Superior Court of Justice - Ontario

COURT FILE NO.: 0136-2021

DATE: 20220512

RE: R v. DANNA MILLAN AND PATRICK CELAJ

BEFORE: S.F. Dunphy J.

COUNSEL: Meghan Scott and Alexander Merenda, for the Crown/Applicant Marianne Salih, for the Defendant Danna Millan Marco Sciarra, for the Defendant Patrick Celaj

HEARD at Toronto via Zoom: May 4, 2022

REASONS FOR DECISION - GARDINER RULING

[1] On April 6, 2022, a jury convicted Ms. Danna Millan of kidnapping but acquitted her of three other charges (aggravated assault, robbery and uttering a death threat). Her co-accused Mr. Patrick Celaj was convicted on all four counts.

[2] The purpose of this hearing was to determine whether a firearm was used in the commiss ion of these offences. The use of a firearm in the commission of these offences is an aggravating circumstance that the Crown is required to prove beyond a reasonable doubt. In the case 9f the offences of kidnapping and robbery, the use of a firearm in the commission of these offences also brings into the sentencing picture the prospect of the minimum sentences prescribed by s. 279(1.1)(a.1) and s. 344(1)(a.1) respectively of the Criminal Code.

[3] This hearing was restricted to oral submissions based upon the evidence adduced at trial. For the reasons that follow, I find that a firearm as defined by the Criminal Code was used in the commission of these offences and to the knowledge of the defendants .

Background facts

[4] Between about 10:55 pm on February 1, 2020 and approximately 12:30 am on February 2, 2020, Mr. Jean Paul Castano was the victim of a violent criminal incident that gave rise to the charges tried before me.

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[5] Mr. Castano was in Toronto to visit his father over the holidays. That night, his long-time friend Ms. Danna Millan had invited him to come with her to a party at an Airbnb to celebrate her birthday after which they planned fo meet his father at a nightclub where his father's birthday was to be celebrated. Ms. Millan's boyfriend at the time was a crack

cocaine and marijuana dealer named Mr. Yusuf. He would also be coming and was to drive them both in his car. The arrangements were made during the day in a series of text messages and phone calls between Ms. Millan and Mr. Castano. Shortly after 9 pm, Ms. Millan and Mr. Yusuf picked up Mr. Castano at his father's apartment. Unbeknownst to him, Ms. Millan had agreed with her boyfriend to make a different stop that was to prove to be a violent ambush aimed at Mr. Castano. The apparent motive for this planned ambush arises from events of the prior week.

[6] Three days before the incident, Ms. Millan and Mr. Yusuf returned from a week­ long vacation in the Dominican Republic. While they were away, Mr. Yusuf had left his car parked at the apartment Ms. Millan shared with her mother. A few days into the vacation, Mr. Yusuf learned that his car had been broken into and its contents stolen. The thief made away with a stash of marijuana and crack cocaine that Mr. Yusuf had not yet paid his suppliers for and a new and expensive brand-name winter coat in addition to breaking the window of his car to gain entry.

[7] Mr. Yusuf was quite upset by this event. He became convinced that Mr. Castano was the thief. There is no basis to believe that this was true and plenty of reasons to believe that it was not. However, Mr. Yusuf believed it to be so. Ms. Millan said that she tried to talk Mr. Yusuf out of this belief without succeeding in doing more than persuading him to stop repeating the claim and ruining her vacation talking about it. She did not tell Mr. Castano about Mr. Yusuf's continuing belief and Mr. Yusuf betrayed nothing when Mr. Castano picked them both up at the airport on their return that Tuesday night.

[8] At all events, Mr. Yusuf had made different plans for that Saturday night that did not involve Mr. Castano going to any kind _of party. One or possibly two days earlier, Mr. _ Yusuf arranged with one of his crack cocaine customers, Mr. Rowe, to be allowed to use Mr. Rowe's apartment on Bedford Road to bring over some men and talk to someone. Mr. Rowe was to receive payment in the form of some crack cocaine.

[9] The defendant Mr. Celaj and Mr. Yusuf were also long-standing and close friends. The day before the incident, the two were sharing a joke on lnstagram about Mr. Castano having an unrequited crush on Mr. Celaj. Mr. Celaj ended the exchange by remarking that he and Mr. Yusuf should "call each other after and plot". The phone log from Mr. Celaj's cell phone indicates several calls with Mr. Yusuf after this exchange and several more in the hours immediately before the incident. The location log from Mr. Celaj's phone showed him present in the area of Mr. Rowe's apartment on Bedford Road about twenty minutes before Mr. Yusuf arrived there with Mr. Castano. Mr. Celaj was present in Mr. Rowe's apartment when Mr Yusuf arrived shortly before 10 pm along with Ms. Millan and Mr. Castano.

