrahim’s right hand. PC Clarke testified that at that point, he shifted from providing Mr. Ibrahim with medical assistance to ensuring his own safety. PC Clarke ordered Mr. Ibrahim not to move. Mr. Ibrahim complied. PC Clarke picked up the firearm.

[41] The firearm was fitted with a prohibited magazine and was loaded with two rounds of ammunition, one in the chamber and one in the magazine. PC Clarke proved the firearm safe and put the magazine in the pocket of his cargo pants.

[42] Shortly thereafter, fire, ambulance and police back-up arrived. The paramedics cut the fence between 106 and 108 Crittenden Square to assist Mr. Ibrahim.

[43] PC Clarke went to the front of the properties at 104 and 106 Crittenden Square. He noticed several spent shell casings and proceeded to mark the locations with rocks and pylons. PC Clarke put the firearm and magazine in a property bag in the trunk of his vehicle. At 3:38 a.m., PC Clarke transferred the firearm to DC Leslie Wyard of Forensic Investigation Services.

[44] My findings in relation to the credibility and reliability of PC Clarke’s evidence are addressed further in these reasons.

PC Jean-Guy LaFrance

[45] Police Constable Jean-Guy LaFrance testified that he and his partner, Police Constable Kelloway, received a call to attend Crittenden Square. They arrived shortly after 1:30 a.m. When PC LaFrance arrived, he was waved toward the fence by someone, who was likely Mr. Desousa. PC LaFrance went and climbed over the fence while PC Kelloway waited out front for emergency services. When he reached the backyard, PC Clarke pointed out Mr. Ibrahim to him. PC Clarke advised PC LaFrance that he had found a firearm.

[46] PC LaFrance testified that Mr. Ibrahim was holding his lower abdomen. He asked Mr. Ibrahim to show him his hands, which were bloody.

[47] When asked whether PC Clarke showed him where the firearm was located, PC LaFrance responded that he “didn’t care at the time” because the individual was in serious medical distress.

[48] PC LaFrance testified that Mr. Ibrahim was taken to the hospital by “emergency run” because they were concerned that he might not survive. At the hospital, PC LaFrance seized Mr. Ibrahim’s clothing and cell phone. The items were later turned over to DC Wyard.

DC Scott Aikman

[49] DC Scott Aikman testified that he arrived and searched the area with a gun detector dog, Karma. Karma is able to locate both narcotics and bullets, shell casings, and guns that have been fired.

[50] Karma located spent shell casings in the front yard area of 104 and 106 Crittenden Square, along the driveway between those two houses and in the backyard of 106 Crittenden Square, as further detailed below. Karma searched the area around the shed in the backyard of 108 Crittenden Square but Karma did not give a definitive indication. They did not find anything in that area. They did not search the area where Mr. Ibrahim had been found because it was covered with blood and because of the potential that the dog would contaminate the area.

DC Leslie Wyard

[51] DC Leslie Wyard of the Forensic Investigation Services (FIS) arrived at 106/108 Crittenden Square at 3:03 a.m. on December 18, 2018. DC Wyard put evidence markers on the location of the shell casings.

[52] Five spent shell casings were located on the sidewalk in front of 104 Crittenden Square. Nine spent shell casings were located in the carport area between 104 and 106 Crittenden Square. Five spent shell casings were located in the backyard area of 106 Crittenden Square, from 0.5 to two metres from the fence. Two cell phones were also located near where Mr. Ibrahim was found. A third cell phone was seized from Mr. Ibrahim. A glove and hat were also found in the area near Mr. Ibrahim. The only location in which blood was located and marked was where Mr. Ibrahim had been found.

[53] DC Wyard also labelled two markings on the frame and garage door at 102 Crittenden Square as bullet strikes: one on the garage door and a second on garage door frame on the left side of the garage door.

[54] The firearm located near Mr. Ibrahim was turned over to DC Wyard. PC Kelloway turned over the clothing seized from Mr. Ibrahim at the hospital. DC Wyard testified that Mr. Ibrahim’s clothing was not tested for gunshot residue because he had been shot, and it would not be unusual for there to be gunshot residue on his clothes. No gunshot residue test was performed on Mr. Ibrahim’s hands because he was in surgery and his hands had not been protected.

[55] DC Wyard swabbed the slide and grip of the firearm found near Mr. Ibrahim. The swab was sent to the FIS lab for DNA and fingerprint testing, however, DC Wyard had no information as to the results.

CCTV Footage

[56] The police seized closed-circuit video surveillance (CCTV) footage from 12 Crittenden Square, which is located on the end of the street across 106 Crittenden Square and captures the area where the street ends.

