COURT FILE NO.: CR-21-90000429-0000
DATE: 20230203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DANQUAH-GABRIEL OWUSU
Rachel Verboom and Chris Kalantzis, Counsel for the Crown
Stephen White, Counsel for the Defence
HEARD: January 16-20 and 23-24, 2023
M.A. CODE J.
Reasons for judgement
A. OVERVIEW
[1] The accused Danquah-Gabriel Owusu (hereinafter, Owusu) is charged in a 10 count Indictment with various gun and drug charges. There are nine gun charges which all relate to the accused’s alleged possession of two loaded handguns, a Glock 30 semi-automatic (which is a prohibited firearm) and a Glock 21 semi-automatic (which is a restricted firearm). The one drug charge is possession for the purpose of trafficking which relates to 127.75 grams of fentanyl.
[2] The alleged possession of the two loaded handguns has been charged pursuant to both s. 92(1) and s. 95(1) of the Criminal Code. Both handguns had a bullet in the chamber and had fully loaded over-sized magazines, resulting in two counts of possession of a “prohibited device” contrary to s. 92(2). In addition, the larger Glock 21 semi-automatic was discharged by the man who was in possession of both guns while he was in flight. This apparently accidental discharge was captured on video surveillance and it led to a count alleging that the accused used, carried, or handled the gun in a careless manner contrary to s. 86(1). In addition, the serial number on one of the firearms had been removed, resulting in a s. 108(1) charge. Finally, Owusu was subject to a 10 year weapons prohibition order imposed in 2014, resulting in a charge contrary to s. 117.01(1).
[3] Owusu re-elected trial by judge alone on October 18, 2021. Accordingly, when he appeared before me on January 16, 2023, the trial proceeded without a jury. There were no pre-trial motions. The Crown called its case in five days. Nineteen witnesses testified about the relevant events, two important video surveillance tapes were played depicting a man in flight, and four Agreed Statements of Fact were negotiated between counsel in relation to various issues that were not in dispute. The trial adjourned over the weekend, after the Crown closed its case, to allow Owusu and defence counsel to consider their position. On January 23, 2023, Owusu elected not to call a defence. On January 24, 2023, I heard closing argument and reserved judgement.
[4] There is only one issue in dispute in this case and that is the identity of the man seen in flight in the two video surveillance tapes. He was undoubtedly in possession of two loaded handguns, as they are visible in each hand, and he must have hidden them in the backyard of a house located at 32 Tyndall Avenue in Toronto, before continuing his flight. The two loaded handguns were later found by the police in close proximity to a plastic bag containing 127.75 grams of fentanyl. It is not in dispute that this quantity of fentanyl was possessed for the purpose of trafficking and that it was hidden at 32 Tyndall Avenue by the man with the two handguns.
[5] Owusu was seen and then arrested by the police about 15 minutes after the man in flight with the guns and drugs had been in the backyard of 32 Tyndall. The scene of Owusu’s arrest was about three blocks to the north-west of the 32 Tyndall backyard. Owusu’s clothing, appearance, and conduct at the time of his arrest are all relevant. In addition, Owusu’s Volkswagen Passat motor vehicle was undoubtedly involved in a high speed chase and in two motor vehicle accidents, immediately before the man with the guns and drugs began his flight. There is no serious dispute that the man in flight with the guns and drugs emerged from the driver’s seat of Owusu’s Volkswagen at the end of the high speed chase.
[6] It can be seen that the one live issue in the case – the identity of the man fleeing with the guns and drugs – depends on a large body of circumstantial evidence. That body of evidence has four component parts: the high speed chase; the flight from the abandoned car; the hiding of the guns and drugs at 32 Tyndall Avenue; and the nearby sighting and arrest of Owusu shortly afterwards. Although no defence evidence was called, the Crown called one witness who was heavily relied on by the defence. That witness, Hailey Fitzgerald-Kukuric, testified that she was a passenger in the car involved in the high speed chase and that there was a third person who was in the back seat at some point. I will treat her testimony as a fifth component part of the evidence at trial.
[7] These are my Reasons for Judgement which will focus on the one disputed issue, namely, the identity of the man who fled from the Volkswagen after the high speed chase with two loaded handguns and a bag of fentanyl.
B. FACTS
[8] Given the narrow focus of the trial on only one issue, the five component parts of the relevant evidence can be summarized relatively succinctly.
(i) The high speed chase
[9] P.C. Doidge and P.C. Buchanan are two young uniform officers who were on general patrol in a marked police car during the afternoon of March 29, 2020. They were southbound on Dufferin Street in the curb lane and they came to a stop at Bloor Street West at a red traffic light. There was a dark blue Volkswagen Passat in the southbound lane immediately to their left. It had also stopped at the red light. The accused Owusu was admittedly the registered owner of this Volkswagen.
[10] P.C. Doidge and P.C. Buchanan both observed a black male driver and a white female passenger in the front seat of the car. The windows were tinted. The officers did not observe anyone else in the car, although their observations of the back seat were admittedly limited. The male driver made eye contact with P.C. Doidge, he then looked away, and he looked down towards his lap. The time would have been about 2:35 pm. The weather was clear and the roads were dry.
[11] P.C. Doidge thought the male driver’s conduct was somewhat unusual. As a result, when the traffic light turned green and the Volkswagen pulled ahead, the police were able to observe its licence plate and P.C. Doidge told P.C. Buchanan to “run his plate.” Neither officer was able to make any reliable observations of the male driver or the female passenger, in my view, aside from their gender and their skin colour because of the dark tint windows and because of the circumstances of their brief encounter at a traffic light. The Volkswagen sedan had four doors and the license check resulted in information that the vehicle’s owner Owusu had a suspended driver’s license. At this point, P.C. Doidge decided to stop the vehicle in order to check the driver’s license. He was following the Volkswagen and looking for a safe place to pull it over when the Volkswagen abruptly turned right off Dufferin. It drove at a high rate of speed along three residential streets to the west of Dufferin.
[12] At this point, P.C. Doidge activated the emergency lights and siren on the police car. At the same time, the dashboard camera was automatically activated. As a result, the high speed chase can be viewed on the “dash cam” footage, between approximately 2:40 pm and 2:41 pm. The Volkswagen was undoubtedly speeding along three quiet residential streets, while running through three stop signs. The car returned back east to Dufferin Street and then proceeded southbound at a high rate of speed. The Volkswagen pulled out into the northbound lanes at one point in order to pass a southbound car. It crossed Queen Street West on a green light but as the car approached King Street West the southbound traffic light was red and the intersection was busy. The southbound traffic on Dufferin was stopped at the red light and a King streetcar was crossing the intersection, moving from west to east. The southbound Volkswagen swerved around the stopped traffic, once again going over into the northbound lanes at the intersection, and it continued through the red traffic light at King Street.
[13] At this point P.C. Doidge decided that it was too dangerous to continue the pursuit of the Volkswagen. He stopped behind the traffic that was stopped at the red light on Dufferin Street at King Street and called police dispatch. He advised that the pursuit had been discontinued. It was about 2:42 pm when P.C. Doidge called police dispatch.
[14] Another officer, P.C. Vukovic, was in uniform proceeding northbound on Dufferin Street in a marked police car at approximately 2:40 pm. He had just passed East Liberty Street when he observed a car just to the south of King Street. It was coming towards him at a high rate of speed. This southbound car had come partially over into the northbound lanes. It was the excess speed of the car and the fact that it was partially in P.C. Vukovic’s northbound lane that got his attention. He slowed down and watched the car go past him. He continued to watch it in his rear-view mirror. He saw the car involved in a collision to the south of where he had slowed down. At the same time, he heard the sound of the collision. P.C. Vukovic turned on his emergency equipment, turned his scout car around, and headed south on Dufferin Street. The car involved in the collision was a blue sedan. It had not stopped as a result of the collision and had continued south through the intersection of Dufferin and East Liberty. P.C. Vukovic did not see anyone get out of the blue sedan prior to the collision. The other car involved in the collision had remained at the scene. P.C. Vukovic never saw the blue sedan stop at any point. He lost sight of it south of East Liberty.