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[1O] Mr. Celaj's presence in that place and at that time was not a coincidence. His evident close relationship with Mr. Yusuf, his frequent communications with Mr. Yusuf in the·two previous hours, his presence in the apartment, his instantaneous reaction to the entry of Mr. Castano into the apartment and his precaution of wearing a mask over his face at the time Mr. Castano did enter leads to an inference that Mr. Celaj was, at a minimum, aware of Mr. Yusufs plans to a considerable degree.

[11] Other men had also come to Mr. Rowe's tiny apartment prior to the arrival of Mr. Yusuf. Apart from Mr. Rowe and Mr. Celaj, there were three other men in the apartment when Mr. Yusuf arrived. There included two black men - one short and one tall - that Ms. Millan said were dealers from whom Mr. Yusuf had purchased the drugs that were stolen from his car and to whom he continued to owe the purchase price. There was also a white man, referred to by some of the witnesses as the "crazy white guy" who played a role in the subsequent events. None of these three men were ever positively identified beyond the very basic descriptions of them given by Mr. Castano or Ms. Millan in their evidence.

[12] Idescribed the incident at the Bedford Road apartment of Mr. Rowe as an ambush for that is precisely what it was. Mr. Castano was led to the back door of the house where the door to Mr. Rowe's apartment was located. He believed he was going to an Airbnb party for some "pre-drinks" with Ms. Millan's friends before going to a club to meet up with his father to celebrate the latter's birthday. Upon entering the apartment, Mr. Castano was almost immediately jumped by some or all of the men who were waiting in the apartment for him including Mr. Celaj. A hood was forced over his head. Loud heavy metal music was played by Mr. Rowe to drown out Mr. Castanos cries for help. Despite his struggles, he was forced into a chair but did manage to remove the hood from his head. For the next approximately 45 minutes, he was set upon by the men in the apartment: Mr. Yusuf, Mr. Celaj, the "crazy white guy" and the two black men. Of these, only Mr. Yusuf and Mr. Celaj were known to Mr. Castano but the latter wore a mask to disguise his identity at least initially.

[13] With the exception of scratches to his back that he felt but did not see when he attempted his escape near the end of the ordeal, Mr. Castano did not attribute any of the physical violence to which he was subjected in the apartment to Ms. Castano. He clearly implicated her in directing matters to a considerable degree, a fact which she categorically denied and which the jury verdict acquitting her of the aggravated assault, threatening and robbery charges must be taken as confirming that her evidence on these points was either accepted by the jury or succeeded in raising a reasonable doubt in their minds.

[14] The men beat Mr. Castano severely. He was punched repeatedly in the head, face and upper body. Mr. Celaj is and was a tall and fit-looking man. He participated actively in the beating. Mr. Celaj's knuckles were sore enough from the beating he administered that night that he asked his girlfriend to drive his car for him the next day because his knuckles hurt to drive. Mr. Castano believed that his jaw was broken. Infact

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it was not, but he was in great pain for a considerable time after the events of that night and had trouble eating and speaking for the swelling.

[15] Mr. Yusuf and others inthe room repeatedly shouted at him asking where the drugs were and demanding money from him. Mr. Celaj maintained silence inside the apartment. I infer from this and the mask he wore inside the apartment that Celaj initially sought to avoid being recognized by Mr. Castano. Mr. Castano's attackers tried to force him into a chair and to secure him to it variously with a USB cable, with duct tape and with a cheap set of handcuffs none of which managed to do the job . The "crazy white guy" got a pair of pliers and attempted to get hold of Mr. Castano's fingernails to pull them off to make him speak. Between Mr. Castano's struggling and the apparent drug-fueled state of agitation of the "crazy white guy", the latter managed little more than to leave a cut on the tip of one of Mr. Castano's fingers. At one point, the two black men forcibly took Mr. Castano's jewelry (he wore a diamond-studded ring that his grandmother had given him, another valuable ring, a watch and some "Pandora" bracelets among other items), his wallet with a small amount of cash and his brand-name jacket. Mr. Yusuf took his iPhone. During the struggles, his shirt was ripped off entirely or largely shredded. The value of what was stolen amounted to several thousand dollars.

