COURT FILE NO.: 21-50000353-0000

DATE: 20230728

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

KAYNADID ABSHIR

Defendant

Alice Bradstreet, for the Crown

Ron Chu, for the Defendant

HEARD: June 19 to 28, 2023.

JUSTICE S. NAKATSURU

A. OVERVIEW

[1] Kaynadid Abshir is alleged to have been the driver of the car from which two shooters emerged and shot Kevin Kusi as he was returning home from work in the early morning hours of March 13, 2020. He was shot at about 28 times. Struck 5 or 6 times. Mr. Kusi crawled away, managed to get back on his feet, and then ran down the hallway away from the shooters. He escaped. And miraculously survived.

[2] Mr. Abshir is charged with attempt murder, discharge firearm, aggravated assault, and several firearms possession related offences.

[3] I have little doubt that the shooters intended to kill Mr. Kusi. Although no motive arises from the evidence, it appears to be a targeted shooting. When Mr. Kusi fobbed his way into his apartment building and waited by the elevator, two men rushed in before the inner door closed and immediately fired their weapons. They came from a vehicle that had been waiting outside for some time. When Mr. Kusi got away, the two men ran back out the front door, passing a third masked man who appeared to be late getting to the scene. This third man peered in, saw no intended victim, and rushed back out. This is all captured on surveillance video.

[4] This conclusion does little to resolve the case. The key issues at this trial are: (1) identity; and (2) if it is proven Mr. Abshir is the driver of the vehicle, his liability as a party to the offence(s).

[5] In terms of the identification of Mr. Abshir as an involved party, the Crown’s case is entirely circumstantial. While uncommon for me to write this expansively about them in my judgments, I shall begin by expounding on some very basic principles of criminal law. This is because, ultimately, the case turns on the careful application of those fundamental principles.

B. THE FUNDAMENTAL CRIMINAL PRINCIPLES

[6] The two principles I will elaborate on are: (1) the meaning and importance of the beyond a reasonable doubt standard; and (2) the test for the standard of beyond a reasonable doubt where the case is circumstantial, along with jurisprudence stating that pieces of circumstantial evidence should not be assessed in isolation.

The Meaning and Importance of the Beyond a Reasonable Doubt Standard

[7] Section 11(d) of the Canadian Charter of Rights and Freedoms guarantees the right of any person charged with an offence to be presumed innocent until proven guilty beyond a reasonable doubt. The presumption of innocence, along with the duty of the Crown to prove guilt beyond a reasonable doubt, “form the golden thread of criminal law”: R. v. Gauthier, 2021 ONCA 216, at para. 40, citing R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, at p. 120. As the Supreme Court wrote in Oakes, at pp. 119-20:

The presumption of innocence is a hallowed principle lying at the very heart of criminal law. Although protected expressly in s. 11(d) of the Charter, the presumption of innocence is referable and integral to the general protection of life, liberty and security of the person contained in s. 7 of the Charter (see Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, per Lamer J.) The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law‑abiding members of the community until proven otherwise.

[8] In R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 36, the Supreme Court of Canada elaborated on the meaning of the beyond a reasonable doubt standard of proof:

• the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

• the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;

• a reasonable doubt is not a doubt based upon sympathy or prejudice;

• rather, it is based upon reason and common sense;

• it is logically connected to the evidence or absence of evidence;

• it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

• more is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guilty must acquit.

[9] As well, proof beyond a reasonable doubt lies “much closer to absolute certainty than to a balance of probabilities”: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242.

The Burden of Proof as Applied to Circumstantial Evidence

[10] In the event that the Crown’s case consists entirely or substantially of circumstantial evidence, the trier of fact has to be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference that can be drawn from the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 20, 30. A trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt as long as they are grounded in logic and experience and not in speculation: Villaroman, at para. 37. See also R. v. Anderson, 2020 ONCA 780, at para. 24; R. v. Edwards, 2022 ONCA 78, at para. 33; and R. v. S.B.1, 2018 ONCA 807, 143 O.R. (3d) 81, at para. 124. Inferences consistent with innocence may also arise from a lack of evidence rather than proven facts. See Villaroman, at para. 35; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; Lifchus, at para. 30.

[11] To be clear, only reasonable alternative inferences must be rejected. It is not enough for the alternative inferences to be possible. The Crown does need not to “totally exclude other conceivable inferences” or “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: Villaroman, at paras. 37, 42, quoting R. v. Bagshaw, [1972] 2 S.C.R. 2, at p. 8. Ultimately, the trier of fact must decide whether the evidence, “viewed logically and in light of human experience” excludes all reasonable inferences other than guilt: Villaroman, at paras. 37-41.

[12] Notably, when the Crown presents a circumstantial case, and the defence presents explanations for it, the trial judge’s review of the evidence should review these explanations: R. v. Panovski, 2021 ONCA 905.

[13] Importantly, proof beyond a reasonable doubt does not apply to each piece of circumstantial evidence: “facts are not to be examined separately and in isolation with reference to the criminal standard”: R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at p. 362. Instead, there is a duty on the trier of fact to assess the evidence in a cumulative fashion: “it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof”: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 81. See also Morin, at p. 361; R. v. Khalid, 2022 ONCA 501, at para. 23; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 37. As noted in Smith, at para. 82:

Often, individual items of evidence adduced by the Crown examined separately lack a very strong probative value. But it is all the evidence that a trier of fact is to consider. Each item is considered in relation to the others and to the evidence as a whole. And it is all the evidence taken together, often greater than the sum of individual pieces, that is to be considered and may afford a basis for a finding of guilt… [Citations omitted.]

C. POSITION OF THE PARTIES

[14] It is the Crown theory that Mr. Abshir was involved in the planning of the shooting, was involved in the rental of the car late the night before the shooting, drove the car with the shooters to the scene, drove the car away from the scene with the shooters, and then drove back to his home at 63 Scarlettwood Court after dropping the others off. The Crown alleges he was an active and knowing participant to the shooting, aiding the shooters to try and kill Mr. Kusi.

[15] There is no direct evidence of Mr. Abshir being the driver of the car that brought the shooters to the scene. The surveillance videos from the scene of the shooting do not show the driver at all. Proof of the core contested essential element of the identity of Mr. Abshir as one of the persons committing the offences is based on circumstantial evidence.

[16] The Crown relies cumulatively on the following bodies of evidence: (1) Evidence that Mr. Abshir was involved in the rental of the car earlier on the night of March 12, 2020; (2) Evidence that this car was the one driven to 40 Falstaff Avenue and was involved in the shooting of Mr. Kusi; (3) Evidence that Ismail Aden was one of the shooters; (4) Evidence that after the shooting, Mr. Abshir drove the car to and about the community housing complex where he lived; (5) Evidence that the telephone number 437-247-5986 (henceforth referred to as “5986”) belonged to and was used by Mr. Abshir during the relevant times; (6) Evidence that Mr. Aden used the telephone number 416-839-4445 (henceforth referred to as “4445”) and the communications between that number and 5986 as well as mobile phone cell tower connections of the two numbers; (7) Evidence that Mr. Abshir was driving the car with Mr. Aden as a passenger on the afternoon of March 13, 2020, when the police stopped them for an unrelated Highway Traffic Act investigation (henceforth referred to as the “HTA stop”).

[17] The defence points out the weaknesses in the individual items of evidence. The defence also submits that collectively the evidence does not amount to proof beyond a reasonable doubt.

[18] I emphasize that the evidence cannot be looked at piecemeal. The whole of the evidence must be considered cumulatively in determining whether the Crown has met its burden. Nor should there be any two-step assessment of the evidence subjecting individual items of evidence to any reasonable doubt threshold before the evidence can be considered. Even weak evidence should be taken into account in the overall assessment. While I have unfailingly done this type of analysis, for these reasons to make sense, sometimes it is necessary to focus on a particular piece of evidence. This does not mean that my reasoning process has fallen into error.

