COURT FILE NO.: CR-21-RG19925-A DATE: 2023/07/13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING – and – ZEKEIM OGILVIE, WARSAME ABDULLAHI, and AKOL AKOL

Counsel: Jason Neubauer and Emilie Farrell, for the Crown Biagio Del Greco, for Mr. Ogilvie Paolo Giancaterino, for Mr. Akol

HEARD: April 18-21 and 24-27, May 8, 10-12, and 26-27, and July 6, 2023

REASONS FOR DECISION

Corthorn J.

Introduction

1Zekeim Ogilvie is charged with 13 offences arising from a shooting that occurred on June 29, 2020 (“the Shooting”). The offences with which Mr. Ogilvie is charged include two counts of aggravated assault (s. 268(2) of the Criminal Code); two counts of discharge of a firearm with intent to wound (s. 244(2)); assault with a weapon (s. 267 (a)); two counts of reckless discharge of a firearm (s. 244.2(3)); and a series of firearms-related charges.

2Akol is charged with the same thirteen offences and with two counts of enabling escape (s. 463(b)). All of the charges against Mr. Akol relate to the Shooting.

3On July 6, 2023, I delivered oral reasons, with written reasons to follow. These are my written reasons. Where these reasons differ from my oral reasons, the written reasons prevail.

The Shooting

4The Shooting occurred three years ago – on June 29, 2020 – outside the Phresh Men’s Salon (“Phresh”), located at 102 Boyce Avenue in the City of Ottawa. Boyce Avenue is several blocks west of Mr. Akol’s residence, at the time, in the Ritchie Street Housing Complex.

5At approximately 5:45 p.m., one of the co-owner’s of the salon and the owner of a shop located above the salon were seated together on the single front step at the doors to Phresh and to the second floor of the building. Moments before 5:45 p.m., Brandon Peacock parked his car on the west side of Boyce Avenue, facing southbound, a short distance from 102 Boyce Avenue. Mr. Peacock’s intention was to go to Phresh for a haircut.

6Mr. Peacock walked up Boyce Avenue and across the front yard or driveway at 102 Boyce Avenue, towards the entrance to Phresh. As Mr. Peacock did so, a dark blue Ford Explorer was travelling southbound on Boyce Avenue; the vehicle came to a stop in front of Phresh.

7Two individuals exited the passenger side of the Explorer. One or both of the individuals fired shots in the direction of the three people near the entrance to Phresh. The two individuals re-entered the Explorer from the passenger side. The Explorer continued southbound on Boyce Avenue, turned right at the top of the street, and headed west on Carling Avenue.

8At the time of the Shooting, a light-coloured Mazda vehicle came to a stop, on Boyce Avenue, behind the Explorer. The Mazda remained stopped while shots were fired; it followed the Explorer onto Carling Avenue, westbound.

9The co-owner of Phresh, Annie Hebert; the upstairs shop owner, Abdulrazak Al-Fadli; and Mr. Peacock ran into Phresh. Ms. Hebert placed a 9-1-1 call and tended to Mr. Peacock, who had been struck by several bullets.

10Mr. Al-Fadli exited the rear of Phresh, returned through the rear door, walked to the front of the salon, and exited the salon from the front door. Mr. Al-Fadli had been shot in the leg. On the video clips from the Phresh security cameras, Mr. Al-Fadli is visibly limping as he makes his way through the salon in either direction.

11Mr. Peacock was taken by ambulance to hospital, where he underwent surgery to address his multiple, life-threatening gunshot wounds. Mr. Peacock and his parents were informed that, because of significant blood loss, Mr. Peacock had only a 50 per cent chance of surviving.

12Mr. Al-Fadli drove himself to a hospital where he underwent surgery to treat a gunshot wound to his leg.

13Mr. Ogilvie and Mr. Akol admit that the injuries sustained by Mr. Peacock and Mr. Al-Fadli constitute wounding, maiming, disfiguring, and/or life endangerment for the purpose of the charges to which those words or that phrase are relevant.

14Before I briefly discuss the investigation of the Shooting, I wish to acknowledge the participation of the only person involved in the Shooting from whom the court heard testimony – Brandon Peacock.

15Mr. Peacock’s testimony was remarkable in several ways. First, Mr. Peacock clearly and calmly described an event in which he never expected to find himself and his thought processes upon realizing he might lose his life. Second, from Mr. Peacock’s manner, tone, and candor, it is evident Mr. Peacock had and continues to have tremendous resilience and an unwavering resolve to move forward with his life and put the events of June 29, 2020 behind him.

16I know that at least one member of Mr. Peacock’s family attended the trial through the video link. Members of Mr. Peacock’s family may also have attended the trial in-person. Mr. Peacock is fortunate to have the support of his family members. I have no doubt that he had their support in the months and years following the Shooting. I am certain that the support of family members is one of the reasons why Mr. Peacock maximized his recovery and moved forward with his life.

17Mr. Ogilvie and Mr. Akol both make numerous admissions regarding the Shooting, the injuries to the two victims, and the aftermath of the Shooting. The admissions made also relate to the investigation of the Shooting and cover a wide range of topics:

• Physical evidence, such as spent shell casings found at the scene;
• The location, seizure, and search of the Explorer;
• The authenticity and/or continuity of video clips from numerous security cameras; and
• Data from Mr. Ogilvie’s cell phone, Mr. Akol’s cell phone, the computer system in the Explorer, and an after-market GPS system attached to the Explorer.

18It is not my intention to recite the 36 admissions listed in Exhibit 1B. I will deal with the admissions, as necessary, in the analysis of the Crown’s case against each of Mr. Ogilvie and Mr. Akol.

The Issues

19As a result of the admissions made by Mr. Ogilvie and Mr. Akol, the determination of their respective guilt or innocence turns on the answers to three central questions:

1. Has the Crown proven beyond a reasonable doubt Mr. Ogilvie was a shooter?
2. Has the Crown proven beyond a reasonable doubt Mr. Akol was the driver of the Explorer at the time of the Shooting and, in that capacity, aided in the commission of the offences?
3. In the alternative, if the Crown has not proven beyond a reasonable doubt Mr. Akol was the driver of the Explorer at the time of the Shooting, has the Crown otherwise proven beyond a reasonable doubt Mr. Akol aided the perpetrators in the commission of the offences?

