Court File and Parties

COURT FILE NO.: CR-20-40000108 DATE: 20211216

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

-and-

SHAQUANE STEWART

Counsel: Mr. Arian Kadher, for the Crown Ms Pharah Bacchus, for Mr. Stewart

HEARD: November 22-26, 2021

BEFORE: Justice J. Copeland

REASONS FOR JUDGMENT

[1] Shaquane Stewart is charged with four counts relating to possession of a firearm on or about September 24, 2018 as follows: (i) possession of a loaded prohibited or restricted firearm without authorization, licence, or registration, contrary to s. 95(1) of the Criminal Code; (ii) careless handling of a firearm, contrary to s. 86(1) of the Criminal Code; (iii) carrying a concealed weapon, contrary to s. 90(1) of the Criminal Code; and (iv) possession of a prohibited device without a licence to do so (an over-capacity magazine), contrary to s. 92(2) of the Criminal Code of Canada. All of the counts relate to the same firearm.

[2] It is alleged that Mr. Stewart had the firearm in a satchel as he walked on the street in a residential neighbourhood near Yonge Street between Finch and Shepperd. Mr. Stewart was walking with another man who also was carrying a satchel. Mr. Stewart was wearing a distinctive “PUMA” branded hoodie. A police surveillance team in plain clothes and unmarked vehicles was in the neighbourhood for an investigation relating to an attempted murder with a firearm. Based on observations that led police to believe that Mr. Stewart and the other man each had a firearm in their satchel, police called a takedown. According to the police witnesses, when the takedown was called, Mr. Stewart reached into his satchel and removed a firearm. Officers called out “gun!”. Mr. Stewart then put the firearm back in the satchel and ran.

[3] The police witnesses testified that Mr. Stewart ran initially south, and then through a schoolyard to the east, and the officers who initially gave chase lost track of him. This testimony is supported by security video evidence, which I discuss further below.

[4] Mr. Stewart was apprehended by uniformed officers who had responded to hearing the gun call over the radio, two blocks to the east of where the takedown was called, seven or eight minutes after the takedown was called. When Mr. Stewart was apprehended, he was wearing his satchel, but no firearm was found in it or on his person. Police searched the schoolyard and other locations between the takedown site and where Mr. Stewart was apprehended for an hour, give or take. Nothing was found in that time. Because it was dark, and beginning to rain, and because the surveillance team had other investigative duties, arrangements were made for a further search of the school property in the morning when it was daylight, and with the assistance of Toronto District School Board (“TDSB”) security. When that search was conducted, at approximately 7:00 a.m., a firearm was found on the east side of the school, near a door used by school janitorial staff, and not far from both a play structure and an entry door to the school.

[5] Mr. Stewart testified in his defence. He testified that that day was his 19th birthday. In the afternoon he had gone to The Keg with a friend and a friend of the friend. He then went to the home of his friend, the home of his girlfriend, and then back to his friend’s home, all in the same housing complex.

[6] Mr. Stewart testified that eventually, he left his friend’s home with a friend of his friend, Javan. Mr. Stewart testified he was going with Javan to the store to buy drinks and tobacco for rolling marijuana. Javan came with him because he was 19, and Mr. Stewart did not have identification with him showing his age, required for purchase tobacco. Mr. Stewart’s ultimate plan for the evening was to spend the night with his girlfriend. Mr. Stewart testified that he had plans to meet up with his girlfriend at the Mitchell Field Community Centre on the way to the store. After waiting for a time at the community centre with Javan, he saw his girlfriend and her friend approach, and started to walk to the convenience store along Church Avenue with Javan.

[7] Mr. Stewart testified that when he and Javan were stopped at a light, two or three vehicles suddenly converged on them, stopping very close. Mr. Stewart testified that he did not know who was in the vehicle or why they had stopped. He testified that he was scared, and feared for his life, and he ran. As he was running, at some point he saw a marked police car, but did not realize it was looking for him. When uniformed officers commanded him to stop, he complied. He denied that he had a firearm at any point. I will address his evidence in cross-examination and my findings of credibility in my analysis below.

[8] The only issue in dispute is whether the Crown has proven beyond a reasonable doubt that at the time of the takedown Mr. Stewart possessed the firearm which was found the next morning in the schoolyard.[^1] Affidavit and certificate of analysis evidence was admitted on consent to prove the elements in counts #1, #3, and #4 in relation to the firearm being prohibited; the overcapacity magazine being a prohibited device; Mr. Stewart not having licence or authorization to possess them or to carry a concealed weapon; and the firearm not being registered. It is not in dispute that if possession is proven, the elements of careless handling and concealment required for counts #2 and #3 would be proven. Further, it is not in dispute that if possession is proven, the requisite knowledge of the nature of the firearm and the magazine can be inferred, as well as knowledge that the firearm was loaded.

[9] I note as well that it is not in dispute that Mr. Stewart is the same male who the police saw in the “PUMA” hoodie walking along Church Avenue, and who was one of the two males subject of the takedown, and who ran from the takedown site.

[10] Crown counsel submits that the evidence of the observations by the officers is credible and reliable, that there is strong circumstantial evidence to support the inference that Mr. Stewart possessed the firearm, that Mr. Stewart’s evidence is not credible, and that putting these pieces together, the only reasonable inference is that Mr. Stewart possessed the firearm later found in the schoolyard.

[11] Defence counsel submits that the observations of the officers prior to and during the takedown are not reliable. The defence does not challenge the credibility of the officers, but rather, challenges the reliability of their evidence. In particular, the defence submits that the observations while the males were walking along Church Avenue are very subjective, and that the police interpretation of what they saw was coloured by what they were looking for – a particular target who was a young black male with a firearm. The defence submits that the observations of DC Rand and DC Moore of the firearm just after the takedown was called are also not reliable. This submission is made for a variety of reasons, including the brevity of the time for observation, and differences between DC Rand and DC Moore about what they observed. The defence position is that DC Rand and DC Moore mistook something else in the satchel for a firearm. Finally, the defence submits that because no firearm was found in the schoolyard in the search immediately after Mr. Stewart’s arrest, and the schoolyard was not secured in the overnight period, there is a reasonable inference other than Mr. Stewart’s guilt, which is that some unknown person deposited the firearm there in the overnight period.

[12] As I explain below, I find that the prosecution has met its burden to prove beyond a reasonable doubt that Mr. Stewart possessed the firearm later found in the schoolyard.

Applicable law regarding the presumption of innocence, the burden of proof, possession, and circumstantial evidence

[13] I begin with the basic legal principles that apply in this case. None of these principles is in dispute between the parties.

[14] Mr. Stewart is presumed innocent unless and until the prosecution proves his guilt beyond a reasonable doubt.

[15] In order to prove possession, the prosecution must prove knowledge of the firearm, and control over the firearm: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 15-16; R. v. Lights, 2020 ONCA 128 at paras. 44-52.

[16] Section 4(3) of the Criminal Code provides for three forms of possession. In this case the prosecution relies on a theory actual possession. To prove actual possession, the prosecution must prove that the item was in the defendant’s personal possession, for example in a pocket or in a bag worn by a defendant, and that the defendant knew it was there, and knew the character of the item: Morelli at paras. 15-16; Lights at paras. 44-45.

[17] In this case, the Crown alleges that the firearm was in the satchel worn by Mr. Stewart. The factual issue in dispute in this case is whether the firearm later found in the schoolyard was at any time in Mr. Stewart’s satchel – in particular, from prior to the police calling the takedown, through when, the prosecution alleges, he fled through the schoolyard and discarded the firearm. Given the weight and size of a firearm, there is no basis in this case to consider whether the firearm could somehow have been in Mr. Stewart’s satchel without his knowledge or without him knowing what it was (and the defence makes no suggestion of that).

[18] The prosecution’s case rests on a combination of direct and circumstantial evidence. As I explain below, given the brevity of the police observations of the firearm at the time of the takedown, if that evidence had stood alone, I would not have found it to be sufficiently reliable to convict. However, the police observations at the time of the takedown do not stand alone. They must be considered in the context of all of the circumstantial evidence (and also Mr. Stewart’s evidence). For this reason, the principles in relation to circumstantial evidence and proof beyond a reasonable doubt apply in this case.

[19] In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30, 35-42, the Supreme Court of Canada considered the proper approach to circumstantial evidence and proof beyond a reasonable doubt. Where the proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, a trier of fact should not draw an inference of guilt from circumstantial evidence unless it is the only reasonable inference that the evidence permits. Reasonable alternative inferences (besides guilt) may be based on the evidence or on a lack of evidence. What is important is that only reasonable alternative inferences can give rise to a doubt that the defendant is guilty. Speculative alternative inferences will not give rise to a reasonable doubt.

[20] In considering the line between reasonable alternative inferences and speculative ones, Justice Cromwell, writing for the court, held as follows at paragraphs 37-38:

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: [citation omitted]. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: [citation omitted]. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

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

[21] As the Court of Appeal recently reiterated in Lights, at para. 37, in assessing whether circumstantial evidence meets the required standard of proof, the court must bear in mind that it is the evidence assessed as a whole that must satisfy the reasonable doubt standard of proof, not each individual piece of evidence.

[22] Inferences consistent with innocence are not required to arise from proven facts. They may arise from a lack of evidence: Villaroman at paras. 35-36; Lights at para. 38. As the Supreme Court noted in Villaroman, this principle is consistent with the holding in R. v. Lifchus, 1997 CanLII 319, [1997] 3 S.C.R. 320, that a reasonable doubt may arise from the evidence, or from a lack of evidence. But alternative inferences, whether based on the evidence or a lack of evidence, “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.

[23] The assessment in any given case as to whether the prosecution has proven possession beyond a reasonable doubt based on circumstantial evidence is always a fact-driven analysis.

[24] In this case, because Mr. Stewart testified, in addition to considering principles related to circumstantial evidence and proof beyond a reasonable doubt, I must bear in mind that the reasonable doubt standard applies to issues of credibility: R. v. W.(D.), 1991 CanLII 93, [1991] 1 S.C.R. 742. If the court believes a defendant’s evidence, he must be found not guilty. If the court does not believe a defendant’s evidence, but it leaves the court with a reasonable doubt, he must be found not guilty. Finally, even if a defendant’s evidence does not leave the court with a reasonable doubt, the court may only find the defendant guilty if the court is persuaded that the Crown’s case proves the charges beyond a reasonable doubt.