[57] The CCTV footage shows a white or light four-door sedan driving west onto Crittenden Square from Crow Trail to the east at 1:17:43 a.m. The vehicle drives toward 104 Crittenden Square.

[58] At 1:18:01, a dark SUV drives down Crittenden Square from the same direction. The SUV drives past 12 Crittenden Square, turns around and pulls up in front of it. At 1:20:10, the dark SUV pulls away from the curb and goes back onto Crow Trail, turning eastbound. At 1:21:54, the SUV returns from Crow Trail, and stops beside 114 Crittenden Square. The SUV then drives down Crittenden Square toward number 104. At 1:23:50, the SUV drives around the square, past 12 Crittenden Square and comes to a stop beside number 114, facing east.

[59] At 1:24:23, two individuals are observed beside the SUV. They both walk in behind 114, cutting through the backyard. The SUV remains at the location.

[60] At 1:29:02, a white sedan is observed driving away from the scene at a high rate of speed onto Crow Trail heading westbound driving past the SUV.

[61] At 1:30:11, it appears that one person gets into the back driver’s side of the SUV, which then drives away onto Crow Trail going eastbound.

[62] After the CCTV footage was seized, police searched the backyards on December 20, 2018, however, nothing of evidentiary value was found.

Forensic Evidence

[63] The forensic evidence is undisputed and was submitted by an agreed statement of facts.

[64] The firearm located next to Mr. Ibrahim was a Taurus PT111 Millenium G2, 9 mm semi-automatic handgun with a barrel length of 83 millimetres. The firearm was equipped with a magazine capable of holding 12 cartridges of 9 mm ammunition. There were two cartridges of 9 mm Luger ammunition in the firearm. The firearm is a prohibited firearm, as defined in s. 84 of the Criminal Code. The magazine is a prohibited device within the definition of s. 84 of the Criminal Code.

[65] The Firearms Report concluded that nine of the twenty cartridge cases were fired by the seized firearm. Those casings were located in the area of the carport between 104 and 106 Crittenden Square. Five cartridge cases were fired by a separate firearm and were located on the sidewalk in front of 104 Crittenden Square. Another six cartridge cases were fired by a separate firearm. Those casings were located in the backyard of 106 Crittenden Square near the fence where Mr. Ibrahim was found. As a result, the report concluded that a minimum of three firearms were involved.

Findings

Unlawful Possession of a Prohibited Firearm

[66] In R. v. Anderson-Wilson, 2010 ONSC 489, at para. 74, Hill J. noted that possession cases are fact-driven inquiries. The possession cases cited by both parties are of limited assistance because they involve firearms located in vehicles or residences, where individuals other than the accused had access. There does not appear to be a case that is analogous to the circumstances of this case.

[67] In cases involving possession of a firearm based on circumstantial evidence, the following circumstances have been considered relevant: (i) the physical proximity of the firearm to the accused; (ii) the degree of visibility of the firearm; (iii) the degree of communal use of a vehicle (or other space) containing the firearm; (iv) the size, nature and number of weapons in a particular space; and (v) the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control: Anderson-Wilson, at para. 74.

[68] In this case, the Crown acknowledges that there is no forensic evidence linking Mr. Ibrahim to the seized firearm. Moreover, no one observed Mr. Ibrahim holding the firearm. The Crown maintains that the totality of the circumstantial evidence leads to the conclusion that Mr. Ibrahim had knowledge and control of the firearm.

[69] The strongest factor in this case is the proximity of the firearm to Mr. Ibrahim. However, in R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 85, the Court of Appeal held that while physical proximity to a firearm was a circumstance worthy of consideration in assessing the adequacy of the evidence as a whole, proximity alone was not sufficient to establish the elements of knowledge and control essential to finding constructive possession.

[70] In this case, the only witness who observed the location of the firearm is PC Clarke, who testified that it was “inches” away from Mr. Ibrahim’s right hand. Neither Mr. Desousa nor PC LaFrance, the two other witnesses who saw Mr. Ibrahim, observed the firearm. There is no marker or photograph showing where the firearm was located, whether in relation to where Mr. Ibrahim was found or otherwise.

[71] The inconsistency between PC Clarke’s account and the 911 recording raises concerns about the reliability of PC Clarke’s recollection. According to PC Clarke’s testimony, Mr. Desousa only “indicated” toward the backyard of 108 Crittenden Square and did not lead him there. PC Clarke testified that he did not hear any moaning at that stage but nonetheless went into the dark and overgrown backyard, not knowing why or where exactly he was going. Contrary to PC Clarke’s recollection, he was led to Mr. Ibrahim by Mr. Desousa.