20The Crown’s case against each of Mr. Ogilvie and Mr. Akol rests, at least in part, on circumstantial evidence. The Crown must satisfy the court that the only reasonable inference to be drawn from the totality of the circumstances is the respective guilt, beyond a reasonable doubt, of Mr. Ogilvie and Mr. Akol. It is therefore important to understand what a reasonable inference is and when inferences may be drawn.

Inferences – The Law

21The Honourable David Watt, a former judge on the Court of Appeal for Ontario, is well-known for his experience in and understanding of criminal law. In Watt’s Manual of Criminal Evidence, David Watt, (Toronto: Carswell, 2014), at para. 9.01, the author provides the following explanation of what is meant by an “inference” and when an inference may be drawn:

An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture.

22The Court of Appeal for Ontario provides guidance as to when an inference may be reasonably drawn from evidence before the court. In R. v. Katwaru (2000), , 140 O.A.C. 185, the Court of Appeal for Ontario determined an appeal from a jury verdict of guilty on a charge of second-degree murder. In granting the appeal, the Court explained, at para. 40, when an inference may be drawn:

In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical.

23The leading decision on when and how inferences may be drawn is the Supreme Court of Canada decision in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. In Villaroman, the accused was convicted on a charge of possession of child pornography, with the Crown’s case based mainly on circumstantial evidence. The Supreme Court saw the appeal in Villaroman as an opportunity to provide clarification on the law with respect to circumstantial evidence: at para. 4.

24The key principles which emerge from Villaroman regarding how the trier of fact is to handle circumstantial evidence and suggested, potential, and/or reasonable inferences include the following principles:

• The trier of fact must guard against filling in the blanks too quickly, by overlooking reasonable alternative inferences (at para. 30);
• potential inferences “must be considered in light of all the evidence and the absence of evidence, assessed logically and in light of human experience and common sense” (at para. 30);
• “[in] assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” (at para. 35);
• a theory that is alternative to a finding of guilt is not speculative because it arises from a lack of evidence (at para. 36);
• other plausible theories or other reasonable possibilities must, however, be based on logic and experience applied to the evidence or the absence of evidence, not on speculation (at para. 37);
• circumstantial evidence does not have to “totally exclude other conceivable inferences. Alternative inferences must be reasonable, not just possible” (at para. 42).

25At para. 35 of Villaroman, the Supreme Court summarized the interplay between circumstantial evidence and the burden of proof in a criminal case:

Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

26The trier of fact must look at the whole of the evidence. In R. v. Anderson, 2020 ONCA 780, 169 W.C.B. 7, at para. 27, the Court of Appeal for Ontario emphasized that to be proper, judicial fact-finding must be applied to the evidence as a whole. It is not a matter of whether individual pieces of evidence are open to reasonable inferences alternative to guilt; the trier of fact must consider the circumstantial evidence as a whole and determine whether the only reasonable inference to be drawn is guilt beyond a reasonable doubt.

27More recently, in the 2022 decision in R. v. Staples, 2022 ONCA 266, at para. 109, the Court of Appeal was critical of an argument which focussed on individual pieces of evidence rather than the evidence as a whole. The Court said that such an approach ignores the larger picture the evidence paints and the inferences the trier of fact is entitled to draw.

28In summary, it is the cumulative effect of the evidence – the totality of the circumstances – that must be considered.

29In my analysis of the Crown’s case against each of Mr. Ogilvie and Mr. Akol, I review the individual pieces of evidence and individual inferences that may be drawn from the evidence. That does mean, however, that I focus on the individual pieces of evidence to the exclusion of consideration of the evidence as a whole. In determining whether the Crown has met their burden regarding each of Mr. Ogilvie and Mr. Akol, ultimately, I consider the totality of the circumstances.

Analytical Framework

30In any criminal proceeding, the analysis begins with the presumption of innocence. Mr. Ogilvie and Mr. Akol are each presumed innocent of all charges against them.

31It is not incumbent upon a person charged with an offence to assert their innocence through their own evidence or through other evidence called on their behalf. Mr. Ogilvie and Mr. Akol each had the right not to call evidence; they both chose not to testify.

32The court must carefully consider the credibility and reliability of all of the testimony offered by the witnesses who testified as part of the Crown’s case.

33It is only after consideration of all of the evidence and only if that evidence is found to establish guilt beyond a reasonable doubt that the presumption of innocence is set aside and a finding of guilt can be made. It is not sufficient for the Crown to establish possible, probable, or likely guilt. A reasonable doubt is not far-fetched or frivolous. Reasonable doubt does not involve proof to an absolute certainty or proof beyond any doubt, which is often impossible: see R. v. Starr, 2000 SCC 40, 190 D.L.R. (4th) 591, at para. 231.

34For a finding of guilt to be made, the Court must be sure that the offence was committed.

35I recognize that the potential exists for Mr. Ogilvie and Mr. Akol to each be acquitted on some of the charges and found guilty on one or more of the other charges.

36I will deal first with the charges against Mr. Ogilvie and then with the charges against Mr. Akol.

Zekeim Ogilvie

a) The Crown’s Theory

37The Crown’s case against Mr. Ogilvie rests on a series of video clips from various security cameras, a police photograph of Mr. Ogilvie taken two months after the Shooting, stills from music videos downloaded from the Internet, and two types of data related to Mr. Ogilvie’s cell phone. The stills both pre-date and post-date the date of the Shooting.

38The Crown’s theory is that Mr. Ogilvie is one and the same as the individual who appears in video clips from three points in time on June 29, 2020. Those video clips depict,

• A young man, wearing grey pants and a light-coloured hoodie, walking in the area of the Ritchie Street housing complex, in which Mr. Akol lived, less than an hour before the Shooting (Exhibit 7, Clip 3). I refer to this clip as “the courtyard video”;
• Two individuals exiting the Explorer, when it was stopped on Boyce Avenue, approaching Phresh, at least one of the individuals firing shots, and both individuals returning to the Explorer before it drives away (Exhibit 7, Clip 11). I refer to this video as “the Apple Auto Glass video”; and
• Three individuals walking along Parkview Avenue, where the Explorer was eventually located, and Sebring Avenue, 15 to 20 minutes after the Shooting (Exhibit 7, Clips 19, 20, and 21). I refer to this collection of videos as “Parkview/Sebring”.

