Court File and Parties

COURT FILE NO.: CR-23-1000373 DATE: 2024-02-22 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King – and – Ahmed Noor

Counsel: David Smith, for the Crown Ian McCuaig, for the Defendant

HEARD: January 15-17, 2024

REASONS FOR JUDGMENT

NISHIKAWA J.

Overview

[1] The defendant, Ahmed Noor, admits that he discharged a firearm toward two males. The main issues at trial were whether in doing so, (a) he intended to endanger their lives, and (b) he was acting in self-defence.

[2] The following facts were admitted by the defence. At approximately 2:59 a.m. on August 27, 2021, Mr. Noor, was involved in a physical altercation with an unidentified male (Male 1) in the middle of Bathurst Street, just north of Stewart Street, in Toronto. Mr. Noor produced a handgun and filed multiple shots toward Male 1 and his associate (Male 2) on the west side of Bathurst Street. Mr. Noor then fled eastbound on Stewart Street.

[3] Mr. Noor was found by a passerby in front of 50 Stewart Street. He had suffered two gunshot wounds. A round went through his top, left chest/shoulder blade, and a second round was lodged in his left shin. Mr. Noor was transported by ambulance to St. Michael’s Hospital.

[4] Police located a total of 22 spent shell casings in the area of Bathurst Street and King Street West.

[5] After he was discharged from hospital on September 10, 2021, Mr. Noor contacted police advising that he wanted to retrieve his wallet, key chain, and iPhone. He attended 23 Division of the Toronto Police Service to have the items returned to him. He met with officers and admitted to being in possession of the keys on August 27, 2021.

[6] The firearm that was retrieved from a garbage bin near where Mr. Noor had been found was a Jiminez Arms, Model T-380 auto calibre, centrefire, semi-automatic handgun with a barrel length of 102 millimetres. The firearm is a prohibited firearm as defined in s. 84 of the Criminal Code, R.S.C., 1985, c. C-46. The magazine and chamber were empty when discovered and seized by police.

[7] On August 27, 2021, Mr. Noor did not possess any firearms licences. At the time, as a result of a release order dated June 11, 2020 and a previous Criminal Code conviction on June 2, 2017, Mr. Noor was subject to two s. 109(3) orders prohibiting him from possessing weapons.

[8] Mr. Noor stands charged with the following offences:

(i) Intentionally discharging a firearm, namely a handgun, with intent to endanger the life or safety of another person, contrary to s. 244(1) of the Criminal Code;

(ii) Unlawful possession of a loaded restricted firearm, namely a handgun, without being the holder of an authorization or licence permitting such possession, contrary to s. 95(1) of the Criminal Code;

(iii) Being at large on a release order, without lawful excuse to comply with a condition of that release order;

(iv) Unlawful possession of a firearm, namely a handgun, while prohibited from doing so by reason of an order under s. 145(5) of the Criminal Code, contrary to s. 117.01(1) of the Criminal Code; and

(v) Unlawful possession of a firearm, namely a handgun, while prohibited from doing so by reason of an order under s. 109(3) of the Criminal Code, contrary to s. 117.01(1) of the Criminal Code.

[9] While Mr. Noor entered pleas of not guilty on all five counts, the defence concedes that based on the Agreed Statement of Facts, Mr. Noor would be subject to a finding of guilt on counts two to five on the indictment. The defence further concedes that if Mr. Noor is found not guilty of intentional discharge of a firearm, a second issue arises as to whether he is guilty of the lesser included offence of intentionally discharging a firearm while being reckless as to the life or safety of another person under s. 244.2(1)(b) of the Criminal Code.

[10] While Mr. Noor admits that he discharged the firearm, he submits that he did not intend to endanger the lives of the two men. In the event that Mr. Noor is found guilty of intentionally discharging a firearm, or intentional discharge while being reckless as to the safety of another person, the defence submits that he should be found not guilty because he acted in self-defence.

[11] The Crown’s position is that there is no air of reality to the defence of self-defence. Alternatively, if there is an air of reality to Mr. Noor’s claim of self-defence, the Crown submits that it has disproved self-defence beyond a reasonable doubt.

Issues

[12] Accordingly, the main issues in this case are as follows:

(a) Did Mr. Noor discharge the firearm at a person with intent to endanger the life of any person?

(b) If so, did Mr. Noor act in self-defence?

Analysis

The Applicable Principles

General

[13] Mr. Noor is presumed innocent. The Crown bears the burden of proving the elements of the offences charged beyond a reasonable doubt. It is not sufficient to prove that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, which would be impossibly high.

[14] If I find that the defence has shown an air of reality with respect to the defence of self-defence, then the onus is on the Crown to demonstrate beyond a reasonable doubt that the elements of self-defence have not been established.

Assessing the Evidence

[15] Where, as here, the Crown’s case rests on circumstantial evidence, the question is whether the trier of fact could reasonably be satisfied that the accused’s guilt is the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, at para. 55. In Villaroman, at para. 35, the Supreme Court held that “[i]n assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” because such a requirement wrongly puts an obligation on an accused to prove facts. If reasonable inferences other than guilt are available, the Crown’s evidence does not meet the standard of proof beyond reasonable doubt.

[16] A gap in the evidence may result in inferences other than guilt. However, “those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman, at para. 36.