[15] Andrew Knott is a lawyer who was driving his girlfriend to work at Liberty Village. He was southbound on Dufferin Street and was about to make a left hand turn onto East Liberty Street, just south of King Street West. He was driving a red four door Honda Civic. There is a traffic light at this intersection. When the light turned green, Knott proceeded south into the intersection. Once the northbound traffic had cleared the intersection, Knott began to make a left hand turn onto East Liberty Street. At this point, Knott’s car was struck from behind by a southbound vehicle. Knott never saw this southbound vehicle approaching from behind. It was to his left, travelling in the northbound lanes at excessive speed, and it struck Knott’s car in the front driver’s side quarter panel, at the front left wheel. He believed the car that struck him was a black Volkswagen sedan. The car never stopped. It swerved to the left or east, as if to avoid Knott’s car, and then “careened” from the northbound lanes across all the southbound lanes, turning to the right or west into a side street. Knott did not see the occupants of the car.
[16] As P.C. Vukovic proceeded south on Dufferin Street, looking for the blue sedan involved in the collision, he was directed by a number of witnesses who were out on the street. There were pointing him towards Temple Avenue. This street runs west off Dufferin. P.C. Vukovic quickly found the blue sedan as it had “rear-ended” a van parked on the south side of Temple. The air bags in the blue sedan had deployed. There was a white female in the front passenger seat. No one else was in the blue sedan. P.C. Vukovic believed that the driver’s door was open. The glove box was also open and there was nothing inside. He was the first officer on the scene. There were no belongings or food packaging in the car.
[17] P.C. Vukovic heard a police radio dispatch at 2:44 pm about “sounds of gunshot” in the area and he also received information from witnesses about a male who had exited the vehicle and fled with a gun. As a result, he detained the female passenger. Her name was Hailey Fitzgerald-Kukuric. She was frightened by what had happened but she was cooperative and she answered P.C. Vukovic’s questions. Andrew Knott later walked over to where this collision had occurred on Temple Avenue. He saw the same car that had struck his car on Dufferin Street. It was a Volkswagen and it had “rear-ended” a parked van on Temple Avenue. Knott’s Honda Civic was a “write off” as a result of the collision on Dufferin Street.
[18] P.C. Doidge and P.C. Buchanan remained in the area after they had discontinued the high speed chase at Dufferin and King. They also heard the police radio dispatch at 2:44 pm about “sound of gunshots” in the area of Temple Avenue, to the west of Dufferin Street. They proceeded to this location and saw the same blue Volkswagen Passat with the same license plate that they had been pursuing. It appeared to have struck a parked vehicle on the south side of Temple, a few car lengths to the west of Dufferin and a short distance south of the King Street intersection where the officers had last seen the Volkswagen. Officers from 14 Division were already on the scene and there was a white female in custody.
(ii) The flight from the abandoned car
[19] Leah McMurtry is an artist and hospitality worker. She lives with her partner in a house on the north side of Temple Avenue to the west of Dufferin. She heard the loud sound of what was obviously a collision on her street. She looked out her second floor window and saw that a black sedan coming from Dufferin Street had hit the back of a van parked on the south side of Temple Avenue just to her east. The van was still rocking from the impact of the collision when she looked out her window seconds after she heard the sound of the crash.
[20] Shortly after looking out her window, Ms. McMurtry saw a man get out of the front driver’s side of the sedan that was involved in the collision. He was wearing a “hot pink jump suit,” with matching sweat pants and sweat shirt. This man stopped in front of the third house from Dufferin Street, just to the west of the scene of the collision. He “danced around”, looking to his left and right, as if looking for a place to run. He then ran towards a narrow grassy laneway that runs south between the second and third houses to the west of Dufferin Street. The man ran to the south down this laneway that goes to the back of the houses on the south side of Temple. Ms. McMurtry described the man as black, about 6’ tall, broad build, mid-20s to mid-30s, with short dark hair. There was a woman in the front passenger seat and no one else in the car.
[21] Shortly after the man ran to the south down the narrow laneway between the two Temple Avenue houses, Ms. McMurtry heard a single gunshot. She believed the sound came from the south and east. The proximity of time and place to the fleeing man led her to assume that the gunshot was connected to the man. The police had not yet arrived.
[22] Jennifer Leonard works in the film industry. She lives with her partner in an apartment building on the south side of Temple Avenue. Like Ms. McMurtry, she heard the loud sound of a car crash on the street. She went out onto her balcony and looked to the east within seconds of the car crash. Ms. Leonard’s vantage point was from the south side of Temple Avenue whereas Ms. McMurtry’s vantage point was from the north side of the street. Ms. Leonard saw that a car had smashed into the rear of a parked mini-van in front of a building on the south side of the street. That building is known as 9 and 11 Temple Avenue. Ms. Leonard lived in the adjacent building, immediately to the west of 9 and 11 Temple. Her front balcony was just above the ground level and she had a good sight line to the scene of the collision, which was immediately to her east.
[23] Ms. Leonard saw two people in the car that was involved in the collision. There was a black male in the driver’s seat. He had short hair and he was wearing a “reddish” tracksuit. There was a white female in the front passenger seat. Ms. Leonard did not see anyone else in the car other than these two in the front seat. The black male was moving about in the car, as if he was struggling a little or was in shock. The driver’s door opened and as the male was getting out of the car it looked like he dropped something and then picked it up. Ms. Leonard saw the male bend over and reach down as he got out of the car. He was still sitting in the driver’s seat as he reached down to the ground for something. Ms. Leonard did not see any item that was picked up or that was in the man’s hand. The man then ran along the fence line on the east side of 9 and 11 Temple. This fence runs south to the back of the building. It separates 9 and 11 Temple from 7 Temple, which is the adjacent building to the east. As the man ran, Ms. Leonard saw him appear to drop something again, because he went back and picked it up before once again running away along the fence line. He ran away on his own, leaving the female behind in the car.
[24] After the man ran to the south along the fence line, Ms. Leonard heard a gunshot. It sounded close, and it was a second or two after the man had disappeared. It sounded like it came from the rear of 9 and 11 Temple Avenue.
[25] The third witness who saw the events on Temple Avenue was Jazmyn Meehan. Unlike the first two witnesses, I had concerns about Ms. Meehan’s reliability because she was not wearing her glasses at the time, she has a poor memory, and she was emotionally upset while testifying. Nevertheless, the main points of her account are largely supported by Ms. Leonard and Ms. McMurtry, who were both very reliable.
[26] Ms. Meehan was the only witness who actually saw the entire collision that occurred on Temple Avenue. She was unemployed. She was smoking a cigarette on her partner’s front balcony which is located at 17 Temple Avenue on the south side of the street. This location would be to the west of Ms. Leonard’s building but with much the same vantage point from the south side of the street. Ms. Meehan actually saw the car crash to her right, or to the east. She saw a dark car come down Dufferin Street, turn west onto Temple Avenue as if to park, and then crash or bump into the back of a car that was parked on the south side of Temple Avenue. She both saw and heard this car crash.