[25] In assessing the evidence, the court should consider all of the evidence together, rather than assessing individual pieces of evidence in isolation. This proposition is important to bear in mind in engaging in the W.(D.) analysis. A trier of fact, in considering whether it believes defence evidence, or is left in a reasonable doubt by defence evidence, must not make that assessment by looking at the defence evidence in isolation. Rather, the assessment must be made by considering the defence evidence in the context of the whole of the evidence at trial. I underline the importance of considering the evidence as a whole. In my analysis below, at times I refer to particular bodies of evidence in order to give my reasons structure, and for the practical reason that although a trial judge must consider the evidence as a whole, it is impossible to write about every piece of evidence at the same time. However, I bear in mind to consider the evidence as a whole, and its cumulative effect.

[26] Finally, before turning to the evidence, I underline the nature of the prosecution’s burden of proof beyond a reasonable doubt. The reasonable doubt standard is a higher standard of proof than the civil standard of proof on a balance of probabilities. The reasonable doubt standard is a heavy burden. It is not sufficient to believe that a defendant is probably guilty. However, the prosecution is not required to prove its case to the point of absolute certainty, as that would set an impossibly high standard. A reasonable doubt is a doubt based on reason and common sense, based on the evidence, or lack of evidence, in the record before the court: Lifchus at para. 39.

[27] My analysis below proceeds as follows. I first summarize the Crown’s case. I next summarize Mr. Stewarts’s evidence. I then explain my analysis of why I am persuaded that the Crown has met its burden to prove beyond a reasonable doubt that Mr. Stewart possessed the firearm later found in the schoolyard. In very brief summary, I find that there are significant problems with the credibility of Mr. Stewart’s evidence that lead me not to believe his evidence, and not to be left in a reasonable doubt by it. I find that although there are some areas where one could pull at individual threads in the Crown’s case, taken as a whole, the only reasonable inference is that Mr. Stewart possessed the firearm that was later found in the schoolyard.

The Crown’s case

[28] On the night of September 24, 2018, from around 10:00 p.m., officers from the 31 Division Major Crime Unit and the Gun Violence Suppression Unit were conducting surveillance in the area east of Yonge Street and south of Finch Avenue in relation to an attempted murder investigation. There were two surveillance teams involved. The officers conducting surveillance were all in plain clothes and in unmarked vehicles with tinted windows. Not all of the officers involved in the surveillance testified at trial, but the court heard from DC Rand, DC Moore, and DC Vandekerckhove. Those officers all agreed that the target of the attempted murder investigation was a black male with a gun, and two of the three officers agreed it was a young black male with a gun (Mr. Stewart was not the target of that investigation).

[29] The surveillance team saw two black males, each with a satchel slung across his body, walking east on Church Avenue. Because of the darkness and at least one of the males wearing a hoodie, officers were unable to tell if either of the males was the target of their attempted murder investigation. I will not go into detail about the descriptions of the clothing worn by the males, except to note that one of them was wearing a black hoodie with a large white “PUMA” logo on the front. It is not in dispute that this was Mr. Stewart.

[30] DC Rand was alone in an unmarked police vehicle. He first saw the two males at 10:20 p.m. The males were walking westbound on the south side of Church Avenue at that time. DC Rand was stationary in his vehicle on the south side of the street. He gave a detailed description of the clothing of the two males, including that one male was wearing a black “PUMA” hoodie, and that both males had satchels slung across their bodies. When DC Rand first saw the two males, he did not note anything particular about their demeanour. They were just walking. They appeared to be talking, but he could not hear what they were saying. He advised the surveillance teams about the two males, and their direction of travel, so that the teams could try and see if one of them was their target.

[31] DC Moore was in another unmarked vehicle with DC Broad. Based on hearing DC Rand’s observation about the two males at 10:20 over the radio, they drove along Church Avenue. DC Moore observed the two black males. Both were wearing satchels. The area was poorly lit. He described the males as having “their heads on swivels, turning around, very aware of their environment”. To him it seemed abnormal. He testified that the manner in which they were walking was odd. They did not seem to be going anywhere in particular. At one point they were sitting on a rail. He testified that the satchels the males were wearing appeared to have something of weight in them, because he could see tension on the straps. DC Moore gave a description of the males’ clothes, which I will not summarize, other than to note that he said one of the males was wearing a black “PUMA” hoodie.

[32] DC Vandekerckhove also observed the two males walking on the south side of Church Avenue walking westbound towards Doris Avenue. He testified that they appeared very alert to their surroundings, very cautious, and paranoid. He testified that their heads were “on a swivel” and followed his car as he drove by. To him it did not look like normal people out walking. To him, their behaviour was suspicious because they seemed hyper-alert and paranoid.

[33] At 10:27 p.m., DC Rand observed both men with their right hand in their satchels, and both men staring at cars as they passed by. DC Rand testified that when the men did this, they each held their satchel up high on their chest with their left hand. He testified that as they reached into the satchel, each male had his satchel tilted to the right (i.e., to give his right hand access). DC Rand testified that the men appeared nervous, and were looking at every car that passed them. Based on what he saw, DC Rand believed that the males may be carrying firearms. DC Rand broadcast his observation to the surveillance teams. He testified that he put his police vest on. He also testified that he broadcast to the teams to put their vests on (none of the other officers who testified recalled DC Rand putting over the radio to put their vests on). At the point that DC Rand made this observation, he and other team members were passing the males on Church Avenue, trying to identify if one of them was their target. In cross-examination, DC Rand agreed that his notes did not say that the males used their right hands to reach into the satchels, but he said he remembered that it was their right hands. He agreed that it was dark out, and he was relying on artificial lighting, which he agreed was not great on Church Avenue. He agreed that he did not at that point know what the males had in their satchels, but said based on what he saw he believed it was firearms.

[34] DC Rand had at this point been driving west on Church Avenue. He made a U-turn to face east on Church Avenue, and was just west of Doris Avenue. DC Moore and DC Broad were at this point driving west on Church Avenue near Doris.

[35] The takedown was called by DC Manohar, at approximately 10:30 p.m. (DC Moore said the takedown was called at 10:32 p.m. DC Vandekerckhove said the takedown was called at 10:29 p.m.). As I understand it, the initial intention was an investigative detention to investigate in relation to firearms. At the time the takedown was called, the two males were at the southeast corner of Church and Doris Avenues beginning to cross to the southwest corner.

[36] DC Rand drove his vehicle east to the south side of the intersection, blocking the northbound lanes on Doris. DC Rand said in cross-examination that he pulled up about 10 feet away from the males when he stopped. DC Moore and DC Broad approached in their vehicle at roughly the same time (from the opposite direction). They turned to the left as the pulled up for the takedown. DC Moore testified that he stopped about six feet away from the males, and believed his vehicle was still in the intersection when he stopped. DC Rand could not recall if DC Moore and Broad were in the same car or separate cars, but recalled that they were to his left.

[37] DC Rand and DC Moore both testified that right after they pulled up for the takedown, the “PUMA” male pulled a handgun from his satchel.

[38] DC Rand testified that as he got out of his vehicle (and wearing his vest marked “police”), he saw the male in the “PUMA” hoodie remove a black semi-automatic handgun from his satchel. He said the male had the satchel high on his chest. He said the male held the handgun close to the middle of his chest, and high up. The top part of the gun was tilted towards the male’s body. As a result, DC Rand could see an angled view of the firearm. He could see the butt plate and underside of the slide of the gun. He testified that it was not a “flat” side view of the gun. He testified that it was obvious to him that it was a handgun. He said it had a silver piece near the front of the gun (on the underside), which was shiny and which he could see clearly against the backdrop of the black gun. In cross-examination he said that the silver piece was rectangular, near the tip of the gun on the slide. DC Rand testified that his car headlights were shining on the male in the “PUMA” sweatshirt, illuminating him. He also testified that when he initially pulled his car up, the “PUMA” male’s head came down to his shoulders as if he was startled. In cross-examination, DC Rand agreed that the male had the handgun completely out of the satchel. He denied the suggestion put to him in cross-examination that he did not see a gun, but had seen something else.

[39] DC Rand testified that as soon as he saw the gun, he yelled “Gun! Gun! Gun!” into the radio to alert the team. He was sure he yelled “Gun! Gun! Gun!” He did not verbally identify himself as police at that time, but he had his “police” vest on. It was seconds from the time that DC Rand pulled his vehicle into the intersection for the takedown, and when the male ran. In examination in chief he said maybe five seconds.

[40] DC Rand testified that the “PUMA” male then put the gun back in the satchel, and turned and started to run southbound on Doris Avenue. DC Rand testified that he could not recall any other pedestrians in the area, and there was very little vehicular traffic.

[41] DC Moore testified that when he and DC Broad pulled up to the males for the takedown, he saw the “PUMA” male pull a handgun out of his satchel. He said the male was right in front of his headlights and was illuminated by the headlights. DC Moore testified that he saw the gun very clearly. He testified that it looked like a regular handgun, and was black. He said he saw half the gun. In cross-examination he said he saw the butt of the gun and a little bit of the barrel, and said the male did not take the gun all the way out. As he saw the gun, he heard DC Broad say, “He’s got a gun!” DC Moore testified that he did not identify himself as police at that point, as he was still in the vehicle. He believed that DC Rand and DC Broad did so. DC Moore testified that from the time he pulled his vehicle up for the takedown until when the “PUMA” male ran was four to five seconds. In cross-examination he said he saw the gun for one to two seconds. In cross-examination, DC Rand denied the suggestion that what he saw was not a gun, but was something else from the satchel.

[42] DC Moore testified that the male then put the gun back in the satchel, ran southbound (down Doris Avenue), and then turned into the school grounds. The other male ran in a different direction. DC Broad got out first, and at about the same time that DC Moore saw the gun. DC Broad ran after the “PUMA” male on foot. DC Moore followed in the car about 30-40 metres down Doris Avenue. Then he got out and pursued on foot.

[43] DC Rand testified that when the male ran, he got back into his car and drove south along Doris Avenue. He stopped his vehicle at the next cross street, McKee Avenue. He testified that the male in the “PUMA” sweatshirt had run south on Doris Avenue, and then turned left (east) into the McKee Public School yard. The last that DC Rand saw the “PUMA” male, the male was running eastbound in the school property, west of the school building. DC Rand testified that it was pitch black in the part of the schoolyard where he lost sight of the male.