[72] In addition, also in contradiction to PC Clarke’s testimony, Mr. Ibrahim was using a cell phone when PC Clarke arrived, as evidenced by the fact that PC Clarke’s voice is heard on the 911 recording. As a result, I find it difficult to accept PC Clarke’s evidence that the cell phone was by Mr. Ibrahim’s feet. Moreover, if the phone were by his feet, it would be more difficult for the 911 dispatcher to hear Mr. Ibrahim and for the recording to capture what he was saying. There is also no point during the recording when it sounds like the cell phone was dropped.

[73] PC Clarke’s inaccurate recollection regarding significant details raises questions about the accuracy of his recollection in relation to other key details, specifically, his evidence that Mr. Ibrahim was thrashing from side to side with both arms out to each side, revealing the firearm that was inches away from his hand.

[74] I do not accept PC Clarke’s evidence that Mr. Ibrahim had both arms out to the side when he was on the ground. Both Mr. Desousa and PC LaFrance testified that Mr. Ibrahim was holding his lower abdomen when they saw him. Mr. Desousa saw Mr. Ibrahim before PC Clarke arrived and PC LaFrance arrived after PC Clarke. Neither testified to having seen Mr. Ibrahim with both arms out to his sides. Because of Mr. Ibrahim’s injuries, it is more likely that he was holding his abdomen because of the pain and bleeding.

[75] When PC Clarke first went to assist Mr. Ibrahim, he believed he was going to assist an individual in medical distress, as evidenced by the fact that he put on his gloves. He was not expecting to locate a firearm. The area was significantly obscured by overgrowth and brush. It was dark, and PC Clarke had to rely on a flashlight. The firearm was not in plain view. Under the circumstances, it is unlikely that PC Clarke would have taken note of the precise location of the firearm.

[76] Consequently, PC Clarke’s recollection of his observations is not sufficiently reliable for me to find that the firearm was inches away from Mr. Ibrahim’s right hand. While there is no evidence to the contrary, I do not accept PC Clarke’s testimony as to the location of the firearm as accurate. Moreover, if the seized firearm belonged to Mr. Ibrahim, and if he was involved in the gunfight, it is unlikely that he would have kept it “inches” away from his hand. Mr. Ibrahim had called 911 and knew that police would be arriving. It is more likely that he would have disposed of the firearm so that it could not be discovered as easily.

[77] The location of the firearm is critical. Without PC Clarke’s testimony that the firearm was inches from Mr. Ibrahim’s hand, I can find only that the firearm was in the backyard of 108 Crittenden Square somewhere in the area where Mr. Ibrahim was found. While I have no doubt that the firearm was located at the scene, there is no reliable evidence as to where the firearm was located.

[78] In addition, there are other gaps in the evidence that result in an incomplete picture:

• It is unclear from the CCTV footage how many individuals were in the two vehicles that drove up and down Crittenden Square that night and appear to have held the individuals who engaged in the gunfight;

• It is not possible to identify Mr. Ibrahim as one of the individuals on the CCTV footage;

• No blood was found on the seized firearm;

• It is not possible to conclude from the forensic evidence that Mr. Ibrahim was not shot by the seized firearm; and

• There is no evidence as to whom the other two cell phones located at the scene belonged to.

[79] The Crown’s position is that there is no reasonable inference other than that the seized firearm belonged to Mr. Ibrahim because it is highly unlikely that another individual involved in the gunfight would leave a loaded weapon behind. In addition, the Crown submits that a firearm is a valuable item to individuals engaged in criminal behaviour, and they are unlikely to let one out of their control. The Crown submits that the absence of blood on the firearm is of no significance because Mr. Ibrahim could have dropped the firearm after being shot, and then attended to his injuries.

[80] The defence points to the gaps in the evidence to argue that other inferences are available. The defence submits that other reasonable inferences include that:

• Mr. Ibrahim was in the area for an innocent purpose but was caught in the gunfight and shot where he was found. One of the individuals involved in the gun fight dropped or disposed of their firearm; or

• Mr. Ibrahim was with the individuals who were involved in the gunfight but did not himself possess a firearm. One of the other individuals dropped or disposed of the firearm while fleeing through the backyard.

[81] In my view, based on the totality of the evidence, and the gaps in the evidence, there are reasonable inferences other than guilt. Even if Mr. Ibrahim was in the area for an improper purpose or if he was involved with the individuals who engaged in the gunfight on Crittenden Square, I cannot conclude beyond a reasonable doubt that he was in possession of the seized firearm. Because there were at least two and possibly three other individuals involved, as evidenced by the CCTV footage, the firearm could have belonged to someone else.