[27] After the collision, Ms. Meehan saw the driver open his door and get out of the dark car. He left the driver’s door open. He was a black male, about 30 years old, with short hair. He walked across the grass at the front of the house where the collision had occurred and he appeared to drop something. She saw the man bend over and then stand back up. She did not actually see anything on the ground or see what the man picked up. It just looked like he was picking something up. The man then ran to the south between two buildings to the east of Ms. Meehan. Then she heard a “bang.” Ms. Meehan believed that she also saw a front seat passenger in the dark car. She did not see anyone else exit the car.
[28] The most reliable and the most important evidence concerning the black male’s flight from the car accident on Temple Avenue is the video surveillance evidence. There are two security cameras at the front and back of the building located at 9 and 11 Temple Avenue. That building is two semi-detached houses that have been converted into subsidized housing units. Andrea Jakaitis has an office in the building where she works with clients who need mental health and addiction counseling. She described the two camera locations, as well as the north-south fence that runs between the property and 7 Temple Avenue which is located immediately to the east.
[29] The camera at the front of the building showed the front of a parked vehicle rocking back and forth, as if it had been hit from behind. The back of the parked vehicle was outside of the camera frame and so the actual collision with the blue Volkswagen was not captured. It is the camera at the back of 9 and 11 Temple Avenue that is critically important. It shows a black male with short dark hair emerging at the south end of the narrow fenced passageway between the building and 7 Temple to the east. The man was running and he turned to the west behind the 9 and 11 Temple building. As he turned the corner, he slipped and started to fall. He can be seen carrying two handguns, with one in each hand. He steadied himself on a table in the backyard with his left hand, as he started to slip and fall, and the gun in that left hand discharged into the air (white or light grey smoke can be seen emerging from the gun barrel). The man then continued running to the west. There are good close-up images of his shoes and clothing and of the side and back of his head. He was wearing a pink tracksuit with matching top and pants, and dark blue running shoes with white markings, high anklets, and prominent black soles. He was not carrying a knapsack or bag of any kind. The hairline or haircut of his short black hair can be seen, as well as his apparently strong broad shoulders. There is a hood at the back of the tracksuit top and an object of some kind can be seen in the man’s left pants pocket.
[30] This camera in the backyard of 9 and 11 Temple Avenue faces west and it shows the man running through the backyards of a number of buildings on the south side of Temple Avenue. The next north-south fence separating these backyards is located after 19 Temple Avenue, according to Ms. Jakaitis, so the man would have run west through the backyards of 9, 11, 15, 17, and 19 Temple Avenue. The video camera footage shows that the man stopped and paused when he reached this next north-south fence. He was now at some distance from the camera and so these images at the next fence are not entirely clear. However, both of the man’s elbows clearly came up, as if he was putting the two guns away in either his track pants pockets or in a pouch in his tracksuit top. In particular, his left hand remained engaged in some manner with his top for a longer time. He then put both hands on the top of the fence, bent at the knees, jumped up onto the top of the fence, put his left leg and then his right leg over the fence, and jumped down to the other side. At this point, he can no longer be seen in the video footage.
[31] The evidence as to the time stamps on this video camera footage from 9 and 11 Temple Avenue was somewhat uncertain. Ms. Jakaitis had her memory refreshed from two emails dated October 21, 2021 and she then testified that the time stamps were between 3:34:17 and 3:35:01 pm on March 29, 2020. I suspect that this was really a case of “past recollection recorded,” and not refreshing memory. In this regard, the emails were not filed as exhibits and they are dated over a year and a half after the relevant events. This issue concerning the exact time of the video images is unimportant, in my view, because it is apparent from the content of the video images that they depict the relevant events on March 29, 2020 as the man in the pink tracksuit fled from the Volkswagen.
[32] One final item of evidence relating to these early stages of the man’s flight from the car accident at the front of 9 and 11 Temple Avenue, came from Det. Cst. Walsh. He interviewed witnesses at the scene and then went to the back of the property located at 9 and 11 Temple Avenue, because of the reports of a gunshot in that area. He found a shell casing at the back of 9 Temple proximate to the location where the discharge of the handgun can be seen in the above video surveillance images. That shell casing was compared by ballistics experts at the C.F.S. to test fires from the seized Glock 21 semi-automatic handgun found later that afternoon in the backyard of 32 Tyndall Avenue. The ballistics expert concluded “within the limits of practical certainty” that the cartridge casing found by Det. Cst. Walsh in the backyard of 9 Temple was fired by the seized Glock 21 semi-automatic handgun.
[33] There were three remaining witnesses who tracked the route taken and also described the conduct of the fleeing man, after he was last seen on the video camera footage heading to the west and hopping the fence in the backyard of 19 Temple Avenue. Those remaining witnesses were Humza Alvi, Bennett Renda, and John Tomassoni. I will briefly summarize their evidence which was broadly consistent and was corroborated by the video surveillance. All three witnesses described the following: a black male; wearing a tracksuit; jumping or hopping over fences; and heading to the west. I was not impressed with Mr. Alvi as a witness but the main points in his testimony were corroborated by the video surveillance and by the other civilian witnesses who were reliable.
[34] Mr. Alvi lived on the north side of Thorburn Avenue, which is the next east-west street immediately to the south of Temple Avenue. The backyards of the homes on Thorburn and the backyards of the homes on Temple are divided by a long east-west fence. Mr. Alvi’s backyard was to the west of the events that had occurred at 9 and 11 Temple Avenue. He heard a loud bang and thought that it was a gunshot. The sound came from the east, towards Dufferin Street, so he looked out his third floor bedroom window, which is at the back of his home facing north towards the Temple Avenue homes. He saw a man wearing a violet or purplish pink tracksuit jumping a fence behind one of the houses on Temple Avenue. The man was running from the east to the west and he jumped a north-south fence that was dividing two Temple Avenue backyards located immediately to the east of Mr. Alvi’s backyard. The man ran to the next fence to the west and jumped that fence. The man was now in the backyard of Mr. Alvi’s neighbour, immediately to the west on Thorburn Avenue. At this point, Mr. Alvi left the back window and went inside his own home.
[35] This man seen by Mr. Alvi jumping two backyard fences was a black male with short hair and an athletic build. His hands were visible because he used them to hop over the two fences. There was nothing in his hands. The top of the tracksuit had a zipper at the front. According to Mr. Alvi, the left pants pocket of the tracksuit appeared to contain something heavy because the man slowed down and held the area just below the left pocket, in order to secure the heavy object in the pocket, before the man jumped the two fences. Mr. Alvi could see the outline of what appeared to be a handgun in the pocket when the man twice secured it in this manner.
[36] Mr. Renda is a restaurant owner. He lived in the home immediately to the west of Mr. Alvi on the north side of Thorburn Avenue. He was barbecuing steaks in his backyard in the afternoon. His backyard is surrounded by a fence on all three sides. Mr. Renda heard the loud sound of a metal on metal crash. Minutes later he saw a man jump over the north fence at the back of his yard. As the man jumped the fence, using both hands, a handgun fell out of his left pants pocket. The man was able to grab the gun before it fell to the ground. He then ran to Mr. Renda’s west backyard fence and jumped over it. The man was black with short hair and he was wearing a pink tracksuit. When Mr. Renda last saw the man jump over his west fence, the man would have landed in the backyard of the last house to the west on the north side of Thorburn Avenue. He was heading in a westerly direction. There is a north-south alley or lane just to the west of this last house on Thorburn. The alley runs between Temple Avenue to the north and Thorburn Avenue to the south.