[16] Throughout the ordeal, Mr. Castano was repeatedly threatened with death by Mr. Yusuf and the two black men (Mr. Celaj maintained silence throughout the time they were in the apartment at least). Mr. Yusuf threatened to kill members of Mr. Castano's family including his younger brother and Mr. Castano knew that Mr. Yusuf knew where they lived. He was threatened by these men with what he believed to be a handgun. I shall describe the evidence in relation to the alleged gun in more detail below.

[17] When he was ordered by the black men to hand over his brand-name jacket, Mr. Castano was allowed to stand in order to remove it. After removing his jacket, he attempted to make a run for the door only a few short steps away to make his escape. His assailants jumped him from behind. to stop him. In the course of the melee that followed, Mr. Castano received numerous deep scratches to his back and a long cut on his thigh that he thought came from a knife wielded by one of the black men. He also received further kicks and punches. He fought them all off as best he could but was brought down by a blow to the side of his head from a blunt object that he believed to be the gun with which he had been threatened by Mr. Yusuf moments earlier. The blow felled him and left him unconscious on the floor for a few moments at least. The wound bled profusely and blood stains were still visible on the wall near the door when police searched the apartment a few days later. The wound would eventually need eight stitches to close.

[18] When he came to, Mr. Castano was in no shape to continue the fight. Ms. Millan got him some water to drink and Mr. Celaj picked him up and walked him over to the nearby couch. Mr. Yusuf attempted to secure Mr. Castano's hands behind his back while Mr. Celaj led him to the couch without objection or interference by Mr. Celaj.

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[19] Ms. Millan knew that Mr. Castano needed medical attention. He was bleeding heavily. He had been unconscious briefly and his eyes appeared to roll to the back of his head. ·

[20] Mr. Celaj then brought Mr. Castano to his feet and walked him out of the apartment , around the side of the house and out to the street where Mr. Yusuf's car was parked. The two were accompanied by Ms. Millan and, after a brief pause, by Mr. Yusuf. While leaving, Ms. Millan grabbed a hoodie-style sweater from Mr. Rowe's apartment for Mr. Castano whose winter jacket had been taken from him earlier.

[21] Mr Castano was placed in the back seat of the car, Mr. Yusuf and Ms. Millan occupied the two front seats with Mr. Yusuf driving. Mr. Celaj got into the back seat, Mr. Castano's bleeding head resting on Mr. Celaj's lap and leaving a considerable blood stain on his winter coat. Just before getting into the car, Mr. Yusuf had called Mr. Celaj by name and with in earshot of Mr. Castano. Mr. Celaj was upset by this but abandoned any further attempt to disguise his face from Mr. Castano. Nevertheless, he said little to nothing during the ninety minutes or so that Mr. Castano was kept in the car and ultimately driven to the Oakville Marina.

[22] The car drove away from the Bedford Road area at approximately 10:45 pm. It did not go to a hospital although Ms. Millan knew he needed to go, Mr. Castano asked to be taken to one and the Bedford Road apartment was only a short distance from several hospitals on University Avenue. He was not let out of the car near a hospital either.

[23] It is not clear where the car drove to for more than ninety minutes, the trip to the Oakville Marina not normally needing more than about half that time. During the trip, there was discussion between Ms. Millan and Mr. Yusuf about where to take Mr. Celaj. They discussed taking him to Niagara Falls or to see another drug dealer known to Ms. Millan. At some point, the car drove along Lakeshore Road and shortly before 12:30 pm arrived at the O;:ikville Marina. The immediate area was dese.rted and there was snqw falling.

[24] By chance, the car parked within view of a security camera at the marina. Upon arrival, the car parked for several minutes before anyone got out. During this time, Mr. Castano was given a story that he was to tell his father that would not implicate anyone in the car. After Mr. Castano agreed to tell this story, a call was placed to his father using one of Mr. Yusuf's phones. Mr. Castano told his father that he was on "Lakeshore" but did not give him a precise location because he did not know where he was. His father understood that his son was in fear for his life. Mr. Castano's father went to police for help but without better information about where to look, they had to wait for more developments.

[25] After parking at the marina for just over three minutes, the rear driver side door, the two front doors and the trunk opened within seconds of each other. Mr. Yusuf was

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the first to emerge. He went to the trunk area and when he straightened up, he had something small yet relatively heavy in his right hand and which he continued to hold to his side or near his waist area for the remainder of the time he appeared on the security camera footage.

[26] After a short delay, Ms. Millan emerged from the front passenger side and Mr. Celaj from the rear driver side. Mr. Celaj went to the rear passenger side of the car. Mr. Castano soon emerged from the car with Mr. Celaj at his side and holding his right arm. Mr. Castano had no coat and his shirt, if present, was shredded to the point of not being visible. His pants were also torn on one side and he appeared visibly weak and dazed. He had the hoodie taken by Ms. Millan draped loosely over his head and the remainder of the sweater hung loosely across his shoulders .