[17] Other plausible theories or other reasonable possibilities must be based, not on speculation, but on logic and experience applied to the evidence or the absence of evidence. The line between a plausible theory and speculation is not always easy to draw: “The basic question is whether the circumstantial evidence viewed logically and in light of human experience is reasonably capable of supporting an inference other than that the accused is guilty”: Villaroman, at para. 38.

[18] In this case, because Mr. Noor testified in his defence, this court must follow the approach set out by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742, in assessing the evidence. The following analysis applies:

(i) If the court believes the defendant’s evidence, he must be found not guilty;

(ii) If the court does not believe the defendant’s evidence, but it leaves the court with a reasonable doubt, he must be found not guilty; and

(iii) Even if the defendant’s evidence does not leave the court with a reasonable doubt, the court may only find the defendant guilty if the court is persuaded that the Crown proves the charges beyond a reasonable doubt.

The Evidence

[19] I will briefly summarize the witness testimony here, and I will examine the evidence in a more detailed manner in relation to the elements of the offence and self-defence.

[20] In weighing the evidence, I must assess the credibility and reliability of the witnesses’ evidence. This involves considering the internal consistency of each witness’s testimony and its consistency in the context of the evidence as a whole. I will begin with general comments about the credibility and reliability of the witnesses’ testimony and then consider the consistency when examining the particular matters at issue.

Detective Jason Hunter

[21] At trial, the Crown called Detective Jason Hunter as its sole witness. Detective Hunter is a member of the centralized shooting response team of the Toronto Police Services, which investigates all firearm discharges in Toronto.

[22] On August 27, 2021, Detective Hunter attended the intersection of Bathurst Street and King Street West to inspect the scene and gather evidence. Detective Hunter gathered two video surveillance recordings from the Love Child Social House on King Street West. Both video recordings were entered into evidence.

[23] Detective Hunter gave his opinion as to what can be seen in both videos. He identified a total of six muzzle flashes and ground strikes, where a bullet hits the ground. Both indicate when a firearm was discharged. Detective Hunter identified three muzzle flashes from the firearm that Mr. Noor was holding. The other three muzzle flashes or ground strikes did not originate from Mr. Noor. Detective Hunter acknowledged that while 22 shell casings were found in the area, he could only identify 6 muzzle flashes on the video. Detective Hunter further acknowledged that security cameras do not capture everything because of the speed at which they record.

[24] I note that Detective Hunter was not called as an expert witness. While I have summarized his evidence, I have not relied on his opinion about the video footage because, as trier of fact, I am equally capable of observing what the video depicts.

Ahmed Noor

[25] Mr. Noor testified in his defence. He is 27 years old. He attended university for less than one year and was subsequently arrested. Mr. Noor was incarcerated for three and a half years. At the time of the incident, Mr. Noor was on bail, having been released in June 2020. The terms of Mr. Noor’s bail included house arrest and a weapons prohibition.

[26] Mr. Noor testified that his memory of August 27, 2021 was “patchy”, explaining that he remembered certain things clearly but could not remember other things. Mr. Noor testified that on the night of the incident, he had gone to a club “to party.” He estimates that he was out for a couple of hours that night with friends.

[27] Mr. Noor testified that after leaving a club shortly before 3:00 a.m., he was standing on the street on the east side of Bathurst Street, on the south of King Street West. Two individuals (Male 1 and Male 2) crossed Bathurst Street from the west side and approached him. Male 1 asked if Mr. Noor remembered him. Mr. Noor testified that he remembered the individual as someone he had “kicked out” of a party after an altercation a year or two earlier. However, he told Male 1 that he did not remember him to try to avoid an issue. Male 1 and Male 2 tried to get Mr. Noor to cross the street to the west side of Bathurst Street with them, but Mr. Noor refused.

[28] Mr. Noor testified that they then had a physical altercation, during which Male 1 took Mr. Noor’s wallet, which had been sticking out of a shallow pocket in his sweatpants. Mr. Noor testified that when Male 1 took his wallet, Male 1’s shirt went up, and he could see that Male 1 had a gun in his waistband. Mr. Noor took the gun and immediately put it in his “side bag”, or satchel, that he was carrying across his chest. Male 1 and Male 2 then started to cross the street.

[29] Mr. Noor testified that he followed them into the street because he wanted to get his wallet back. He testified that while he was crossing the street, he tried to close the zipper of his bag because he did not think he needed the gun. However, the zipper would not close. Once he was toward the middle of Bathurst Street, Male 1 “wrestled” Mr. Noor for the gun and “latched on” to him. Mr. Noor eventually stepped back and pulled away. Mr. Noor testified that at that moment: “…I look up, I just see somebody shooting at me. So I pull out the gun and start shooting. Honestly at the time, I didn’t know if it was even a real gun, I didn’t know if there was a safety on, I didn’t know if there was bullets in there. I just fired, I just assumed it was a real gun. I wasn’t really thinking to be honest.”

[30] Mr. Noor testified that he felt something in his shoulder and saw muzzle flashes while he was pulling out the gun from his bag. He believes that he was shot before his gun was out. Mr. Noor testified that he pulled the gun out as fast as he could and shot a couple of times in order to have a chance to run away.

[31] While viewing Video 1, Mr. Noor admitted that he is the individual who can be seen in the street, drawing a firearm and shooting. Mr. Noor admitted that he threw the gun in the garbage bin where it was later located. He passed out shortly after throwing the gun away and has no recollection of being found or taken to the hospital.