D. ASSESSMENT OF THE CIRCUMSTANTIAL EVIDENCE

The Shooting

[19] Mr. Kusi testified. Understandably, he still suffers from the emotional and physical trauma of that day. He does not understand why he was shot. He was just returning in an Uber to his home at 40 Falstaff Avenue, after finishing work at a bar. He fobbed in. Walked to the elevators. Mere seconds later two shooters burst in immediately behind him and started shooting at him. That is about all he can say.

[20] The security surveillance cameras in and around 40 Falstaff Avenue tell a more complete story. Mr. Kusi was shot at 3:25 a.m. The parties agree about the timing of the shooting. The parties also agree on the times set out in the numerous surveillance videos.

[21] About 9 minutes before the shooting, a silver or light-colored sedan drove up to the intersection leading to 40 Falstaff Avenue. It did not turn off its lights. Though the silver car did shift parking positions, it waited patiently with its lights on. When a car, the Uber with Mr. Kusi in it, drove by and turned into the roadway leading to 40 Falstaff Avenue, the silver car backed up and followed.

[22] Mr. Kusi exited the Uber and went into the building. The silver car pulled up behind the Uber which was in the process of doing a three-point turn to leave. The back door of the silver car opened and two men ran across to the apartment building. The silver car then also did a three-point turn with its back door still open. A third man came out of the car. A police witness, D.C. Rogers, testified that when he looked at the video, he saw the silver car back into a light pole. I did not see that in reviewing that portion of the video. I find that the officer’s opinion was just an assumption and has no weight.

[23] Inside 40 Falstaff Avenue, just past the lobby entrance door, the two men opened fire on Mr. Kusi as he scrambled to get away. The two men were both masked and wearing toque-like hats. One had a black jacket, blue jeans ripped at the knees, and dark sneakers. The second man had a white zippered jacket with dark sleeves. His pants were uniquely colored; the front thigh area was light and the back was dark, while the shin area of the legs was dark. His sneakers were dark with white soles. Seconds later, they ran off as Mr. Kusi made his retreat down a hallway. As they ran back through the glass lobby doors, the third man was just coming in. He was late. He did not carry a visible firearm, but his hand was suspiciously in his jacket as if he was holding something. He wore a dark jacket, dark pants slung low, and white shoes.

[24] While the three men were in the lobby, the silver car had driven off back towards the intersection into 40 Falstaff Avenue; perhaps, as the Crown argued, to allow space for the Uber to pass on the narrow roadway. The Uber did pass the silver car and it left the scene. By contrast, the silver car stopped momentarily on the street to allow the two shooters, and then the third man, to run back to the car. They got in. The car quickly drove away.

[25] In my view, this had all the hallmarks of a planned and deliberate shooting.

[26] From this surveillance evidence, the silver car is not readily identifiable. The video quality and the lighting are not great. But it is possible to make out the contours of a dark sunroof on the silver car.

[27] About the shooters, not much more can be said. They are not particularly stout. Their skin complexion seems dark. The clothing worn by them has not been attributed to anyone the Crown alleges to have been involved in the shooting.

[28] This video evidence is highly probative as to what happened. But it does not say much about who was involved.

The Silver Car was a Chrysler 200 with Licence Plate CLEY040

[29] The Crown submits that the silver car was a silver Chrysler 200 with licence plate CLEY040 (henceforth referred to as “CLEY040”). The Crown relies on a body of evidence to prove this including the similarity of the silver vehicle shown in the 40 Falstaff Avenue videos and CLEY040. In my eye, they are similar, including the dark sunroof, the general color, and the style and profile of the car.

[30] The most probative evidence that CLEY040 is the silver car comes from Mr. Gurdeep Singh, an employee of Toronto Community Housing which runs 40 Falstaff Avenue, and a report generated for his office that was admitted on consent. This report was generated by a licence plate reader software installed at 40 Falstaff Avenue called Telemetrics. This software was being used at the location for a trial period of 3 months. The software visually captures the licence plate with a camera. It takes a picture of the vehicle and a zoomed in photo of the plate. The time and date when the licence plate is captured is displayed in the report. In this report, a picture of the rear of a light-colored vehicle with a dark sunroof was created at 3:25:24[^1] of March 13, 2020. The close-up plate depicted is LEY040 with the first letter cut off in the image. The Crown submits that this evidence confirms that the silver car was CLEY040.

[31] Generally, I found Mr. Singh’s testimony wanting in some ways. He did not generate the report. The only knowledge he had of the Telemetrics program came from the fact that he was an end user. In setting up the plate reader, Telemetrics taught certain technicians employed with Toronto Community Housing who then in turn taught Mr. Singh how to input data to retrieve information being sought by the police. Mr. Singh could not really describe how the software operates. He gave no evidence about the accuracy of the report generated. He did not even give evidence of where in the area of 40 Falstaff Avenue the camera or plate reader was located. Put another way, the pictures and details provided does not help me in determining in what direction the vehicle was moving. Moreover, no specific admission was made regarding the accuracy of the date and times found in the report.

[32] Looking at other contents of the report does not assuage my concerns. The photo of the car alleged to have the licence plate LEY040 does not have the licence plate visible to the naked eye. It is an overexposed blur. In short, it is the report that makes the connection between LEY040 and the silver car. I cannot, as a trier, do so, based on my examination of the photo of the silver car. Moreover, left unexplained is how the software obtains the close-up photo of the plate said to be associated with that car. The same is true with the other vehicles that the Telemetrics plate reader captured at different times in the report.

[33] Another issue. There is only a photo of the rear of this vehicle alleged to be CLEY040 captured at 3:25:24. Just prior to this image, there is a car with plate CFNL584 captured from the front at 3:24:17. The rear of this car is captured at 3:25:28. This could well be the coming and going of the Uber. But there is no similar photo of the front of the vehicle with plate LEY 040. Why this is so is not explained.

[34] Despite these shortcomings, I am persuaded that the silver car leaving the scene with the shooters is CLEY040 for the following reasons. The defence did not really challenge Mr. Singh’s evidence. The partial plate is of no moment. It is highly unlikely that a silverish car with a sunroof would have a licence plate with all the numbers and letters but for the first letter “C” which appears just cut off in the image. The timing of the report is consistent with the surveillance videos. It would have been useful to have evidence from the Uber driver to solidify that CFNL584 was the Uber that Mr. Kusi took. However, when the totality of the evidence is looked at, I can safely conclude that CLEY040 was the silver vehicle that the shooters came out of. There are no other vehicles except for CFNL584 captured by the plate reader in and around that time. Afterwards, clearly police and emergency vehicles arrive. Significantly, the Telemetrics report shows the LEY040 silver vehicle to have a dent in the right-hand rear bumper. It is a rather distinctive dent. Despite rejecting D.C. Rogers’ opinion that an accident occurred when the silver car backed into a light pole, I find that it does not matter when the dent occurred. The fact remains that when CLEY040 was seized by the police on March 14, 2020, from the rental car business and photos were taken of the rear of the car on March 16, 2020, a dent in the right rear bumper of CLEY040 is found. This dent visually matches the dent in the silver car of the photo taken by the Telemetrics plate reader.

The Rental of CLEY040

[35] CLEY040 is a rental car. But how it came to be rented bears little resemblance to car rentals from mainstream corporations like Budget, Tilden, or Hertz. Kevin Thomas rented out CLEY040. Speaking rather charitably, his car rental business is pretty informal. He uses numerous corporate entities to rent different vehicles. There is no documentation of the rentals. He usually just takes a photo of the driver’s licence of the people who rent his cars. He rents out of a shop, an “Active, Green, and Ross,” at 2082 Kipling Avenue. In the past, the police have investigated his rental cars as potentially being involved in criminal offences.

[36] Mr. Thomas was called by the Crown. He testified that he rented CLEY040 sometime in March of 2020. He did not directly rent CLEY040, but his business partner did. No one bothered to inquire about the identity of this business partner. His business partner spoke in Somali to four or five young black men who rented CLEY040. It was rented late at night. His business partner and the men haggled over the price. Once agreed upon, Mr. Thomas brought the car and handed over the keys. Mr. Thomas testified that though he usually takes a photo of the driver’s licence, this time he did not. He thought the car was rented for a week. He did not know who returned the car. There was no rental agreement. He has been in the rental car business for 12 years and, at his business, a written rental agreement is never created.