[44] DC Rand testified that he ran along McKee Avenue on the north side (running east). There was a chain link fence between where he was running on the north side of McKee Avenue, and where the male was running in the schoolyard. DC Rand testified that while he ran, he yelled, “Stop! Police! Drop whatever you have in your fucking hands!” as loud as he could. DC Rand testified that as he ran east along McKee Avenue, he heard the rattle of a chain-link fence ahead of him and on the school property. As he ran along McKee Avenue, DC Rand did not see anyone come out of the schoolyard onto McKee Avenue. He also testified that he did not see anyone else ahead of him as he ran along McKee, and that DC Moore and DC Broad were running in the same direction as him. DC Rand ran as far as Kenneth and McKee Avenues (one black to the east and south from the takedown site). At this point uniform officers were beginning to arrive in the area. DC Rand did not see the male at this point, so he began to search around the community centre on the other side of Kenneth Avenue (Mitchell Field Community Centre). DC Rand testified that he did see any pedestrians (apart from the man who ran) in the time between the takedown and when he started searching for the firearm after Mr. Stewart was arrested.

[45] DC Moore testified that when he stopped his vehicle 30 to 40 metres down Doris Avenue from the site of the takedown, he went into the schoolyard to try and find the male who had run. He testified that it was pitch black in the schoolyard. DC Moore testified that he went south through the schoolyard, and eventually found DC Broad. He testified that he did not see any other pedestrians in the area between the time of the takedown and when he received information at around 10:40 that Mr. Stewart had been arrested.

[46] DC Vandekerckhove was not at the takedown location when the takedown was called, but was further south on Doris Avenue. He put on his “police” vest, exited his vehicle, and ran northbound in the direction of the takedown location. As he ran, he heard an officer at the takedown site yell, “Gun!”. He then saw a male in a “PUMA” sweatshirt run south along the fence line (i.e., the western edge of the school property). DC Vandekerckhove testified that once the male got past a set of portable classrooms, he jumped the fence into the schoolyard and ran eastbound in the schoolyard.

[47] DC Vandekerckhove then turned back south and then east so he could run along the street along the south side of the school property, McKee Avenue. He ran along the north side of McKee Avenue, hoping to catch up to the male. When he came to an opening in the fence along the south side of the school property, DC Vandekerckhove entered the school grounds. When he got near the playground equipment (at the southeast corner of the school property), he ran into DC Rand and DC Broad. At that point DC Broad told him the male had a gun. DC Vandekerckhove continued moving eastbound along the south side of the school property. He reached Kenneth Avenue, and the west side of the community centre across the street. He searched the community centre parking lot for the male. As he did this, he started to observe uniform scout cars arriving in the area.

[48] A video from a home security camera was filed in evidence. It is from a home located on the south side of McKee Avenue almost at Kenneth Avenue (one block to the east and to the south from where the takedown was called). The camera view faces north and slightly west across McKee Avenue and viewing the southeast end of the McKee Public School schoolyard. The video has sound. The video is approximately 45 seconds long. The time stamp on the video starts at 22:30:04. In the first seven seconds of the video, a male voice can be heard yelling loudly, “Stop! Drop whatever you’ve got in your fucking hand! Right now!” One can then hear running footsteps. One hears clanging sounds and a loud thunk between approximately 0:15 and 0:29 run time on the video. At just before 0:30 run time on the video, one sees a person in silhouette run in a lit area, which I find based on the video and the photos of the schoolyard is near southeast corner of the school, to the west and north of the playground. If one continues to watch the video to the end, one sees the person in silhouette exit the school ground on the east side, onto Kenneth Avenue (at approximately run time 0:44).

[49] Ultimately Mr. Stewart was arrested by two uniformed officers, PC Barcenas Pineda and his partner, PC Taborski. PC Barcenas Pineda testified about the arrest. He and his partner were at 32 Division when they heard over the police radio that officers were involved in a pursuit of a person with a gun nearby. This was at approximately 10:33 or 10:34 p.m. He and his partner went to the area to assist in locating the suspect. They were in uniform and in a marked scout car. They attended near Mitchell Field Park (the community centre) because they heard that the suspect was last seen running eastbound through the McKee Public School yard, and the community centre is just to the east of the school. It took them about three minutes to arrive on the scene.

[50] Once PC Barcenas Pineda and PC Taborski arrived in the area, they spoke briefly to a plain-clothes officer, who told them where the male had last been seen, and provided a description (including the black “PUMA” hoodie and the satchel). They had heard the same information over the radio. With PC Taborski driving, they searched for the suspect. They drove through the community centre parking lot to McKee Avenue, then drove east along McKee Avenue to Kenneth Avenue, south on Kenneth Avenue to Norton Avenue, east on Norton Avenue to Dudley Avenue, then north on Dudley to Church Avenue. Prior to arriving at Church Avenue (and Dudley), they did not see any pedestrians as they were driving.

[51] As they approached the intersection of Church and Dudley Avenues (driving northbound), PC Taborski drew PC Barcenas Pineda’s attention to a male running. PC Barcenas Pineda testified that they first saw this male about two minutes after they had first arrived in the area and been briefed by the plain-clothes officer. The male was running very fast eastbound on the south side of Church Avenue. The male crossed the street over to the north side. The officers turned their scout car east onto Church Avenue. At that point, the male stopped, and changed direction and ran westbound on the north side of Church Avenue. PC Barcenas Pineda testified that as they drove northbound on Dudley Avenue towards Church Avenue, they had the police lights on their scout car on, but not the siren. It appeared to PC Barcenas Pineda that the male saw the scout car as they were reaching the corner; although the officer agreed in cross-examination that he could not be certain of that. He testified that when the male stopped and then changed directions from eastbound to westbound, the scout car was about 10 metres away from him, and he ran past the scout car as he ran westbound.

[52] PC Taborski stopped the scout car. She got out first. PC Barcenas Pineda got out right after her. He went around the back of the scout car and saw that PC Taborski had her firearm out, and was ordering the male to stop. The male complied and stopped. PC Barcenas Pineda also took out his firearm, briefly pointed it at the male, and told him to lift his hands. The male complied. It is not in dispute that this male was Mr. Stewart. He was placed under arrest. The arrest was made at the northeast corner of Church and Dudley Avenues.

[53] PC Barcenas Pineda gave a description of Mr. Stewart on arrest, which I will not reproduce all of, but which included that he was wearing a black “PUMA” hoodie and had a black satchel slung across his chest from his left shoulder to near his right hip. PC Barcenas Pineda searched the satchel. There was no firearm in it. He recalled also seeing a cologne bottle and a condom. PC Barcenas Pineda did not recall all of the items seen in the booking video, but agreed when was shown the video that the items put on the counter were property that Mr. Stewart had with him at the time of arrest. It is not in dispute that the items in the booking video were in the satchel. PC Barcenas Pineda also pat-searched Mr. Stewart and found no firearm. The time of arrest was 10:39 p.m.

[54] In cross-examination, PC Barcenas Pineda agreed that at the station, Mr. Stewart asked for water and said that he was somewhat intoxicated.

[55] The surveillance officers received information about the arrest over the radio. DC Rand asked over the radio if the male had a satchel. He was advised that he did, but that there was not a firearm in it. DC Vandekerckhove saw Mr. Stewart under arrest in custody of the uniformed officers, and wearing the black “PUMA” hoodie. He testified that it was the same male he had seen running from the direction of the takedown and into the schoolyard.

[56] The officers then began to search for a firearm in the area between the location of the takedown and where Mr. Stewart was arrested. DC Rand testified that the lighting conditions were poor, and that the areas he searched were not well-lit. He agreed in cross-examination that at some point he got a flashlight from someone. He called the fire department to assist with ladders to search the roof of the school because he believed that the gun may have been tossed up there. A K-9 unit also attended to assist with the search. DC Rand testified that he searched at the school with the fire department, and then at the community centre. DC Moore testified that he searched mostly on Church Avenue and on the north side of the schoolyard. He testified that it was quite dark in the schoolyard, and that on Church Avenue it was poorly lit, side street lighting. He testified that he used a flashlight while he was searching. DC Vandekerckhove testified that it was dark during the search and the lighting was less than ideal, and at some point, it started to mist. DC Vandekerckhove searched the east side of Dudley Avenue south of Church Avenue, looking in bushes and along the treeline. He also assisted with searching the school roof and the community centre. He agreed in cross-examination that he had a flashlight with him, but could not remember if he used it during the search.

[57] No firearm was found that night. None of DC Rand, DC Moore, and DC Vandekerckhove had an exact note of how long they searched for the firearm that night, but they all agreed that it was in the range of one hour or more. The officers from the surveillance team had to leave to execute search warrants related to the attempted murder investigation, and so could not continue searching longer that night. The officers all testified that in the range of 10-12 officers were searching for a firearm that night.

[58] No officers were posted to secure the school grounds overnight. DC Rand testified that they did not have the resources to maintain the entire scene from where the takedown was called to where Mr. Stewart was arrested. The officers made arrangements for the search to be continued first thing in the morning, in daylight.

[59] Robert Honsberger, who at the time was an employee of the security department of the TDSB, and PC Dolghii testified about the search for the firearm at McKee Public school on the morning of September 25, 2018. Mr. Honsberger received a request from TDSB security to attend at McKee Public School that morning to assist police in searching for a handgun. He arrived at the school at 6:45 or 6:50 a.m. There was at least one TPS unit on site, as well as another TDSB security staff member.

[60] After a brief conversation with the TPS officer, and the other TDSB security staff member, Mr. Honsberger began searching the perimeter of the school, beginning on the north side of the building, then the east side, and continuing along the south side. Near a playground at the southeast corner of the school building he found a handgun on the ground near at a corner of the building. This was near door 4C to the school, which Mr. Honsberger said is a door for janitorial staff. This was at 7:00 or 7:05 a.m. Mr. Honsberger did not touch the firearm. Police attended to deal with the firearm.

[61] PC Dolghii was also assigned to search at the school in the morning, and arrived there around 7:00 a.m. Shortly after he arrived and began searching, he and a sergeant on scene were approached by a school caretaker who advised them that a handgun had been found near entrance 4C. PC Dolghii was tasked by the sergeant to secure the area where the handgun was located, and wait for a scene of the crime officer to arrive to take photos.

[62] After a SOCO officer arrived and photos were taken, PC Dolghii proved the firearm safe. He testified that there was one round of ammunition in the chamber of the firearm. Parts of the magazine were on the ground (the magazine plate and the spring), but the frame of the magazine was still inside the gun. There was also ammunition on the ground.