39The Crown’s theory is that Mr. Ogilvie is the individual seen wearing grey sweatpants and a lighter coloured hoodie. The Crown submits that, across all videos, there is a concordance of the attire worn by, the physical appearance of, and build or overall size of that individual.

40The Crown does not rely on the videos alone for the purpose of identification. The Crown asks the court to consider the similarities between a medallion worn by Mr. Ogilvie in the stills from the music videos and an item worn by the individual in the courtyard video around his neck.

41Another building block in the case against Mr. Ogilvie is data from Mr. Ogilvie’s cell phone. The Crown points to two ‘pings’ of the phone with a cell phone tower at 2880 Carling Avenue – a few blocks from both Ritchie Street and Boyce Avenue. The cell phone data shows two calls – one received, and one made. Both calls are of approximately 15 seconds duration. The two calls occurred approximately one minute apart and approximately ten minutes prior to the Shooting.

42Last, the Crown relies on data from the Explorer. Three phone calls to or from Mr. Ogilvie’s cell phone are alleged to be attached to the Explorer. The data identifies May 4 and 5, 2003, as the dates on which those calls were made or received.

43The Crown submits that, when the building blocks are considered collectively, the only reasonable inference to be drawn is that of Mr. Ogilvie’s guilt, beyond a reasonable doubt, on the 13 offences with which he is charged.

44I will review the law and the defence position as I address each component of the Crown’s case against Mr. Ogilvie.

b) Analysis

45There is no evidence from a witness at trial identifying Mr. Ogilvie as an individual seen in any of the videos.

46When the shooting began, Mr. Peacock was walking towards the entrance to Phresh. Understandably, in the chaos of the moment, Mr. Peacock made minimal observations of the two individuals who exited the Explorer. Mr. Peacock’s only memory is that one of the individuals was wearing what appeared to Mr. Peacock to be a red bandana.

47In a mid-trial ruling, I dismissed the Crown’s Behre application for the admission into evidence of Det. Walrond’s identification of Mr. Ogilvie as the individual in the courtyard video.

48It therefore falls to me to determine whether I am able to identify Mr. Ogilvie as the individual in the video clips from the courtyard at Ritchie Street, the Shooting, and Parkview/Sebring.

i) The Nikolovski Principles

49In R. v. Nikolovski, , [1996] 3 S.C.R. 1197, the Supreme Court of Canada considered an appeal from a decision in which the trial judge alone identified the accused as the individual seen in a videotape. At para. 12, the Court frames the general issue before it as follows: “Can a trier of fact identify the accused before the court as the perpetrator of the crime on the basis of viewing the videotape alone, without any corroborating testimony that the accused is the person depicted in the tape?”

50The court concludes the answer is, “Yes”. The court sets out several cautionary principles to be followed. At para. 29, the Court emphasizes that the weight to be given to videotape evidence depends on (a) the degree of clarity and the quality of the tape, and (b) to a lesser extent on the length of time during which the accused person is seen on the tape.

51At para. 30, the Court highlights that, “Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so.”

ii) Identification of Mr. Ogilvie from the Security Camera Videos, the Music Video Stills, and the Police Photograph

52I start with the courtyard video. The degree of clarity and the quality of the video are such that I am able to conclude that the individual depicted in the video is (a) a young adult black male, and (b) at the more slender or slim end of the spectrum.

▪ Personal Characteristics

53The Crown asks the court to consider at least seven personal characteristics as points of similarity between the individual in the courtyard video and Mr. Ogilvie as he appears in the stills and a police photograph, all of which either pre-date or post-date the date of the Shooting by several months.

54At its highest, the Crown’s position is that there is a “strong resemblance” between Mr. Ogilvie and the individual seen in the courtyard video.

55In response, Mr. Del Greco submits that it is open to the court to conclude either,

a) the dissimilarities between Mr. Ogilvie and the individual in the courtyard video are sufficient to exclude Mr. Ogilvie as that individual; or b) in the alternative, the similarities are weak and little to no weight is to be given to identification of Mr. Ogilvie based on the courtyard video.

56For the following reasons, I find that the similarities between Mr. Ogilvie and the individual in the courtyard video are lacking in strength and number.

57The facial features of the individual in the courtyard video are visible for less than five seconds. I reviewed the courtyard video several times, including using the Zoom function, and assessed the suggested similarities.

58I disagree with or am unable to assess the existence of several similarities upon which the Crown relies:

1. I disagree with the Crown’s submission that the stills and the photograph depict Mr. Ogilvie as an individual with a “more pointed shape” to his chin. I find that similarity simply does not exist.
2. I disagree with the Crown’s submission that, in both the stills and the photograph, Mr. Ogilvie appears to have a forehead that is slightly wider than his chin. Specifically, I find that the August 2020 photograph does not depict that facial feature;
3. The courtyard video is of sufficient clarity and quality to permit comparison of an alleged similarity between the hairstyle of the individual in the courtyard video and Mr. Ogilvie’s corn rows in the stills and braids in the August 2020 photograph. Corn rows and, perhaps to a slightly lesser extent, braids are tight to the head. I find that the hairstyle of the individual in the courtyard video is not tight to the head; I describe the hairstyle of that individual as a short Afro. A person’s hairstyle can change over time. The Crown did not, however, call any evidence to address potential changes to or from Mr. Ogilvie’s hairstyle as of June 29, 2020, and the hairstyles seen in the stills and the August 2020 photograph;
4. I describe the individual in the courtyard video as a young adult black male. I am satisfied that the clarity and quality of the courtyard video, the stills, and the photograph permit a comparison of the skin tone of the individual seen in the courtyard video with Mr. Ogilvie’s skin tone as he appears in both the stills and the photograph. I find that Mr. Ogilvie’s skin tone in the stills and photograph is notably lighter than that of the individual in the video;
5. I find the stills, the photograph, and the video are not of sufficient clarity and/or quality, collectively, to permit a lay person to assess the degree of prominence of the upper lip or the existence and significance of an overbite, both of which features the Crown submits are evident.

