COURT FILE NO.: CR-21-10000320-0000
DATE: 20221219
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
NAOD TSEGAZAB AND JOSEPH BRYAN
Sean Hickey for the Crown
Dirk Derstine and Carimé Boehr for Mr. Tsegazab
Stephen Dalall for Mr. Bryan
HEARD: September 12 - 16, 19, 20, 22, 23, 2022
REASONS FOR DECISION
Corrick J.
Overview
[1] On February 12, 2019, at 2:50 p.m., police were called to 4110 Lawrence Avenue East in response to a report of the sound of gun shots. When they arrived, they discovered Dean Howlett lying in a stairwell, without any obvious signs of life. He was lying on his side in a fetal position. He held a gun in his right hand. His index finger was through the trigger guard and, if it was not on the trigger, it was very close to it.
[2] It was obvious that there had been a gun fight in the stairwell. There were bullet holes in the wall, and chunks of plaster and plaster dust on the floor, along with numerous shell casings. Ten shell casings were linked to Mr. Howlett’s gun. Five others were linked to a gun that was not recovered at the scene.
[3] Mr. Howlett had been struck by four of the five shots fired from the unrecovered gun.
[4] On February 14, 2019, Mr. Tsegazab and Mr. Bryan were arrested and charged in relation to Mr. Howlett’s death. Mr. Tsegazab is charged with second-degree murder and unlawful possession of a loaded firearm. Mr. Bryan is charged with accessory after the fact to murder.
[5] They were jointly tried before me without a jury.
[6] I am going to deal first with the charges of second-degree murder and possession of a firearm against Mr. Tsegazab, followed by the accessory after the fact charge against Mr. Bryan.
The Evidence
[7] Counsel did an admirable job of narrowing the issues in this trial. Certain concessions were made by counsel and several Agreed Statements of Fact were filed as exhibits. I commend and thank them for that.
[8] The following matters were conceded at the trial:
the identification of the defendants at the site of the shooting,
the time and place of the arrest of the defendants,
that Mr. Tsegazab did not hold an authorization, licence or registration certificate to permit him to possess a prohibited or restricted firearm.
[9] In addition, many of the events surrounding the shooting were captured on video surveillance cameras. For the most part, the facts are not in dispute between the parties. The dispute centres on the inferences to be drawn from the facts.
[10] The shooting occurred at 4110 Lawrence Avenue East, a high-rise apartment building in Scarborough. It is separated by a parking lot from a companion building located at 4100 Lawrence Avenue East. Video surveillance and cell phone records establish the following sequence of events during the afternoon of February 12, 2019.
[11] At 2:13, Mr. Bryan, driving a white Hyundai, arrives at the roundabout in front of 4110 Lawrence Avenue East. Mr. Tsegazab gets out of the passenger side of the Hyundai and enters the vestibule of 4110 Lawrence Avenue East. He presses some keys on the side wall, and the entrance door opens. He takes the elevator to the 11th floor, where he gets off.
[12] In the meantime, at 2:15, Mr. Howlett drives into the parking lot of 4110 Lawrence Avenue East. At 2:21, Mr. Bryan drives the Hyundai into the same parking lot and parks in the spot closest to the roundabout. His car is parked across from Mr. Howlett’s.
[13] At 2:25, Mr. Howlett gets out of his car, walks past Mr. Bryan’s car, and goes into 4110 Lawrence Avenue East. He enters the lobby, pushes the elevator call button and waits more than three minutes for it to arrive. Only one of the two elevators in the lobby is working at this time.
[14] Outside in the parking lot, Mr. Bryan is still in his car. He calls Mr. Tsegazab at 2:26:04. The call lasts until 2:26:55. At 2:27:17, Mr. Bryan leaves the parking spot close to 4110 Lawrence Avenue East and drives west to a parking spot further away from the building, close to 4100 Lawrence Avenue East.
[15] When the elevator arrives in the lobby at 2:29:30, Mr. Tsegazab gets off. He has his cell phone to his ear and appears to be talking on it. He and Mr. Howlett have a very brief conversation in the lobby. Mr. Howlett gestures with his hand, and the two men walk north away from the lobby, down a hallway. Mr. Howlett leads down the hallway, turning around twice to look at Mr. Tsegazab behind him. Mr. Tsegazab is still talking on his cell phone. Cell phone records indicate that Mr. Tsegazab called someone at 2:27:15 and was connected to that person for almost 18 minutes, until 2:45:05.
[16] The two men enter the north stairwell at 2:30:03 and climb the stairs until they go out of view at 2:30:09. Neither man is seen for 19½ minutes. At 2:49:43, Mr. Tsegazab races down the stairs and turns a corner toward the exit door just as a bullet flies over his head, grazing a wall. He has a firearm in his right hand.