[63] Both Mr. Honsberger and PC Dolghii identified photos of where the handgun was found. In addition, PC Dolghii identified in a series of photos the various parts of the handgun found some distance apart. I will not go into great detail about these photos, as they speak for themselves. But what is clear is that the handgun and a number of rounds of ammunition were found relatively close to the building, and close to the door marked 4C. The rounds of ammunition were found a short distance away from the firearm (by my estimate from the photos, within a radius of a foot or so). There were a total of 15 rounds of ammunition found – one in the chamber of the firearm, and 14 on the ground. The bottom of the magazine (what PC Dolghii referred to as the “magazine plate”) had been separated from the rest of the firearm and was some distance away. The spring from the magazine was also some distance away from both the firearm and the bottom of the magazine. By my estimate from the photos, the area over which the firearm, the bottom of the magazine plate, and the spring were spread was in the range of 10 feet. In other words, while the ammunition was found relatively close to the firearm, the bottom of the magazine and the spring from the magazine were some distance from the firearm and from each other.

[64] The booking video was made an exhibit. In that video, the items in Mr. Stewart’s satchel at the time of his arrest are visible. The items were: a cell phone, a black and silver hair pick, a black square bottle of cologne, a baseball hat, cash, a condom, and a small quantity of marijuana. DC Rand denied the suggestion put to him in cross-examination that the hair pick was similar in size to the gun he said he saw.

Mr. Stewart’s evidence

[65] Mr. Stewart is 22 years old. He testified that September 24, 2018 was his 19th birthday.[^2]

[66] Mr. Stewart testified that that afternoon, he went to The Keg with his friend Kwame, and a friend of Kwame’s, Maliq. He testified that he drank liquor, a cocktail, at the Keg. In examination in chief he said he could not remember how much he had to drink there. In cross-examination, he said he had one cocktail at The Keg, and then went to the LCBO to buy liquor. In cross-examination Mr. Stewart said that Maliq ordered the drinks at The Keg, because one would need identification to order drinks (i.e., proof of age).

[67] Mr. Stewart testified that after The Keg, he went to Kwame’s house to hang out. Kwame’s house was in the Willowdale housing complex. They were drinking and smoking marijuana there. He was drinking Hennessy at Kwame’s house. He could not recall how much alcohol he drank there, or how much marijuana he smoked, but said the amount of marijuana was “a lot”. He had plans to see his girlfriend, Chanel, later. Mr. Stewart was not sure how long he was at Kwame’s house, but estimated it was about two hours.

[68] Mr. Stewart testified that he then went to Chanel’s home to hang out, which was also in the Willowdale complex. Kwame was also at Chanel’s house. Mr. Stewart did not recall exactly when he got there, but estimated it was six or seven p.m. Mr. Stewart testified that he continued to smoke marijuana at Chanel’s house. He testified that by the time he arrived at Chanel’s house he was “pretty intoxicated”, but he was able to walk and to carry on a conversation.

[69] He then went back to Kwame’s house. Chanel came to Kwame’s house for a bit, but then left. A friend of Kwame’s, Javan, was also at Kwame’s house. Mr. Stewart described Javan as Kwame’s friend, but said he had met him three or four times before that night. He was on good terms with Javan, just not close friends with him.

[70] Mr. Stewart testified that after Kwame’s house, his plan was to spend the night with Chanel. But he wanted to go to a convenience store first to buy some drinks and tobacco. He described the tobacco as a particular brand of cigars he wanted for rolling with marijuana. Mr. Stewart testified that he did not have identification with him, which would be needed to buy tobacco (i.e., showing being 19 years of age), so he asked Javan to come with him to the store. He did not ask Kwame to come because Kwame was not yet 19 years old.

[71] Mr. Stewart testified that he and Javan walked towards the convenience store. Mr. Stewart testified that he did not know the neighbourhood well, but that the store was near Yonge and Sheppard. Chanel had left Kwame’s earlier, but Mr. Stewart made a plan to meet her and her friend Suji at the Mitchell Field Community Centre[^3] on the way to the store. They planned to meet there because it was convenient for Chanel. Because he did not know the neighbourhood, Javan was directing him to the community centre.

[72] Mr. Stewart testified that the streets they were walking on on the way to the community centre and afterwards were quiet residential streets. Mr. Stewart testified that he could not recall if he saw any other people walking in the area on the way to the community centre.

[73] Mr. Stewart testified that when he and Javan arrived at the community centre, Chanel and Suji were not yet there. So, they sat on a rail and waited. Mr. Stewart said he was just sitting there, not pacing. He was looking around for Chanel while he waited.

[74] Mr. Stewart testified that he was wearing a black hoodie with “PUMA” in bold letters in white on the chest, Gucci shoes, ripped grey jeans, a satchel, a PUMA hat, and a Gucci belt.

[75] Mr. Stewart described his satchel. It was black, with a flap. If the flap was lifted, underneath, the main pocket was just open. There was a smaller zippered pocket, for holding small things like keys. In addition, there was a zipper that went around the side of the bag, but which was just decorative, and did not have a pocket. He testified that he wore his satchel slung across his body, over his left shoulder, with the bag part hanging at his right hip. He testified that he never wears his satchel high up on his chest area.

[76] Mr. Stewart testified that he never held his satchel up at chest height that night with one hand. But he said that he may have reached his hand in his satchel to get something either at the community centre, or while walking along Church Avenue. He testified that if he did so, it would have taken no longer than two seconds, because he just had to lift the flap to get anything out of his satchel. He testified that he did not specifically remember what he reached for in the satchel; it could have been any of the items in the satchel. In cross-examination, he said he definitely remembered putting his hand in his satchel as he walked along Church Avenue, but he could not now remember why.

[77] Mr. Stewart testified that the following items were in his satchel that night: a silver and black hair pick, his phone (and iPhone), a black bottle of cologne, some marijuana, a condom, and some cash. He identified these items in the booking video (exhibit #22). He did not have a wallet with him. Mr. Stewart denied that at any point he had a firearm in his satchel or otherwise in his possession.

[78] Mr. Stewart testified that he and Javan began walking from the community centre, along Church Avenue. He testified that Chanel and Suji were walking right behind them. Mr. Stewart testified that he and Javan came to the light at Church and Doris Avenues, and waited because the light as red, and for Chanel and Suji to catch up.

[79] Mr. Stewart testified that while they waited at the light, Javan said to him that there were suspicious cars driving by that kept making U-turns. Mr. Stewart testified that he looked around, and saw cars driving by, but did not really see anything suspicious about the cars.

[80] Mr. Stewart testified that while they were waiting at the light at Church and Doris Avenues, he saw a car with tinted windows make an aggressive left turn and try to box him and Javan in. He also saw a second car, which he said he was not sure what it was trying to do, but he thought it was trying to box them in. He testified that the cars seemed aggressive because they came really fast and looked like they were trying to crash into them (but did not hit them), and the cars came from every side. He said he remembered two cars, but was not sure.

[81] In examination in chief, Mr. Stewart said he had seen pedestrians in the area, but was not sure if there were any right there (i.e., when the takedown happened). He said that the area of Yonge Street between Finch and Shepperd was always busy (I pause to note that the residential streets where Mr. Stewart was walking and later fled were between one and three blocks east Yonge Street. None of the relevant events happened on Yonge Street). He said there were no pedestrians in the area right where he and Javan were, but he remembered seeing people in the area.

[82] Mr. Stewart testified that the interaction with the cars was not long, because he ran. He testified that he saw the first car stop, and saw the door open, so assumed someone was trying to get out. But he did not see the person trying to get out because he “took off”. He did not hear the person say anything when the door opened. He said he saw the second car, but did not pay attention to it because he started running.

[83] Mr. Stewart testified that he did not recognize the cars, and could not see the people inside the cars. He testified that he was scared for his life when the cars came towards him. The cars had tinted windows. He was not sure what was happening, or who was in the cars. He testified that he ran because he was scared, and did not know who was in the cars, and why they were driving like that towards him.

[84] Mr. Stewart testified that he did not hear anyone say the word “police” when he ran (or after), and did not see anyone wearing a police vest. In cross-examination, he said he did not hear anyone yell, “Gun! Gun! Gun!” He said he ran quickly when the cars pulled up. He denied that he heard anyone yell at any point, “Drop what’s in your hands”. He agreed in cross-examination that the area was a pretty quiet residential neighbourhood. He agreed that, for example, there were no noisy parties going on.

[85] Mr. Stewart testified that Javan also took off, but that he did not know where he went.

[86] Mr. Stewart said in examination in chief that he was just standing at the light when the cars drove towards him and Javan. He was not doing anything with his satchel.

[87] In cross-examination, Mr. Stewart denied the suggestion that when the cars converged on him and Javan, he reached into his satchel to hold the firearm to protect himself. Although it was not entirely clear in examination in chief, in cross-examination, Mr. Stewart’s evidence was clear that he did not reach into his satchel or pull anything out of his satchel after the cars pulled up to him and Javan at the intersection of Church and Doris Avenues. He testified that he immediately ran when the cars pulled up.

[88] Mr. Stewart was asked in cross-examination about why, when Javan was just an acquaintance who he had met three or four times, but Chanel was his girlfriend and he was waiting for her at the community centre, he would just leave before Chanel got there and start walking with Javan, rather than wait for Chanel and Suji to join them. He replied that they met the girls at the community centre, but they just had not yet come face to face. He said he and Javan were at the community centre and waited for the girls. They saw the girls (approaching), so they decided to walk and wait for them at the light, rather than wait for the girls to get to the community centre (the light is at Church and Doris Avenues – a block away from the community centre). He was then asked why, when he was at the community centre for the purpose of meeting his girlfriend, and waiting for her, he decided to walk away with Javan, just an acquaintance, rather than wait for his girlfriend to get to where he was. He said he was just anxious to get to the store, and have a good time, and there was no reason why.

[89] Mr. Stewart was asked in cross-examination about the fact that, on his account, when he decided to run, he left his girlfriend, Chanel, and her friend Suji behind. He agreed that he did so. He was also asked about the fact that he did not ask the uniformed officers to check on his girlfriend and her friend when he was arrested. He testified that whoever was in the cars that had converged on him and Javan was not after the girls, so he did not see a reason to do that. He also said that by the time he was placed under arrest he could see Chanel standing across the street (i.e., so he was not worried about her). I note that Mr. Stewart had not mentioned in his evidence in examination in chief that he saw Chanel across the street at the time of his arrest; nor was PC Barcenas Pineda asked about this in cross-examination.

[90] Mr. Stewart testified that he did not know where he was running. He had no plan where to run. He was just running for his safety. He testified in examination in chief that he did not know where he ran, but he know he ran south on Doris Avenues. He did not recall where he ran after that. He was aware that there was a community centre and a school in the area, and residential houses. He testified that the lighting in the area was not that good. In particular, he said the lighting at the corner of Church and Doris Avenues was not good, because of trees overhead.