[32] I have concerns about both the credibility and reliability of Mr. Noor’s testimony. In respect of the reliability of Mr. Noor’s testimony, he described his own recollection of the incident as “patchy.” Mr. Noor described himself as “smashed” and drunk “as a skunk” that night. Mr. Noor could not recall basic details about that night. He did not know how he came to be out despite being under house arrest, he did not know who contacted him to go out or how, he did not know which nightclub he went to or how he got there, and he did not know what he was doing on the street corner afterwards. This is somewhat surprising considering that Mr. Noor was out that night in breach of the terms of his bail, and that, according to his testimony, it was the only time he breached his bail conditions. In response to questions on cross-examination about his memory, Mr. Noor responded that the incident was a long time ago and that he takes medication every day. He gave no further explanation as to how the medication affects his memory.

[33] In respect of the credibility of Mr. Noor’s evidence, his testimony was vague and lacked particulars, except where the matter could potentially have a consequence for himself or a surety. Mr. Noor had a clear recollection of details that served his purpose, for example, to provide information that would suggest that his conduct was not in breach of the terms of his release. For example, he recalled the following:

• He specifically recalled leaving the residence while his surety was in the shower;
• He recalled kicking Male 1 out of a “day party”; and
• He was certain that he attended the “day party” with his surety.

[34] While Mr. Noor justified his lack of specific recollection by the passage of time, he remembered greater detail about the “day party” that took place one or two years before the incident in question.

[35] Moreover, on cross-examination, Mr. Noor was evasive, argumentative, and defensive. When asked for the last names of Steven and Ali, Mr. Noor stated that he did not remember their last names and further added: “I’m trying to figure out why you need to know that.” Rather than answer the questions being asked, Mr. Noor responded with comments like: “you’re free to believe what you want” or “is that what you really think?”

[36] I further address specific inconsistencies and illogical aspects of Mr. Noor’s testimony in my findings below.

Findings

Discharge With Intent

[37] In order to find Mr. Noor guilty of an offence under s. 244(1) of the Criminal Code, the Crown must prove beyond a reasonable doubt that:

(i) The instrument was a firearm;

(ii) Mr. Noor intentionally discharged a firearm at another person; and

(iii) In discharging the firearm, Mr. Noor intended to endanger the life of another person.

[38] A person intentionally discharges a firearm at another person when they deliberately, as opposed to accidentally, point it in the direction of someone and fire. In discharging the firearm, a person intends to endanger life when they mean to put someone in a situation or condition that could cause the person to die: R. v. McQuinn, 2021 ONSC 4884, at para. 112.

[39] The ASF states that “Mr. Noor produced a handgun and fired multiple shots towards the unidentified male and his associate on the west side of Bathurst St.”

[40] The defence takes the position that while Mr. Noor may have discharged the firearm “towards” the two men, or shot “in their direction”, he did not intentionally shoot at Male 1 or Male 2. The defence submits that given the lack of evidence that Mr. Noor intended to endanger anyone’s life, he must be acquitted.

Video Evidence

[41] The first video (Video 1) is taken from a point on the front of a building on Bathurst Street. Video 1 captures the entire interaction between Mr. Noor and two men, Male 1 and Male 2. Male 1 is the individual wearing white shoes. Certain portions of the interaction cannot be seen clearly because Mr. Noor and the two men are in the far corner of the image. At certain points, Mr. Noor and Male 1 are not visible because they are obscured by a utility post. Video 1 is of poor quality, and visibility is impeded because the recording is taken at night and all three individuals are wearing dark clothing.

[42] The second video (Video 2) is taken from the side of the building on Stewart Street and shows the corner of Bathurst Street and Stewart Street. Video 2 does not show the interaction between Mr. Noor, Male 1, and Male 2 but shows Mr. Noor running from around the corner. Video 2 also shows Male 1 and Male 2 fleeing south on Bathurst Street, while shooting.

[43] The following is a timeline of the interaction depicted on Video 1:

• 2:58:06 - Two unidentified men are standing on the corner of Bathurst Street and Stewart Street.
• 2:58:26 - Male 1 and Male 2 walk across Bathurst Street from the west side to the east side.
• 2:59:00 - A group of four or five men are on the corner of Bathurst Street and Stewart Street. Mr. Noor acknowledged that he was in this group.
• 2:59:01 - One male from the group is on the street.
• 2:59:04 - Three women walk across Bathurst Street from west to east. They do not try to avoid the group of men on the corner of Bathurst and Stewart.
• 2:59:11-12 - Male 1 and Male 2 step back onto Bathurst. Male 2 faces frontward (west) but Male 1 faces Mr. Noor while walking backwards.
• 2:59:16 - Mr. Noor steps onto Bathurst and follows Male 1 and Male 2. At first, he has one arm outstretched.
• 2:59:18 - Mr. Noor fumbles with his side bag.
• 2:59:20 - Mr. Noor has his hand at his side. Male 1 and Male 2 are on Bathurst near the streetcar tracks. Male 2 continues to walk across Bathurst while facing Mr. Noor.
• 2:59:23 - Mr. Noor reaches the middle of Bathurst near the streetcar track. Male 2 continues toward the west side of Bathurst. Male 1 appears to step forward.
• 2:59:24 to 2:59:26 - Neither Mr. Noor nor Male 1 are visible; they are obscured by the utility post. Male 2 is obscured by the streetcar shelter.
• 2:59:27 - Male 1 and Mr. Noor are visible.
• 2:59:28-30 - Male 1 holds Mr. Noor down in a bent over position.
• 2:59:29 - Male 2 comes into view from behind the streetcar shelter. He is standing on Bathurst next to the parked cars.
• 2:59:31 - Mr. Noor frees himself from Male 1. Male 1 grabs at Mr. Noor or the bag. Male 2 is on the west side of Bathurst, on the street, facing the interaction between Mr. Noor and Male 1.
• 2:59:31-32 Mr. Noor jumps back into a wide-legged stance. His hand is on the bag.
• 2:59:32 - Mr. Noor takes the handgun out from his bag and steps forward.
• 2:59:32-33 - A flash is visible on the rear window of the silver car on the west side of Bathurst.
• 2.:59:34 - Mr. Noor’s arm is up and a muzzle flash is visible from the firearm. Male 2 backs up. Both Male 1 and Male 2 run onto the sidewalk behind the parked cars. They then flee south on Bathurst. A number of individuals on the street turn their heads. They then flee.
• 2:59:36 - Mr. Noor is fully turned toward Stewart Street and running.