[82] If the forensic evidence excluded the possibility that Mr. Ibrahim was shot by the firearm found near him, it would be more likely that the firearm located at the scene belonged to him. However, there is no evidence as to which firearm was used to shoot Mr. Ibrahim. It is possible that one of the other individuals shot Mr. Ibrahim and then left the firearm behind. While it may be unlikely that an individual in a gunfight would dispose of their firearm, it is more likely that they would do so if they knew that they had shot someone or because they would expect police to be called to the location after such a significant exchange of gunfire. It is also possible that the firearm, along with the cell phones, was dropped as the individual fled.

[83] The Crown submits that Mr. Ibrahim’s refusal to provide his name to the 911 dispatcher supports an inference of guilt. The defence submits that Mr. Ibrahim would have had no reason to refuse to disclose his identity, because he had his wallet with him and would be readily identified. While Mr. Ibrahim’s failure to provide his name could support that he did not want to incriminate himself, it does not necessarily mean that he was in possession of a firearm. Moreover, Mr. Ibrahim is also heard on the 911 recording saying, “leave me alone” and was moaning and making statements that he believed he was going to die. Both officers believed he was in serious medical distress. Mr. Ibrahim may have genuinely been unable to provide his name. In my view, Mr. Ibrahim’s failure to provide his name does not assist the Crown.

[84] In the circumstances, it is neither speculative nor unreasonable to infer that the firearm could have been left behind, accidentally or intentionally, by someone other than Mr. Ibrahim. In the absence of evidence as to the proximity of the firearm to Mr. Ibrahim, the Crown has not demonstrated that he had knowledge and control of the firearm.

[85] Accordingly, the Crown has failed to prove beyond a reasonable doubt that Mr. Ibrahim committed the offences of unlawful possession of a loaded prohibited firearm without a licence, unlawful possession of a prohibited firearm while knowingly not being the holder of a licence, and unlawful possession of a prohibited device for a purpose dangerous to public peace.

[86] As a result of my findings, Mr. Ibrahim is found not guilty of the two counts of unlawful possession of a firearm, namely a handgun, while prohibited from doing so by reason of an order under s. 109(3) of the Criminal Code.

Reckless Discharge of a Firearm

[87] Under s. 244.2(1)(b) of the Criminal Code, it is an offence to “intentionally discharge[] a firearm while being reckless as to the life or safety of another person.”

[88] Section 244.2(1)(b) has a “double mens rea” requirement, that is, intentional discharge of the firearm and knowledge or recklessness as to the presence of a person in the place fired upon: R. v. Oud, 2016 BCCA 332, 339 C.C.C. (3d) 379, at para. 33.

[89] Based on the forensic evidence and the testimony of Mr. Desousa, Ms. Bluthner and Ms. Miller, it is clear that in the early morning hours of December 18, 2018, there was a gunfight on Crittenden Square involving multiple individuals and the two vehicles on the CCTV footage.

[90] The defence concedes that, given that there were nine casings from the firearm located near Mr. Ibrahim, there was an intentional discharge. Given that nine shots were fired from the firearm in a residential neighbourhood, I would not hesitate to find reckless discharge of a firearm. The risk to the life and safety of the residents is self-evident: R. v. Jeha, 2013 ABPC 80, 106 W.C.B. (2d) 572. The shattered glass on both sides of the driveway at 104 Crittenden Square supports that shots were fired at the vehicle and not up in the air.

[91] The Crown relies on R. v. Weir, 2018 ONSC 780, in which Garton J. found the accused guilty of reckless discharge of a firearm, even though the firearm was never located. In that case, however, the accused was captured on video taking an object from his waistband and raising it in the air. People in the area ran and ducked. One witness, who was depicted on the video, testified that she ran for cover when she heard gunshots. The circumstantial evidence in this case is much weaker.

[92] In this case, I have found that the Crown has failed to prove beyond a reasonable doubt that Mr. Ibrahim had possession of the seized firearm. There is also an absence of evidence connecting Mr. Ibrahim to the discharge. For the reasons given earlier, I do not accept Mr. Desousa’s evidence that he saw two shooters. In any event, Mr. Desousa was not able to identify the individuals. As a result, no one witnessed Mr. Ibrahim discharge the firearm.

Conclusion

[93] For the foregoing reasons, I find the defendant, Mahad Jama Ibrahim, not guilty of all of the charges.

Nishikawa J.

Released: September 10, 2021

COURT FILE NO.: CR-20-300000022

DATE: 20210910

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Mahad Jama Ibrahim

REASONS FOR JUDGMENT

Nishikawa J.

Released: September 10, 2021