[91] In cross-examination, Mr. Stewart was asked how far down Doris Avenue he ran. He first said he ran to the end of the “street”. He was then shown a map of the area, and asked if he ran as far as McKee Avenue on Doris (recall that McKee is the street that runs along the south side of McKee Public School, where DC Rand and DC Vandekerckhove both testified they ran along the fence on the south side of the school property). Mr. Stewart said he was not sure if he ran as far south on Doris as McKee Avenue. He said he thought he ran east at some point. He agreed that he had to turn to go east (i.e., that running on Doris was southbound). He denied the suggestion that he turned into the schoolyard and ran through the school yard. He denied the suggestion that he discarded the firearm in the schoolyard. He said he felt like he probably turned on McKee Avenue, and he probably ran along the sidewalk on McKee, but he was sure that he did not run in the schoolyard. He said he could not remember getting to Kenneth Avenue, and he could not remember how he ended up by the parking lot at the community centre (the west side of which is on Kenneth Avenue). He later said, “I know for a fact that I was running east on McKee”, but said that he did not remember how he ended up at the community centre, but knows he ended up at the community centre. He was in the field of the community centre first, and then he walked over to the parking lot. He agreed in cross-examination that he had a definite memory of running south on Doris Avenue; he had a definite memory of turning east onto McKee Avenue; he had a definite memory of being in the community centre parking lot; but did not have a clear memory of what happened on McKee Avenue (which is adjacent at the east end to where the firearm was found in the schoolyard).

[92] Mr. Stewart testified that he thought he ran for seven or eight minutes, but that was a guess. He denied that he threw anything as he ran. He testified that his satchel was slung over his left should across to his right hip as he ran, the same position he had it in earlier.

[93] Mr. Stewart testified that he was not looking behind him as he ran. Because he had seen the car door open, he believed someone might be chasing him, but he could not hear anyone behind him. He denied he heard anyone tell him to stop or drop what was in his hands, or yell “police”. In particular, he denied hearing the shouting by DC Rand that can be heard on the security video (exhibit #9).

[94] Mr. Stewart testified that he stopped running around Dudley Avenue. In examination in chief he testified that he stopped to catch his breath, but then he started running again because he saw marked police cars. He testified that he saw someone (a stranger) in a vehicle while he was running and asked them for a ride. He testified that he was not sure where this was, but thought it was near the community centre. He said he asked the stranger for a ride because he was scared and he was trying to get out of the area. The stranger said no to his request for a ride.

[95] Mr. Stewart said that after he caught his breath, he started running again. He thought it was near the community centre that he had stopped to catch his breath, but he was not sure. He testified that he did not see anyone chasing him at that point. Mr. Stewart denied in cross-examination that he was running east on Church Avenue near Dudley Avenue when the marked cruiser first approached, and that he ran back west on Church Avenue to get away from the marked cruiser.

[96] When Mr. Stewart saw a uniformed/marked police car, he knew they were police because of the marked cruiser. He did not know the police were after him. The officers in that car told him to stop. He had no idea why the police were telling him this, but he complied. They arrested him. They told him he was under arrest for possession of a firearm. He testified that he was confused by this because he did not have a firearm. Mr. Stewart testified that the police searched his satchel, but was a bit confused about when this happened. He initially said they searched it. But then said he did not remember the police searching it, but remembered that the first thing the police did when they arrested him was grab his satchel (i.e., and he assumed they searched it).

[97] In cross-examination, Mr. Stewart said he first saw the marked police cruiser when he was running north on Dudley Avenue. He reiterated that he was running because he was trying to get away from whoever was in the cars that had converged on him and Javan at Church and Doris Avenues, and that he thought that those people would hurt him. He said he was just trying to get away. He was then asked why he did not run to the police car for help. He said he never knew what was going on in the area, and the police could have been going for something else. He agreed that as far as he knew his life was in danger, and he was in a neighbourhood he did not know, and it was dark. He agreed that the police (in the marked cruiser) were a place of safety. He was asked, if the police were a place of safety, why did he not run towards them? He said that besides the fact that people were chasing him, nothing had happened to him. He said he was running because he was not sure what the people (in the cars that converged on him) wanted. He said his life was kind of in danger and kind of not. So, he did not feel the need to go to police. He agreed that the danger he felt was sufficient that it caused him to run for about eight minutes, and to ask a random stranger for a ride. He said he wasn’t thinking right like he would when he was sober, and wasn’t really thinking in the moment.

[98] Mr. Stewart testified that he remembered telling the police at the time of the arrest that he was intoxicated and asking for water.

Assessment of the trial evidence as a whole

[99] I will begin with my assessment of Mr. Stewart’s evidence under the first two branches of W.D. I do not believe Mr. Stewart’s evidence, and it does not leave me with a reasonable doubt. My concerns with the credibility of Mr. Stewart’s evidence turn on aspects of his evidence that are internally inconsistent or illogical, and aspects of it that are inconsistent with objective evidence.

[100] I start by noting that Mr. Stewart’s claim that he fled when the cars converged on him and Javan because he did not know who they were is not, standing alone, inherently implausible. The officers were in plain clothes, and in unmarked vehicles. They converged on Mr. Stewart and Javan in a way that I have no doubt was, at a minimum, surprising. DC Rand did not recall identifying himself verbally as police at the time of the takedown. DC Moore agreed in cross-examination that the males would not have known who was in the cars as they converged for the takedown. And events happened very quickly once the takedown was called. Indeed, the Crown theory is that Mr. Stewart did not initially realize that the cars contained police, and that is why he reached into his satchel for the firearm. My problems with Mr. Stewart’s credibility are based on other issues. My first three concerns relate to internal logical inconsistencies and inconsistent versions of events in Mr. Stewart’s evidence. My fourth and fifth concerns relate to inconsistencies with other objective evidence.

[101] The first area where I find Mr. Stewart’s evidence is internally inconsistent and unbelievable relates to several related aspects of his narrative of events relating to his girlfriend. Mr. Stewart’s evidence that he was waiting for his girlfriend, Chanel, at the community centre, but then decided to walk on with Javan when he saw her, but before she got to the community centre, does not make sense in the context of the whole of Mr. Stewart’s narrative of events.

[102] Mr. Stewart testified that he had made a plan to meet his girlfriend at the community centre. He was planning to spend the night with her. He testified that Javan was just an acquaintance, a friend of his friend Kwame, who Mr. Stewart had met three or four times before. Mr. Stewart testified that despite this plan to meet his girlfriend, when he saw her approach with Suji, rather than wait for them to get there and walk together, he started walking with Javan. His explanation for this was that he was anxious to get to the store and have a good time. I do not accept that having planned to meet his girlfriend at the community centre, and having seen her approach, rather than wait at most a few minutes for her to arrive, Mr. Stewart walked off with Javan, a mere acquaintance, because he was anxious to get to the store to buy drinks and tobacco.

[103] My disbelief of this evidence is amplified by the fact on Mr. Stewart’s narrative of events, at the time the takedown was called, and the unknown cars converged on him and Javan, his girlfriend, Chanel, and her friend Suji, were walking a short distance behind on Church Avenue. Mr. Stewart’s evidence is that the unknown cars converging made him fear for his life, and for this reason he ran. In the context of this narrative, this would mean that with this unknown threat that caused him to fear for his life, Mr. Stewart ran and abandoned his girlfriend just behind the scene of this unknown threat. Mr. Stewart’s explanation for this was that the cars converged on him and Javan, and not the girls, so he was not worried for the girls. I do not accept this explanation. On Mr. Stewart’s evidence, he had no idea who the people in the cars were, or what they wanted. If events had happened as he claims, I do not accept that he could so easily conclude that there was no danger to his girlfriend and abandon her.

[104] A further factor relating to Mr. Stewart’s evidence about his girlfriend relates to his assertion, for the first time in cross-examination, that his girlfriend was present across the street at the time of his arrest. Mr. Stewart gave this answer in response to questioning about whether he was still concerned about his girlfriend at the time of his arrest. He had not mentioned in examination in chief that his girlfriend was across the street at the time of his arrest. I note that the arresting officer, PC Barcenas Pineda was not asked in cross-examination about seeing a woman nearby at the time of the arrest. I do not believe Mr. Stewart’s evidence that his girlfriend was across the street at the time of his arrest.

[105] Crown counsel also made the submission that the reason that Mr. Stewart gave evidence about meeting his girlfriend at the community centre, but not waiting for her to actually get there, was because he had to explain why the police only saw two males walking along Church prior to the takedown. I do not rely on this line of analysis in disbelieving Mr. Stewart’s evidence. To my mind, it suggests the prohibited line of reasoning that Mr. Stewart concocted his evidence to respond to the disclosure: see for example: R. v. Peavoy, 1997 CanLII 3028; R. v. Johnson-Lee, 2018 ONCA 1012 at para. 58; R. v. John, 2016 ONCA 615 at paras. 60-61.

[106] The second aspect of Mr. Stewart’s evidence that I find is logically inconsistent within his narrative of events is his reaction of continuing to run when he saw the marked police cruiser. On Mr. Stewart’s evidence, he ran when the unmarked cars converged on him and Javan because he did not know who was in the cars or what they wanted, and he feared for his life. He testified that as he continued to run, he was so afraid that he asked a complete stranger in a car for a ride somewhere near the community centre (but the stranger refused). Despite this level of fear, when he saw a marked police cruiser, Mr. Stewart continued to run, rather than seek assistance from the police.

[107] Although it was not specifically argued by the defence, I have considered the possibility that as a young black male, Mr. Stewart might be hesitant to approach police, and might not see a marked police cruiser as a place to seek assistance. But on the evidence before the court, I reject that analysis. Mr. Stewart’s evidence was that he was so afraid that he asked a random stranger in a car for a ride. And he was asked in cross-examination, and agreed, that a marked police cruiser was a place of safety. His only explanation for why he did not ask the police in the marked cruiser for help was that at the time his life “kind of is in danger, and kind of isn’t”, because he had not been harmed, he was just running away. He also said that he wasn’t thinking right and wasn’t thinking in the moment. In the context of the evidence that Mr. Stewart was so afraid that he sought a ride from a random stranger, that he agreed that police were a place of safety, and an equivocating explanation for not seeking help and continuing to run, I do not believe his evidence.

[108] My third concern relates to inconsistencies in Mr. Stewart’s evidence about the path he ran on from the takedown, in particular the issue of whether he ran along McKee Avenue rather than through the schoolyard. Crown counsel cast this issue in submissions as a convenient lack of memory. I see it more as inconsistent versions of events under cross-examination, in particular on the issue of where he ran.