59I turn, then, to the remainder of the similarities upon which the Crown relies. I agree with the Crown that both the individual in the courtyard video and Mr. Ogilvie, as he appears in the stills and photograph, (a) are cleanshaven, (b) have a relatively long nose (in terms of length, not protrusion), and (c) have a deep forehead, with a somewhat receding hairline.

60I had the opportunity to observe Mr. Ogilvie as he entered and exited the courtroom, and as he sat in the prisoners’ box. At times, the combination of the lighting and the glass barrier around the prisoners’ box was such that Mr. Ogilvie’s face was somewhat obscured. I am, however, satisfied that I had more than ample opportunity to compare Mr. Ogilvie, as he appeared before me, to the individual in the courtyard video.

61My direct observation of Mr. Ogilvie does not in any way change the outcome of my comparison of the individual in the courtyard video to Mr. Ogilvie as he appears in the stills and the photograph.

▪ The Medallion

62There is another similarity upon which the Crown relies; this additional similarity does not relate to Mr. Ogilvie’s personal characteristics. The Crown asks the court to conclude that a medallion seen around Mr. Ogilvie’s neck in the music video stills is similar to, if not the same as, what appears to be a medallion worn by the individual in the courtyard video. The Crown describes the medallion as “distinctive”.

63I find that the similarities between the medallion in the stills and the object in the courtyard video are restricted to (a) its size – relatively large, and (b) its general shape – circular. The clarity and quality of the courtyard video are such that, even when the zoom function is utilized, it is not possible to conclude that the object in the video is completely circular:

• For example, in two stills from the courtyard video included at p. 71 of the Crown’s Written Submissions, the object does not appear to be completely circular; and
• The centre or framed portion of the object in the video appears to be completely dark; whereas the centre or framed portion of the medallion in the stills is a mix of light and dark colours.

64Last, the stills show nothing of the back of the medallion; they do not support a finding as to the materials from which the back of the medallion is made. I am, therefore, unable to conclude that the medallion has a metallic backing similar to what appears, in some portions of the courtyard video, to be an object with a metallic backing and reflecting light.

65In summary, similarities exist between Mr. Ogilvie’s medallion and the object in the video. The similarities are limited in their number and character.

▪ Conduct of the Individual in the Courtyard Video

66Before leaving the courtyard video, and moving on to the other videos, I will deal with the Crown’s submissions regarding the conduct of the individual seen in the courtyard video. It is unchallenged that the unit the individual approaches, wanders around, and appears to enter, is Mr. Akol’s residence.

67The Crown asks the court to consider the individual’s conduct, draw certain inferences, and make the following findings:

• The individual was expecting to meet up with someone and waited for that person to exit the unit. When that did not happen, the individual chose to enter the unit;
• The individual gained entry to the unit because he either had a friendship or was familiar with the people who lived at the unit; and
• The individual’s time inside the unit was brief because the person for whom the individual was looking, was not in the unit.

68In support of at least some of those proposed inferences, the Crown asks the court to consider Det. Walrond’s evidence about his investigation of a 2019 shooting. The 2019 shooting is said to have occurred near the Akol unit, with Mr. Ogilvie a witness to the shooting.

69The proposed inferences about the conduct of the individual in the courtyard video are impermissible speculation and conjecture.

70I move on then, to the other video clips.

▪ Concordance Across Video Clips

71The Crown asks the court to consider concordance across the courtyard video, videos of the Shooting, and Parkview/Sebring videos. That request, however, overlooks other evidence available about what happened in the time between the end of the courtyard video and the beginning of the Shooting. That request also overlooks evidence about the movement of the Explorer from the last time it is seen leaving the Ritchie Street community parking lot and the beginning of the Shooting.

72Regarding the time between the end of the courtyard video and the beginning of the Shooting, I note the following:

• There is no evidence of the individual in the courtyard video getting into the Explorer before the Shooting;
• The Mazda is seen in video clips from the community parking lot. On one occasion the front seat passenger, who appears to be a person of colour, is wearing a light-coloured top. On another occasion, there is a different front seat passenger, and the rear seat passenger appears to be wearing a light-coloured top;
• The skin tone of the front seat passenger and rear seat passenger in the video is lighter than that of the individual in the courtyard video; and
• The GPS data from the Explorer (Exhibit 17) does not identify that the Explorer stopped between the time when the visible rear seat passenger is wearing a light-coloured top.

73There is no evidence as to how many times the Mazda came to a stop after it left the community parking lot and before the Shooting. Whether the Explorer came to a stop in that segment of time – including for enough time to permit people to change from one vehicle to another – is speculation and conjecture.

74I now turn to the videos of the Shooting:

• The clarity and quality of the Apple Auto Glass video of the Shooting is poor. It is quite grainy, specifically in its depiction of the two individuals who exit the Explorer;
• It is difficult to garner information from the Apple Auto Glass video about the relative height of the two individuals who exit the Explorer. They are standing apart, with one of them further up the incline in the road and closer to Carling Avenue. In addition, one of the individuals is more bent-kneed than the other;
• The quality of the Apple Auto Glass video is much poorer than the quality of the courtyard video. I am unable to make a meaningful comparison between the attire worn by the individual in the courtyard video and the attire of the passenger from the Explorer who is not wearing the red pants. As a result, I am unable to conclude that there is a concordance of attire from the courtyard video to the Apple Auto Glass video.

75Last, I consider the Parkview/Sebring video clips. I agree with the Crown that there is a similarity, even a strong similarity, between the clothing worn by the individual in the courtyard and the clothing worn by one of the three individuals observed walking in one of the three Parkview/Sebring videos. That similarity is most apparent in Exhibit 7, Clip 21 – the clip in which the backs of the three individuals are viewed as they walk west on Sebring towards Kirkwood Avenue.