[44] Video 1 shows that after the struggle in the middle of the street with Male 1, Mr. Noor jumped back into a wide-legged stance, drew the firearm out from his bag, raised his arm and pointed the firearm in the direction of Male 1 and Male 2, and fired. There has been no suggestion that the firearm was discharged accidentally. I find that given the deliberate and decisive nature of Mr. Noor’s actions, as captured on Video 1, that he intentionally shot the firearm.

[45] There is no evidence that any shot Mr. Noor fired hit anyone. Other than a single, distant photograph of the location of some of the shell casings on Bathurst Street, the Crown adduced no evidence as to the location of the shell casings or bullet strikes from the firearm used by Mr. Noor.

[46] Mr. Noor testified that he did not intend to shoot Male 1 or Male 2 but that he shot in the direction of an empty lot or parking lot on the west side of Bathurst Street, which had a security fence around it. The Crown disputes that there was an empty lot or parking lot on the west side of Bathurst Street across from Stewart Street. However, the Crown adduced no evidence as to what was there on August 27, 2021.

[47] During closing submissions, Crown counsel displayed a photograph of the area at the time and submitted that I could take judicial notice of what was there in August 2021. In my view, it would not be appropriate to take judicial notice of the area at the time based on a brief view of a photograph in closing submissions, and I decline to do so. If the Crown intended to rely on what was actually there at the time, the evidence ought to have been adduced during the Crown’s case and not in closing submissions. The video recordings show a chain-link fence, like a construction fence, along the sidewalk on the west side of Bathurst in the area where the shooting took place. As will be evident from my reasons, I need not make a finding as to what specifically was there at the time and will refer to it as the “lot.”

[48] Mr. Noor testified that he fired the shots in the direction of the lot to give himself a chance to run away from the two men. On cross-examination, Mr. Noor testified as follows:

Q: “You were shooting at the fellows that you said were shooting at you, right.”

A: “To be honest, I wasn’t even shooting at them, I was shooting in their direction kind of like, just to scare them off.”

[49] I do not accept Mr. Noor’s testimony that he intended to shoot at an empty lot and not at Male 1 or Male 2. Video 1 shows Mr. Noor with his arm raised at shoulder height, pointing the firearm in the direction of the two men. Mr. Noor admits to “shooting in their direction.” Male 1 was closer to Mr. Noor, and Male 2 was near the parked cars on the west side of Bathurst Street. The lot was just beyond them. Male 1 and Male 2 were in the line of fire; they were also moving. Mr. Noor is not seen shooting the firearm in the air or toward the ground.

[50] Based on the muzzle flashes visible from his firearm on Video 1, Mr. Noor shot not just once but at least three times. Immediately after Mr. Noor discharged the firearm, the two men began to run away. Mr. Noor admitted on cross-examination that he continued to shoot as the two men ran behind the parked cars on the west side of Bathurst Street, just in front of the lot that Mr. Noor testified he was aiming at. On cross-examination, Mr. Noor further admitted that he advanced on the two men while shooting. In my view, advancing while shooting multiple times is inconsistent with Mr. Noor’s testimony that his only intent was to scare the two men and give himself an opportunity to run away. I infer from the fact that Mr. Noor fired in the direction of Male 1 and Male 2 and continued to fire while advancing on them as they ran away that he intended to endanger their lives.

[51] On Mr. Noor’s evidence, he saw Male 2 holding a gun and firing before he drew his firearm. He believes that he was shot in the shoulder while reaching into his bag to retrieve the handgun. I have rejected Mr. Noor’s testimony that he was shot while reaching into the bag. However, even in those circumstances, where Mr. Noor believed his life to be at risk and he had already been shot, it is not credible that he intended only to shoot toward an empty lot and not at the individual who had shot at him.

[52] Moreover, Mr. Noor’s evidence about his own thought process was inconsistent. In chief, Mr. Noor testified that “just fired” and “wasn’t really thinking to be honest.” It was only when he was cross-examined about shooting at Male 1 and Male 2 that Mr. Noor testified that he was shooting at the empty lot.

[53] Further, Mr. Noor testified that he was “smashed” when the incident took place. It is not credible that in that moment of high tension, with his judgment impaired by alcohol, that he formed a split-second intention to shoot in an area just beyond where Male 1 and Male 2 were to give himself time to run away.