[109] In examination in chief, Mr. Stewart testified that he knew that he ran south on Doris Avenue after the cars came towards him and Javon, but he could not recall where he went after that. In cross-examination on the issue of where he ran, when Mr. Stewart was asked how far down Doris Avenue he ran, he first said, “to the end of the street”. Crown counsel then showed him a map, and asked how far down Doris he ran, and Mr. Stewart said he was not sure. He agreed that at some point he turned and ran east, but said he was sure that he did not run through the schoolyard. Next, he said that he “probably” turned and he “felt like” it was east on McKee Avenue (the first east/west street down Doris Avenue from the scene of the takedown). He said he could not remember if he ran on the street, the sidewalk, or the grass, but he maintained that he did not run in the schoolyard. He said that he somehow ended up at Kenneth Avenue and the community centre (one block to the east of the takedown scene, and on the other side of the school), but did not remember how he got there. Then he said that he “knew for a fact” that he was running east on McKee Avenue.

[110] I find that these versions ranging from not sure how far he ran down Doris, to feeling like he probably turned east on McKee, to knowing for a fact that he ran on McKee are inconsistent with one another. And they are inconsistent on a central issue, the path he ran on in relation to the school – whether he ran through the school grounds or south of the school grounds.

[111] The fourth issue that leads me to disbelieve Mr. Stewart’s evidence and not be left in a reasonable doubt by it is that I find that his evidence that he did not hear anyone shouting for him to stop and drop what he was holding is contradicted by the audio on the security video (exhibit #9). It is also contradicted by the evidence of DC Rand (about how loud he was yelling), but for now I focus only on the objective evidence of the video.[^4]

[112] As I have described above, at the start of the video, shortly before the person can be seen running through the schoolyard, a male voice can be heard to yell: “Stop! Drop whatever you’ve got in your fucking hands! Right now!” The only other sounds audible in the video are running footsteps, and a couple of events of clanging or thuds (which the Crown alleged are the throwing of the firearm, and Mr. Stewart jumping over a metal fence in the schoolyard). I find that the neighbourhood is quiet other than those sounds and DC Rand shouting. At the time DC Rand is shouting, he does not appear in the video frame, which shows McKee Avenue near Kenneth Avenue, looking to the north, and the schoolyard. This is close a block to the east (and south) of the takedown scene. From the fact that DC Rand is not seen in the video when the shouting is heard, or for the entire length of the video, I draw the inference that he must have been some distance away from when he shouted. Despite the distance, his voice was loud enough to be heard by the camera. In light of the volume of his voice, and the quiet of the surrounding neighbourhood, I do not accept Mr. Stewart’s evidence that he did not hear anyone yelling for him to stop and drop what was in his hands.

[113] The fifth issue that leads me not to believe Mr. Stewart’s evidence or be left in a reasonable doubt by it relates to the defence theory that the police mistook some other item in Mr. Stewart’s satchel for a firearm (in their observations made after the takedown was called). I find that the evidence from the booking video of the other items in Mr. Stewart’s satchel leads me to conclude that it is exceedingly unlikely that any of the items on the satchel could have been mistaken for a firearm. Neither the hair pick, the cologne bottle, or the phone are in any way shaped like a firearm. Although the hair pick is black and silver (black handle, silver teeth/tines), I do not accept that the officers could have mistaken it for a firearm.[^5]

[114] In addition to these problems of logic and contradiction by objective evidence that lead me not to believe Mr. Stewart’s evidence and not be left in a reasonable doubt by it, I find that the force of the Crown’s circumstantial case is such that it persuades me beyond a reasonable doubt that Mr. Stewart possessed the firearm, ran through the schoolyard, and discarded it in the schoolyard.

[115] I turn then to the Crown’s case. The Crown’s case is based on a combination of direct evidence (the evidence of DC Rand and DC Moore that they saw Mr. Stewart take a firearm out of his satchel just after the takedown was called), and circumstantial evidence (the observations of the officers of the two males prior to the takedown being called; Mr. Stewart’s flight when the takedown was called; the path of the flight and the location where the firearm was found in relation to the path of the flight; and the state the firearm was in when it was found).

[116] I find that although one can pull at individual threads within the evidence, the sum of the Crown’s direct and circumstantial evidence weaves together to form a strong case that Mr. Stewart possessed the firearm that was later found in the schoolyard. It satisfies me beyond a reasonable doubt that Mr. Stewart possessed the firearm. It satisfies me that this conclusion is the only reasonable inference from the evidence as a whole. I will address the various aspects of the Crown case in roughly chronological order.

[117] I am cautious with the characterization by the officers of their observations of the two males as they walked along Church Avenue. I give those observations little weight in my assessment of the Crown’s circumstantial case. I refer to the evidence of DC Rand, DC Moore, and DC Vandekerckhove that the males were looking around in an unusual way, staring into cars when they drove by, “had their heads on a swivel”, and DC Rand’s characterization of the manner in which they reached into their bags as being like holding a firearm (although he did not see a firearm at that time).

[118] I find that the officers’ characterizations of what they saw at this time are too subjective to be of much assistance on this issue of whether the Crown has proven beyond a reasonable doubt that Mr. Stewart possessed the firearm later found in the schoolyard; although they could have value on the lower standards required for grounds for investigative detention or arrest. People look around for all sorts of reasons. People who carry purses or satchels reach into them for all kinds of reasons. If the purse or satchel is on a long strap, they may have to hold up the purse or satchel in order to reach in. In retrospect, it appears, looking at all of the trial evidence as a whole, that the officers were correct about their subjective belief of what was happening. But that does not change that looked at objectively, the observations made by the officers as the males walked along Church Avenue are, in my view, too subjective to be given much weight on the issue of whether the Crown has proven possession beyond a reasonable doubt.

[119] As I have noted above, the credibility of the evidence of the officers was not challenged. Rather the reliability of some of their observations was challenged. I accept that each of the officers was a credible witness. They were consistent in their evidence, their evidence was not shaken in cross-examination, and their evidence fits together coherently within the whole of the evidence. I must still consider the reliability of the officers’ evidence.

[120] There were three primary areas where the reliability of the officers evidence was challenged by the defence: (i) the reliability of the evidence of DC Rand and DC Moore that they observed Mr. Stewart reach into his satchel and pull out a firearm just after the takedown was called; (ii) the evidence of DC Rand, DC Moore, and DC Vandekerckhove about the path that Mr. Stewart took as he fled, in particular that he jumped the fence and went into the schoolyard on Doris Avenue, and that he did not run along McKee Avenue outside the school grounds; and (iii) the evidence of PC Barcenas Pineda that just prior to the arrest, Mr. Stewart was running east on Church Avenue, and when the marked cruiser turned to the east to follow him, he stopped and then ran to the west. I will address each of these areas in my chronological assessment of the Crown’s case.

[121] As I have outlined above, DC Rand and DC Moore both testified that they saw Mr. Stewart reach for a firearm just after the takedown was called and the cars converged on Mr. Stewart and the other male. The defence submits that a number of factors make those observations unreliable, including that the observations were very brief, differences between the observations by DC Rand and DC Moore, and that the officers never attended the next day to view the seized firearm (i.e., to identify it as what they saw).

[122] My ultimate finding is that the observations of DC Rand and DC Moore that they saw Mr. Stewart pull a firearm from the satchel just after the takedown was called are reliable when considered in the context of the evidence as a whole. Had the observations of DC Rand and DC Moore stood alone, for example, if a firearm was not subsequently found along the path that I find Mr. Stewart ran on, I would not find the observations alone sufficiently reliable to meet the reasonable doubt standard for proof of possession. But the observations do not stand alone.

[123] I find that the lighting was good when DC Rand and DC Moore made their observations. Although it was approximately 10:30 at night, and dark out, both officers testified that because they had just pulled up their vehicles for the takedown, their car headlights were shining directly on Mr. Stewart.

[124] I accept that that the time which DC Rand and DC Moore had to observe the firearm was relatively brief – less than five seconds from when they pulled up for the takedown until when the male ran, and less that that that the firearm they say they saw was in view. I accept that it would be possible for each of them to observe what they say they observed in the short time. But the short time of the observation is a factor that I consider in assessing the reliability of their observations.

[125] Both DC Rand and DC Moore testified that they saw Mr. Stewart pull out a firearm at the same time. There is no suggestion made by the defence that they colluded in their evidence.[^6] They were in different cruisers. The fact that they both testified that they saw a firearm at the same time, in the absence of a suggestion of collusion, provides some corroboration for the reliability of each other’s observation.

[126] I accept that there are some discrepancies between how DC Rand and DC Moore described the firearm. DC Rand described the firearm as a black semi-automatic handgun, and in particular described a rectangular silver plate on the bottom of the slide close to the front of the gun. DC Moore described the firearm as a regular handgun[^7], and black in colour. Thus, DC Moore testified that what he saw of the firearm was black, and did not mention seeing any silver part of the firearm. The officers differ about how much of the firearm they saw. DC Rand described the whole firearm being out of the satchel; although I note that he testified that it was against the male’s chest, and angled in such a way that he could see the underside of the slide and the butt, but could not see the top of the slide. DC Moore testified that he saw half the gun, and in cross-examination said he saw the butt of the gun and part of the slide.

[127] I consider these differences in the description of their observations in assessing the reliability of the observations of DC Rand and DC Moore. But I find that these differences are the types of differences that are accountable to the fact that DC Rand and DC Moore were not standing in the exact same location at the time they made their observations. In addition, I accept DC Rand’s evidence that he observed the firearm somewhat tilted with the top of the slide angled towards Mr. Stewart’s chest. This angle would explain why from a different position DC Moore saw part of the firearm, the bottom half/handle. Thus, I find that the differences in description of what DC Rand saw of the firearm and what DC Moore saw are explained as differences of perspective, given that they were not standing in the exact same location.

[128] One factor that I consider important in my ultimate finding that the observations of Mr. Stewart pulling a firearm from his satchel just after the takedown was called is the level of detail in DC Rand’s description of the firearm, description which is consistent with the firearm later found in the schoolyard. As noted above, DC Rand did not attend to view the firearm after it was seized for purposes of identification. Yet his description of the rectangular silver plate on the underside of the slide near the front of the gun is a detail that is consistent with the firearm found in the schoolyard.