76The Crown submits that there is a similarity between the manner of movement of the individual in the courtyard video and that of one of the individuals in Parkview/Sebring. The Crown does not, however, identify a specific similarity. In the context of identification, little, if any, purpose can be served by a comparison, generally, of the manner of movement from one video to the next.

▪ Conclusion – Identification of Mr. Ogilvie

77After analyzing the identification evidence and upon considering that evidence as a whole, I am not satisfied beyond a reasonable doubt that the individual seen in the videos is Mr. Ogilvie.

78Regardless of that finding, I consider the two additional building blocks in the Crown’s case against Mr. Ogilvie.

iii) The Cell Phone Tower Data

79The Crown ties a 15-second call received by (at 5:35 p.m.) and a 15-second call made from (at 5:36 p.m.) Mr. Ogilvie’s cell phone to the individual in the courtyard video near the Akol unit and to the two pre-shooting, drive-bys the Explorer made on Boyce Avenue.

80The Crown relies on Rogers Communications Cell Phone Tower data. That data shows that, for those two calls, Mr. Ogilvie’s cell phone pinged off a cell phone tower located at 2880 Carling Avenue – blocks away from both the Ritchie Street Housing Complex and Boyce Avenue.

81The evidence of Claudio Cusin of Rogers Communication, is insufficient to support an inference, let alone a finding, that the cell phone tower pings, place Mr. Ogilvie in the Ritchie Street and Boyce Avenue areas at the time of the calls. Mr. Cusin was unable to provide evidence of the coverage area for that specific cell phone tower at 2880 Carling Avenue.

82The cell phone tower pings are of little, if any, assistance in attempting to determine where, within the coverage area of that cell phone tower, Mr. Ogilvie was when the 15-second calls were received and made.

83In addition, the submissions made by the Crown regarding the nature and purpose of the two 15-second calls –the planning of the Shooting and something other than a social call – invite speculation and conjecture.

iv) The Attachment of Mr. Ogilvie’s Cell Phone to the Explorer

84The Explorer was rented to Mr. Akol on June 7, 2023. The Explorer is a 2008 vehicle. The Bluetooth data from the Explorer lists numerous calls, including calls to and from Mr. Ogilvie’s phone. The Bluetooth data indicates the calls to and from Mr. Ogilvie’s cell phone were made on May 4 and 5, 2003.

85Det. Fong is a member of the Ottawa Police Service, Digital Forensic Section. He was responsible for the portion of the investigation of the Shooting related to cell phone data. Det. Fong is unable to correlate the two May 2003 dates to any date in 2020.

86Even assuming the calls were made to/from Mr. Ogilvie’s phone in 2020, after Mr. Akol first rented the Explorer, it is impossible to say when, between June 7 and June 29, 2020, Mr. Ogilvie’s cell phone was attached to the Explorer.

v) The Totality of the Circumstances

87Do the building blocks of the Crown’s case, when considered as a whole, support a finding that the only reasonable inference to be drawn is that of Mr. Ogilvie’s guilt beyond a reasonable doubt for any one or more of the 13 offences with which he is charged?

88Considering the evidence as a whole, the Crown has not satisfied me beyond a reasonable doubt that the only reasonable inference to be drawn is that Mr. Ogilvie was a shooter or one of two shooters. There are significant weaknesses to the component building blocks – from the identification of the individual in the courtyard video to the reliance on cell phone data, in an effort to place Mr. Ogilvie in the Ritchie Street and Boyce Avenue areas at the time of the Shooting.

89The reasonable doubt with which I am left based on the building blocks is compounded by the absence of any evidence (a) to connect Mr. Ogilvie to the suggested intended target (Mr. Al-Fadli), and (b) of any motive Mr. Ogilvie had generally or specifically to shoot Mr. Al-Fadli. I also note there is no forensic evidence connecting Mr. Ogilvie to the Shooting. Last, no personal effects of Mr. Ogilvie’s were found in the Explorer.

c) Disposition

90I find Mr. Ogilvie not guilty on all 13 counts.

Akol Akol

a) Introduction

91The Crown advances a single theory in support of its case against Mr. Akol – that he was the driver of the Explorer at the time of the Shooting and, in that capacity, aided in the commission of the offences listed at counts 1 to 7, 9, and 13 to 15. Counts 8 and 10 relate to Mr. Akol as an “occupant” of the Explorer and the presence of firearms in the vehicle.

92As Mr. Giancaterino noted in closing submissions, there is an alternative theory or means by which Mr. Akol could be found guilty – that in a manner other than as the driver of the Explorer, Mr. Akol aided the perpetrators in the commission of the offences.

93Before considering the alternative theories, I will first review the elements of the offence of aiding.

b) “Aiding” – The Law

94In R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, Justice Charron of the Supreme Court of Canada reviews the actus reus and the mens rea components of the offence of aiding and abetting.

95First, at para. 13, Justice Charron explains that perpetrators, aiders, and abettors are equally liable pursuant to s. 21(1) of the Criminal Code; the law does not distinguish between the principal offender and parties to an offence. However, the actus reus and mens rea for aiding and abetting are distinct from those of the principal offence. For Mr. Akol, the principal offences are those listed in counts 1 to 7, 9, and 13 to 15.

96At para. 14, Justice Charron describes the actus reus of aiding as doing something (or in some circumstances, omitting to do something) that assists the perpetrator to commit the offence. Simply doing or omitting to do something that results in aiding (assisting) another individual to commit a crime is not, however, sufficient to attract criminal liability.

97The mental state, or mens rea, of the alleged aider must also be proven (at para. 15). Pursuant to s. 21(1)(b) of the Code, the Crown must satisfy the court that the alleged aider “rendered the assistance for the purpose of aiding the principal offender to commit the crime” (Briscoe, at para. 15).

98The word “purpose”, as it appears in s. 21(1)(b) of the Code has two elements: intent and knowledge. As explained by Justice Charron, at para. 16 of Briscoe, “the Crown must prove that the accused intended to assist the principal in the commission of the offence.” The word “purpose” does not incorporate any element of desire on the part of the aider (at para. 16).