[27] Mr. Yusuf turned to face Mr. Castano and warned him not to do anything stupid. Mr. Celaj told him to look straight ahead and Mr. Yusuf told him to keep walking straight ahead. Mr. Castano could see a gun in Mr. Yusufs hand pointed at him and Mr. Yusuf told him not to do anything stupid and that he would kill him. The gun was held through a plastic bag of some kind. After walking him towards the end of the driveway area, Mr. Celaj and Mr. Yusuf returned to the car and drove away, leaving Mr. Castano alone, barely dressed, walking to the end of a driveway in a deserted Oakville marina in the snow in early February. About two minutes after Mr. Yusuf and his car had left the area, Mr. Castano walked back down the driveway the way the car had come and a few minutes later managed to make his way to a house located near the Marina to call the police and an ambulance.

[28] In my instructions to the jury , I advised them that the evidence indicated two potential events that occurred during the incident that might fit the definition of kidnapping. The first potential kidnapping was the trip to the Bedford Road apartment in Mr. Yusuf's car on the basis that Mr. Castano had been induced by a fraudulent ruse to get into the car in the mistaken belief it was taking him to a party and not an ambush. The second was when Mr. Castano was taken in the car after having been beaten and driven for just under two hours before he was left at the Oakville Marina in the conditions described .

[29] I have inferred from the fact that the jury acquitted Ms. Millan on the other three charges (aggravated assault, robbery and uttering a death threat) that the jury concluded that she did not have advance knowledge of what was to take place in the apartment when she arranged with Mr. Castano to bring him there and that she did not aid Mr. Yusuf or the others in the robbery and assault that occurred in the apartment. I therefore conclude that the jury found she was not a party to the ruse by which Mr. Castano was brought to the Bedford Road apartment and was thus not guilty of that instance of kidnapping that formed a part of what Iam describing as the incident. By convicting her of kidnapping , I have inferred that the jury found that she was either a joint principal or aided Mr. Yusuf and Mr. Celaj in the commission of that offence when Mr. Castano was

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taken from the Bedford Road apartment for a nearly two-hour drive without his consent before being deposited at the Oakville Marina.

[30] Mr. Castano said that death threats were made in the apartment, in the car while driving to Oakville and while he was being walked down the driveway at the marina. He attributed these threats to Mr. Yusuf and to one of the two black men (in the apartment in the latter case). Ms. Millan having been acquitted of this charge, I infer that she played no part either in communicating the death threats or in knowingly assisting another to do so. The evidence is equivocal as to whether she was in a position to hear the death threats made in the apartment or while Mr. Castano was being walked down the driveway at the Marina. In the former case, there was a lot of shouting going on during the assault on Mr. Castano inside the apartment and loud heavy metal music was playing precisely to drown out the noise being made by the assault and she would have been distracted for a time when searching through Mr. Castano's phone. Ms. Millan would have been out of earshot of any threats made while walking Mr. Castano down the driveway .

[31] The Crown indicated that it is content to proceed with this application in relation to proving the aggravating circumstance of the use of a firearm on the basis that the jury's decision to convict Mr. Celaj of kidnapping should also be attributed to the second phase of the incident - i.e. the trip from the apartment to the Oakville Marina.

Issues to be decided

[32] Has the Crown proved beyond a reasonable doubt that a firearm was used during the incident?

[33] If yes, for which offences has the Crown proved beyond a reasonable doubt that a firearm was used?

Analysis and discussion

[34] As Iexamine the evidence adduced at trial regarding the use of a gun during the incident described above, it is common ground that no gun was ever recovered. I separately consider the question of a firearm being used during the commission of the robbery and of the kidnapping because despite the common evidentiary foundation applying to both questions, there are temporal differences between the events that may affect the analysis.

Has the Crown proved beyond a reasonable doubt that a firearm was used during the incident?

[35] There are four sources of evidence for the existence and use of a firearm during this incident: (i) the evidence of Mr. Castano; (ii) the photographs of Mr. Castano's

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wounds; (iii) the evidence of Ms. Millan; and (iv) the surveillance video evidence from the Oakville Marina. Numerous text messages were extracted from the phones of both accused persons but none of the messages reference the use of a guri during the incident.