[17] Mr. Tsegazab exits through a door at the north end of the building and runs in a westerly direction to the parking lot. He runs toward the first spot where the Hyundai was parked. He appears not to see it, slows down and looks around until he spots it parked near 4100 Lawrence Avenue East. He gets into the passenger seat of the Hyundai, which leaves the parking space heading for Lawrence Avenue East at 2:50:43.
[18] I heard the evidence of several police officers, the pathologist who conducted the autopsy examination of Mr. Howlett’s body, and a forensic firearms expert.
The Scene
[19] Officer Robert was dispatched to 4110 Lawrence Avenue East at 2:51 p.m. He was directed to the north stairwell. As he entered it, he saw a film of white powder and debris on the steps and floor, shell casings on the ground, and bullet holes in the wall. As he ascended the steps, he saw Mr. Howlett lying in a fetal position on his right side at the bottom of the stairs leading to the second floor. He did not detect any signs of life.
[20] Mr. Howlett was holding a gun in his right hand. It was pointed in Officer Robert’s direction. Mr. Howlett’s index finger was through the trigger guard and either on the trigger or very close to it. The rest of Mr. Howlett’s fingers and thumb were around the handle of the gun.
[21] Emergency personnel arrived, turned Mr. Howlett on his back and administered life-saving measures. Unfortunately, they were unsuccessful, and Mr. Howlett was pronounced dead at the scene.
[22] Officer Roger Landry and his partner from Forensic Identification Services arrived on the scene at 5:40 p.m. to collect forensic evidence. In the stairwell, they found 10 FN 5.7 mm calibre cartridge cases, which were later determined to have come from the gun that Mr. Howlett was holding. They located the FN Five-Seven handgun that had been removed from Mr. Howlett’s grip. It had a bullet in the chamber and four in the magazine. They also found five 9 mm calibre cartridge cases. These cartridge cases were later determined to have come from a Taurus semi-automatic handgun that was seized by an OPP officer from the trunk of a car he had stopped near Midland, Ontario on October 27, 2019. There is no evidence that either Mr. Bryan or Mr. Tsegazab was associated with the car or its occupants.
[23] The forensic officers also photographed the bullet strikes in the walls and the locations at which they found the cartridge cases and bullet fragments.
The Firearms
[24] The evidence collected from the scene of the shooting was submitted to the Centre of Forensic Sciences. Benjamin Sampson, an experienced firearms examiner from the Centre, was permitted to give opinion evidence in the area of the examination and comparison of firearms, firearm components, ammunition and ammunition components, as well as firearm functions and safety testing. His qualifications to give such evidence were not contested.
[25] Mr. Sampson testified that he examined the firearm, cartridge cases, bullets and other projectiles and fragments that were gathered from the scene on February 12, 2019, and a damaged fired bullet that had been removed from Mr. Howlett’s body during the autopsy. He also examined some test-fired casings and bullets from the Taurus semi-automatic handgun that was seized by the OPP near Midland on October 27, 2019.
[26] Mr. Sampson drew the following main conclusions from his examinations:
The ten 5.7 mm calibre cartridge cases recovered at the scene were fired from the FN Five-Seven semi-automatic pistol that was in Mr. Howlett’s hand when he was discovered.
The five 9 mm calibre cartridge cases recovered at the scene were all fired from the Taurus semi-automatic handgun seized by the OPP in October 2019.
Both the FN Five-Seven pistol, and the 9 mm Taurus could fire multiple rounds in a second.
There had been an attempt to obliterate the serial number of the FN Five-Seven pistol.
The damaged fired bullet recovered from Mr. Howlett’s body was a 9 mm class bullet. It could not be identified or eliminated as having been fired from the same firearm as three other 9 mm bullets recovered at the scene or from the Taurus semi-automatic handgun seized by the OPP. It did however share certain characteristics with three other 9 mm class bullet fragments that were recovered at the scene.
The Autopsy
[27] Dr. Michael Pickup, a forensic pathologist, conducted a post-mortem examination of Mr. Howlett’s body on February 14, 2019. His qualifications to provide opinion evidence about the nature of Mr. Howlett’s wounds and the cause of his death were not contested. Dr. Pickup’s main conclusions were as follows:
Mr. Howlett died from gunshot wounds to his torso. He suffered four gunshot wounds in total. He had no other injuries. Dr. Pickup numbered the wounds in the order that he examined them. Their number has nothing to do with the order in which they were suffered.