[37] Mr. Tomassoni is a chef. He lived in the second floor unit of a duplex on the south side of Thorburn Avenue. His unit has a deck that faces north. He heard a loud bang, like a tire exploding, and he went out onto his deck. Minutes later, he saw a man cross the north-south alley or lane that runs between Temple and Thorburn. The man was on the west side of the lane and he moved quickly to the south, either running or jogging. It was the man’s mannerisms that drew Mr. Tomassoni’s attention as he was “fiddling” with the zipper at the front of his tracksuit. He got the zipper part way down. It was as if the man was trying to take the tracksuit top off at the same time as he was running or jogging. The man was black, with short hair, and his tracksuit was two piece with a zipper at the front of the top. Mr. Tomassoni could not recall the colour of the tracksuit.
[38] The man running or jogging south in the lane was also looking around. On the west side of the lane there are backyards of a row of houses that front onto Tyndall Avenue, which is the first north-south street to the west of Dufferin. The last of this row of houses on Tyndall, at the south end of the alley where the man was running or jogging, had a fence enclosing its yard. The man jumped over the north-south side of this fence on the alley just before he reached Thorburn Avenue. The man then ran to the west through the yard of this last house at the south end of the Tyndall Avenue row of houses. The man then jumped the north-south fence on the west side of the yard and crossed to the west side of Tyndall Avenue. Mr. Tomassoni thought that the route taken by the man made little sense because he could easily have continued a short distance to the south in the alley, turned west on the sidewalk along the north side of Thorburn Avenue, and reached Tyndall Avenue without having to jump two fences and run through a backyard.
[39] Mr. Tomassoni last saw the man to the north-west of where he had jumped the second fence. He was going between two buildings on the west side of Tyndall Avenue. One of these buildings was an apartment building. Mr. Tomassoni was unsure about the second building. The man was heading to the west between the two buildings. There was no one else in the vicinity.
(iii) The hiding of the guns and drugs at 32 Tyndall Avenue
[40] Craig Fleming is a film and television producer. He resides with his wife and two young children at 32 Tyndall Avenue. It is a three storey Victorian brick house that Mr. Fleming has renovated. It is located on the west side of Tyndall Avenue, directly opposite the row of houses on the east side that back onto the north-south alley that runs between Temple and Thorburn. Immediately to the north of Mr. Fleming’s home is a large apartment building with an underground parking garage. An east-west fence separates 32 Tyndall from the apartment building. The backyard of 32 Tyndall is surrounded on all three sides by a relatively high wooden fence. The two loaded handguns and a bag of fentanyl were found by the police in that backyard, hidden underneath a metal storage container. Mr. Fleming testified that the two handguns and the drugs did not belong to him or his family members. This evidence is not challenged by the defence.
[41] There is a video surveillance camera at the ramp entrance to the apartment building parking garage located immediately to the north of 32 Tyndall Avenue. That camera provides a view of the north side of Mr. Fleming’s home at 32 Tyndall. The police obtained important evidence from the camera depicting relevant events on March 29, 2020. At 2:44:30 pm, a man appeared at the east side of Tyndall Avenue. He can be seen jogging across Tyndall on a north-west angle and arriving at the west side of Tyndall, immediately in front of Mr. Fleming’s home. The man did not stop. He continued jogging to the west along the pathway at the north side of Mr. Fleming’s home. There is a metal fence beside the pathway. That pathway leads directly to a high locked gate that provides access to the backyard of 32 Tyndall. Mr. Fleming testified that the high gate was locked at the time but it is possible to climb over it by standing on the metal fence with one foot and on his cement basement wall with the other foot. The man must have arrived at this gate to the backyard at about 2:44:41 pm, given the route that he took, given the confined location, and given that he did not reappear on the video camera.
[42] The defence conceded that this man who arrived at 32 Tyndall shortly after 2:44 pm is the same man who the civilian witnesses had seen fleeing from the Volkswagen after the collision on Temple Avenue and jumping backyard fences, as he proceeded to the west, and who can also be seen in the pink tracksuit and blue shoes while holding two handguns in the video surveillance from the backyard of 9 and 11 Temple Avenue. The issue in dispute is whether this man is the accused Owusu, who was subsequently arrested about three blocks to the north-west of 32 Tyndall at 3:02 pm. Accordingly, the appearance of the man in the video surveillance at 32 Tyndall is important. These video images of the man jogging along the north side of 32 Tyndall are not the same quality as the video images of the man behind 9 and 11 Temple. Nevertheless, he is clearly a black male with short hair and he is wearing blue shoes with white markings at the side near the black soles, and he is wearing long pink track pants. All of these features are consistent with the video images from 9 and 11 Temple Avenue. What has changed is that the man is no longer wearing the pink tracksuit top. It appears to have been removed and it now appears to be tied around the man’s waist. Finally, and most importantly, the man is wearing a black short-sleeved t-shirt with a white emblem of some kind at the upper left chest area.
[43] The defence conceded that this man undoubtedly left the two loaded handguns and the bag of fentanyl, hidden under the metal storage container in the backyard of 32 Tyndall. Accordingly, I need not summarize this evidence in any detail. P.C. Spence responded to the “sound of gunshots” radio dispatch at 2:44 pm and immediately proceeded to the scene on Temple Avenue. The police had information from witnesses about a male running to the west and so P.C. Spence went to the corner of Temple and Tyndall at 2:47 pm. At this point, witnesses pointed him to the backyard of 32 Tyndall. He searched the backyard and found no one. He checked the adjacent backyards and found no one. He then secured 32 Tyndall shortly before 3:05 pm and awaited the K9 unit. At 4:35 pm, the K9 officer and dog attended at 32 Tyndall. At 4:38 pm, the dog stopped excitedly in front of the metal storage container in the backyard. The police looked underneath the storage container, which was on wheels, and observed two handguns and a clear plastic bag. These items were photographed by a SOCO officer in the place where they were found and were then seized. The SOCO officer, P.C. Arevala, estimated that the plastic bag of fentanyl was located about 6” to 12” from the two handguns. This clear plastic bag of fentanyl was about 2 ½” high and 3” wide. One of the guns had its serial number removed. Both guns had a bullet in the chamber and loaded magazines. The photograph of the guns and the bag of fentanyl under the storage bin infers that they had been placed in this location recently as there was no dust or debris on them. There is mud or dirt on the ground in front of the storage bin.
[44] It was admitted that the fentanyl weighed 127.75 grams (over 4 ounces) and that it was possessed for the purpose of trafficking. It was admitted that Owusu had received a 10 year weapons prohibition order in April 2014. Various firearms licensing and registration affidavits were filed, indicating that one of the two guns was prohibited, the other gun was restricted and it was not registered, and Owusu had no FAC or registration certificate. Both firearms were operable and the magazines were oversized and contained ammunition.
[45] Finally, a DNA sample was taken from Owusu’s blood and the smaller Glock 21 semi-automatic handgun was swabbed for DNA. The swabs were taken from three locations – on all sides of the textured hand grip, on the sides of the slide at the back, and on the “feeder lips” of the magazine. It can be inferred that these three locations are where a person using the gun would probably touch it. Dr. James Morrow of the C.F.S. Biology Section supervised the DNA testing and he testified. Most of his evidence was not disputed. In particular, it was conceded that he found a mixture of three persons’ DNA on the swabs from the Glock 21 handgun and that one of those persons was likely Owusu to a probability of “1.1 billion times.” Dr. Morrow described this statistical probability as “extremely strong support” for the conclusion that Owusu was the one known contributor to the mixed DNA sample. There was an insufficient quantity of DNA in the swab to determine whether the DNA deposited on the handgun was due to direct transfer or indirect transfer.