99To have the requisite intention, “the aider must know that the perpetrator intends to commit the crime, [but] need not know precisely how it will be committed” (at para. 17).

100Last, at para. 21 of Briscoe, Justice Charron addresses the concept of wilful blindness: “The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries” (citations omitted).

101I return to the Crown’s theory of their case against Mr. Akol.

c) The Crown’s Theory

102The Crown’s theory is that Mr. Akol rented the Explorer in early June 2020, for approximately one month, and remained in possession of that vehicle on June 29, 2020. The Crown relies on a series of videos in support of the theory that Mr. Akol was the driver of the Explorer. The video clips start with footage from a Shell station on Iris Avenue, approximately 90 minutes before the Shooting; include clips from two different security cameras at the Ritchie Street Housing Complex; and end with Parkview/Sebring.

103Mr. Akol does not dispute his identification as the individual seen in the Shell station video or as one of the three individuals seen in Parkview/Sebring. Moreover, Mr. Akol invites the court to find that he is the, or an, individual seen in those video clips.

104Regarding matters other than Mr. Akol’s identification, the Crown relies on,

• evidence of Mr. Akol as the renter of the Explorer;
• Mr. Akol’s physical location, as depicted in several video clips beginning 90 minutes prior to the Shooting and ending approximately 30 minutes after the Shooting;
• data from Mr. Akol’s cell phone;
• data from the after-market GPS device attached to the Explorer;
• personal documents, said to be Mr. Akol’s, found during the search of the Explorer; and
• a red bandana and a shell casing found during the search of the Explorer.

105Once again, I will review the defence position when I address the various components of the Crown’s case against Mr. Akol.

d) Analysis

i) Rental of the Explorer

106In closing submissions, Mr. Giancaterino described the evidence in support of a finding that Mr. Akol rented the Explorer as “overwhelming”. That evidence includes the testimony of the car rental agent, Jean-Claude Fenelon, the rental contract (Exhibit 15), an edited invoice from the car rental agency (Exhibit 16), and the photographs of Mr. Akol’s temporary driver’s licence and passport taken by Mr. Fenelon when the Explorer was rented (Exhibit 17 as found on the USB key that is Exhibit 34).

107I agree with Mr. Giancaterino’s assessment of the evidence on this point. I find that Mr. Akol rented the blue Ford Explorer seen in the security camera video clips from the day of the Shooting.

108I also find that Mr. Akol remained in possession of the Explorer on June 29, 2020. That finding is independent of my determination, which follows, as to whether Mr. Akol was the driver or an occupant of the Explorer – if he was inside the Explorer at all – at the time of the Shooting.

ii) The Shell Station and Parkview/Sebring Videos

109Mr. Akol does not challenge the Crown’s request for the court to identify him as the individual seen (a) exiting and entering the Explorer at the Shell station (Exhibit 7, Clip 1), and (b) walking with two individuals in Parkview/Sebring (Exhibit 7, Clips 19-21). Mr. Akol invites the court to make the relevant findings.

110I had the opportunity to observe Mr. Akol in court, in the same way and with the same limitations as I explained regarding Mr. Ogilvie. The quality and clarity of the videos are sufficient to allow me to compare the individual seen in those videos to Mr. Akol as I observed him in the courtroom. Also available to me is the April 2021 police photograph, taken at the time of Mr. Akol’s arrest (Exhibit 8 and Admission 31).

111I find that Mr. Akol is the individual seen exiting and entering the Explorer at the Shell station and one of the three individuals in the Parkview/Sebring videos.

iii) The Offence of “Aiding”

▪ The Actus Reus of “Aiding”

112Did Mr. Akol do something or omit to do something that resulted in assisting the perpetrators in committing the offences in counts 1 to 7, 9, and 13 to 15?

113I start with the Crown’s theory that Mr. Akol was the driver of the Explorer at the time of the Shooting.

- Mr. Akol as the Driver of the Explorer

114For this portion of my reasons, I assume, without first making a finding, that Mr. Akol was an occupant of the Explorer at the time of the Shooting. I therefore consider only whether the Crown has established beyond a reasonable doubt that Mr. Akol was the driver of the Explorer at the time of the Shooting.

115Approximately 90 minutes before the Shooting, Mr. Akol is seen exiting and entering the Explorer several times at the Shell station. There is nothing about the manner in which Mr. Akol does so, to suggest he is sitting anywhere other than in the front passenger seat when the vehicle arrives at and leaves the station.

116Whether or not Mr. Akol had exclusive control of the Explorer, I find that he was not driving the Explorer for some time prior to the stop at the Shell station and that he was not driving the Explorer for some time after the vehicle left the station.

117I next consider the evidence of Mr. Akol’s status, as of June 2020, as an unlicensed driver. Mr. Akol’s temporary driver’s licence expired in April 2020. That Mr. Akol was able to rely on an expired temporary driver’s licence when renting the Explorer is evidence of Mr. Fenelon either deliberately overlooking the expiration date or lacking diligence in his work. The court need not make any finding on that point.

118It is also unnecessary to determine whether anyone was with Mr. Akol when he rented the Explorer or whether someone other than Mr. Akol drove the Explorer away from the car rental agency.

119I do, however, note the terms of the rental contract (Exhibit 15) regarding who is permitted to drive the Explorer. The terms of the contract set out that the rented vehicle may be driven by (a) the renter whose name is on the rental contract, (b) other drivers whose names are listed in the contract, or (c) “persons otherwise authorized by law and above the age of twenty-one (21)”: see pp. 2, 3 and 5.

120I am not suggesting that Mr. Fenelon reviewed the terms of the contract in detail with Mr. Akol; nor am I suggesting that Mr. Akol poured over the contract with a fine-toothed comb to ascertain whether he could permit someone else to drive the Explorer. The terms of the rental contract demonstrate that allowing a licenced driver above the age of twenty-one to drive the Explorer was permitted.

121Does the evidence support a finding that Mr. Akol was driving the Explorer at the time of the Shooting?

122In several videos, we see people, including Mr. Akol, entering and exiting the Explorer from the passenger side. The windows of the Explorer are tinted, making it impossible, at least from the videos, to see inside the vehicle, determine who is inside the vehicle, and determine where the occupants of the vehicle are seated.