Wound #1 – the bullet entered Mr. Howlett’s upper neck, travelling front to back, right to left, slightly downward, through the neck and upper chest, before exiting through his left back. This wound was not a fatal injury. Dr. Pickup opined that the muzzle of the gun was in front of Mr. Howlett when that wound was sustained.
Wound #2 – the bullet entered the right lower neck, travelling front to back, right to left and downward in the body, exiting Mr. Howlett’s back. This wound was not immediately fatal.
Wound #3 – the bullet entered the right chest, travelling front to back, right to left and slightly downward in the body, exiting through Mr. Howlett’s back. This was a fatal injury as it perforated the aorta in two places, causing significant internal bleeding. Dr. Pickup testified that unconsciousness would have occurred within seconds of being shot, and death would have followed within seconds or a few minutes following that. Mr. Howlett could have functioned very briefly after suffering this injury because there was no damage to his muscles.
Wound #4 – the bullet entered the right abdomen and travelled front to back, right to left, in a downward direction, ultimately lodging in the soft tissue in Mr. Howlett’s body. This injury was not immediately fatal. However, the bullet struck the spinal cord, which would have caused Mr. Howlett to immediately collapse if he had been standing when he was shot.
Mr. Howlett was shot in the front of his body. Dr. Pickup agreed that if both Mr. Howlett and the shooter had been standing at the time of the shooting, Mr. Howlett’s right shoulder would have been closer to the firearm than his left shoulder.
Dr. Pickup was unable to determine the positions of the shooter and Mr. Howlett, or the proximity of the firearm to Mr. Howlett when he was shot. He agreed that his examination revealed no evidence that the gun was held against Mr. Howlett’s skin when it was fired. He also agreed that it was unlikely that the shooter and Mr. Howlett were both stationary when the shots were fired.
The Arrest
[28] At 4:07 a.m. on February 14, 2019, Mr. Bryan was stopped by police officers, while he was driving a red Hyundai in Peterborough, Ontario. Another male was in the passenger seat. Nothing came of the police stop and Mr. Bryan was not detained further.
[29] The red Hyundai was followed by Toronto Police from Peterborough to Toronto on February 14, and at 6:25 p.m. was stopped on Highway 401. Mr. Bryan, who was driving, and Mr. Tsegazab, who was in the front passenger seat, were arrested without incident.
Positions of the Parties
[30] Mr. Derstine, on behalf of Mr. Tsegazab, makes two arguments.
[31] His first argument assumes that I find that Mr. Tsegazab caused the death of Mr. Howlett. Mr. Derstine argues that the Crown has failed to prove beyond a reasonable doubt that Mr. Tsegazab did not act in self-defence when he shot Mr. Howlett. He argues that Mr. Tsegazab’s guilt is not the only reasonable inference that can be drawn from the circumstantial evidence in this case. He points specifically to the absence of evidence about who pulled or fired their gun first. In the absence of this evidence, Mr. Derstine submits that the court must have a reasonable doubt about whether Mr. Tsegazab was acting in self-defence.
[32] Mr. Derstine’s second argument is that the Crown has not proven beyond a reasonable doubt that Mr. Tsegazab is the person who shot Mr. Howlett. He argues that the court cannot be sure that Mr. Tsegazab shot Mr. Howlett given the absence of evidence about what occurred during the 19½ minutes the two men were off camera. According to Mr. Derstine, it is possible that another person was in the stairwell with Mr. Howlett and Mr. Tsegazab, became involved in a dispute with Mr. Howlett and shot him, causing Mr. Tsegazab to flee.
[33] Mr. Hickey, on behalf of the Crown, submits that the evidence establishes beyond a reasonable doubt that Mr. Tsegazab shot Mr. Howlett four times in the neck and torso area with an illegal firearm when they were in close quarters in a stairwell and thereby committed an unlawful act that resulted in Mr. Howlett’s death, and that Mr. Tsegazab either meant to kill Mr. Howlett or meant to cause him bodily harm that Mr. Tsegazab knew was likely to cause his death and was reckless whether he died or not.
[34] Mr. Hickey further argues that Mr. Tsegazab has not met his evidentiary burden to establish that the defence of self-defence has an air of reality, and the court ought not to consider it.
[35] Finally, Mr. Hickey submits it is mere speculation to suggest that some unknown person was in the stairwell with Mr. Tsegazab and Mr. Howlett and shot and killed Mr. Howlett.
Fundamental Legal Principles
[36] Several fundamental legal principles govern my analysis of the evidence in this trial. Although I am only dealing with Mr. Tsegazab now, these principles apply equally to my analysis of the evidence against Mr. Bryan.