[54] One or both of the two men no doubt discharged a firearm, resulting in Mr. Noor being shot twice. When asked whether a flash seen on Video 2 was from one of the men shooting at him, Mr. Noor responded, somewhat surprisingly, “Guess so, I don’t know. Yeah. He shot at the floor.” In my view, despite having suffered two gunshot wounds, Mr. Noor was reluctant to admit that he was being shot at, in order to maintain the distinction between shooting “towards” and shooting “at” that he makes in relation to the shots that he fired. In my view, the distinction between shooting “towards” the two men and shooting “at” them is a distinction without a difference.

[55] Applying W.D., I do not believe Mr. Noor’s testimony. Nor does the evidence leave me with a reasonable doubt. In my view, the evidence, including the video recordings, demonstrates beyond a reasonable doubt that Mr. Noor pointed the firearm at Male 1 and Male 2 and discharged it with an intent to endanger their lives.

Self-Defence

The Applicable Principles

[56] Mr. Noor submits that even if he is found to have discharged the firearm with intent, he was acting in self-defence.

[57] The law of self-defence is codified in s. 34 of the Criminal Code. Section 34(1) reads as follows:

A person is not guilty of an offence if:

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

[58] In R. v. Khill, 2021 SCC 37, 409 C.C.C. (3d) 141, the Supreme Court of Canada recently confirmed the three elements of a successful self-defence claim: (1) the “catalyst”: the accused person must reasonably believe that force is being used against him or another person; (2) the “motive”: the accused person’s subjective purpose for responding to the threat must be to protect himself or another; and (3) the “response”: the accused’s act must be reasonable in the circumstances: Khill, at para. 37.

[59] The Crown takes the position that there is no air of reality to self-defence. The air of reality test is not an onerous one to meet: R.v. Barrett, 2022 ONCA 355, at para. 61. A defence has an air of reality if a properly instructed jury acting reasonably could acquit the defendant based on the defence: R. v.Cinous, 2002 SCC 29, at para. 2. In other words, is there evidence upon which a properly instructed jury acting reasonably could be left with a reasonable doubt about whether Mr. Noor acted in self-defence? In my view, the answer is yes. Based on the evidence, there is a reasonable inference that Male 2 was holding a firearm when Mr. Noor discharged the firearm.

[60] As a result, the Crown bears the burden of disproving self-defence beyond a reasonable doubt. To satisfy its burden, the Crown is required to disprove only one of the three elements in s. 34(1): Khill, at para. 185.

Did Mr. Noor believe on reasonable grounds that force was being used or threatened against him?

[61] Section 34(1)(a) requires the court to consider the defendant’s state of mind and perception of events that led them to act: Khill, at para. 52. The defendant’s belief that force was used or threatened against them or another person must be held on reasonable grounds.

[62] The Crown submits that Mr. Noor could only have believed that force was being used against him in the context of the physical fight between him and Male 1, which occurred shortly before Mr. Noor took his firearm out. The Crown takes the position that force was not being used against Mr. Noor when he subsequently took out and discharged the firearm because at that point, he had extricated himself from Male 1 and Male 2 had not yet drawn his gun. The Crown takes the position that Mr. Noor was the first to draw his handgun and shoot it.

[63] The defence submits that Mr. Noor believed on reasonable grounds that force was being used or threatened against him because, on his evidence, he saw Male 2 on the west side of Bathurst Street point and shoot a firearm at him before he fired his handgun. Mr. Noor testified that he was shot while reaching into his bag for the firearm.

[64] In my view, the Crown has not demonstrated beyond a reasonable doubt that Mr. Noor did not reasonably believe that force was being used against him.

[65] As noted above, I did not find Mr. Noor to be a credible witness. As a result, I do not accept his testimony that he saw Male 2 point a firearm in his direction. Moreover, I reject his evidence that Male 2 shot at him when Mr. Noor testified that he did, at 2:59:28. Mr. Noor testified that there were three to four muzzle flashes before he even had his gun out. However, none of the people who were standing on the street corner reacted at 2:59:28 or at any time until at least five seconds later, at 2:59:34. It is at 2:59:34 that the people standing on the east side of Bathurst Street quickly turn their heads in the direction of the sound and then run for cover. Had there been the sound of a gun firing at 2:59:28, one would expect that reaction to have happened then or immediately thereafter.

[66] Based on my review of Video 1, it is not possible to conclude that Male 2 did not point a firearm at Mr. Noor. The image is too unclear to draw any conclusions as to whether Male 2 did or did not raise his arm and whether or not he had a firearm in his hand. The area is dark and Male 2 is dressed in dark clothing. At the moment that Mr. Noor testified that Male 2 raised his arm, he is standing in front of a dark vehicle.

[67] However, at 2:59:32, just before 2:59:33, Video 1 shows a brief flash near the rear window of a silver car parked on the west side of Bathurst. It is not possible to determine for certain, but that flash could be a muzzle flash from a firearm held by Male 2. The flash is so close in time to the flash from Mr. Noor’s firearm that it is not possible to say whether the people on Bathurst Street reacted to a shot from Mr. Noor’s firearm or a shot from Male 2’s firearm. If Male 2 did shoot his gun at 2:59:32, it is likely that Male 2 had it out before Mr. Noor fired. Given that Mr. Noor was shot twice in the few seconds before he had a chance to turn and run away, it is very likely that Male 2 had his firearm out. It is unlikely that Male 2 could have both drawn his firearm and shot within the two seconds after Mr. Noor fired but before he turned to run in the other direction.