[37] When Mr. Thomas was shown a photo taken of Mr. Abshir’s driver’s licence, he testified that he had seen it before but could not recognize it or the phone the licence was captured on. He could not recall if he provided that photo to the police.

[38] Mr. Thomas was also shown a photo of a written agreement in his handwriting. He testified that during the investigation of CLEY040 a police officer told him to write it. The information in the written agreement was not from his own personal knowledge. Rather, a police officer told it to him.

[39] The Crown called P.C. Said, the officer who interacted with Mr. Thomas. I accept P.C. Said’s evidence that he got the photo of Mr. Abshir’s licence and the handwritten paper from Mr. Thomas and that the officer never told him what to write in it. However, it is incontrovertible that what Mr. Thomas told P.C. Said about the rental of CLEY040 is inadmissible hearsay. In short, it is Mr. Thomas’s evidence that is admissible and probative on this issue. While I find Mr. Thomas to be a reluctant witness, in the end, he gave little evidence as to who rented the car aside from the fact that a group of unidentified young black males rented it on some date proximate to the police coming to investigate.

[40] Without any reliance on hearsay, the Crown points to the fact that Mr. Thomas had possession of a photograph of Mr. Abshir’s licence that he gave to P.C. Said as being some evidence of Mr. Abshir’s rental of CLEY040. In my view, this evidence has little weight given that Mr. Thomas has rented numerous vehicles and thereby obtained equally numerous photos of driver licences. Moreover, he did not connect this photo of Mr. Abshir’s licence to the rental of CLEY040. He expressly testified that he did not get a photo of a driver’s licence for this rental.

[41] The Crown also relies on circumstantial evidence to support the factual finding that Mr. Abshir rented CLEY040. This includes the fact that Mr. Abshir owns and wore in the month of March a black “Moose Knuckles” brand winter jacket with a brown fur trimmed hood and a logo on the left shoulder area. Mr. Abshir was wearing this jacket when he was arrested by the police. Mr. Abshir was also wearing this jacket when stopped by the police on March 13, 2020, for the HTA stop that will be elaborated on below.

[42] The Crown points to the surveillance camera footage located at 2082 Kipling Avenue, taken on March 12, 2020, at about 20:37 and 20:59. This is the address given by Mr. Thomas of where his rental business is located. After careful scrutiny, I find the videos to be of little weight in determining the issue of the rental of CLEY040, even when viewed in the context of the evidence as a whole, for the following reasons. The videos show basically a gas bar area. The video does not show a clearly identifiable “Active, Green, and Ross” shop. Mr. Thomas was never shown the videos. Thus, he was not asked where on the videos his business was located, nor did he identify any vehicles shown in the videos as his rental vehicles. So, I do not know where the figure the Crown alleges to be Mr. Abshir was walking towards. So, the vehicle the figure later exits from also cannot be identified as one of Mr. Thomas’s rental vehicles, let alone CLEY040. It is true that this figure may have had a lighter colored trim on the hood of the jacket he was wearing and perhaps a reflection on his left shoulder. But the video is not of good quality. In my view, I cannot conclude this is a “Moose Knuckles” jacket. Even if I could, it was conceded by a police witness, D.C. Rogers, that such a brand is worn fairly commonly by people. Even apart from the commonness of that brand, given the time of year and the nature of the trim, such fur trimmed hooded jackets are not that unique or distinctive.

[43] In addition, while the cellphone tower evidence for the 5986 telephone number is consistent with the phone being in the general location of 2082 Kipling Avenue in and around the time of the videos, the coverage of the cellphone towers cannot exactly pinpoint the location of the phone when it was being used. Moreover, as I will later explain, there are difficulties with attributing 5986 to Mr. Abshir. The analysis done by the Crown between the phone alleged to belong to Mr. Aden, 4445, and Mr. Abshir, 5986, also suffers from that same frailty. Also, the calls if they were indeed communications between the two men, may not have had anything to do with the rental of the car.

[44] Finally, I must consider the evidence that Mr. Abshir was driving the rented car on the afternoon of March 13, 2020, when he was stopped by the police during the HTA stop. However, driving the rented car over 12 hours later, while probative, is not conclusive proof that it was Mr. Abshir who initially rented the car. People do drive rented cars that they have not rented themselves.

[45] Looking at the whole of the evidence led by the Crown in all its respects, given Mr. Thomas’ failure to identify the renter of CLEY040 and given the fact that he does not even specifically say when the car was rented, I am unable to conclude that Mr. Abshir rented CLEY040 on March 12, 2020. In coming to this factual determination, I find merit to the defence argument that when Mr. Abshir was stopped during the HTA stop on March 13, Mr. Abshir, while acknowledging to the police the car was a rental, not only did not admit he rented the car but also, when asked by the officer for rental documentation for the car, he returned to the vehicle to look for the rental agreement for CLEY040 without any success. Had he been involved in the rental of the car he would have been able to readily tell the police that none was created. He would have had a significant motive to do that given he was detained by the police for about an hour during the HTA stop. He did not. His actions support the contrary finding that Mr. Abshir did not rent CLEY040.

[46] Still, I recognize that there is a body of evidence that Mr. Abshir rented CLEY040 and I will consider it in my overall assessment of the Crown’s case.

Mr. Aden was a Shooter or was Involved in the Shooting

[47] Mr. Aden was arrested on March 14, 2020, for a breach of a house arrest condition on his bail. P.C. Walker and P.C. Borch basically ran him down in the same housing complex where a day earlier the HTA stop occurred. Mr. Aden was in possession of a cellphone with the number 4445. The police later extracted data from this phone. Mr. Aden was also in possession of a prohibited firearm, a Glock Model 17. Later ballistic testing matched test fires from this handgun to the casings seized at the shooting scene. Both the extracted data and the forensic casings match are strong reliable evidence for the Crown.

[48] Looking at the other evidence. The video surveillance at 40 Falstaff Avenue does not show a shooter wearing similar clothes to that worn by Mr. Aden when he was arrested by the police. In particular, while two persons at the shooting scene wore dark jackets, they were not shiny like the black one worn by Mr. Aden on the day of his arrest. However, if Mr. Aden was one of the shooters, this apparent discrepancy can easily be explained by Mr. Aden simply having changed his clothes given the length of time between the shooting and the arrest. Moreover, it remains possible that Mr. Aden was the driver of CLEY040 or if not the driver, an unseen passenger who remained in the car at the time of the shooting.

[49] Other evidence is more problematic for the prosecution on this issue. The phone records and cell tower location maps show that 4445 was not in the location of the shooting at 3:25 of March 13, 2020. The cell towers used by 4445 indicates it could not have been at 40 Falstaff Avenue at the time of the shooting. The map of the cell phone towers that 4445 used to communicate one hour before and after the shooting shows that around the time of the shooting, at 3:24:17, 4445 was in the location of the cell tower at 50 Dixington Crescent, over a ten-minute drive away from 40 Falstaff Avenue. 4445 also used that cell tower for other communications from 3:11 to 3:33. Thus, 4445 could not have been in CLEY040 that the shooters emerged from. That car had been parked lying in wait for over 9 minutes before the arrival of Mr. Kusi.

[50] The Crown’s argument to explain this is that 4445 was in the possession of someone other than Mr. Aden at the time of the shooting. In and around that time, some Instagram messages were being exchanged between 4445 and another person. An Instagram user named “sunnahdrip” was logged onto 4445 at the times indicated above proximate to the shooting. “Sunnahdrip” was sending and receiving messages with “Ahmed Abu Ilyas”. Social media evidence reveals that “sunnahdrip” is someone other than Mr. Aden. The Crown thus submits that this potentially inconsistent evidence regarding 4445’s location at the time of the shooting can be explained by the fact that Mr. Aden had, at some prior point in time, given his phone to “sunnahdrip”.