[37] The first is the presumption of innocence. Both defendants are presumed innocent. That presumption stays with them throughout the entire trial and is only displaced if I find that the Crown has proven the charges against them beyond a reasonable doubt.
[38] The second principle is that the Crown bears the onus of proving the charges against each defendant individually. The defendants are not required to prove anything or to testify.
[39] Related to the first two principles is the third. The Crown must prove the charges against the defendants beyond a reasonable doubt. This is a very high standard. A reasonable doubt is one that is based on reason and common sense. It can be based on evidence or the absence of evidence.
[40] It is not enough for me to believe that the defendants are probably guilty. On the other hand, the Crown is not required to establish guilt with absolute certainty. Nevertheless, proof beyond a reasonable doubt is much closer to absolute certainty than it is to proof of probable guilt.
[41] In sum, before I convict a defendant of an offence, I must be sure that he committed it. If I am not sure, I must acquit him.
[42] Much of the Crown’s case against the defendants rests on circumstantial evidence. The Supreme Court of Canada set out the approach that triers of fact must take to circumstantial evidence and proof beyond a reasonable doubt in R. v. Villaroman, 2016 SCC 33. The following principles are derived from Villaroman:
▪ Where proof of one or more elements of an offence relies exclusively or largely on circumstantial evidence, the trier of fact should not infer guilt from the circumstantial evidence unless it is the only reasonable inference that can be drawn from the evidence. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt: Villaroman, at paras. 30 and 35.
▪ Reasonable inferences consistent with innocence do not have to arise from proven facts. Requiring proven facts to support an inference other than guilt wrongly places an obligation on the defendant to prove facts. Reasonable inferences other than guilt may be based on evidence or the absence of evidence: Villaroman, at para. 35.
▪ Reasonable inferences inconsistent with guilt must be based on logic and human experience, not on speculation. Speculative inferences do not give rise to a reasonable doubt. “Alternative inferences must be reasonable, not just possible:” Villaroman, at paras. 37 and 42.
▪ Justice Cromwell wrote, on behalf of the court in Villaroman, that drawing the line between a “plausible theory” and “speculation” is not always easy. He framed the basic question as “whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty:” Villaroman, at para. 38.
[43] To determine whether the evidence meets the standard of proof beyond a reasonable doubt, circumstantial evidence must be assessed as a whole, rather than as individual pieces of evidence in isolation: R. v. Lights, 2020 ONCA 128, at para. 37.
Analysis
[44] I am going to deal first with the argument that the Crown has failed to prove the identity of the shooter followed by the defence of self-defence.
[45] Mr. Derstine argues that it is possible that Mr. Howlett was shot by a third person who was in the stairwell with him and Mr. Tsegazab, and that Mr. Tsegazab fled without having fired a shot. This argument is based on the absence of evidence about what occurred in the 19½ minutes when Mr. Howlett and Mr. Tsegazab were off camera. Mr. Derstine bolsters his argument with the evidence that police recovered ten shell casings from Mr. Howlett’s firearm indicating that he fired at least ten shots but found only eight strike marks made by those bullets. It is possible that two shots struck someone who left the scene, according to this argument.
[46] In the absence of any evidence of the presence of another person or of someone who left the scene with two bullets lodged in their body, bullets from Mr. Howlett’s powerful handgun, I cannot accept Mr. Derstine’s argument as anything more than speculation. The Crown’s case against Mr. Tsegazab is circumstantial, and I must be satisfied that the only reasonable inference to be drawn from the evidence is that Mr. Tsegazab shot Mr. Howlett. The scenario Mr. Derstine suggests requires the court to draw inferences beyond reasonable, and strays into the realm of the possible.
[47] I am satisfied beyond a reasonable doubt that Mr. Tsegazab shot Mr. Howlett in the stairwell. It is the only reasonable inference that can be drawn from the evidence. Mr. Tsegazab and Mr. Howlett are seen on video entering the stairwell together, 19½ minutes later, Mr. Tsegazab is seen racing down the stairs with a firearm in his right hand, and Mr. Howlett is found dead in the stairwell.
[48] Having determined that Mr. Tsegazab shot Mr. Howlett, I am also satisfied beyond a reasonable doubt that Mr. Tsegazab was in possession of an operable and real loaded prohibited or restricted handgun on February 12, 2019. He has admitted that he did not possess the requisite licence and registration certificate for the firearm, and I therefore find him guilty of count #2 in the indictment.
Self-defence
[49] I turn now to the main issue in dispute in this case, self-defence.