(iv) The arrest of Owusu
[46] The fourth component of the evidence heard at trial is critically important because there was no longer any issue as to identity at this stage. That is because Owusu was admittedly the person who was arrested at about 3:02 pm near Close Avenue, south of King Street West.
[47] P.C. Hoy and his partner P.C. Koops responded to the “sound of gunshots” dispatch. They proceeded to the scene at Temple Avenue. A great deal of information was being received from witnesses about a black male suspect with a gun, including that he was proceeding “west from 32 Tyndall.” This information was being transmitted to the officers over the police radio. P.C. Hoy and his partner proceeded to 166 Dunn Avenue because there was a report that “vehicle left there.” This street is three blocks east of Tyndall and the 166 residence is located a short distance south of King Street West. This report about a car being left at 166 Dunn came from P.C. Dempster, who was already at the scene talking to the resident when P.C. Hoy and his partner arrived. P.C. Hoy understood that the resident told P.C. Dempster that someone was in the area behind 166 Dunn, that is, to the west. As a result, P.C. Hoy and his partner left P.C. Dempster at 166 Dunn and proceeded in the scout car to the next street west of Dunn Avenue, which is Close Avenue. Their focus was now on the person apparently seen behind 166 Dunn and their plan was to surround and flush out the suspect from both sides, that is, from the west and east of the area behind 166 Dunn.
[48] P.C. Hoy and his partner parked their scout car at 111 Close Avenue and got out. They walked east on a gravel laneway, towards Dunn Avenue. The gravel laneway leads to a parking area that is located at the back of 111 Close and behind a Day Care Centre on Dunn Avenue immediately south of 166. There is a north-south fence at the back of this parking area that separates it from the backyards of the premises that front on Dunn Avenue. P.C. Hoy’s partner was carrying a rifle. The officers were in uniform. When they reached the parking area at about 3:00 pm, P.C. Dempster was already there. There was a chain link fence to the south of the three officers. It ran east-west beside the gravel lane. This fence separated the gravel lane and parking area where the officers were standing from a large building where a Seniors’ Centre was located to the south of 111 Close.
[49] At about 3:00 pm, as the three officers conferred in this parking area, P.C. Hoy saw a man jump over the north-south fence separating the Dunn Avenue and Close Avenue backyards. The man jumped over this fence to the south of the officers, on the south side of the east-west chain link fence. The man was coming from the backyard of the Day Care Centre to the east on Dunn Avenue and he was going to the west, towards the Seniors’ Centre on Close Avenue. P.C. Hoy testified that he and the man made eye contact and they were both surprised. They were about 15’ apart and were separated by the chain link fence. P.C. Hoy had his gun out and he pointed it at the man and ordered him to the ground. The man did not comply. He ran to the west towards Close Avenue. He was on the south side of the chain link fence. The officers were on the north side of the chain link fence and there was a short pursuit on foot. The officers were yelling “stop” and “show us your hands” but the man kept running. When the man reached a 4’ or 5’ metal fence on Close Avenue, at the front of the Senior’s Centre, he stopped and gave up and lay on the ground.
[50] It was now about 3:02 pm when the officers put the man under arrest. He was sweating and out of breath and both his hands were bloody. He was a male black with short hair, wearing a black short-sleeved t-shirt with a white emblem of some kind at the upper left chest, knee length pink cut-off shorts, and blue running shoes with white markings at the front above the black soles.
[51] P.C. Dempster’s account of the arrest was that he had gone to the back of 166 Dunn to check out a report from the resident about a vehicle that had been left in the parking area. The resident at 166 Dunn had seen police in the area and she flagged down P.C. Dempster because she “thought the parked vehicle might be connected” to the matter that the police were investigating. P.C. Dempster walked around the vehicle, looked inside, saw that it was parked in an ordinary parking area, and he “ran the license.” Everything appeared to be in order and he was of the view that there was no reason to investigate any further in relation to this vehicle. P.C. Dempster remained in the back parking area and met up with P.C. Hoy and his partner, who had both approached from the west. P.C. Dempster had obtained a rifle from his scout car before he proceeded to the parking area. He was in uniform. P.C. Dempster’s account of suddenly seeing the man jumping the fence to the south, then running from the police to the west despite orders to “stop police”, and arresting the man at the fence at Close Avenue, was much the same as P.C. Hoy’s account. P.C. Dempster described the man as sweating profusely and he was bleeding from cuts to both hands and one knee. He also had burrs attached to his socks. P.C. Dempster searched the man incident to arrest and he had a wallet, keys, and a driver’s license on his person.
[52] P.C. Dempster was involved in booking Owusu at the 14 Division station. They had arrived in the sally port at 3:58 pm but Owusu was not paraded before the desk sergeant until 4:41 pm. There are photographs of Owusu’s appearance and clothing at the booking (Exhibits 28A and 28B). The photographs show his black t-shirt and the white emblem. They also show the drawstring hanging down from the front of his shorts, the pink colour of the shorts, and the cut-off edges at the knees of the shorts. The cut-off edges appear to be rough and rudimentary, especially at the back. Finally, There are photographs of his dark blue shoes. They have high anklets that appear to be made of elasticized dark blue cloth. They have prominent shiny black soles. And they have a white brand name at the outer front sides above the sole (Exhibit 32B). The other booking officer, P.C. Leung, observed Owusu in the custody of the three arresting officers. He described Owusu as “sweating profusely” and “out of breath,” with cuts to his right hand and right knee. P.C. Leung described Owusu’s pink cut-off shorts as “sweat shorts” (Exhibit 32A).
(v) Evidence relied on by the defence
[53] The front seat female passenger in the Volkswagen during the high speed chase on Dufferin Street was Hailey Fitzgerald-Kukuric (hereinafter, Ms. Fitzgerald). The Crown had not intended to call her and she was not on the witness list. However, the Crown had a change of mind at the end of its case and decided to call her. Her evidence turned out to be central to the defence theory that Owusu was a third party passenger in the back seat of the car. The Crown ended up submitting that Ms. Fitzgerald was not credible or reliable and that her evidence should be rejected.
[54] Ms. Fitzgerald was a fragile witness. The Crown advised the Court that she had been diagnosed with severe anxiety and that she had been vomiting all morning prior to testifying, due to the stress of her pending appearance. Ms. Fitzgerald was concerned that the vomiting would continue if she had to appear in court where she would be under the scrutiny of all those present in the court room. She advised the Crown that she was not afraid of the accused. With the consent of all counsel, I ruled that she could give her evidence pursuant to s. 486.2(1) from a closed circuit television room at the Court House.
[55] Ms. Fitzgerald is a young woman from Calgary. She has lived in Toronto for the past seven years. She was undoubtedly the white female observed by the police and civilian witnesses in the front passenger seat of the Volkswagen Passat on March 29, 2020. She testified that she had been drinking on her own throughout the previous day and night. She then met two black males for the first time at some point between midnight and 2:00 am. She spent the night with them at a condominium on Queensway. She slept there and she kept drinking until about 7:00 am. Her own residence was near the Queensway on Shorebreeze, which is about five or six minutes away from this condominium. She did not remember the names of the two black males. They had given her their names.
[56] Ms. Fitzgerald’s account of the events in the Volkswagen on March 29, 2020 was limited by her lack of memory. She remembered that she got into a car at the condominium on the Queensway and went with the two black males to get food at a restaurant. She was “drunk” but she was “okay,” as she had been “pacing” herself while drinking. She did not remember the time of day or anything about the car. The two men went into the restaurant and got food while she remained in the front passenger seat of the car, texting on her cell phone. She did not know the area where they went to get food, but she felt safe. After they got food, she was to be taken to her home near the Queensway. Both men got back in the car. She did not remember who sat where or what they were wearing. She did not remember being on Dufferin Street.