[51] While this is a good argument, there remains some further inconsistent evidence that needs to be explained. “Sunnahdrip” continued messaging with “Ahmed Abu Ilyas” into the afternoon of March 13, when the Crown theory is that by then Mr. Aden had his phone back; certainly by the time of the HTA stop that afternoon. To explain this, the Crown relies on the testimony of Marissa Coultman, a Toronto Police Service employee. Based on experience, Ms. Coultman testified that an Instagram account can be logged in on two different devices at the same time and both devices will receive the messages sent and received on that account. Therefore, by the afternoon of March 13, Mr. Aden could have possessed and used 4445 while “sunnahdrip” could still be using his Instagram account on another device. This would explain how the data from the March 13 afternoon Instagram account of “sunnahdrip” would still show up on 4445 in the later extraction of data.

[52] Based on the whole of the evidence, I am satisfied that Mr. Aden was one of the shooters. Despite the inconsistent evidence that 4445 was elsewhere at the time of the shooting, which in my view is adequately explained, I find that the evidence found on Mr. Aden at the time of his arrest convinces me of this.

[53] First, of obvious significance is the fact that Mr. Aden was in possession of the firearm used in the shooting less than two days later. This is highly probative evidence of Mr. Aden having the weapon used in the commission of the offences at a time relatively close to the shooting.

[54] Second, extracted Snapchat chats from 4445 are tantamount to an admission by Mr. Aden that he was one of the shooters. Based on a ruling previously made, these messages are admissible against Mr. Abshir.

[55] To begin, I find that Mr. Aden used 4445 and that his username in a group Snapchat exchange on March 13 and 14, 2020 was dg.rx. In a series of back-and-forth chats between Mr. Aden and other users in the group chat commencing at 14:35:19 of March 13, 2020, Mr. Aden essentially confesses his involvement in the shooting. He chats to the group “free dat staff boy”. It is easy to interpret “staff” as “Falstaff”. Mr. Aden further chats “He ain’t gonna make it”; and “Run him down in da lobby how I be movinnn.” In my opinion, Mr. Aden is referring to Mr. Kusi. He then messages that he “dumped 31” and “He’s a goner”. The police determined that some 28 bullets were fired at the scene. Mr. Aden asks if anyone has “nina grains” as he was out. His Glock is a 9 mm. If Mr. Aden fired so many rounds the night before, he may well be in need of ammunition. Mr. Aden later asks the group if anyone has a “beam” because “I dropped my beam in the staff last night”. He was upset that someone had loosened it but was pleased that “inshallah no prints on it fam.” The police located a laser sight for a gun at the scene of the shooting. Just using common-sense, “beam” can readily mean a laser. The accidental dropping of a laser sight is an especially distinctive feature of the shooting of Mr. Kusi. Finally, Mr. Aden messages with someone on March 14 saying he needed “a spot to lay low for a week” when he became concerned about police investigations.

[56] The defence did not make any serious submissions that Mr. Aden was not one of the shooters.

[57] I find as a fact that he was.

The Arrival of a Silver Car at Scarlettwood Court the Morning of March 13

[58] The video surveillance evidence at the Scarlettwood Ct. housing complex shows that at about 5:11a.m. on March 13, 2020, a silver car arrives at the Scarlettwood Ct. complex and parks in a parking lot. The licence plate cannot be seen but the vehicle has the same profile, dark sunroof, and, most importantly, dent in the right rear bumper as CLEY040. There is only the driver in the car. He is wearing a brown fur trimmed hooded jacket with a logo on the left shoulder. It looks like a “Mooseknuckle” jacket. D.C. Rogers who reviewed the various videos from the surveillance cameras around Scarlettwood Ct. took me through the movements of the car. The most important video was of the vehicle when it parked in a parking lot from which a footpath to the address of 63 Scarlettwood Ct. is found; the address being the home of Mr. Abshir as indicated by the photo of his driver’s licence.

[59] The videos show the following. At 5:17:04, a dark car pulls out of the parking lot and the fellow wearing the fur trimmed jacket, driving the silver car, takes the spot. At about 5:18:43, this man exits the silver car and walks the pathway in the direction of 63 Scarlettwood Ct., then abruptly turns around, appears to be looking at his phone, walks back to the parking lot, and enters a parked white vehicle leaving at 5:20:19. From 5:20 to about 6:40, D.C. Rogers testified that he did not find any relevant surveillance footage. At 6:40:47, the man in the fur trim jacket is seen running up the road in a roundabout and he goes to the silver car. At 6:41:38 he leaves in the silver car. At 6:44:44, the white car returns and the man in the fur trim jacket walks back along the footpath to 63 Scarlettwood Ct.

[60] The man reappears on the footpath at 7:37:38 a.m. It is now light outside. He comes down the pathway carrying an open bag or a box and walks off the camera screen.

[61] In sum, this man wearing a fur trimmed hooded jacket drives the silver car into the Scarlettwood Ct. housing complex and parks. For whatever reason, he changes his mind about walking to his destination in the housing complex, retrieves the white car and drives off with it. He then is seen coming back on foot to get the silver car, drives off with it, and returns with the white car. He then walks to his destination. It almost seems as if he is “jockeying” the cars or delivering the white car or the silver car somewhere, perhaps to someone.

[62] That same day, at about 4:00 p.m., Mr. Abshir and a passenger are stopped by the police in CLEY040 at a different location in Etobicoke for a highway traffic infraction. There is no doubt this is Mr. Abshir. The police identify him. There is no doubt he is driving CLEY040. The police get the plate number. The passenger leaves the car quickly, unnoticed by P.C. Walker and his escort who pull in behind CLEY040 as it parks in the parking lot.

[63] The defence submits that the Crown has failed to prove that the man in the fur trimmed jacket in the Scarlettwood Ct. parking lot in the early morning hours is Mr. Abshir or that the car is CLEY040.

[64] True, there is no direct evidence of identification. However, there is the similarity of the jacket and Mr. Abshir’s association with a similar looking car later the same day. This is probative circumstantial evidence that this is Mr. Abshir driving CLEY040 as seen in these surveillance videos.

[65] Before going further in this factual determination, a closer look at the phone records of 5986 is useful.

Is 5986 Mr. Abshir’s Phone Number?

[66] The Crown submits that 5968 is Mr. Abshir’s phone and that it was used by him during the material events.

[67] The usual methods in establishing the connection between an accused and a phone number are lacking in this case. No phone was found in Mr. Abshir’s possession or at a place or in a conveyance that he is connected to. Hence, no data or content was ever extracted from such a phone that could link him to the number. The subscriber of 5986 is Ahmed Ali of 340 Dixon Rd., Etobicoke, but no evidence was led about who this Ahmed Ali is or whether the address was investigated by the police. 5896 is a prepaid Chatr account. Mr. Ellis, an employee of Rogers Communications that owns Chatr, testified that this subscriber name and address may be true or may be false. The validity of subscriber information is not checked when a Chatr prepaid account is issued. Finally, there is no extraneous evidence from things like the contents of texts, other electronic communications, documents, or social media or from witnesses that somehow attributes, even inferentially, 5986 to Mr. Abshir.

[68] Instead, the Crown relies upon circumstantial inferences from the usage of 5986 as shown by the phone records and cell tower records when viewed against the backdrop of the events of March 12 and 13. More specifically, the Crown relies on the comparison between the video surveillance evidence, the phone records, and the associated cell tower evidence.

[69] The Crown submits that when one compares the video surveillance footage of Scarlettwood Ct. on the morning of March 13 and the HTA stop of Mr. Abshir on the afternoon of March 13, the phone records match the video surveillance showing Mr. Abshir using a phone at a time when the records state that 5986 is communicating with someone. Moreover, the cell tower evidence shows that the location where the communication takes place is in the same vicinity as the video surveillance.

[70] The weight to be afforded to this argument requires close scrutiny of the records and the videos.