[50] Self-defence, as set out in s. 34 of the Criminal Code has three elements. The Supreme Court of Canada has described the elements as follows:
The catalyst: the defendant must believe on reasonable grounds that force is being used or threatened against him: s. 34(1)(a). This element has both subjective and objective components. The defendant must believe that force is being used or threatened against him, and that belief must be reasonable in all of the circumstances.
The motive: the defendant’s act that is said to constitute the offence must be done for the purpose of defending or protecting himself or others: s. 34(1)(b).
The response: the defendant’s act that is said to constitute the offence must be reasonable in the circumstances. This element also has subjective and objective components. To assess the reasonableness of the defendant’s actions, the circumstances and experiences of the defendant must be considered: s. 34(1)(c); R. v. Khill, 2021 SCC 37, at para. 5.
[51] If there is an air of reality to the defence, the onus is on the Crown to disprove at least one of the three elements of self-defence beyond a reasonable doubt.
Air of Reality
[52] Mr. Hickey argues that the court cannot consider self-defence because there is no air of reality to the defence in the absence of any evidence of what transpired in the stairwell for the 19½ minutes that Mr. Tsegazab and Mr. Howlett were off camera.
[53] The purpose of the air of reality test is to filter out fanciful or far-fetched defences, which could confuse juries and get in their way of reaching a true verdict: R. v. Cinous, 2002 SCC 29, at paras. 48, 50.
[54] A defence has an air of reality if a properly instructed jury acting reasonably could acquit the defendant based on the defence: Cinous, at para. 2. Each of the three constituent elements of self-defence, including the subjective and objective components of each, must have an air of reality before the trier of fact can consider the defence: Cinous, at paras. 93, 97.
[55] The air of reality test imposes an evidential burden on the defendant, rather than a persuasive burden. To apply the test, the judge must consider the totality of evidence. There is no requirement that the evidence emanate from the defendant. The factual circumstances of the case can provide the evidential foundation for the defence: Cinous, at paras. 52 – 53.
[56] In cases where there is no direct evidence of an element of the defence, the trial judge must engage in a “limited weighing” of the evidence to determine whether the element can be reasonably inferred from the circumstantial evidence. In doing so, the trial judge does not make findings of fact, assess credibility, or consider whether the defence is likely to succeed: Cinous, at paras. 54, 89 – 91.
[57] The air of reality test is not an onerous one to meet: R. v. Barrett, 2022 ONCA 355, at para. 61. Although judges are required to ensure that the defence has an evidential foundation, “they should resolve any doubts as to whether the air of reality threshold is met in favour of leaving the defence:” R. v. Cairney, 2013 SCC 55, at para. 22.
[58] Bearing these principles in mind, I turn to whether there is an air of reality to self-defence in this case.
Application of Principles to this Case
[59] At this stage, the question to be determined is whether there is evidence upon which a properly instructed jury acting reasonably could find that the Crown has failed to prove beyond a reasonable doubt that Mr. Tsegazab did not act in lawful self-defence when he shot Mr. Howlett. Or, put another way, is there evidence upon which a properly instructed jury acting reasonably could be left with a reasonable doubt about whether Mr. Tsegazab acted in self-defence? After considering the evidence in totality, I find that there is evidence that could raise a reasonable doubt, and thus I find that there is an air of reality to the defence of self-defence.
[60] The factual matrix of this case provides the evidential foundation for self-defence. A jury could have a reasonable doubt that Mr. Tsegazab acted in lawful self-defence despite the absence of direct evidence of what occurred during the 19½ minutes that he and Mr. Howlett were off camera based on reasonable inferences drawn from the following evidence:
One possible inference from the manner in which Mr. Tsegazab and Mr. Howlett met in the apartment lobby is that it was an unplanned, chance encounter. Only one of the two elevators in the building was working. Mr. Howlett waited more than three minutes on the ground floor for the elevator. Mr. Tsegazab was talking on his cell phone as he exited the elevator and encountered Mr. Howlett.
Mr. Tsegazab and Mr. Howlett had a brief conversation. Mr. Howlett made a gesture with his hand, and the two men started off down the hallway. Mr. Howlett led. Mr. Tsegazab was still speaking on his phone.
As they walked down the hall, Mr. Howlett undid his jacket partway, put his right hand inside the left side of his jacket, and looked behind him at Mr. Tsegazab.
As the two men entered the stairwell, Mr. Howlett was in the lead. Mr. Tsegazab was still on his cell phone. A large bulge can be seen on the left side of Mr. Howlett’s jacket.
Approximately nineteen minutes after entering the stairwell, Mr. Tsegazab is seen racing down the stairs as a bullet flew above his head. Chunks of plaster can be seen in the air falling to the floor.
Mr. Tsegazab had a handgun in his right hand as he fled the stairwell.