[57] Ms. Fitzgerald’s account of the high speed chase was particularly limited because she testified that she “blacked out.” She testified that this happens due to her severe anxiety. She explained that when she “blacks out” she cannot hear or see. It is “like fainting,” although she did not faint. This always happens due to her severe anxiety. Initially, at the start of her examination-in-chief, she testified that she blacked out “during the whole thing.” She did not know when the police pursuit started or ended and she did not know where they were or the route they took. She testified that she blacked out from the moment when “we were in the car” until the police arrived at the end. She explained that “we” referred to “the person I was with”. She further explained, “I guess the person exited while I blacked out because I was alone” when the police arrived and spoke to her and told her to put her hands up. She added that she blacked out from the moment when the police put their sirens on.
[58] Ms. Fitzgerald’s account of the whereabouts of the second black male in the back seat, at the time of the high speed chase, evolved to some extent. She initially testified that she was not sure if the man in the back seat was still there when the police pursuit began. She then recalled that this man was still there immediately before she blacked out. She then recalled that she emerged from being blacked out at one point during the pursuit. It was very brief, lasting only about a second or “millisecond,” and she then blacked out again. This brief period of awareness occurred when their car was hit by another car. She looked around to see where she was and noticed that the man in the back seat was no longer there. She did not know when the man in the back seat got out of the car. She blacked out again and did not emerge from this second period of blackout until the police arrived. She saw that there had been a second collision because their car was now pushed into the rear of another car. At this point the driver of the car that she was in was no longer there.
[59] Ms. Fitzgerald’s testimony also evolved about the clothing worn by the two men. She initially testified, both in-chief and in cross-examination, that she did not remember what they were wearing. She then agreed to some extent with a question put to her in cross-examination asking whether she recalled the driver wearing a pink long-sleeved tracksuit. She replied, “I think I do … now that you say it.” When it was further suggested in cross-examination that the man in the back seat was wearing shorts, she initially testified that she did not recall what he was wearing but then testified, “I think so, yeah, from what I am recalling.” She did not remember any other identifying features about the two men except that they were both “muscular.” The only feature distinguishing the two men was “maybe the clothing.” She then testified that she was “almost sure” that the man in the back seat was wearing shorts.
[60] In re-examination, Ms. Fitzgerald explained that the suggestions put to her in cross-examination about the two men’s clothing helped refresh her memory. In terms of the man in the back seat wearing shorts, she testified that she “was not entirely sure” until counsel “said that the person was wearing shorts.” At this point, she agreed that the man in the back was in fact wearing shorts. Ms. Fitzgerald also agreed, in re-examination, that she had never told anyone before about the clothing worn by the two men. She did not tell the police at the scene about the clothing or about the man in the back seat. Ms. Fitzgerald was charged with various firearms offences, she retained counsel, and she signed an affidavit. The charges were pending for a year before they were dismissed. Her lawyer told her not to speak about the matter. She testified that she had no knowledge about the two loaded handguns or the bag of fentanyl in the car.
C. ANALYSIS
(i) The law relating to circumstantial evidence
[61] There are four main legal principles that relate to the assessment of circumstantial evidence. Watt J.A. (Fairburn A.C.J.O. and Huscroft J.A. concurring) recently summarized those principles in R. v. Gibson, 2021 ONCA 530 at paras. 75-79:
Some principles about the nature of circumstantial evidence and its use as proof of facts in a criminal case help resolve this claim of error.
First, circumstantial evidence is all about inferences. Individual items of circumstantial evidence give rise to a range of inferences. The available inferences must be reasonable according to the measuring stick of human experience. That there may be a range of inferences available from an individual item of circumstantial evidence does not render the item of evidence irrelevant or neutralize its probative value: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112, per Martin J. (dissenting, but not on this point), citing R. v. Smith, 2016 ONCA 26, 333 C.C.C. (3d) 534, at para. 77.
A second point concerns the standard of proof required where proof of the offence or one or more of its essential elements depends wholly or substantially on circumstantial evidence. In such a case, an inference of guilt drawn from circumstantial evidence must be the only reasonable inference available on that evidence: R. v. Villaroman, 2016 SCC 33, at paras. 30, 32-34.
Third, the standard of proof applies to the evidence taken as a whole, not to each individual item of circumstantial evidence: R. v. Morin 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 359, 362. See also R. v. Morin 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, at p. 295-96.
Finally, where proof of an essential element or the offence charged depends wholly or substantially on circumstantial evidence, it is the cumulative effect of all the evidence, taken together, each item in relation to another and the whole, that must be considered in determining whether the standard of proof has been met: Cote v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.
[62] It is these principles that must be applied to the facts of this case.
(ii) Analysis of the facts
[63] The Crown’s position is relatively straightforward. They submit that the totality of the circumstantial evidence gives rise to only one reasonable inference, namely, that Owusu was the man in the pink tracksuit who fled from the driver’s seat of his Volkswagen on Temple Avenue, then proceeded to the backyard of 32 Tyndall where he hid his firearms and drugs, and then continued his flight until he was arrested shortly afterwards on Close Avenue.
[64] The defence, on the other hand, relies on the evidence of Ms. Fitzgerald about a third party black male passenger wearing shorts, who was in the backseat of the Volkswagen at the start of the police pursuit but who was no longer there by the time of the collision with Mr. Knott’s Honda at Dufferin and Liberty East. Mr. White submits that there is a reasonably possible inference that this man was Owusu and that the Volkswagen must have pulled over and stopped to let him out of the car at a park located on the west side of Dufferin just south of King. That park is about the same distance south of King Street as the location on Close Avenue where Owusu was arrested. In other words, the defence submits that Owusu could have proceeded directly to the west from the park on the west side of Dufferin Street where he was dropped off, to the backyards between Dunn Avenue and Close Avenue where he was next seen and then arrested by the police.
[65] I have already mentioned certain issues relating to the credibility or reliability of a few of the Crown witnesses, when summarizing their evidence. None of these issues were of any moment because of the substantial consistency and corroboration of the evidence. There is only one witness in the case where significant issues of credibility and reliability need to be resolved, before assessing the circumstantial evidence, and that is Ms. Fitzgerald. The following factors are relevant to her credibility and reliability:
• First, she suffers from “severe anxiety.” I do not have a medical report but, according to her own testimony, this condition has the effect of causing her to “black out” in stressful situations. When she is “blacked out,” she neither sees nor hears what is going on around her;
• Second, she testified that she was “blacked out” at the time of most of the relevant events that she was asked to describe. The duration of this period of “blackout” was uncertain. She initially described it as occurring during “the whole thing,” that is, “from when it started to when I had to put my hands up.” She clarified that the “blackout” started when the police sirens came on. Later in her testimony, she recalled a brief period when she came out of the “blackout” and was aware of her surroundings. She described this brief period as, “I came back for a second” and “it was literally like a millisecond.” She then returned to being “blacked out;”
• Third, she was admittedly “somewhat drunk”’ at the relevant time. She had been drinking by herself throughout the previous day. She then met up with the two men between 12:00 midnight and 2:00 am and continued drinking until 7:00 am on the morning of the relevant events;
• Fourth, even when not “blacked out,” her memory of relevant events was poor. In particular, she could not remember the names of the two black men she had spent the night with and who were now accompanying her in the Volkswagen, nor could she remember anything about their features or where they took her in the car. She had tried to “block it out” during the intervening years;
• Fifth, her testimony about whether and when there was a man in the rear seat evolved. Initially, she was unsure as to whether he was in the car at all at the time when the police pursuit began. She testified, “to be honest, I don’t really remember exactly if the person in the back was there, even as the police chase started, I’m not sure.” Then she testified that he was in the back seat “immediately” before she “blacked out.” Finally, she recalled the very brief period when her awareness returned, at the time of the collision with Mr. Knott’s Honda, and she observed that the man was no longer in the back seat of the Volkswagen;
• Sixth, her testimony about this second man in the back seat, about the clothing that he wore, and about which one of the two men was in the back seat, also evolved. She initially testified that “we were in the car” and that “we” referred to “the person that I was with” [emphasis added]. She then referred to a second person who was with them and who was in the back seat. She testified, both in-chief and in cross-examination, that she did not recall the clothing that either of the two men were wearing. She also testified in cross-examination that she did not remember “who was sitting where.” Finally, in response to suggestions in cross-examination that the man in the back seat was wearing shorts, she replied “I think so, yeah.” In response to further questions, she testified that she was “almost sure” about the shorts but could not describe anything about them. In re-examination, she agreed that she had never provided this information before and that she was not sure about it until counsel said that the person in the back seat was wearing shorts. She did not tell the police at the scene about the man in the back seat or about his shorts;
• Seventh, there is no support from any of the police or civilian witnesses for Ms. Fitzgerald’s above recollection about a third person in the back seat of the Volkswagen. All of the police and civilian witnesses saw only two persons in the car – a black male driver and a white female front seat passenger – both at the start and at the end of the car’s flight down Dufferin Street. P.C. Vukovic found no evidence of any belongings or any take-out food in the back seat of the car; and
• Eighth, the totality of the circumstantial evidence strongly contradicts any suggestion that the Volkswagen ever stopped at some point south of King Street West in order to let a back seat passenger out, before the collision with Mr. Knott’s car, as will be discussed below.