123The only clear view of the driver’s side front seat of the Explorer is in a video from the community parking lot at approximately 5:34 p.m. In Exhibit 7, Clip 8, as the Explorer leaves the parking lot, the driver’s side front seat can be seen through the windshield, and the driver is partially visible. An individual wearing a short-sleeved white t-shirt is in the driver’s seat of the Explorer.

124Mr. Giancaterino submits Exhibit 7, Clip 8 is of sufficient clarity and quality to permit me to assess the skin tone of the arms of the driver wearing the short-sleeved white t-shirt. I agree with Mr. Giancaterino that the driver’s skin tone appears lighter than that of Mr. Akol. I find, however, the quality and clarity of the video is such that I am uncertain whether the appearance of the driver’s skin tone is affected by the lighting and the tinted windshield. I am therefore unable to make the suggested comparison of the driver’s skin tone and Mr. Akol’s skin tone.

125The Crown’s theory does not include, nor is there any evidence to support a finding that, at any time prior to 5:35 p.m., Mr. Akol changed from the dark t-shirt he was wearing at the Shell station to a light-coloured or even white t-shirt (i.e., such as the one worn by the individual seen driving the Explorer at 5:35 p.m.).

126Alternatively, did Mr. Akol move into the driver’s seat of the Explorer after 5:35 p.m. and prior to the Shooting at 5:45 p.m.? To answer that question, I consider the evidence from the after-market GPS installed on the Explorer by Mr. Fenelon (Exhibit 17).

127Mr. Fenelon testified that he installed the GPS device because renters frequently did not want to return a vehicle; he relied on the GPS device to locate unreturned vehicles.

128No witness, including Mr. Fenelon testified in any detail as to how the GPS device worked – including whether a data point was created every time the motion of the vehicle stopped or started. For example, the last time the motion of the vehicle is said to have stopped is at 5:35 p.m., at 97 Ritchie Street (see Exhibit 17, line 3). The only other two data points created before the vehicle was abandoned are for speeding at 5:45 p.m. and for stopping on Parkview shortly after 6:00 p.m.

129When the totality of the circumstances is considered, I am not satisfied that the only reasonable inference to be drawn is that Mr. Akol was the driver of the Explorer at the time of the Shooting and, in that capacity, aided the perpetrators. At least one other reasonable inference is available – that the individual wearing the short-sleeved white shirt and driving the Explorer at 5:35 p.m., as it left the community parking lot, was the driver of the Explorer at the time of the Shooting.

130It is therefore necessary to determine whether the only reasonable inference to be drawn from the totality of the circumstances is that Mr. Akol was an occupant of the Explorer at the time of the Shooting and, in that capacity, aided the perpetrators.

- Mr. Akol as an Occupant of the Explorer

131To establish Mr. Akol’s location in the hours prior to, at the time of, and in the half-hour or so after the Shooting, the Crown relies on,

• clips from various security camera videos;
• data from Mr. Akol’s cell phone; and
• data from the GPS attached to the Explorer.

132At a minimum, Mr. Akol was an occupant of the Explorer when it arrived at and left the Shell station. What evidence is there to support a finding that Mr. Akol was an occupant of the Explorer at any other time on June 29, 2020 – including at the time of the Shooting?

133I start with the data from Mr. Akol’s cell phone. Mr. Akol admits the cell phone he was using in June and July 2020 (“Cellphone 2”) was the subject of a judicially authorized data extraction. Mr. Akol also admits the data extracted forms the basis for the Cellebrite Extraction Report about which Det. Fong and Melinda Otterspoor testified (Exhibit 21 and Admissions 19 and 20).

134In the Cellebrite Extraction Report, 1093 location points for Cellphone 2 are identified between 4:20 p.m. and 6:10 p.m. on June 29, 2020.

135Det. Fong was not challenged in cross-examination as to the methodology or accuracy of either the data extraction process or the creation of the Cellebrite Extraction Report. I find that the report identifies the location of Cellphone 2 for each of the 1093 entries by longitude and latitude, by start and end time for each location, by number of cell tower pings while at each location, and, where available, including the precision of the location by horizontal radius measured in meters.

136Melinda Otterspoor is a civilian member of the Ottawa Police Service. She is a Crime Intelligence Analyst working in the Guns and Gangs Unit. Ms. Otterspoor created the Geotime Report. She relied on software to plot approximately 85 locations for Cellphone 2.

137Ms. Otterspoor starts the report with 4:20 p.m. at the Shell station. She includes the minutes before, the time of, and the minutes after the Shooting. Ms. Otterspoor concludes the report with a location on Switzer Avenue – across Kirkwood Avenue from and to the northwest of Parkview/Sebring.

138Ms. Otterspoor’s methodology and the contents of the Geotime report were not challenged in cross-examination.

139Based on the totality of the circumstances, including the GPS attached to the Explorer, I find that the only reasonable inference to be drawn is that Mr. Akol was an occupant of the Explorer from 4:20 p.m., when the vehicle left the Shell station, through to the abandonment of the vehicle at Parkview/Sebring – with the exception of the few minutes Mr. Akol spent in the area of his residence.

140The possibility that Mr. Akol was an occupant of the Mazda, as it left the community parking lot at 5:35 p.m., does not rise to the level of a reasonable inference. The data for Cellphone 2 places Mr. Akol’s phone on or in the area of Boyce Avenue at 5:36 p.m. and immediately thereafter on the south side of Carling Avenue in the Michelle Heights area. These location points are consistent with Mr. Akol being an occupant of the Explorer at the time of at least one of the two drive-bys.

141Focusing on the actus reus of the offence of aiding, what evidence is there that Mr. Akol, as an occupant of the Explorer, did or omitted to do something for the purpose of aiding the perpetrators?

142Based on the Shell station video, and the movement of the Explorer from the time the vehicle leaves the Shell station, through 5:35 p.m., when an individual wearing a white t-shirt is seen driving the Explorer out of the community parking lot, I draw an inference and find that Mr. Akol gave permission to at least one other person to drive the Explorer. A result of Mr. Akol doing so – specifically as of 5:35 p.m. and beyond – the vehicle was used in two drive-bys of Phresh and in the Shooting.