Mr. Howlett is discovered lying on the landing holding a firearm in his right hand with his finger on or very close to the trigger.
Mr. Howlett had been struck in the front of his body by four bullets.
Mr. Tsegazab fired five shots. Mr. Howlett fired ten shots.
One reasonable inference that could be drawn from the pattern of bullet strike marks in the stairwell is that Mr. Tsegazab is being shot at and is returning fire while he is fleeing down the stairs.
[61] In my view, the three elements of self-defence, including the subjective and objective components of each element, can reasonably be inferred from this circumstantial evidence.
[62] One reasonable inference that could be drawn from the evidence is that Mr. Howlett was the aggressor in the stairwell, either by being the first to draw his firearm or threaten to draw his firearm. A jury could infer that Mr. Howlett led Mr. Tsegazab into the stairwell, away from the eyes of the camera, for a nefarious purpose; a purpose that required Mr. Howlett to check that he had ready access to his firearm while the two men walked down the hallway. Nineteen minutes later, Mr. Howlett was shooting at the back of Mr. Tsegazab as he fled down the stairs.
[63] There can be little doubt in the circumstances of this case that if a jury can reasonably infer from the evidence that Mr. Howlett drew his firearm or threatened to do so first, that Mr. Tsegazab had reasonable grounds to believe that force was being used or threatened against him.
[64] Similarly, the jury could reasonably infer that Mr. Tsegazab shot Mr. Howlett to defend himself and to have done so was reasonable in the circumstances given the nature of the threat or force, the imminence of its use, and the lack of other available means to respond to it in the stairwell.
[65] Having found that there is an air of reality to self-defence, the onus falls on the Crown to prove beyond a reasonable doubt that Mr. Tsegazab did not act in self-defence. This requires the Crown to prove beyond a reasonable doubt any one of the following: 1) Mr. Tsegazab did not believe on reasonable grounds that force was being threatened or used against him; 2) Mr. Tsegazab did not act for the purpose of defending himself from that perceived threat; or 3) Mr. Tsegazab’s actions were not reasonable in all of the circumstances.
[66] This is a circumstantial evidence case. To determine whether the Crown has met its burden I must consider all of the evidence, including gaps in the evidence, to determine whether Mr. Tsegazab’s guilt is the only reasonable inference that can be drawn from it.
[67] For the reasons that follow, I have concluded that the Crown has not disproven the elements of self-defence beyond a reasonable doubt.
[68] To find Mr. Tsegazab guilty, I must be satisfied that the only reasonable inference on the evidence is that he either threatened to shoot or shot Mr. Howlett first and Mr. Howlett responded to that threat or use of force. In my view, that is not the only reasonable inference when all of the evidence is considered.
[69] To begin, I find that the meeting of Mr. Tsegazab and Mr. Howlett in the apartment lobby on February 12, 2019 was a chance encounter. I have considered Mr. Hickey’s submission that the meeting was not coincidental, and that Mr. Bryan alerted Mr. Tsegazab to Mr. Howlett’s presence at 4110 Lawrence Avenue East. Mr. Hickey points to the evidence that Mr. Bryan called Mr. Tsegazab at 2:26:04, 45 seconds after Mr. Howlett had walked past Mr. Bryan’s car on his way into the building. That telephone call ended at 2:26:55, and Mr. Tsegazab got on the elevator at the 11th floor at 2:27:50, about a minute later.
[70] There is no evidence about the content of the call between Mr. Tsegazab and Mr. Bryan, nor is there evidence that Mr. Bryan even knew Mr. Howlett. In the absence of that evidence, and in the face of contrary evidence, I do not accept that Mr. Bryan alerted Mr. Tsegazab to Mr. Howlett’s presence.
[71] The meeting between the two men would likely not have occurred in that lobby had both elevators in the building been operating. That day, only one elevator was working. Mr. Tsegazab entered the building’s vestibule and used the building’s intercom system to call a resident to gain entry to the lobby. He pushed the elevator call button, and 45 seconds later entered the elevator and went to the 11th floor. Mr. Howlett entered the building 20 minutes later. He did not use the building’s intercom system to gain entry into the lobby. He knocked on the lobby door. Someone happened to be in the lobby and let him in. He pushed the elevator call button and waited for more than three minutes for the elevator to arrive. When the elevator finally arrived, Mr. Tsegazab got off. Had the second elevator been working, Mr. Howlett would have taken it and would not have been in the lobby when Mr. Tsegazab arrived.
[72] The two men spoke to each other briefly after Mr. Tsegazab got off the elevator. Mr. Howlett then led Mr. Tsegazab down the north hallway.