[129] The defence submits that the silver colouring along the top of the slide of the firearm found in the schoolyard distinguishes it from how the officers described the firearm they say they saw. I have considered this submission in relation to the reliability of the observations of the officers, and the possibility that the firearm found later in the school yard was not in Mr. Stewart’s satchel. I accept that neither officer described there being silver along the top of the slide of the firearm they saw. However, I find that, as I understand the evidence of DC Rand and DC Moore, neither of them testified that they saw the top of the slide when they saw the firearm just after the takedown was called. DC Rand testified that he observed the firearm somewhat tilted with the top of the slide angled towards Mr. Stewart’s chest. Thus, he would not have had a view of the top of the slide. DC Moore testified that he saw part of the firearm, the bottom half/handle. Again, his view did not include seeing the top of the slide.

[130] Taking all of these factors together, there are some factors that support the reliability of the evidence of DC Rand and DC Moore that they saw Mr. Stewart pull out a firearm just after the takedown (good lighting, fact that both officers independently observed a firearm at the same time, the level of detail in DC Rand’s description of what he saw, and the detail was consistent in a significant aspect with the firearm later found in the path Mr. Stewart ran on). There are some factors that makes one cautious about the reliability of their observations (primarily the short time for the observation; I find that the differences between the descriptions of DC Rand and DC Moore of what they saw are explained as differences of perspective). As I have noted above, if the observations at the time of the takedown stood alone, I would not find that they were sufficiently reliable to prove beyond a reasonable doubt that Mr. Stewart possessed a firearm. But in the context of all of the circumstantial evidence, I find that they are reliable, and that the Crown’s case as a whole proves possession beyond a reasonable doubt. I will turn to the rest of the circumstantial evidence in a moment, but first I will briefly address two factors that I do not rely on in ultimately finding the observations of DC Rand and DC Moore to be reliable.

[131] In coming to the conclusion that in the context of all of the evidence I find that DC Rand and DC Moore’s observations of a firearm just after the takedown was called are reliable, I do not rely on their evidence about their level of confidence that they saw a firearm at that time. Crown counsel quite pointedly elicited from each of them in examination in chief their level of confidence that they saw a gun (just after the takedown). DC Rand said he was “100%” confident he saw a gun. DC Moore testified that there was no doubt in his mind that he saw a gun. In my view, when considering the reliability of the officers’ evidence that they saw a firearm at that time, their asserted level of certainty is not a reliable guide. It is well-established in case law in relation to eyewitness identification that witnesses can be honest, but mistaken, and still have a high level of certainty that they are correct about what they observed.

[132] Nor do I rely on the experience of the officers in seeing and handling firearms in concluding that their evidence that they saw a firearm just after the takedown was called is reliable. Their experience with firearms does not give them better powers of observation than anyone else. I do not accept Crown counsel’s submission that based on their experience with firearms, DC Rand and DC Moore would be better able to recognize a firearm in the few seconds they made their observation than would a civilian.

[133] An aspect of the circumstantial evidence that I find strengthens the Crown case that Mr. Stewart possessed the firearm is that I find that there is nothing among the items in Mr. Stewart’s satchel that could easily be mistaken for a firearm. As I have outlined above, there is no dispute about the items that were found in Mr. Stewart’s satchel when he was arrested. Neither the hair pick, the cologne bottle, nor the phone are in any way shaped like a firearm. Although the hair pick is black and silver (black handle, silver teeth/tines), I do not accept that the officers could have mistaken it for a firearm.

[134] A related issue is that on Mr. Stewart’s own evidence, there is no support for the notion that he reached in and pulled out something from his satchel after the takedown was called which could explain the mistake by the officers. I want to underline that in considering this issue, I am not placing a burden on Mr. Stewart to provide a positive evidentiary basis for his assertion that DC Rand and DC Moore were mistaken in their observation of a firearm just after the takedown. I must still consider the reliability of their observations in the context of the evidence as a whole, and the Crown’s burden (which I do, in my analysis both above and below). I point out the absence of evidence from Mr. Moore that he reached into his satchel or pulled anything out of his satchel just after the takedown simply to make the point that there is no positive evidence on this issue to counterbalance the officers’ evidence or provide an alternative explanation for what they say they saw.

[135] Three related aspects of the circumstantial evidence weigh heavily in my finding that the Crown has met its burden to prove beyond a reasonable doubt that Mr. Stewart possessed the firearm later found in the schoolyard. First, I find that Mr. Stewart ran through the schoolyard, as testified to by DC Rand, DC Moore, and DC Vandekerckhove, and not along McKee Avenue as he testified. Second, I find that the location where the gun was found, adjacent to where Mr. Stewart ran is strongly probative that he possessed the firearm. Third, I find that the state in which the firearm was found (with the base of the magazine popped off and some distance away, the spring for the magazine also some distance away, and the bullets scattered on the ground) supports that the firearm was disposed of with some force, and in haste.

[136] I will address first Mr. Stewart’s path as he fled after the takedown was called. I accept the evidence of DC Rand, DC Moore, and DC Vandekerckhove that the “PUMA” male jumped the fence into the schoolyard as he ran down Doris Avenue, and ran through the schoolyard (rather than running further south to McKee Avenue and along McKee Avenue). The evidence of all three officers is consistent with each other. Each officer had a slightly different perspective and path. All of their evidence is consistent with Mr. Stewart running through the schoolyard from partway down Doris Avenue. DC Rand and DC Moore both went down Doris Avenue from the takedown site, in their vehicles initially. DC Moore followed Mr. Stewart into the schoolyard. DC Rand drove further south, and then ran along McKee Avenue eastbound on the south side of the school, and heard the male in the schoolyard. DC Vandekerckhove was running northbound up Doris Avenue towards the takedown site when he saw the male running southbound from the takedown site, and jump the fence into the schoolyard. DC Vandekerckhove then turned south and ran along McKee Avenue, along the south side of the schoolyard, and then entered the schoolyard. In addition, DC Rand and DC Vandekerckhove, who themselves ran along McKee Avenue both testified that they did not see anyone else running along McKee Avenue except for officers, and I accept their evidence on this issue.

[137] Further, the security camera video from a house near the corner of McKee Avenue and Kenneth Avenue, looking north towards the schoolyard, shows a person running through the schoolyard at the time just after the takedown. I find that the video captures the time shortly after the takedown because the yelling one can hear on the video of “Stop! Drop whatever you’ve got in your fucking hands! Right Now!” is consistent with DC Rand’s evidence about what he was yelling as he chased the male after the takedown. The video is not clear enough to identify the person running through the schoolyard (because of the darkness and the distance – the person is silhouetted in a light at the eastern end of the school, near the playground), but the path the person runs is consistent with the police evidence of where Mr. Stewart ran (into the schoolyard and east), and with where Mr. Stewart was eventually arrested (about a block further to the east and north from the schoolyard, and two blocks to the east from the takedown site). I find that Mr. Stewart is the person seen running through the schoolyard in exhibit #9, shortly after the time of the takedown. I note that if one watches through to the end of the video clip, the person can be seen in faint silhouette exiting the schoolyard at the east side of the school grounds on Kenneth Avenue.

[138] In coming to the conclusion that the person who ran through the schoolyard was Mr. Stewart, I also take into consideration and accept the evidence of all of the officers that they did not see other pedestrians in the residential neighbourhood at 10:30 that night (a Monday).

[139] The second aspect of the evidence that is important to my conclusion that the Crown has met its burden to prove possession is where the firearm was found. The firearm was found at a corner of the school building on the south side of the school, towards the eastern end of the school. The location where the firearm was found is adjacent to the path where I find Mr. Stewart ran through the schoolyard. As I have noted, the locations from the takedown, to where Mr. Stewart ran through the schoolyard, to where he was arrested, are all in a progression to the east (with some veering south and then north). The fact that the firearm was located along the path where Mr. Stewart ran is evidence that he had the opportunity to discard it in the schoolyard.

[140] I further find that the firearm was not in the schoolyard earlier in the day or evening on September 24, 2018. That day was a Monday. There would have been school during the day. Where the firearm was found was right next to door 4C, a door which based on the evidence of Mr. Honsberger, I accept was used by janitorial staff of the school. The firearm was, by my estimate from the photos, also seven to 10 metres from an entrance to the school which is for staff and children (Mr. Honsberger testified that door 4C is about 20 feet from a regular entrance to the school – which is in accordance with my estimate from the photos). Given the location where the firearm was found, on the pavement next to the school, and in an area not far from an entrance for children and the playground, I find that it must not have been there during the school day, because it would have been seen by a student or teacher. I also accept the evidence of Mr. Honsberger that the policy of the TDSB is that when schools are closed for the night, janitorial staff does a perimeter check of the school building when they lock up. He testified that for elementary schools, this usually happens at 8:00 or 9:00 p.m. (but can be earlier or later, depending when the janitorial staff leave) This policy evidence is not in itself conclusive, but it is evidence supportive of the inference that janitorial staff would have seen if the firearm was there when they closed up the school.

[141] I address further below the possible inference asserted by the defence that perhaps the firearm was left by some unknown person in the schoolyard overnight.

[142] The third aspect of the evidence that leads me to conclude that the Crown has met its burden is the state of the firearm when it was found. As noted above, the base was popped off of the magazine. The base of the magazine and the spring from the magazine were in two locations some distance from the firearm. The bullets had fallen out of the magazine and were scattered on the ground closer to the firearm than the bottom of the magazine or the magazine spring. I find that the state of the firearm supports the inference that whoever left it there did not just gently place it on the ground. Rather, it was discarded with enough force to cause the base of the magazine to come off, and that base and the magazine spring to scatter some distance from the firearm and from each other. This supports the inference that the firearm was thrown.

[143] Handguns are items that, absent appropriate licensing and registration, are unlawful to possess. They have a monetary value. A person who has gone to the trouble of acquiring a firearm would not discard it in a schoolyard absent some reason. I find that the state of the firearm when it was found is consistent with Mr. Stewart trying to dispose of the firearm in haste, as he ran from police, so he would not be found in possession of it. I further find that the state of the firearm is inconsistent with the notion that some unknown person discarded the firearm in the overnight period. There is no evidence whatsoever that anyone else was chased through the schoolyard by police or by anyone else in the overnight period, and thus, no evidence that anyone else had a motive to discard a firearm there with sufficient force to knock off the bottom of the magazine and scatter the contents.

[144] Crown counsel made the submission that the clanging sounds one hears on the security video are the sound of Mr. Stewart throwing the firearm in an attempt to throw it onto the roof of the school, and missing and it falling back to the ground, and then Mr. Stewart jumping one of the fences in the area around the playground, and which one would have to get over to exit at the east side of the school property. I accept that the evidence is consistent with this inference. The photos of the portion of the school and playground near where the firearm was found show both chain link fencing, and another style of black metal fencing (Mr. Honsberger gave evidence about this as well). However, I do not rely on that aspect of the noises on the video in coming to the conclusion that the Crown has met its burden to prove possession, because I find there is some uncertainty about the notion of drawing inferences from sounds in these circumstances.