[36] Mr. Castano's evidence was that he initially saw a gun tucked in the waistband of one of the black men. He also saw Mr. Yusuf carrying a gun holding it through a plastic bag both inside the apartment and at the Oakville Marina. At one point he thought that there may have been two guns but on reflection he concluded that Mr. Yusuf was holding the same gun that the black man initially held.

[37] Mr. Castano had more than just the occasional fleeting glimpse of the weapon. He was threatened with the gun by the black man and by Mr. Yusuf on more than one occasion and the ordeal in the apartment lasted about 45 minutes with the gun making an early appearance. He saw the gun being held by each of them in the manner of a real gun. He was able to observe the apparent weight of the gun by the way it was being held. The muzzle of the gun was pressed against the temple on the left side of his head with sufficient force and for enough time to leave a clearly visible muzzle imprint on his skin when police photos were taken later. It felt real to him then. He described the gun's size and appearance as resembling a police service gun.

[38] While no expert, Mr. Castano had seen guns before and had even been held up with a gun in his home country.

[39] In short, Mr. Castano saw what he believed to be gun used in the manner of a gun to threaten him both at the apartment and at the marina. He saw the gun being so used on several occasions by Mr. Yusuf and the black man. Despite the chaotic circumstances, it quite naturally commanded his attention as indeed it was intended to do. He did not see any ammunition being placed into the gun and it was never fired in his presence. However, based on his experience and the myriad clues the eyes and ears assemble when making such observations, .he was convinced th item that he saw qeing brandished as if it were a real gun was in fact a real gun. The terror it induced in him was not feigned.

[40] There is also the matter of the wound to his head. Mr. Castano was hit from behind while he was trying to escape. He was hit by a heavy-feeling object on the side of his head with enough force to knock him to the ground unconscious for a brief period and to open a wound that eventually needed eight stitches to close. He had seen Mr. Yusuf with the gun in his hand before that blow was struck. While Ms. Millan said she could not see who hit him or with what, she did not testify that anyone picked up a blunt object to hit him nor did she see anyone drop one afterwards. Given the prevailing chaos and the speed with which Mr. Castano attempted to make good his escape, it is much more likely that Mr. Yusuf would have used what he had in his hand to hit Mr. Castano rather than looking for an entirely different weapon from among whatever bric a brae was to hand in Mr. Rowe's tiny apartment. No blood-stained items were found when Mr. Rowe's apartment

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was searched by police a week later although the stains on the wall were still in place and not cleaned up.

[41] I conclude that Mr. Castano was hit on the head by Mr. Yusuf using the gun that he held in his hand at that time. The severity of the wound is consistent with the gun used by Mr. Yusuf being a gun of the size and weight of a real gun.

[42] Ms. Millan said that she had not previously seen Mr. Yusuf with a gun. She was careful in her answers never to say that she knew if it was a real gun. However, she saw the gun being handled by one of the black men and by Mr. Yusuf inside the apartment. To her eyes, it was held and pointed as if it were real. She said that when the gun was first brought out, others in the room including Mr. Celaj reacted to it as if it were real. While not certain that it was a real gun, she admitted on the stand that she believes that it was.

[43] I have previously referenced the police photos taken of the wounds suffered by Mr. Castano. These photos depict the gash on the side of Mr. Castano's head that required eight stitches to close as well as the imprint of the muzzle on skin of Mr. Castano's left temple. The photos were taken about 48 hours after the incident.

[44] Finally there is the evidence of the Oakville Marina security video. While the angle, lighting and picture quality do not permit one to distinguish the form of an actual gun in Mr. Yusuf's hands, when taken as a whole the video does clearly show something in Mr. Yusuf's right hand when he straightened up after rummaging around for a moment in the trunk. Whether he retrieved the object from the trunk or already had it with him in his pocket when he emerged from the car and went to the trunk cannot be said with confidence . Once visible on camera however the object certainly appears consistent with being a gun. Mr. Yusuf kept his right arm relatively immobile with his hand at or near his waist and was visibly holding something. The size and apparent weight of the object is consistent w.ith it being a gun as Mr .Castano testified it wa$.

[45] The object that Mr. Yusuf had in his right hand while standing before the trunk of the car, while standing near Ms Millan on the passenger side of the car and when moving with Mr. Celaj and Mr. Castano down the driveway, was clearly visible to Ms. Millan while she was standing only a few feet away from him and apparently talking to him and to Mr. Celaj and Mr. Castano when he faced them both (and when he was talking to Mr. Celaj on the driver side of the car before then).