[71] To begin. I will examine the telephone records and the video of the HTA stop. The video is clear and reliable. But limitations are present. Sometimes, Mr. Abshir is in his car and thus out of sight. He could be using the phone and I cannot see it. Other times, his body or a vehicle may be in the way in terms of sightlines. Sometimes he walks off screen. Keeping in mind those limitations, I can still determine the times he is using the phone; for example, when he is holding it to his ear. Mr. Abshir’s use of a phone at that time makes sense given P.C. Walker’s investigations into the bona fides of Mr. Abshir’s rental. Equally important, I can also determine other times when Mr. Abshir is not using the phone. Exercising appropriate caution in assessing the videos, I have come to the following conclusions.

[72] The Crown’s argument that the phone records are consistent with Mr. Abshir’s use at the time has some merit. Sometimes when the records state 5986 is making a call, the video shows Mr. Abshir using the phone. I observe there are some discrepancies between the start and finish times from the records and what can be seen on the video, but I have given the Crown submission some latitude in this regard, if not simply because merely not holding the phone to one’s ear does not mean that a call is not being made or has ended. At other times on the video, Mr. Abshir is not on screen, either walking off screen or in his car, and he may have made a call that was not visible on the video.

[73] However, there are times where the records are inconsistent with the video. During the HTA stop, these calls occur at 16:31:55, 16:32:44, 16:33:12, and 16:45:41 when the video shows Mr. Abshir is not on the phone. However, looking at the records more carefully, these were outside callers calling 5986, the calls lasting 1 to 4 seconds, which did not connect to a cell tower, and was redirected to another number, perhaps voicemail (I note that the calls were redirected to the same number that comes up in other parts of the phone records in similar circumstances for similar durations). These seemingly inconsistent records could be explained by someone calling Mr. Abshir and him choosing not to pick up and the call being redirected to voicemail. This could potentially be the reason why the videos do not show him on the phone.

[74] Moving on to the Scarlettwood videos, I find that greater discrepancies exist. I have carefully reviewed and compared the video surveillance of the various cameras and the phone records. Again, limitations exist. The videos were shot at night. Thus, lighting is an issue. Sometimes the figure said to be Mr. Abshir can only be seen at a distance. Some are not in colour. On the other hand, there is continuous action and no significant skips as when the video surveillance camera is not recording some frames of the motion. Other times the figure can be clearly seen. I can make out what he is doing with his hands and what he might be holding. Exercising the due caution required, I have concluded there are significant inconsistencies between the video surveillance and the phone records. Before detailing those, I repeat that it is an admitted fact that the times on the video surveillance are accurate and no one has disputed the accuracy of the times on the phone records; the latter I find to be reliable.

[75] There are three connected communications on the phone records that can be compared to the Scarlettwood Ct. videos: (1) at 5:19:12, a call of 25-second duration; (2) at 5:20:06, a call of 4-second duration; and (3) at 5:20:37, a call of 12-second duration. All three calls are from 5986 to 4445.

[76] The first call is from 5:19:12 to 5:19:37 (25-second duration). The relevant video is found in Exhibit 4(f). The surveillance footage generally shows the figure with the fur trimmed jacket walking into the parking lot, momentarily speaking to a person who is coming from the complex, perhaps to inquire about whether that person was leaving a parking spot. That person gets into a parked car and leaves. The figure leaves and returns with the silver car and takes that parking spot. The figure exits, quickly returns to the silver car as if to see if the door is locked, and then walks to the pathway that eventually goes to 63 Scarlettwood Ct. before disappearing from sight in the distance. The time interval when this action takes place is 5:18:42 to 5:19:21. As the figure is walking away, there are no obvious signs that he is using a phone such as having an object to his head. Nor is there any illuminated phone screen. To be fair, the figure is far in the distance and even zoomed in, it is not easy to make out details. Nevertheless, this comparison of the phone call to the video does not support a factual finding that the figure is using a phone during the time the records say 5986 is making a 25 second call.

[77] The Crown specifically relies upon the video tracking the figure after leaving the parking lot area when he is making his way along the footpath towards 63 Scarlettwood Ct. This video is found in Exhibit 4(g). Here the video shows the figure using a phone. I can determine this partly because of the posture of the figure - he is looking down to an object in his hand - and partly because the screen of this object illuminates as if it is a phone screen. A screen grab presented by the Crown in her power point closing submissions demonstrates this at 5:19:32. This is consistent with the phone record of the 25 second call commencing at 5:19:12 though as I found above, I cannot see the beginning of the call on the previous surveillance camera footage.

[78] However, closer scrutiny of this issue raises questions. The video in Exhibit 4(g) shows the figure walk across the footpath, momentarily going off screen, and then retracing his footsteps from 5:19:25 to 5:20:07. Exhibit 4(h) shows the other end of the footpath where the figure had gone off-screen in Exhibit 4(g). From 5:19:40 to 5:19:51, the figure is seen turning around and heading back towards where he came from. He is not on his phone at this time. But while he is going in the direction of 63 Scarlettwood Ct. and back, along this walkway, his posture is that he is looking down at an object in his hand. What appears to be a screen in his hand illuminates at 5:19:30, 5:19:33, 5:19:56, and 5:20:01. To me, it is clear this is a phone. However, even though I have found it to be a phone, the phone records are not consistent with this continuous use during this portion of the videos. The first call ends at 5:19:37. Yet the figure is still looking at and using his phone after this time. This use is not reflected in the records. I acknowledge that a phone can be used in many ways unrelated to calling or texting someone: for example, looking at the internet, at photos, contacts, etc. This could be a plausible explanation why his use is not indicated on the phone records. Yet, additionally, I observe that when the 25 second call is allegedly being made, the figure does not have the phone to his ear or to his mouth. He is looking down at the phone held at waist level which, though not making it impossible, makes have a conversation more difficult. In the end, the comparison of this call and the relevant videos partially supports the Crown but also raises these questions that are not readily answered.

[79] The 4 second communication at 5:20:06 does not have an accompanying video that can help illuminate matters for me. The figure walks off screen on the pathway at about the time the call is made. Then the video of the parking lot does not really pick the figure back up until the call is finished. Thus, the comparison of the video to this call is not useful.

[80] The most disconcerting evidence is the following. It is found in Exhibit 4(f). I find during the time interval of the 12 second phone call from 5:20:37 to 5:20:49, the figure is not using a phone, nor does he have a phone out. This is clear to me because during this time interval, the figure approaches the white car, leans down as if to insert a car key into the door, and then opens the door. He is not using a phone. He does not have an object to his head or mouth. He does not have an object in his hand aside from the car keys. His movements are consistent with him focused on opening the door and getting in the car. He simply could not be using a phone. This phone call at 5:20:37 is not a text or a voicemail call. This is a call that is connected for 12 seconds. The figure is in the car by 5:20:50 and then drives away. Therefore, from the time he appears on screen and crosses the parking lot to when he disappears into the car, which is from 5:20:22 to 5:20:49, he does not appear to have a phone in his hand, nor does he make any movements consistent with him using a phone or making a call. His hands are down at his side, perhaps in his pocket. Thus, this video is highly inconsistent with the phone record. I find it cannot be explained except by the conclusion that the phone the figure is using during the video surveillance at Scarlettwood Ct. is not 5986.

[81] I recognize the unlikely coincidence of the phone records show 5968 was in use and the video surveillance evidence purportedly confirming the usuage. The unlikeliness of the coincidence increases when coupled with the cell tower evidence which shows that 5986 contacted the cell tower at 58 Waterton Road, which is close to Scarlettwood Ct. and the overall sequence of events relied upon in the Crown theory.

[82] That said, this question must be assessed in the context of the ubiquitous modern use of mobile phones. People use them and use them to communicate with others frequently. For some people it seems as if they are always on their phone. The likelihood of random coincidence must consider this context.

[83] Moreover, though the time of night and the location of use supports the Crown theory, it remains a reasonable possibility that, given that the area is a large housing complex, 5986, though not in the figure’s possession, was being used by some other person in the area at that time.