[73] A careful review of the videos of the elevator lobby and the north hallway (Exhibits 28 and 30) reveals the following. While Mr. Howlett waits for the elevator, his black jacket is undone at the neck exposing approximately six or seven inches of a white zipper on a garment he is wearing under his jacket. When he enters the stairwell, his jacket is almost entirely undone. As he enters the hallway with Mr. Tsegazab behind him, Mr. Howlett undoes his jacket and puts his right hand inside the left side of his jacket while looking back at Mr. Tsegazab. As the men enter the stairwell, the surveillance video shows a large bulge on the left side of Mr. Howlett’s jacket. Given the events that unfolded shortly thereafter, it is likely that Mr. Howlett was checking that his firearm was accessible to him inside his jacket.
[74] According to the cell phone records, Mr. Tsegazab called someone named Hassani at 2:27:15, which was 35 seconds before he entered the elevator on the 11th floor. He remained on the phone with that person for almost 18 minutes until 2:45:05, which is a little more than five minutes before Mr. Tsegazab is seen fleeing down the stairs and exiting the building. Mr. Tsegazab is seen with his cell phone at his ear when he exits the elevator, speaks with Mr. Howlett, and when he follows Mr. Howlett down the hallway and into the stairwell.
[75] I agree with Mr. Hickey that not much can be garnered from the evidence gathered from the stairwell. The scene of the shooting was disturbed by emergency personnel who attended to Mr. Howlett. What can be garnered is that Mr. Howlett fired at least ten shots because ten shell casings from his firearm were found at the scene. Five shell casings from Mr. Tsegazab’s firearm were found indicating that he fired five shots.
[76] The strike marks made by the bullets from the two firearms were different. The bullets from Mr. Howlett’s firearm made much larger strike marks than those made by Mr. Tsegazab’s firearm.
[77] The strike marks depicted in the photographs marked as Exhibit 35 indicate that Mr. Tsegazab fired from the west to the east. Mr. Howlett fired from east to west. A reasonable inference can be drawn from the pattern of strike marks made by bullets fired from Mr. Howlett’s firearm that he was shooting at Mr. Tsegazab as Mr. Tsegazab was descending the stairs. This is also borne out by the video showing Mr. Tsegazab fleeing down the stairs (Exhibit 32). Chunks of plaster are flying through the air as Mr. Tsegazab descends the stairs. It is reasonable to conclude that Mr. Howlett is shooting at Mr. Tsegazab as he flees, and the shots are striking the wall causing chunks of plaster to fly into the air. There is no question that Mr. Howlett fired the last shot at the fleeing Mr. Tsegazab. It is clearly visible on the video.
[78] Having found that Mr. Tsegazab shot Mr. Howlett in the stairwell, I am left with two possible scenarios – Mr. Howlett was the initial aggressor or Mr. Tsegazab was. When I consider the evidence in this case in its entirety, including those portions that I have just recounted, together with the absence of any evidence of animus harboured by Mr. Tsegazab toward Mr. Howlett or motive for this shooting, I cannot reject the possibility that Mr. Howlett initiated this gun fight. In my view, this is the more likely scenario. He led Mr. Tsegazab down the hall and into the stairwell where there were no surveillance cameras. While walking down the hallway, he did something inside his jacket while looking back at Mr. Tsegazab as if to check that Mr. Tsegazab had not seen what he had done or to be sure that he was still following him. There was nothing in Mr. Tsegazab’s demeanour or behaviour to suggest that he was intent on doing any harm to Mr. Howlett. He remained on his telephone while he followed Mr. Howlett.
[79] Although what transpired in the 19½ minutes the men were off camera is unknown, Mr. Howlett’s intent was clear when he fired the last shot at Mr. Tsegazab’s back as Mr. Tsegazab fled down the stairs.
[80] Mr. Tsegazab’s flight from the scene of the shooting and disposal of the firearm do not assist me in determining whether Mr. Tsegazab acted in self-defence. This is after-the-fact conduct, which in some circumstances, “is said to indicate an awareness on the part of the accused person that he or she has acted unlawfully and without a valid defence for the conduct in question”: R. v. Peavoy, 1997 CanLII 3028 (ON CA), [1997] O.J. No. 2788 (C.A.), at para. 26. After-the-fact conduct evidence may only be used to support an inference of guilt if the court rejects any innocent explanations for the conduct: Peavoy, at para. 26.