[46] Apart from the mute security tape, there is only the evidence of two eye-witnesses to examine regarding this aspect of the incident. Mr. Castano said that Mr. Yusuf was carrying a gun at this point and threatened him with it. Ms. Millan claimed to have seen nothing. Having carefully examined the tape on multiple occasions, Ido not accept Ms. Millan's evidence regarding her eyesight having failed her on this occasion or on the occasion when Mr. Castano was struck from behind when trying to escape. On both

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occasions, she was in a good position to see what Mr. Yusuf was holding. Although she said that she was no longer in a relationship with Mr. Yusuf, I found that her evidence tended to be protecfive of him and to minimize his culpability (even though he was not on trial). I accept Mr. Castano's evidence that the item that he saw in Mr. Yusuf's hands appeared to him to be a real gun and I infer from the evidence that this was the same gun that Mr. Yusuf had in his hand when he struck Mr. Castano from behind when he was trying to escape from the apartment about two hours earlier.

[47] I also find that this same object was clearly visible to and seen by each of Ms. Millan and Mr. Castano neither of whom gave any sign of shock, surprise or even interest at the sight of the object in Mr. Yusuf's hand inthe silent video clip recorded by the security camera. Their lack of reaction to something visible to both is strongly suggestive of two people who knew what it was they were seeing because they expected to see it and had seen it earlier.

[48] I make no finding as to whether the gun in question was retrieved from the trunk of the vehicle at the Marina or whether Mr. Yusuf had it in his pocket and was putting something else away in the trunk. I can only say that when he straightened up after rummaging around for a time in the trunk, the item that Mr. Castano believed to be a gun was clearly visible in his hands and was subsequently visible to each of the other occupants of the car.

[49] To this point, the evidence clearly establishes that Mr. Yusuf held a heavy metallic object that Mr. Castano believed was a real gun, that was used to coerce and threaten Mr. Castano as if it were a real gun and was generally treated by all who saw it as if it were a real gun. Both eye-witnesses - Ms. Millan and Mr. Castano - believed that it was a gun and acted accordingly . Ms. Millan's admission of course applies only to the time she admitted seeing the gun in the apartment - she denied seeing it at the marina, although I do not accept her evidence in that regard as being sincere.

[50] Does the theoretical possibility that some imitation guns may be heavy enough,

metallic enough and realistic enough in appearance to fool an observer raise a reasonable doubt that the item may not have been an actual operable gun? In my view it does not.

[51] Findings of fact are made based on the totality of the evidence considered in the context in which the evidence was collected or recorded.

[52] In R. v. Wills, 2014 ONCA 178 Dougherty J.A. confirmed (at para. 50) that the Crown's burden to prove the existence of a firearm meeting the Criminal Code definition may be satisfied "by inference from the totality of the circumstances, even if the alleged firearm was not fired or recovered" as is the case here.

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[53] In R. v. Charbonneau, 2004 9527 (ON CA) (at para. 3) the Court of Appeal upheld a finding of fact regarding the existence of a handgun made by the trial judge who "had before him the evidence of the complainant's clear belief that it was a gun, her description of the object, the appellant's conduct in relation to it and his use of it together with the appellant's threat to shoot while holding it" along with "a complete absence of evidence to the contrary". Taken together, those considerations were held to be a "sufficient foundation for the trial judge's finding that it was a handgun".

[54] In R. v. Gordon, 2017 ONCA 436, Dougherty J. A. again commented on the sufficiency of the evidence needed to find that a handgun not recovered and tested was nevertheless a real one. He noted (at para. 31) that "[a] trier of fact is entitled, although clearly not obligated, to take a robber at his word when, in the course of the robbery and to subdue the victims, the robber points what appears to be a gun at the victim and threatens to shoot them. It is a fair inference that the threat is not an idle one and that the robber has the means at hand to make good on the threat".

[55] The foregoing authorities are on all fours with the present circumstances.

[56] Mr. Castano was brought to the Bedford Road apartment by arrangement. Mr. Yusuf, of slight build himself, had arranged for others to be on hand in the apartment to ensure that he had overwhelming force on his side.

[57] Did Mr. Yusuf have access to a firearm? The answer to this question is not conclusive one way or the other to the central question but is at least a factor that bears some weight.

[58] Ifind that by reason of his profession (trafficking in crack cocaine), Mr. Yusuf had greater access to firearms than members of the general public without his "professional" connections and that this degree of access is a factor to consider. However, this conclusion_ cannot be made to ber more weight that it is easonably able to do.