[66] I am satisfied that the above eight factors, viewed in their totality, lead strongly to the conclusion that Ms. Fitzgerald was neither credible nor reliable. In my view, her testimony should be completely rejected. It can neither be accepted nor does it raise a reasonable doubt when considered in the context of all the other evidence. See R. v. D.W. (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.); R. v. B.D. (2011), 2011 ONCA 51, 266 C.C.C. (3d) 197 at para. 114 (Ont. C.A.).
[67] Turning to the circumstantial evidence relating to the identity of the black male driver of the Volkswagen, who is admittedly the same man who fled behind 9 and 11 Temple Avenue and then headed west to 32 Tyndall where he admittedly hid two loaded handguns and a bag of fentanyl, the issue is whether this man seen by the police and civilian witnesses and captured in the surveillance video at two locations, is the accused Owusu. The man who was arrested shortly afterwards near Close Avenue is undoubtedly Owusu. In other words, the proper way to frame the issue of identity in this case is to ask whether the arrested man on Close Avenue (undoubtedly Owusu) is the same man as the man seen fleeing from the Volkswagen at 9 and 11 Temple Avenue wearing a pink tracksuit, and who is then seen heading west towards the backyard of 32 Tyndall where he hid the guns and drugs (who I will simply refer to as “the man who fled from the Volkswagen”). The relevant evidence relating to this issue includes the following:
• First, the Volkswagen Passat was owned by Owusu. That car fled from a high speed police pursuit on Dufferin Street, it was involved in two collisions, and it was driven in a reckless manner. These circumstances strongly connect Owusu to the Volkswagen and gave him authority over it. They also provided Owusu with good reason to flee from the Volkswagen;
• Second, Owusu’s driver’s license was suspended, according to the information generated by the police computer check. However, he had a driver’s license on his person upon arrest;
• Third, the man who fled from the driver’s seat of the Volkswagen proceeded in a westerly direction, leaving the two collision sites and leaving the Volkswagen behind him to the east. The time would have been about 2:43 pm when the man fled from the car;
• Fourth, the man who fled from the Volkswagen took two loaded handguns and a substantial amount of fentanyl with him. That contraband was undoubtedly valuable. In addition, that contraband constituted the tools of a lucrative and unlawful trade, namely, relatively high level drug trafficking. Finally, that contraband must have been transported for a period of time that day in the Volkswagen that was owned by Owusu. The owner of that kind of valuable contraband would likely transport it in a way that allowed him to keep close control over it, such as in his own car, while carrying on this kind of unlawful activity. See e.g. R. v. Bonilla-Perez, 2014 ONSC 2031 at para. 51, aff’d 2016 ONCA 535; R. v. Thompson, 2020 ONCA 361 at para. 11;
• Fifth, Owusu’s DNA was deposited on one of the loaded handguns in a mixture of three persons’ DNA. The location of this DNA deposit was in areas where the gun would normally be handled by a person who possessed and used the gun. It cannot be determined whether Owusu’s DNA was deposited on the gun by direct or indirect transfer. In this regard, see R. v. Stevenson (2014), 2014 ONCA 842, 317 C.C.C. (3d) 385 at paras. 74-83 (Ont. C.A.);
• Sixth, the man who fled from the Volkswagen was dressed in a distinctive pink tracksuit that was noticed by most of the civilian witnesses. As the man fled to the west he began to remove the pink tracksuit. By the time he reached 32 Tyndall Avenue, he had completely removed the pink tracksuit top and it appeared to be tied around his waist;
• Seventh, the man who fled from the Volkswagen appeared to be avoiding public streets and sidewalks. The path of his flight was mainly through backyards. This chosen path of flight required him to jump over backyard fences;
• Eighth, there are good visual images of the man’s back, his side, his clothing, and the shoes worn by the man who fled from the Volkswagen. These images are in the video surveillance footage from behind 9 and 11 Temple Avenue. The man is a black male with short black hair, broad shoulders, and a relatively distinctive hairline or haircut that drops down at a sharp right angle at the side of his head near his temple area. The man is wearing relatively distinctive dark blue running shoes that have a white marking of some kind at the front side, immediately above shiny prominent black soles. The dark blue running shoes also have a relatively distinctive high anklet of some kind;
• Ninth, after removing the pink tracksuit top, the man who fled from the Volkswagen can be seen wearing a black short-sleeved t-shirt with a white emblem of some kind located at the upper left chest area. This t-shirt must have been worn underneath the tracksuit top. The t-shirt can be seen in the surveillance images of the man jogging along the north side of 32 Tyndall;
• Tenth, the time when the man fleeing from the Volkswagen was last in the backyard of 32 Tyndall, where he admittedly hid the guns and drugs, would have been between 2:44:41 pm (when he arrived at the north gate to the backyard) and 2:47 pm (when P.C. Spence was directed to this backyard but found that the man was no longer there). These times are not synchronized nor are they perfectly accurate. Nevertheless, they are useful in estimating the likely timing and movements of this man, especially if he continued to move in a westerly direction and continued to jump backyard fences and remove certain clothing;
• Eleventh, Owusu was first seen by the arresting officers in a backyard area behind the Day Care Centre on Dunn Avenue. This was about three blocks to the west of the backyard at 32 Tyndall. It was also a somewhat shorter distance to the north but was still to the south of King Street. The time would have been about 3:00 pm when the officers first saw Owusu at the backyard fence behind the Dunn Avenue premises;
• Twelfth, Owusu was proceeding in a westerly direction when the officers first saw him. In addition, he was moving through backyards by means of jumping over of a backyard fence. He had cuts to his hands and to a knee, he had burrs in this socks, and he was sweating profusely;
• Thirteenth, Owusu fled from the armed uniform officers when they saw him jumping over the fence and told him to stop;
• Fourteenth, the photographs of Owusu at his booking show that he is a black male with short black hair, broad shoulders, and a relatively distinctive hairline or haircut that drops down at a sharp right angle at the sides of his head near the area of his temples. He is wearing a black short-sleeved t-shirt with a white emblem of some kind at the upper left chest area. He is also wearing relatively distinctive dark blue running shoes that have white lettering at the front sides, immediately above shiny prominent black soles. In addition, these blue running shoes have relatively distinctive high elasticized anklets. Finally, he is wearing pink knee-length shorts that have clearly been cut off in a somewhat rough or rudimentary way from longer full length pants. They appear from the material, the fit, and the drawstring to have been cut off from sweat pants or track pants (as P.C. Leung appears to have noted when he referred to them as “sweat shorts”). The pink colour of the shorts is the same as the pink colour of the track pants that were worn by the man who fled from the Volkswagen;
• Fifteenth, the Volkswagen was last seen by P.C. Doidge and P.C. Buchanan southbound on Dufferin Street, as it swerved around the cars in the southbound lanes that had come to a stop at the red traffic light at King Street. They had not lost sight of the car up until this point. When they last saw the car, it was travelling at a high rate of speed and it was in the northbound lanes as it carried out the above manoeuvre at the intersection. This can all be seen on the “dash cam” video footage. The car was next seen by P.C. Vukovic as he was driving his police car north on Dufferin Street. He had just passed East Liberty Street, one block to the south of King Street West. P.C. Vukovic was in the northbound lanes and he saw the Volkswagen ahead of him. It was just to the south of King Street. The Volkswagen was travelling at a high rate of speed, proceeding southbound on Dufferin. The car was partially in the northbound lanes. It never stopped as it drove past P.C. Vukovic, hit Mr. Knott’s car at the intersection with East Liberty, and then continued to the south and west onto Temple Avenue. Mr. Knott confirmed the high rate of speed of the car, the fact that it was travelling southbound in the northbound lanes, and the fact that it never stopped after hitting his car. P.C. Vukovic did not see anyone get out of the Volkswagen prior to the collision. The totality of this evidence of P.C. Doidge, P.C. Buchanan, the police “dash cam” video, P.C. Vukovic, and Mr. Knott all strongly infers that the Volkswagen never pulled over and stopped, in order to let a back seat passenger get out just to the south of the King Street intersection with Dufferin Street.