[68] The Crown suggests that Mr. Noor could not have seen Male 2 pointing a firearm at him because Mr. Noor was bent over with Male 1 leaning over him as they struggled over the side bag. Mr. Noor’s testimony on this point is inconsistent. Mr. Noor testified that he was focused only on Male 1, with whom he was struggling and that he was not paying attention to Male 2.

[69] However, on Video 1 at 2:59:31, after the struggle with Male 1 and before Mr. Noor jumps back, he is seen standing upright. In that split second, it is possible that Mr. Noor saw Male 2 and that he was pointing a firearm at him. If so, at that point, Mr. Noor believed on reasonable grounds that life was in danger.

[70] As a result, the Crown has not demonstrated beyond a reasonable doubt that Mr. Noor did not reasonably believe that force was being used against him.

Was Mr. Noor’s subjective purpose for responding to the threat to protect himself?

[71] The second element is an assessment of the defendant’s motive for reacting to the catalyst. The motive must be to protect himself or another person from the use or threat of force. The analysis that applies to this element is subjective: Khill, at para. 59.

[72] Based on my findings above, I find that because it is possible that Male 2 had a firearm and that it was pointed at Mr. Noor, his subjective purpose for responding to the threat was to protect himself.

[73] Accordingly, the Crown has failed to disprove this element of self-defence beyond a reasonable doubt.

Was Mr. Noor’s act reasonable in the circumstances?

[74] This element requires the court to assess whether the defendant’s response was reasonable in the circumstances. In doing so, “the focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time”: Khill, at para. 65.

[75] Section 34(2) of the Criminal Code sets out a non-exhaustive list of factors to consider in assessing the reasonableness of the accused’s act:

Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[76] Each factor informs “the overall reasonableness of the accused’s actions in the circumstances”: Khill, at para. 42. No one factor is dispositive, rather, the consideration of the factors is a “global, holistic exercise”: Khill, at para. 69.

[77] Based on my consideration of the relevant factors, as detailed below, I find that Mr. Noor’s response in the circumstances was not unreasonable.

The nature of the force or threat

[78] Male 1 or Male 2 shot a number of times. Mr. Noor was in fact shot twice. The nature of the force or threat was potentially lethal.

The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force

[79] There is no question that the use of force was imminent. In the span of less than 10 seconds multiple shots were fired and Mr. Noor was shot twice.

[80] The Crown submits that rather than open fire, Mr. Noor could have run away, as the other individuals in the area did and as Mr. Noor himself eventually did.

[81] The defence submits that running and taking cover was not an option for Mr. Noor, who was in the middle of a roadway with nothing to hide behind.

[82] Mr. Noor knew, because he had been standing on the street corner before the shooting took place, that when he chose to shoot his handgun, there would be a grave risk to others. Although Mr. Noor testified that he discharged the firearm to give himself time to run away, he gained little benefit from doing so because the two men shot back. In addition, rather than run away, Mr. Noor advanced as they ran behind the parked cars, putting himself at greater risk.

[83] However, I agree with the defence that Mr. Noor was exposed and in a vulnerable position in the middle of the roadway, with Male 2 pointing a gun at him. While he could have run away, he could not have taken cover very quickly. He could have been shot before reaching safety.

[84] Further, I am mindful that in assessing this factor, it is necessary to consider the speed with which the situation unfolded, and that Mr. Noor had little time to consider his options. People in stressful and dangerous situations do not have time for subtle reflection: R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 7. In the face of an imminent and lethal use of force in the middle of the street, Mr. Noor might not have perceived himself as having many options.

The person’s role in the incident

[85] The phrase “person’s role in the incident” is to be interpreted broadly, consistent with Parliament’s intent: Khill, at para. 74. “‘[T]he person’s role in the incident’ refers to the person’s conduct – such as actions, omissions and exercises of judgment – during the course of the incident, from beginning to end, that is relevant to whether the ultimate act was reasonable in the circumstances”: Khill, at para.74. The “phrase ‘role in the incident’ encompasses not only provocative or unlawful conduct but also hotheadedness, the reckless escalation of risk, and a failure to reasonably reassess the situation as it unfolds”: Khill, at para. 84.

[86] In R. v. Owusu, 2022 ONCJ 667, Bellemore J. considered the fact that the defendant had brought a loaded firearm with him to a public place as one factor in assessing his role in the incident. She further considered that the defendant would have known that the mall would be a busy place full of people and that he would have known how many lives he put at risk by his actions. Bellemore J. found that in allegedly attempting to save one or two lives, he “put countless other lives in peril”: Owusu, at para. 62.

[87] In this case, Mr. Noor claims that he did not have a firearm with him that night. Mr. Noor testified that he took the firearm from Male 1 during their brief altercation on the east side of Bathurst Street, after Male 1 took Mr. Noor’s wallet from his pocket.

[88] While difficult to make out, Video 1 shows Male 1 and Male 2 crossing the street and joining Mr. Noor and another individual. There are four to five people on the street corner milling around. They appear to be talking. There is some movement, but not movement that would be consistent with the type of altercation that Mr. Noor described. There is some gesturing to the other side of the street. At one point, one individual raises both arms in the air. A couple of the individuals step off the curb and into the street while facing the group. During this time, it is not possible to identify the individuals. Mr. Noor was not able to identify himself on that portion of the video.