[59] One aspect of the answer to this question can be found in the reaction of both Mr. Castano and Ms. Millan to the sight of the gun (and also Ms. Millan's description of Mr. Celaj's reaction to the sight of it). All three knew Mr. Yusuf. Two of them said that they believed what he held was a real gun and the third - who did not testify - was observed by Ms. Millan to act very much as if he believed it to be real as well. Their belief logically would be informed by a combination of what they saw and who they saw.

[60] Mere access to a firearm does not mean that the object in question in this case was in fact a firearm. This factor is no more than a piece of circumstantial evidence that must be considered along with all of the other circumstantial evidence to consider whether the Crown's evidence satisfies the required standard of beyond a reasonable doubt.

[61] While Mr. Yusuf may not have flaunted his access to a weapon to his relatively recent girlfriend, he clearly did have access to a firearm since whether the gun in question

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was the same as the one brought by one of the black men Mr. Yusuf arranged to have present or a different one. I do not go so far as to infer that Mr. Yusuf s business of trafficking necessarily gives rise to an inference of possession of an actual firearm - clearly it does not and correlation is not equal to causation. However, in an "industry" where firearms are unfortunately quite common, the inference that a retail dealer in crack cocaine would better know where and how to acquire a gun if he or she did not already have one compared to a school teacher or a baker is not a difficult one to make. The weight that inference bears is a different matter.

[62] Whether the goals of the evening were to punish Mr. Castano for his alleged role in breaking into Mr. Yusuf s car, to rob Mr. Castano of valuables in compensation for the theft, to extort money and valuables from Mr. Castano to be paid at a later date or a combination of all of these cannot be said with certainty in the absence of direct evidence. However, the demands for money, the beatings inflicted and the robbery of valuable jewelry that took place in the apartment strongly points to all of these motives being at play. While the defence made much of the lack of any "follow-up" on the demands for money that were made, that lack of follow-up is fully explained by the reaction of Mr. Yusuf and Ms. Millan to the unforeseen actions of Mr. Francisco Castano bringing Ms. Millan's mother into the picture only a few hours later. This was, in effect, novus actus interveniens .

[63] In Her Majesty The Queen v. Dib and Hersi, 2014 ONSC 6198 the witnesses had only a limited opportunity to view the firearm and one of them was unsure. By contrast, the incident in this case took place over an extended period of time. At least one of the perpetrators/holders of the gun was known to both witnesses and both believed the apparent gun he held and manipulated to be the real thing. The gunman in Dib allowed someone he threatened to simply run away suggesting the threats may have been hollow ones. The incident in this case betrays no hint of hollow threats. Mr. Castano was felled from behind by being pistol-whipped with the gun held by Mr. Yusuf at the Bedford Road apartment. The deserted waterfront locale where Mr. Yusuf chose to let Mr. Castano go and the long drive that preceded this quite readily lent itself to a legitimate fear that that Mr. Yusuf very much intended to make good on his threats if he had any reason to suspect the Mr. Castano would break the silence he agreed to keep under threat.

[64] The gun was brought out and used specifically to help subdue the still-struggling Mr. Castano who was and is a fairly big and strong man, particularly compared to Mr. Yusuf. After being threatened with a gun, Mr. Castano did not entirely cease his struggle, but was still in the seat long enough to permit the black men to take his wallet, jewelry and watch and for attempts to be made to secure him with duct tape, the handcuffs or the auxiliary cable. The gun that was also used to bring an abrupt end to Mr. Castano's attempted escape when he was hit from behind. Finally, it was the gun that was used to attempt to inflict sufficient terror in Mr. Castano's mind to dissuade him from telling the police what had happened that night with at least some temporary success. It is a fair

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inference that the threats being made with the gun were threats that the holder had the means at hand to make good upon in each case.

[65] Everything points to the gun being real. The appearance of it, the manner of holding it, its apparent heft and weight, the threats made with it and the reaction of others to it - all of these point to the object observed by Mr. Castano, Ms, Millan and the security camera in Oakville as being a real, operative firearm. Ms. Millan believed it to be so as did Mr. Castano. There is no evidence to the contrary.

[66] I find that the Crown has proved beyond a reasonable doubt that the item held by Mr. Yusuf during the incident - both in the apartment and at the Oakville Marina - was in fact an operative firearm. I also find that Ms. Millan and Mr. Celaj both observed the gun in Mr. Yusuf's hands both in the apartment and at the Oakville Marina and observed how and for what purposes that he used it.

In which offences has the Crown proved beyond a reasonable doubt that the gun was used?

[67] Was the gun used in the commission of the offence of kidnapping, viewing the actus reus of that offence as consisting of the taking of Mr. Castano to the car and transporting him to Oakville against his will for the purpose of confining him against his will?