[84] The discord created by those instances where the phone records are at odds with the video surveillance raises serious questions about whether 5986 is the number attached to the phone being used by the figure at Scarlettwood Ct. or, indeed, Mr. Abshir during the HTA stop. There may be a technological explanation. I do not know. Mr. Ellis’s testimony was not directed towards this issue. There may be some other explanation that I am unaware of. But the fact remains the videos are consistent with some calls on the phone records but are inconsistent with others. While coincidence, even an unlikely one, can explain the former, the explanation for the latter that arises from the evidence is simply that 5986 is not the phone seen being used by the figure at Scarlettwood Ct. This leads away from the inference that the figure is Mr. Abshir.

[85] Another reasonable explanation is that 5986 was being used by Mr. Abshir during the HTA stop but 5986 was not the phone being used the figure seen in the surveillance videos at Scarlettwood Ct. during the early morning hours of March 13.

[86] Looking at the phone records and the videos in the context of the totality of the evidence, while it has some probative value to support the Crown position, it has its weaknesses. In the end, I am unable to find conclusively as a fact that 5986 is a phone that Mr. Abshir used during all the material events. The unexplained inconsistencies between the records and the videos preclude me from making a positive finding in favour of the Crown. Just like Mr. Aden’s phone seems to have been used by others during these dates, 5986 could reasonably have been used by persons other than Mr. Abshir during the material events.

[87] That evidence analyzed, the phone records of 5986 still have some probative value and must not be ignored in the overall assessment of proof beyond a reasonable doubt.

[88] Moving back to the question of whether the figure shown in the Scarlettwood Ct. videos is Mr. Abshir, as I have observed, this analysis of the 5986 records does not support a finding that the figure is Mr. Abshir. At this point, I will move on to examine the HTA stop.

The HTA Motor Vehicle Stop of Mr. Abshir with Mr. Aden

[89] It is uncontested that in the afternoon of March 13, P.C. Walker and P.C. Maurice stopped Mr. Abshir and gave him some tickets for HTA violations. The video surveillance shows CLEY040 turning into a parking lot and parking, a man quickly exiting from the passenger side of the car, and the police cruiser with its roof lights on, pulling up behind. Mr. Abshir gets out and goes to speak with the officers.

[90] During the detention for the HTA investigation, Mr. Abshir told P.C. Walker that the person who exited the passenger side door during this stop was his cousin. He did not further identify this person. On the surveillance video, this passenger is not readily identifiable. The video just shows a man in a black jacket and headwear exiting and walking away. Other surveillance video captures his movements as he makes his way through the various pathways and roads of the housing complex at Orpington Cres. in Etobicoke.

[91] Doing a similar analysis as conducted above, I find that the phone records for 4445 are consistent with this passenger exiting CLEY040 being Mr. Aden. The video in Exhibit 7(a) shows at 16:14:37, the man taking out his phone and putting it to his mouth as if speaking on it as he made his way down a footpath between houses, then disappearing in the distance at 16:15:24. The phone records for 4445 show that prior to the police stop, at 16:06:16, a call was received for 40 seconds. The next call made on 4445 was at 16:14:37 for 73 seconds. This call coincides exactly to the second when the passenger put the phone to his mouth. The cell tower used by 4445 at this time was at William Osler Health Center at 101 Humber College Blvd. in Etobicoke. The tower is not immediately adjacent but is in the general vicinity of Orpington Cres. where the stop took place. All of this supports the Crown position. Most significantly, unlike the analysis conducted on 5986, there are no inconsistent phone calls to what the surveillance video shows. Moreover, there is no doubt that 4445 was a device used by Mr. Aden given he was found with it a day later when he was arrested.

[92] One problem that arises in concluding that 4445 was being used by this man exiting CLEY040 during the HTA stop is squaring the Instagram messages that was extracted from 4445. As outlined above, the Crown theory is that 4445 was with “sunnahdrip” at the time of the shooting and not in Mr. Aden’s possession. If it is Mr. Aden who made the 16:14:37 call, not someone else like “sunnahdrip”, he obviously would have had to have retrieved the phone from “sunnahdrip” before that time. But there are Instagram chats extracted from the phone on the afternoon of March 13 between “Ahmed Abu Ilyas” and “sunnahdrip” at 16:15:03, 16:15:06, 16:15:11, 16:35:13, and 16:36:27. This could mean that 4445 was still with “sunnahdrip” and not with Mr. Aden during the HTA stop. This would counter the video surveillance that puts 4445 in the passenger’s hand as he leaves the scene of the stop. However, as I analyzed and reasoned above, using the testimony of Marissa Coultman, these Instagram messages of “sunnahdrip” do not preclude the fact that the passenger was using 4445. “Sunnahdrip” could have been using a different device while logged into the Instagram account.

[93] Moving on to other evidence. The Crown submits that the jacket worn by the man is a two-tone puffy black jacket; shiny on top and a matt finish on the bottom, slightly more fitted at the waist. Having carefully reviewed the videos, I cannot be sure that it is the same jacket, but the appearance is similar to the jacket worn by Mr. Aden on his arrest a day later and worn by him on some social media posted photos of Mr. Aden. The other general physical characteristics of the passenger are also similar to Mr. Aden.

[94] There is the exit of the passenger from the car. He does not run away. He remains in view of the police as he crosses the yard. However, his departure from CLEY040 was quick once the car stopped. And at one point, without any apparent reason, he begins to jog, though he does not keep running. It is reasonable to assume that the initial walking may simply have been a way of not attracting police attention while he was in their view.

[95] I have found that Mr. Aden was involved with the shooting. If the passenger exiting CLEY040 that day was Mr. Aden, his behaviour would be consistent with a man involved in a shooting who did not wish to draw police attention to himself and wished to make a fast exit from the scene. Given that Mr. Aden was also on a judicial release with a house arrest condition, this fact too could explain Mr. Aden’s behavior when stopped by the police. Either way, both explanations point in the same direction; the factual finding that this man was Mr. Aden.

[96] In the end, the totality of the evidence – including the similarity of the jacket, the general appearance of the man, his overall conduct, the call made by 4445 and the video confirming it with no other inconsistent calls, his association with CLEY040 in the shooting, and the general timeline of events - leads me to believe that the man who exited CLEY040 during the HTA stop was Mr. Aden. It could be another person, but overall, that is highly unlikely.

[97] Thus, I find that Mr. Abshir was associating with one of the shooters in CLEY040 the afternoon of the day of the shooting.

Final Conclusions Based on the Whole of the Evidence

[98] It bears repeating that this is a circumstantial case. The Crown theory of guilt on the charges hinges on Mr. Abshir being the driver of CLEY040 as it transported the shooters to and from the scene. Based on the conduct of the driver, before, during and after the shooting, the Crown submits that the driver was in on the plan to shoot and kill someone from the Falstaff neighborhood. The Crown argues that the circumstantial evidence proves beyond a reasonable doubt that the driver is Mr. Abshir.

[99] There are strengths to the inferences the Crown seeks me to draw. I find that CLEY040 was the car used in the shooting and Mr. Aden was one of the shooters. There is probative evidence that Mr. Abshir is connected to both the vehicle and the shooter at times proximate to the shooting. Just under two hours after the shooting, I find it is reasonably possible that Mr. Abshir was driving CLEY040 and parking it in the Scarlettwood Ct. complex. The overall evidence including the photographic evidence of the car with its distinctive damage to the rear right bumper supports the conclusion that this is CLEY040 that returned at 5:11 to that housing complex. While there is no direct evidence of his identification, the circumstances are strongly supportive of the conclusion that the driver was Mr. Abshir. Mr. Abshir was driving the car later that afternoon when stopped by the police during the HTA stop. He acknowledged it being a rental car. This is the strongest connection of Mr. Abshir to CLEY040. And it is not on some distant date but at a time relatively close to the Scarlettwood Ct. surveillance. During the HTA stop, Mr. Abshir is dressed similarly to the man in the Scarlettwood Ct. surveillance; in a fur trimmed “Mooseknuckles” jacket. Mr. Abshir also has an address connected to the complex. While I cannot say 5986 was being used by Mr. Abshir at the time of the surveillance videos, there is some evidence that supports Mr. Abshir’s other use of 5986; for instance, when he was stopped during the HTA stop. While the phone records of 5986 do not support the identity of this man as Mr. Abshir, they are not insurmountable hurdles. Simply, Mr. Abshir just could have been using a different phone when captured by the surveillance cameras at Scarlettwood Ct.