143As we know from Briscoe, doing something or omitting to do something that results in aiding another individual to commit a crime is not sufficient to attract criminal liability. The Crown must also prove beyond a reasonable doubt that the assistance was rendered for the purpose of aiding the principal offender to commit the crime.

▪ The Mens Rea of “Aiding”

144To meet their burden on the mens rea element of the offence of aiding, the Crown must establish beyond a reasonable doubt that, when giving permission to the other individual to drive the Explorer, Mr. Akol (a) intended to assist in the commission of the offences in counts 1 to 7, 9, and 13-15, and (b) knew the perpetrators intended to commit the crimes. As an alternative to the knowledge component, the Crown may rely on the doctrine of wilful blindness.

145For the following reasons, I find that the Crown has not met their burden on the mens rea component of the offence of aiding.

146First, it is nothing more than speculation and conjecture for the Crown to suggest that Mr. Akol specifically selected a rental vehicle with tinted windows, prior to the date of the Shooting, with the intention of assisting the perpetrators, knowing that they planned to carry out the Shooting some three weeks later or at all.

147Second, there is no evidence of any connection between Mr. Akol and either of Mr. Peacock or Mr. Al-Fadli. Mr. Peacock testified there was nothing about his life circumstances that would have made him a target of a shooting of the kind depicted in the videos. I accept Mr. Peacock’s evidence in that regard.

148The Crown submits Mr. Al-Fadli was the intended target of the Shooting. Even if the Crown established Mr. Al-Fadli was the intended target, there is no evidence of a connection between Mr. Akol and Mr. Al-Fadli to support an inference that Mr. Akol acted with the requisite purpose.

149Third, there is no evidence to support a finding Mr. Akol was involved in the planning of the Shooting and intended to assist by permitting someone to drive the Explorer in the late afternoon on June 29, 2020. To suggest, as the Crown does, Mr. Akol’s presence in the area of his residential unit and his gestures, as captured on the relevant video, are evidence of involvement in planning the Shooting is nothing more than speculation and conjecture.

150Fourth, the Crown submits Mr. Akol’s post-shooting conduct, as seen in Parkview/Sebring, is that of an individual who was comfortable in that setting and unsurprised by the preceding events. The Crown asks the court to rely on that conduct in support of an inference Mr. Akol had prior knowledge of the Shooting.

151Based on the limited evidence from Parkview/Sebring, it is not possible to draw an inference and make a finding about Mr. Akol’s state of mind. Even if the court were in a position to do so, at least two reasonable inferences are available to be drawn. The two reasonable inferences are the one posited by the Crown and an inference that Mr. Akol was surprised by the Shooting and conducted himself as he did because of concern for his own safety at the time and into the future.

152Fifth, I consider the abandonment of the Explorer – including its contents as identified when the vehicle was seized and searched by the police. By “contents”, I mean the temporary driver’s licence, the TD bank email to Mr. Akol, the red bandana, and the shell casing. The abandonment of the vehicle, including its contents, does not detract from the availability of the alternative reasonable inference of surprise and a concern for personal safety.

153Sixth, I consider the absence of evidence Mr. Akol was aware of the presence of firearms in the Explorer, including for intended use in the Shooting. In none of the video clips is a firearm seen. There is nothing in any of the video clips to support an inference any of the individuals observed was carrying a firearm.

154Further, there is no evidence of any communication with Mr. Akol alerting him that any occupant of the Explorer would be carrying a firearm while in, or placing a firearm in, the vehicle.

155Finally, the doctrine of wilful blindness does not apply. In determining whether or not this doctrine applies, I have considered all of the evidence, including the videos in which the Explorer and the Mazda are observed, prior to the Shooting, in the same location (i.e., the community parking lot) or travelling together along Ritchie Street.

156It would not be reasonable to infer from the evidence, including those pre-Shooting videos, that, while Mr. Akol was an occupant of the Explorer, his suspicion was aroused to the point where he saw the need for further inquiries, but deliberately chose not to make those inquiries. To draw an inference of that kind would require impermissible filling in the blanks, speculation, and conjecture.

▪ Disposition – “Aiding”

157I find the Crown has established beyond a reasonable doubt Mr. Akol was an occupant of the Explorer and permitted another individual to drive the Explorer. The Crown has met its burden on the actus reus element of the offence of aiding.

158I find the Crown has not met its burden on the mens rea component of the offence of aiding. I am not satisfied beyond a reasonable doubt Mr. Akol permitted another individual to drive the vehicle for the purpose of aiding the perpetrators in the commission of the offences listed in counts 1 to 7, 9, and 13 to 15.

159Mr. Akol is found not guilty on counts 1 to 7, 9, and 11 to 15.

iv) The Two Counts Under s. 94 of the Code

160A determination is still required on counts 8 and 10. Both counts are pursuant to s. 94(1) of the Code – colloquially described as “unauthorized possession of a firearm in a motor vehicle”. It is an offence for a person to be an occupant of a motor vehicle in which the person knows there is one or more of the specific types of firearms listed in s. 94(1).

161The Crown does not allege that Mr. Akol personally had possession of a firearm. Therefore, the Crown bears the onus of establishing Mr. Akol had “constructive possession” of the firearm or firearms.

162Constructive possession is defined at para. 17 of the Supreme Court of Canada decision in R. v. Morelli, 2010 SCC 8, 2010 SCC No. 8, [2010], 1 S.C.R. 253:

Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person.

163For the reasons given when addressing the counts related to “aiding”, I find the Crown has not established beyond a reasonable doubt each of the three elements of the offence pursuant to s. 94(1) of the Code. I find Mr. Akol not guilty on counts 8 and 10.

Closing Remarks

164As I did throughout the trial and at the conclusion of delivering my oral reasons, I thank all counsel for their work, both inside and outside the courtroom. The result of the work done outside the courtroom, including regarding the more than 30 admissions made, was a trial that proceeded efficiently.

165I also wish to thank counsel for their professionalism and civility throughout the trial.