[89] I do not accept Mr. Noor’s testimony that he took Male 1’s firearm after Male 1 took his wallet. It is implausible that Mr. Noor would have been able to put the firearm in his bag as quickly as he testified. An individual with a firearm is unlikely to give it up very easily. If Mr. Noor took Male 1’s firearm from his waistband, one would expect to see some kind of struggle, with Male 1 trying to regain the firearm before Mr. Noor could put it in his bag. While Video 1 shows some movement that could indicate some contact, there are no pronounced movements that would be consistent with prolonged contact or any kind of struggle. In addition, Video 1 shows a group of three women crossing from the west side of Bathurst to the east at 2:59:04 when the interaction on the corner is taking place. They walk toward and among the group of men on the corner, seemingly not avoiding or reacting to any kind of altercation or struggle.

[90] Given that I have rejected Mr. Noor’s evidence regarding the interaction on the street corner, Mr. Noor did not take the firearm from Male 1. As a result, the only reasonable inference is that he had brought with him the firearm that he later discharged.

[91] However, I am less certain about whether Male 1 took Mr. Noor’s wallet because there is evidence that supports Mr. Noor’s account. Mr. Noor’s wallet was located on Bathurst Street near the shell casings after eyewitnesses pointed it out as belonging to “the shooter”. No evidence was provided as to which shooter witnesses were referring to. The wallet was not located on Stewart Street where Mr. Noor was found. Male 1 could have taken the wallet without an obvious gesture or movement that would be visible on the video. Mr. Noor did not testify that he tried to get the wallet back while on the street corner. Finally, as Mr. Noor walks onto Bathurst Street, he is seen on the video with his hand is outstretched, which would be consistent with asking or demanding that his wallet be returned.

[92] In terms of Mr. Noor’s role in the incident, I have significant concerns about his decision to follow Male 1 and Male 2 into the street after the interaction on the street corner. At that point, at 2:59:20, Video 1 shows Male 1 and Male 2 leaving the street corner. Male 1 was facing Mr. Noor, which suggests that they continued to speak to or confront one another, even though the two men were retreating. Mr. Noor did not testify that the two men were threatening him or that they exchanged any words in particular. Had Mr. Noor decided to disengage at that point, it is possible that the shooting would not have occurred. Having been unsuccessful in persuading Mr. Noor to cross over to the west side of Bathurst with them, the two men were returning to the west side, from where they originally came.

[93] The Crown submits that at this stage, Mr. Noor was the “aggressor”. The video evidence would support such an inference. As he is walking onto Bathurst Street, Mr. Noor is seen handling his side bag. Mr. Noor’s explanation that he was trying to close the zipper because he did not think he needed the firearm is not credible because it is illogical that he would continue to confront the two men while, in effect, making the firearm less accessible to himself. In any event, I have rejected Mr. Noor’s evidence that he took the firearm from Male 1. Moreover, Mr. Noor’s movement is equally consistent with him either motioning to the firearm or opening the zipper of his bag to have the firearm more readily accessible.

[94] In addition, Mr. Noor’s testimony was that from the outset, he tried to avoid engaging with the two men by pretending that he did not recognize Male 1. Mr. Noor testified that the two men had been trying to get him to cross the street to the other side of Bathurst but that he refused. Under the circumstances, his decision to then cross the street and continue to engage with them was imprudent.

[95] It was after Mr. Noor walked toward the middle of Bathurst Street that he and Male 1 became involved in a physical altercation. It is unclear from Video 1 who initiated the physical contact because they are not visible from behind a utility post when the fight begins. When they are visible again, Male 1 can be seen overcoming Mr. Noor to some extent, holding him down in a bent position. Mr. Noor testified that Male 1 was trying to retrieve the firearm from Mr. Noor’s bag. It was foreseeable that Male 1 would try to take the firearm.

[96] However, I cannot exclude the possibility that Mr. Noor pursued the two men to try to get his wallet back. If so, there could have been a more rational basis for Mr. Noor’s decision. Mr. Noor knew that he was armed. He did not know whether Male 1 or Male 2 had a firearm. While the choice may have been unwise, he might not have perceived himself as moving toward a perceived threat or recklessly escalating the risk of a dangerous encounter when he continued to engage with the two men,

[97] By this analysis, I do not mean to suggest that Mr. Noor’s desire to get his wallet back was a sufficient justification for escalating the risk from what was originally a verbal disagreement into a physical fight, which then eventually became a gun fight. Based on the evidence, however, in my assessment of Mr. Noor’s role in the incident, there is an available inference that he had a reason for crossing into the street.

[98] In my view, Mr. Noor bears significant responsibility for the ultimate confrontation: Khill, at para 84. However, I am not convinced that it was foreseeable to Mr. Noor that when he walked onto Bathurst Street to claim his wallet that he was escalating the risk of danger to his safety.

Whether any party to the incident used or threatened to use a weapon

[99] Both Mr. Noor and either or both of Male 1 and 2 used firearms.

The size, age, gender and physical capabilities of the parties to the incident

[100] Based on the video evidence, Mr. Noor, Male 1 and Male 2 appear to be of similar size, although Mr. Noor may be slightly slimmer than Male 2. Male 1 overcame Mr. Noor, but Mr. Noor was able to extricate himself from Male 1. More importantly, Mr. Noor was outnumbered. He was alone, but Male 1 and Male 2 were together throughout. Video 1 showed Male 2 standing by while Mr. Noor and Male 1 struggled in the middle of the street. Both individuals posed a threat to Mr. Noor.