[100] During the HTA stop, Mr. Abshir was associating with one of the shooters. The whole of the evidence points to Mr. Aden as being the passenger as I have reasoned above. Again, there is some inconsistency with the records of 4445, but overall, unlike the records of 5986, these records are more probative if nothing else because of the fact 4445 was found in Mr. Aden’s possession on his arrest and an explanation for the inconsistencies do arise from the evidence.

[101] Thus, there is probative evidence of Mr. Abshir driving the car used in the shooting and associating with one of the shooters at times proximate to the shooting.

[102] That said, it must be acknowledged that both events are not immediately following the shooting and the circumstances do not more closely tie Mr. Abshir to the shooting. The driving at Scarlettwood Ct. takes place about two hours after the shooting. And Mr. Abshir is alone. None of the shooters are with him. Mr. Abshir is later with Mr. Aden, but that is over 12 hours later, and he explained he was just dropping off his cousin.

[103] A lot of attention and detail went into the examination of the phone records and cell tower connections during the relevant events. As reasoned above, I am not confident that 5986 was used by Mr. Abshir during these events or during all of these events. Thus, the phone analysis done by the Crown of the calls between 5986 and 4445 and the location of 5986 as indicated by the cell towers have less probative weight.

[104] But even if I accept that at least some of the 5986 calls were made by Mr. Abshir, troubling questions remain in the interpretation of these records.

[105] The Crown submits that the lack of phone activity between 5986 and 4445 during the time the shooting took place, when there was considerable activity both before and after the shooting, supports the inference Mr. Abshir, the driver, was together with Mr. Aden, one of the shooters. Thus, it is contended there was no need for them to communicate by phone. However, the evidence is that Mr. Aden no longer had possession of 4445 during this time and “sunnahdrip” had it according to the Crown theory. So, the fact that 4445 and 5986 did not call each other during this time does not logically advance the proposition that Mr. Aden and Mr. Abshir were together.

[106] The Crown relies on the fact that 5986 communicates with 4445 in a series of calls clustered around March 12 and 13. Again, the inference the Crown seeks to draw from this depends upon 5986 being used by Mr. Abshir, something I have been unable to conclude, especially at Scarlettwood Ct. Moreover, there is the uncertainty of when Mr. Aden might have regained possession of 4445. To illustrate, the Crown submits that the flurry of calls between 4445 and 5986 commencing at 5:19:12 relate to the involvement of Mr. Abshir and Mr. Aden in the shooting given the timing and the context. The Crown submits it shows the close connection between the two men in the aftermath of the shooting. Even assuming that Mr. Aden had retrieved 4445 from “sunnahdrip” by then, I have concluded Mr. Abshir likely was the figure at Scarlettwood Ct., but he was not in possession of and using 5986 at the time. Thus, those calls do not advance the Crown proof. Indeed, it suggests that someone other than Mr. Abshir may have been involved.

[107] It is the Crown’s theory that Mr. Abshir was with Mr. Aden and was in on the planning of the shooting from the moment he rented the car earlier on the evening of March 12. But some of the calls in the phone records of 5986 and 4445 are perplexing if that theory is true. For instance, at 1:04:38 on March 13, 4445 calls 5986 for 18 seconds. At this time, “sunnahdrip” likely had 4445 in their possession. This is based on the Instagram messages: “sunnahdrip” replies to an Instagram message from his friend at 12:43:42 a.m. on March 13. Further, the Instagram messages continue before, during, and after the shooting. Thus, at 1:04:38 it is reasonable to infer “sunnahdrip”, not Mr. Aden, is calling 5986. Why would “sunnahdrip” be calling 5986? If it was in fact Mr. Aden, then did he still have 4445 despite the Instagram messages? Again, at 4:38:06, 4445 again calls 5986 which goes to voicemail. Is that “sunnahdrip” making the call or did Mr. Aden have the phone back by then? Along with the Instagram messages there is a series of calls made from 5:19 to 5:30, between 4445 and 5986, before the Snapchat activity of dg.rx recommences. For sure, Mr. Aden may have retrieved the phone by then, but equally plausible is “sunnahdrip” is communicating with 5986 during that time, as they had done previously.

[108] I recognize that the phone records can be interpreted to support the Crown. But I must be cautious that I do not assess probabilities and plausibility unduly influenced by the fact it just fits the Crown theory better, as opposed to what inferences the evidence can reasonably bear, or the effect the absence of evidence has on those inferences. In this case, no definitive way exists to determine exactly when “sunnahdrip” started accessing 4445 and when they stopped. There is no definitive way to assess if and when 5986 was used by Mr. Abshir.

[109] For the Crown to prove the essential elements of the offences, it does not need to answer all questions about what happened. It does not need to answer all the questions about the phone records. It just needs to answer the questions required to prove the essential elements. But these unanswered questions about the phone records affect the Crown’s proof of how tied in Mr. Abshir is to Mr. Aden, through communications with each other proximate to the shooting. If they are not communicating with each other or not to the extent the Crown suggests the phone records proves, it weakens that link. These are not merely shortcomings in the narrative of the events: cf. R. v. Austin, 2023 ONCA 491, at para. 7.

[110] Getting back to the fundamental task of determining Mr. Abshir’s guilt or innocence, I am unable to conclude that Mr. Abshir was driving CLEY040 at the shooting of Mr. Kusi.

[111] While the fact he was driving CLEY040 under two hours from the shooting is suspicious and probative of him being the driver at the shooting, looking at the totality of the evidence, I do not draw this inference. He could have been elsewhere or at someone else’s place, at the time of the shooting. He could even have been asleep. This is not an imaginary doubt or a frivolous doubt. Nor is it based merely on speculation. Rather, given the whole of the evidence and the absence of evidence, assessed cumulatively, these are reasonable possibilities after exercising my common-sense and experience. It has not been proven that Mr. Abshir was involved in the rental of CLEY040. There are weaknesses I have gone over in the evidence of the phone records and cell tower locations. The fact Mr. Abshir was with Mr. Aden the afternoon of March 13 can be just him offering Mr. Aden a ride, perhaps to his home. There is a lack of evidence directly connecting Mr. Abshir to the scene as the driver. For example, there is no forensic evidence such as gunshot residue connecting him to the shooting. The amount of time between the shooting and the capture of Mr. Abshir on the various surveillance videos at Scarlettwood Ct. provides ample time for Mr. Abshir to become involved in the driving of the vehicle without having been the driver at the scene. The Crown’s theory that during this time, Mr. Abshir was just dropping off the shooters, is valid and could well be true. But other reasonable possibilities arise. This is not a case where Mr. Abshir is seen driving shortly after the shooting with no realistic opportunity for the drivers to change. This is not a case where Mr. Abshir is seen with the shooters before or after the shooting. That would be strong circumstantial evidence connecting him to the shooters at the time of the shooting. There is also little evidence that previous to March 13, Mr. Abshir associated that much with Mr. Aden.

[112] In this case, Mr. Abshir could easily have obtained access to the car when the car was brought back to a location where one or more of the perpetrators was dropped off and he was given CLEY040 to drive. The cell tower evidence shows considerable movement after the shooting of the phones any way one looks at it.