(68] Immediately prior to Mr. Castano being led out of the apartment to Mr. Yusuf's car by Mr. Celaj and Ms. Millan, Mr. Castano had been subjected to an extensive beating over approximately half an hour or more. During that beating, he was asked to disclose where the drugs he had allegedly stolen were being kept and he was asked for money. What he had of value with him was confiscated and was repeatedly threatened with death both to himself and his family if he did not return what he had allegedly stolen. After he was felled by Mr. Yusuf's blow to the side of his head, he was unsteady on his feet, bleeding"profusely and in need of urgent medical assistance. .

(69] Mr. Castano's assailants needed one more thing from him that night if they were to let him go: his silence.

(70] The gun that was used to intimidate him inside the apartment was integral to the scheme to procure that silence as was the long car trip and the deserted locale where the car trip ended. Mr. Castano was brought to his feet by Mr. Celaj and he and Ms. Millan walked him out of the apartment to Mr. Yusuf's car. Mr. Yusuf or Ms. Millan had his phone. His wallet, money and valuables had been taken by the two black men earlier. His clothes were in tatters and it was dark and cold outside. He was placed lying down in the back of the car. He asked to go to the hospital but instead the car drove. And drove.

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[71] The car was on the road for more than ninety minutes - about twice the time normally needed to drive out to Oakville late on a Saturday night. A story was invented that he was made to agree to tell others .that would explain his injuries without implicating Ms. Millan or the others. There was discussion about going to Niagara Falls or to visit another drug dealer known to Ms. Millan. All of these possibilities would naturally have been foreboding to Mr. Castano who was asking only to be let go at a hospital. Instead, he was taken to a deserted waterfront location in Oakville, made to walk down a driveway with a gun pointed at him while he was given forceful reminders not to do anything stupid. His release in Oakville only happened when he agreed to tell his father the story that Ms. Millan fed to him for the purpose.

[72] The purpose of the kidnapping was to coerce Mr. Castano's silence about the true events of the evening. The presence of the gun before he was placed and kept in the car against his will and its presence when they arrived at the Oakville Marina was all part of the same continuum of events. Ifind that a handgun was used in the commission of the offence of kidnapping. Mr. Millan and Mr. Celaj both were aware of the presence of the gun and the use Mr. Yusuf had made of it earlier in the apartment. They were both aware of and unsurprised by the presence of the gun in Mr. Yusuf's hand at the Oakville Marina. Both of them played their respective roles in carrying out the kidnapping to achieve its intended purpose. The gun was a firearm as defined in the Criminal Code and was, to the knowledge of both, used in the commission of the offence of kidnapping for which they have been convicted by the jury.

[73] Was the gun used in the commission of the offence of robbery? There can be no question that it was. The evidence clearly establishes that it was the brandishing of the gun that caused Mr. Castano to cease - at least for a time - his struggle against the forces assembled against him in that cramped apartment space. While so subdued, he was relieved of his valuable jewelry, his iPhone, his watch, his wallet and money and his designer jacket. Mr. Celaj was convicted of this crime as an aider. I do not accept Ms.

Millan's. evidence th9t Mr. Celaj somehow ceased to. be involved in the incident after seeing the gun. He was part of the group that prevented Mr. Castano from leaving and took part in kidnapping Mr. Castano for the purpose of securing his silence. A gun was used in the commission of the robbery for which crime Mr. Celaj was convicted by the

jury.

[74] Was a gun used in the commission of the crime of aggravated assault? Once again, the answer must be "yes". Mr. Celaj took part in the assault of Mr. Castano that left him with numerous cuts and bruises. He was part of the group that attacked Mr. Castano when he was trying to leave the apartment during which melee Mr. Yusuf felled Mr. Castano with a blow to the back of his head with the gun, resulting in a cut requiring eight stitches to close.

[75] Was a gun used in the commission of the crime of uttering a death threat? Again, the answer must be "yes". The gun clearly added weight and gravitas to the threats Mr.

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Yusuf was making. The gun was the implied means of making good on the threats made.

Mr. Celaj was found guilty of this crime by reason of having aided Mr. Yusuf in the commission of it. · ·

Disposition

[76] In the result, I find that the Crown has proved beyond a reasonable doubt the aggravating circumstance of a firearm as such term is defined in the Criminal Code being used in the course of committing each of the offences with which Ms. Millan and Mr. Celaj have been convicted. A date shall be set for the sentencing hearing of both at the previously scheduled return date of this matter via Zooom on May 13, 2022 at 9:00 am.

S.F. DUNPHY J.

Date: May 12, 2022