[68] On behalf of Owusu, Mr. White submitted that some of the above 15 items or areas of circumstantial evidence were not particularly probative. For example, he conceded that the black t-shirt and the blue running shoes that Owusu was wearing upon his arrest appeared to be similar to the black t-shirt and blue running shoes worn by the man fleeing from the Volkswagen. However, he submitted that some of the video surveillance images were not clear and, in any event, there was no evidence as to the prevalence or popularity of this particular black t-shirt with the white emblem at the left upper chest, or the prevalence and popularity of this particular make of dark blue running shoes with white lettering above the black soles and with high ankle extensions. Similarly, he conceded that Owusu’s DNA was on one of the guns but there was apparently no DNA testing of the other gun or of the plastic bag holding the fentanyl, and there was no evidence as to whether the DNA on the gun was the result of direct or indirect transfer. Similarly, he conceded that Owusu’s haircut or hairline upon his arrest looked similar to the haircut or hairline of the man seen fleeing from the Volkswagen. However, he submitted that there was no evidence as to the prevalence or popularity of this particular haircut or hairline amongst black males.
[69] In my view, this is not the correct approach to the assessment of circumstantial evidence. Individual items of circumstantial evidence, when viewed piecemeal or in isolation, will often be consistent with alternative inferences. This is not a reason to discard that item of evidence. When each item of circumstantial evidence is considered together with all the other circumstantial evidence, the available alternate inferences will generally be either strengthened or weakened by a consideration of the totality of the evidence. It is this totality of the evidence that must be considered, when assessing the reasonableness of any particular inference. As Taschereau J. explained, speaking for six members of the Court in R. v. Coté (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 at p. 76 (S.C.C.):
It may be, and such is very often the case, that the facts proven by the Crown, examined separately have not a very strong probative value; but all the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that may constitute a proper basis for conviction.
The above principle emerging from Coté has been repeatedly followed in the modern case law. For example, in R. v. Uhrig, 2012 ONCA 470 at para. 13, the Court stated the following:
When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.
Also see: R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 at p. 208 (S.C.C.); R. v. Lynch, Malone, and King (1978), 1978 CanLII 2347 (ON CA), 40 C.C.C. (2d) 7 at p. 19 (Ont. C.A.); R. v. Smith (2016), 2016 ONCA 25, 333 C.C.C. (3d) 534 at paras. 81 and 82 (Ont. C.A.); R. v. Gibson, supra at para. 79; R. v. Stevenson, supra, at para. 77.
[70] The other main submission made by Mr. White, on behalf of Owusu, was to rely on alleged shortcomings in the investigation. He pointed to apparent or alleged failures to test for fingerprints in various places, to take footprint impressions from the area where the guns and drugs were found, to test for GSR residue on Owusu’s hands, to see whether the keys found on Owusu upon arrest worked in the Volkswagen ignition, and to search the backyard route between 32 Tyndall and 166 Dunn Avenue for any abandoned pink tracksuit top or cut-off pink tracksuit pants. Mr. White submitted that these gaps in the evidence, together with the above weaknesses in the evidence, gave rise to reasonable doubt. It is settled law that an inadequate police investigation can contribute to the conclusion that there is insufficient evidence to convict. See: R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 at paras. 56-58 (Ont. C.A.). However, once the Crown has proved guilt beyond reasonable doubt, the failure of the police to keep investigating further, in order to answer more and more investigative questions, is of no consequence. In other words, the issue remains whether the guilt of the accused is the only reasonable inference from the evidence that has been called at trial, including any gaps in that evidence.
[71] In conclusion, I am satisfied that the above-summarized 15 areas of circumstantial evidence overwhelmingly lead to only one reasonable inference, namely, that Owusu was the driver of the Volkswagen that led police on a high speed chase south along Dufferin Street, that he was the man in the pink tracksuit who fled from the Volkswagen and hid the two loaded handguns and the bag of fentanyl behind 32 Tyndall, and that he was then arrested by the police near Close Avenue. In other words, there was only one man who was responsible for this entire course of conduct and that was Owusu. Whether there was a second man who spent the night with Owusu and Ms. Fitzgerald, and who was with them in the car at some point during the next day, is of no moment. I am satisfied that any such man was not in the car when it crossed the King Street and Dufferin Street intersection at a high rate of speed, while travelling southbound in the northbound lanes.
[72] Mr. White conceded, if the issue of identity was resolved against Owusu, that there were no other elements of the 10 offences charged that were in dispute. The only element that I inquired about related to the s. 86 count and the apparently accidental discharge of one of the firearms, when Owusu slipped and almost fell while he was in flight. Mr. White conceded, correctly in my view, that the way in which the man was carrying the two loaded handguns while he was running and losing control, was careless.
D. CONCLUSION
[73] For all the reasons set out above, I am satisfied that Owusu is guilty of all 10 offences charged. I will hear submissions at the sentencing hearing as to whether any of these 10 findings of guilt should be stayed pursuant to the rule against multiple convictions. See: R. v. Kienapple (1975), 1974 CanLII 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.); R. v. Prince (1986), 1986 CanLII 40 (SCC), 30 C.C.C. (3d) 35 (S.C.C.).
M.A. Code J.
Released: February 3, 2023
COURT FILE NO.: CR-21-90000429-0000
DATE: 20230203
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
DANQUAH-GABRIEL OWUSU
REASONS FOR JUDGeMENT
M.A. Code J.
Released: February 3, 2023