[113] The haphazard moving or the jockeying of CLEY040 at Scarlettwood Ct. is not inconsistent with his innocence. If Mr. Abshir was involved as the driver at the shooting, he along with the others would have had greater opportunity to plan what to do with the car after the shooting. Or if Mr. Abshir was the driver, he could have figured it out on his own. Yet, in the morning hours, Mr. Abshir is seen jockeying the white car and the silver car. The Crown submits that this car jockeying was done to try and distance himself from CLEY040 or that he was second guessing his decision to park CLEY040 at his home, perhaps due to the existence of surveillance cameras. This may well be. I recognize that mistakes are made even during the commission of any so called “perfect” crime, but it makes little sense in a planned and deliberate shooting that Mr. Abshir would bring a car from such a shooting back to his place of residence. If a mistake was made, then to jockey the car used in the shooting and the white car like he did would only increase his time on camera and guarantee attention would be drawn to his actions.

[114] Equally, it may well be that Mr. Abshir, without knowledge or involvement in the shooting, was just responding to a request from someone else that he was in contact with, given that he was on his phone before he abruptly turned around on the pathway, to have the car delivered. While this scenario does not preclude an inference that he was involved in the shooting, his conduct seen on the video is as consistent with Mr. Abshir delivering CLEY040 somewhere or to someone else and making sure he had a ride, the white car, to drive home in after doing that. Doing that does not mean he was involved in driving the car to the shooting.

[115] Even if I accept as proven that Mr. Abshir was involved in the rental of the silver car, it remains a reasonable explanation inconsistent with guilt, one that arises from the evidence and the absence of evidence, that Mr. Abshir was just unwittingly used to rent the car by those involved in the shooting in order to distance themselves from that car. It would be logical that the shooters would be concerned about being identified by a witness or surveillance cameras. For instance, in this case, the victim had been dropped off by an Uber driver.

[116] There is then the unusual fact that based upon the phone records of 5986 and cellphone tower locations, the next morning, that phone travels to the Kitchener/Waterloo area and back. If that is Mr. Abshir, if he received the phone from someone before then, one must wonder what that trip was for and by what means he made that trip. I will not speculate but it leaves open the potential that Mr. Abshir had used CLEY040 for his own purposes, to make that out-of-town trip, that may have been unconnected to the shooting. Said differently, he may somehow have been involved in the rental for his own purpose unrelated to the shooting. If Mr. Abshir was involved in the shooting, it would be risky behaviour on his part to be driving that vehicle the next day for such a long distance.

[117] Then there is the HTA stop. The defence submits that Mr. Abshir’s behaviour was consistent with a man who was innocent of involvement with the shooting. Unlike Mr. Aden, he did not rapidly exit the car or attempt to leave the scene. He could have. Rather he cooperated with the police throughout. Although P.C. Walker found some things unusual and suspicious about Mr. Abshir’s behavior during the stop, I do not. For example, the video does not show Mr. Abshir immediately approaching the police car; he only does so when it pulls behind him and the officers do not immediately come out. His turn into the parking spot was normal. Some of his nervous behaviour, even according to P.C. Walker, was not that unusual given the nature of the interaction with the police. Mr. Abshir was driving a rental car that he did not have much information about or any rental documents for. The insurance card for it was expired. Mr. Abshir only had a G2 licence and P.C. Walker testified that typically persons with G2 licences cannot rent vehicles. In this situation, some nervous behaviour would be expected. His telling the police that Mr. Aden was just a cousin that he was dropping off could well be true and he did not conceal he had a passenger, though Mr. Aden got out so quickly that P.C. Walker did not observe him.

[118] There is then the phone activity between 5986 and 4445 during the HTA stop. If Mr. Abshir was using 5986 during the HTA stop, a greater likelihood given the consistency of the phone records to the surveillance, as I noted above, he made a call to 4445, Mr. Aden, who then called him back. Mr. Abshir called Mr. Aden at 16:15:37 for 9 seconds. Then, Mr. Aden called Mr. Abshir back at 16:16:21 for 137 seconds. These calls are consistent with an attempt by Mr. Abshir to get rental information on the car which was what P.C. Walker testified was going on at the time. The other calls made by 5986 during the HTA stop are also consistent with that scenario. Mr. Aden himself may have been calling Mr. Abshir concerned about whether Mr. Abshir identified him to the police; if a true identification was given, it would be safe to assume that police would have viewed Mr. Aden to be in breach of his house arrest condition. On the other hand, why would Mr. Abshir call Mr. Aden, in front of the police, if he knew Mr. Aden was involved in a shooting? Why would Mr. Aden speak with Mr. Abshir for over two minutes in front of the police if he had any concern that Mr. Abshir might “rat” him out or divulge information related to the shooting? If Mr. Abshir was knowingly involved in the shooting, it would be reckless behaviour to be contacting one of the shooters in plain sight of the police who could see him and possibly overhear him.

[119] The Crown argues that the HTA stop is evidence that Mr. Abshir was with Mr. Aden relatively close in time to the shooting because he was a knowing participant in the shooting. This is one reasonable inference. However, the reverse can equally be true. Mr. Abshir may well have given Mr. Aden a ride because he was not aware of the involvement of Mr. Aden at the shooting. The Crown further submits that the fact that Mr. Abshir helped Mr. Aden escape the police is also evidence of his involvement in the shooting. I do not accept that the Crown has proven Mr. Abshir helped Mr. Aden evade the police. Mr. Aden just could have made a fast exit without Mr. Abshir’s approval. But even if Mr. Abshir did, I am mindful that Mr. Aden was supposed to be on a house arrest condition. It may well be that Mr. Abshir, if he knew about that and was truly helping Mr. Aden to avoid the police, did it so that he would not be arrested for breach of his house arrest condition.

[120] At the end of the day, looking at the whole of the evidence cumulatively, there is a likelihood that Mr. Abshir was the driver of CLEY040 at 40 Falstaff Avenue and was involved in the shooting. This is a reasonable inference.

[121] But looking at that same evidence cumulatively, its strengths and weaknesses, the reasonable inferences that can be drawn from it, and the absence of evidence, I conclude that the Crown has not proven beyond a reasonable doubt that Mr. Abshir was the driver and a knowing participant in the shooting. There are other reasonable inferences that arise that are inconsistent with his guilt. These are not speculative. These are grounded on logic and experience and on the evidence.

[122] One logical explanation and inference inconsistent with guilt is that Mr. Abshir was innocently driving CLEY040 at Scarlettwood Ct. and in the afternoon of March 13 without knowing what the perpetrators involved in the shooting had done. Based on logic and experience, the perpetrators would wish to do their best to separate themselves from the vehicle used in what was obviously a very planned and deliberated upon shooting. Perhaps Mr. Abshir was involved in the initial rental or perhaps he was only given the vehicle later on that night after the shooting. Regardless, the evidence and the absence of evidence, when assessed in its entirety and after being given the weight that evidence cumulatively merits, does not preclude this innocent inference. Moreover, and more specifically, even if Mr. Abshir was involved in the rental, which I was unable to conclude that he was, I find that the Crown has not proven beyond a reasonable doubt that he was a party to the offences by knowingly aiding the shooters by providing the rental vehicle given all the circumstances that I have alluded to.

[123] Ms. Bradstreet on behalf of the Crown has valiantly and quite ably pulled together the various threads of the circumstantial evidence to prove the offences. Nonetheless, even when carefully and comprehensively woven together, I find that there is insufficient material to prove Mr. Abshir’s guilt on these offences beyond a reasonable doubt. Guilt is not the only reasonable inference to be drawn on this evidence.

[124] It is common ground that for all of the offences that Mr. Abshir is charged with, a fundamental essential element is proof of his identity as the driver of CLEY040 when it was used in the shooting of Mr. Kusi. This has not been proven on the standard required at a criminal trial. As a result, Mr. Abshir is found not guilty of all of the offences.

Justice S. Nakatsuru

Released: July 28, 2023

COURT FILE NO.: 21-50000353-0000

DATE: 20230728

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

KAYNADID ABSHIR

Defendant

REASONS FOR JUDGMENT

NAKATSURU J.

Released: July 28, 2023

[^1]: Henceforth, unless otherwise indicated, the times will be in hours/minutes/seconds in accordance with the 24-hour clock.