The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat

[101] Mr. Noor testified that he recalled ejecting Male 1 from a party approximately one to two years before the incident. Mr. Noor provided no detail as to why he ejected the individual from the party, other than that they had an altercation. He testified that he subsequently heard that Male 1 wanted to kill him. The Crown did not object to Mr. Noor’s testimony about this hearsay statement. However, to the extent that the defence may wish to rely on the statement for the truth of its contents, I have not considered it. Even if the statement was not elicited for the truth of its contents but rather, for example, for the fact that it had been said, I rule it inadmissible. No further evidence was adduced about the statement, such as when, how or from whom Mr. Noor heard it. The statement is entirely unreliable.

[102] Beyond their interaction on the night of the incident and the party one to two years earlier, there is no evidence as to any relationship between Mr. Noor and the two men. This factor does not weigh significantly in the analysis.

Any history of interaction or communication between the parties to the incident

[103] There was very little evidence of any history of interaction or communication between the parties to the incident. Mr. Noor did not testify that Male 1 or Male 2 made any threats to kill him that night, whether during their interaction on the street corner or as he confronted them in the street. While Video 1 shows Male 1 facing Mr. Noor as he walks onto Bathurst Street, Mr. Noor did not testify to any exchange of words.

The nature and proportionality of the person’s response to the use or threat of force

[104] As noted above, Mr. Noor fired his handgun at least three times in response to his belief that Male 2 was pointing a gun at him.

[105] A total of 22 shell casings were found. The Crown did not adduce evidence as to which firearms the shell casings were from. As a result, it is not possible to determine exactly how many times Mr. Noor or the two men fired their guns.

[106] Mr. Noor was shot twice. Based on the location of his injuries, in his right shoulder/chest and left shin, Mr. Noor was either still facing the two men or had just started to turn when he was shot. Based on the timing and my review of Video 1, I have found that it is likely that Male 2 was pointing a gun at Mr. Noor when Mr. Noor discharged the firearm.

[107] On a strict proportionality analysis, I find that Mr. Noor’s response was proportionate to the use or threat of force.

Whether the act committed was in response to a use or threat of force that the person knew was lawful

[108] In the circumstances of this case, this factor does not apply.

Overall Assessment of Reasonableness

[109] The third element of self-defence is an overall consideration of the reasonableness of Mr. Noor’s act in the circumstances. The Supreme Court held in Khill, at para. 2, that “self-defence demands a broader societal perspective. Consequently, one of the important conditions limiting the availability of self-defence is that the act committed must be reasonable in the circumstances.” As further articulated by the Court in Khill, at para. 62, “the reasonableness inquiry under s. 34(1)(c) operates to ensure that the law of self-defence conforms to community norms of conduct.”

[110] Section 34(2) states that in assessing reasonableness “the court shall consider the relevant circumstances of the person, the other parties and the act”. The “circumstances” are not simply those that existed between Mr. Noor, Male 1 and Male 2 but include the non-exhaustive list of factors in s. 34(2) and other relevant factors such as the location of the incident, the time of the incident, and the other parties who were present: Owusu, at para. 72.

[111] In Owusu, Bellemore J. found that the defendant’s discharge of a firearm in a busy shopping mall, after being shot at, was not reasonable in the circumstances because putting the lives of 50 innocent people at risk to defend oneself against a threat of injury or death is not reasonable and does not accord with community norms of conduct.

[112] In this case, Mr. Noor’s act of discharging a firearm at approximately 3 a.m., when there were many people on the street who had just left the nightclubs in the area, does not accord with community norms of conduct. The video recordings show approximately 20-25 people on the east side of Bathurst Street scattering and running as the shots are fired. However, unlike Owusu, Mr. Noor did not shoot toward a crowd of people in a busy enclosed space. He fired toward Male 1 and Male 2, who were across the street on the west side of Bathurst, with an open area behind them. As noted earlier, the Crown adduced no evidence as to how many shell casings were from Mr. Noor’s firearm or where they were located. No eyewitnesses were called. While Mr. Noor’s conduct was dangerous, he did not endanger the lives of countless individuals.

[113] Despite my finding above that Mr. Noor’s decision to continue the dispute with the two men and cross onto Bathurst Street was not a rational one, and that he bears significant responsibility for bringing about the circumstances that led to the need to defend himself, this must be weighed against the imminent and lethal threat that he then faced. Within seconds, the circumstances escalated into a physical fight, and then Male 2 pointing a firearm at him. Mr. Noor was eventually shot twice in the seconds before he turned and fled. Based on the totality of the circumstances, I cannot find that Mr. Noor’s response was unreasonable.

[114] Based on my consideration of the factors in s. 34(2) of the Criminal Code, I find that the Crown has not disproven the third element of s. 34(1)(c), that the act committed was reasonable in the circumstances beyond a reasonable doubt.

[115] As a result, the Crown has failed to disprove self-defence beyond a reasonable doubt.

Conclusion

[116] For the foregoing reasons, I find the defendant, Ahmed Noor, not guilty of intentional discharge of a firearm under s. 244(1) of the Criminal Code.

[117] Further to the defence’s concession at trial, based on the Agreed Statement of Facts, Ahmed Noor is guilty of counts 2-5 on the indictment.

Nishikawa J.

Released: February 22, 2024