[145] I turn then to the alternative inference that the defence submits is available on the evidence, that some unknown person discarded the firearm in the schoolyard. The primary factors that the defence relies on in support of this submission (apart from Mr. Stewart’s evidence, which as I have explained I do not believe and does not leave me with a reasonable doubt), are the fact that the firearm was not found when the police searched on the night of September 24, 2018, and the fact that the schoolyard was not secured between the time that the police finished their search at night, and resumed the search in the morning, a period of in the range of seven or more hours.

[146] I accept as facts that the police did not find the firearm when they searched that night, and that the schoolyard was not cordoned off in the overnight period. But I find that neither of these aspects of the evidence leads me to find that the possibility of an unknown person discarding the firearm in the schoolyard overnight is a reasonable inference. I find it is a speculative inference on the record before the court.

[147] I accept the evidence of the police that the search area was relatively large. It was not just the schoolyard; although, that was an important part of the search area. The search area included the two long blocks between Doris Avenue on the west (where the takedown was called), and Dudley Avenue on the east (where Mr. Stewart was arrested), and between Church Avenue on the north and McKee Avenue to the south. This was a relatively large area, which included the schoolyard and playing field, a community centre and playing field, and many residences on the boundaries of that area. Although there were a large number of officers searching (I find at least 10 officers, based on the evidence), and the fire service was called to assist with ladders to search the school roof, and a K-9 unit attended, the officers were searching a large area, and searching in the dark, and it was beginning to rain. In the circumstances, I do not find that the fact that the officers did not find the firearm that night means it was not there at that time.

[148] I accept that the schoolyard was accessible to others in the overnight period after the police stopped their search, and before the morning search began. Mr. Honsberger testified that the TDSB considers it trespass for people to be on school grounds overnight, and enforces its rights in relation to trespassing. But I find that as a matter of both common sense, and the evidence in this case, this assertion of private property rights would not, as a practical matter, prevent people from entering the McKee Public School yard overnight. The police evidence is that Mr. Stewart ran from the takedown site and hopped the fence to enter the school grounds after 10:30 at night. The security video from the house clearly shows a person (who I find is Mr. Stewart) running through the schoolyard after 10:30 p.m. TDSB security was not there to prevent this. From the photos, one can see that there are openings in the fence on the south side of the school property. Further, for the parts of the yard near the playground that are fenced and may have had their gates shut at night (which is unclear on the evidence), the fences are low and could be easily climbed over. And as a matter of common sense and experience, anyone who lives in this city knows that the TDSB does not have security stationed at every school, every night, to prevent any entry onto school grounds.

[149] This raises the possibility that an unknown person could have entered the schoolyard between when the police called off their search and when they started to search again in the morning with TDSB security staff – a period that I find is likely in the range of seven hours. I find that the possibility that someone may have walked through the schoolyard in the overnight period is in itself not a speculative possibility. People cut through schoolyards for all kinds of reasons, including just to take a shortcut.

[150] But the inference that I must consider as to whether it is a reasonable or a speculative inference is not whether someone walked through the schoolyard in the overnight period, but whether someone walked through the schoolyard and left a loaded firearm there, and did so with such force that the magazine broke apart spilling the bullets on the ground, and leaving the bottom of the magazine and the spring from the magazine some distance away from the firearm, and in circumstances where I have found that the firearm was found directly adjacent to the path where Mr. Stewart ran as he fled from police. In considering the alternative inference contended for by the defence, I also take into consideration that there is no evidence to support that anyone else had a reason to discard a firearm in the schoolyard that night, in particular, in such haste that they would have had to throw it leading to it breaking apart. My ultimate conclusion is that although there is a theoretical possibility that someone else left the firearm in the schoolyard, when one considers the evidence as a whole, and in particular the aspects of the evidence I have just outlined, the possibility that someone other than Mr. Stewart discarded the firearm in the schoolyard is a speculative inference.

[151] In coming to this conclusion, I refer back to the guidance of the Court of Appeal in Lights at paragraph 37. In considering a case that is significantly based on circumstantial evidence, the reasonable doubt standard applies to the case as a whole, and not to each piece of circumstantial evidence. Considering the evidence as a whole, I find that the only reasonable inference is that Mr. Stewart possessed the firearm later found in the schoolyard. I accept the evidence of DC Rand and DC Moore that when the takedown was called, they briefly observed Mr. Stewart remove the handgun from the satchel. He then fled from police, running down Doris Avenue (south) and then east into and through the schoolyard. As he fled, he threw the firearm, and it came to rest adjacent to the path he ran on near the playground (and a portion of his flight can be seen on the security video). Although the police searched for the firearm for approximately one hour that night, due to the size of the search area, the darkness, and the weather, they were unable to find that firearm that night. When police and TDSB security attended the next morning to continue the search, they quickly found the firearm, as I have noted, adjacent to where Mr. Stewart ran.

[152] I am satisfied beyond a reasonable doubt that Mr. Stewart possessed the firearm. As I have noted, the other elements of the offences-charged are not in dispute.

[153] Before closing, I want to briefly address the argument made by Crown counsel that an adverse inference should be drawn in relation to Mr. Stewart’s credibility on the basis that the rule in Browne v. Dunn was not complied with in one area. I reject this submission by Crown counsel. My findings in relation to Mr. Stewart’s credibility do not rely on the Browne v. Dunn argument.

[154] Crown counsel made the submission that because Mr. Stewart testified that he did not reach into his satchel or pull anything out of his satchel just after the police called the takedown, he was implicitly asserting that DC Rand and DC Moore had lied about seeing a firearm just after the takedown was called. Crown counsel submitted that not putting to DC Rand and DC Moore in cross-examination that they were lying about seeing a firearm violated the rule in Browne v. Dunn.

[155] I reject Crown counsel’s submission for two reasons. First, the position put forward by the defence throughout the trial and in submissions was that DC Rand and DC Moore were mistaken about seeing a firearm, not that they were lying about it. I do not accept that where the defence relies on a position of mistake, the Crown can gin up an aspect of Mr. Stewart’s evidence to argue that the defence is somehow impliedly suggested that the officers lied. That was not the defence position. The Crown cannot create a straw man in order to then seek an adverse inference based on Brown v. Dunn.

[156] Second, I am not persuaded that there was a breach of the rule in Browne v. Dunn, or any unfairness to the Crown, the witnesses, or the process.

[157] It was clear from the defence cross-examination of DC Rand and DC Moore that the defence was alleging they were mistaken in their belief that they saw Mr. Stewart pull a firearm from the satchel. This was put to the officers as a suggestion that they saw something other than a firearm pulled from the satchel. I accept that the version of the suggested mistake put to the officers in cross-examination did not arise on Mr. Stewart’s evidence, since he testified that although he reached into his satchel at an earlier point (prior to the takedown being called), he did not reach into his satchel when the takedown was called – he just turned and ran. The suggestion that the officers were mistaken in what they saw was clearly put to DC Rand and DC Moore in cross-examination. At its highest, there was a failure to put the nature or source of the mistake more clearly in cross-examination. Both officers rejected the suggestion that they were mistaken.

[158] Considering all of the circumstances, I find that the suggestion that the officers were mistaken in believing they saw a firearm was sufficiently put to them in cross-examination. There was no unfairness to the Crown or to the witnesses. The officers were able to fully testify to their version of events, and put on notice of the defence theory that they were mistaken. Based on the decision of the Ontario Court of Appeal in R. v. Quansah, 2015 ONCA 237 at paras. 75-86, I find that the defence sufficiently raised the issue of mistake with DC Rand and DC Moore, and that there is no basis to draw an adverse inference.

[159] I note as well that I have misgivings about how Crown counsel characterized his submission about the alleged breach of the rule in Browne v. Dunn. In his submissions on this issue, Crown counsel asked the court to draw an inference that Mr. Stewart gave evidence that “was unanticipated” by his counsel. That is not the rationale of the rule in Browne v. Dunn. Rather, the rule relates to various interlinked considerations of fairness: see Quansah at paras. 75-86. Characterizing the alleged breach as Crown counsel suggested, in a manner tied to inferences about what a defendant did or did not tell their counsel, risks leading to the mischief addressed by the Court of appeal in R. v. Olusoga, 2019 ONCA 565.

Conclusion

[160] For these reasons, I am satisfied beyond a reasonable doubt that Mr. Stewart possessed the firearm at issue. As I have noted above, the other elements of the four counts charged are not in dispute. I find Mr. Stewart guilty of counts #1 to #4.

[161] I thank to counsel for their assistance throughout the trial.

Justice J. Copeland

Released: December 16, 2021

[^1]: A pre-trial Charter application was heard by Justice Boucher, with reasons dismissing the application given September 27, 2021. As the Charter issues are not before me, I do not summarize in detail the evidence of the officers as to why police felt they had grounds to detain the two males, except to the extent that those observations have relevance to proof of possession. [^2]: I note that this is consistent with the date of birth that officers testified to when Mr. Stewart was identified on arrest. [^3]: This community centre is just to the east of McKee Public School, across Kenneth Avenue. [^4]: I note that the time stamp of the start of the video is 22:30:04. There was no evidence led as to the accuracy of the time stamp on the security video. DC Vandekerckhove’s evidence was that the takedown was called at 10:29 p.m., and DC Moore’s evidence was that it was called at 10:32 p.m. I take these minor differences in time to be simply from the common occurrence that clocks are sometimes not perfectly synchronized. I am satisfied from the content of the video (and the audio) in the context of the evidence as a whole that what it depicts is the man who ran from police through the schoolyard, and that it is DC Rand who can be heard shouting. [^5]: As I discuss further below, Mr. Stewart’s own evidence was that he did not reach into his satchel or pull anything out of his satchel at the time the cars converged on him and Javan. His evidence was that he just turned and ran. Thus, his own evidence does not provide a basis to conclude that the police mistook something else from the satchel for a firearm, because on his evidence, nothing was removed from the satchel at that time. I must still, of course, consider the reliability of the police observations in assessing whether the Crown has met its burden of proof. [^6]: Although the surveillance radio transmissions were not played at trial, the pre-trial Charter ruling notes that the radio transmission recorded both DC Rand and DC Moore speaking of the gun observation at nearly the same time: Pre-trial Charter Ruling, September 27, 2021, at paras. 10-11. [^7]: I did not understand DC Moore’s use of the word “regular” to address whether or not the firearm was semi-automatic. Rather, I understood it as emphasis that it was a handgun and not some other type of firearm.