[81] An innocent explanation for the after-the-fact conduct can arise in the evidence or “from the trier of fact’s appreciation of human nature and how people react to unusual and stressful situations:” Peavoy, at para. 26. Mr. Tsegazab fled the scene of a gun fight during which he was shot at. He was not only in possession of an illegal firearm, but he had discharged it, two serious offences for which he would likely face a substantial jail sentence. Had he gone to the police, he would have had to admit to them that he had possessed and discharged an illegal firearm. In terms of the gunfight, he cannot be presumed to know the niceties of the law of self-defence.
[82] In my view, Mr. Tsegazab’s after-the-fact conduct is not probative of whether he acted in self-defence, and I am not prepared to draw any inferences from it other than that he knew he was in possession of an illegal firearm.
[83] In light of the fact that I cannot exclude the reasonable possibility that Mr. Howlett was the first person to use or threaten to use his firearm, I must assess Mr. Tsegazab’s self-defence claim on the basis that he was responding to Mr. Howlett’s use or threatened use of a firearm against him in the stairwell.
[84] First, did Mr. Tsegazab believe on reasonable grounds that force was being used against him or the threat of force was being made against him? As I have already indicated that I have a reasonable doubt on the question of whether Mr. Tsegazab faced the threat of being shot by Mr. Howlett, the Crown has not disproven the first element of self-defence beyond a reasonable doubt.
[85] Second, did Mr. Tsegazab shoot Mr. Howlett for the purpose of defending or protecting himself from Mr. Howlett? Given my reasonable doubt that Mr. Tsegazab was facing a threat with a gun in this stairwell, and the absence of any evidence that Mr. Tsegazab had any agenda to do Mr. Howlett harm, I find that this second element of self-defence is not disproven.
[86] Finally, was the shooting of Mr. Howlett in self-defence reasonable in the circumstances? To assess the reasonableness of Mr. Tsegazab’s act, the court is required to consider the circumstances of the defendant, the other parties and the act. Section 34(2) of the Criminal Code sets out a list of factors to consider in making this assessment. The relevant paragraphs are as follows:
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident; and
(g) the nature and proportionality of the person’s response to the use or threat of force ...
[87] The nature of the threat Mr. Tsegazab was facing was the threat of lethal force.
[88] The threat was immediate. The two men were in a confined space in the stairwell. There were no other means available to Mr. Tsegazab to respond to the threat posed by a large firearm.
[89] There is no evidence that Mr. Tsegazab played a role in this incident that would disentitle him from claiming self-defence. Other than illegally possessing a firearm, there is no evidence that he was engaged in criminal behaviour before the shooting.
[90] Both men were armed with loaded weapons.
[91] Any disparity in the physical capabilities of the two men would not be significant given that both men had loaded firearms.
[92] There is no evidence of any relationship between Mr. Tsegazab and Mr. Howlett and no evidence of any communication between them.
[93] When considering the nature and proportionality of Mr. Tsegazab’s response to Mr. Howlett’s threat, I recall the evidence of Officer Robert, who was the first officer on the scene. He testified about his concern for his safety when he saw Mr. Howlett lying on the landing with a firearm in his hand pointed in his direction. He agreed that the situation was dangerous and frightening. Even though Mr. Howlett was showing no signs of life at that point in time, to be safe, one officer pointed his firearm at Mr. Howlett while another officer removed the firearm from his hand. Mr. Tsegazab was in a confined space facing someone pointing a firearm at him. I cannot conclude beyond a reasonable doubt that his reaction to that was disproportionate.
Conclusion on the Murder
[94] It is a cornerstone of our system of criminal justice that no person accused of a crime be found guilty unless the trier of fact is satisfied of his guilt beyond a reasonable doubt. Trial judges explain the concept of reasonable doubt to juries by telling them that they must be sure of the accused person’s guilt. After very careful consideration of the evidence in this case, and for the reasons that I have outlined, I am not sure of Mr. Tsegazab’s guilt. I must therefore find him not guilty of second-degree murder.
Accessory After the Fact – Mr. Bryan
[95] Mr. Bryan is charged that he did, knowing that Naod Tsegazab had murdered Dean Howlett, assist Naod Tsegazab for the purpose of enabling him to escape.
[96] One of the essential elements that Crown counsel must prove beyond a reasonable doubt is that Mr. Tsegazab murdered Mr. Howlett. Given my acquittal of Mr. Tsegazab on the charge of murder, this essential element cannot be proven.
[97] I therefore find Mr. Bryan not guilty of being an accessory after the fact to murder.
___________________________
Corrick J.
Released: December 19, 2022
COURT FILE NO.: CR-21-10000320-0000
DATE: 20221219
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
NAOD TSEGAZAB & JOSEPH BRYAN
REASONS FOR JUDGMENT
Corrick J.
Released: December 19, 2022