COURT FILE NO.: CR-22-40000448 DATE: 20240506

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – WASITT IZAZ

Counsel: Mohsin Yousuf, for the Crown Aravind Pillai, for Wasitt Izaz

HEARD: December 5, 6, 7, 2023 and January 16, 2024

PINTO J.

REASONS FOR JUDGMENT

Overview

[1] In the late evening hours of April 24, 2021, Wasitt Izaz was the driver of a vehicle with six occupants. At about 12:48 a.m. on April 25, 2021, the vehicle stopped outside the Oakdale Community Centre on Grandravine Drive in Toronto. Mr. Izaz remained at the wheel. Two other occupants got out. Each had a loaded handgun. They shot 18 bullets at two men walking in front of the community centre. One victim suffered three bullet wounds to his leg. The other escaped injury by jumping into bushes. The shooters got back in the car which sped off. About five minutes later, the police stopped the vehicle at gunpoint and arrested the six occupants. Police found one handgun in the front glove compartment of the vehicle, and the other near the right rear passenger door.

[2] Mr. Izaz is charged with nine firearms related offences arising from his involvement as the driver of the vehicle that transported the two shooters.

[3] Over this four-day judge alone trial, the Crown called Police Constable Sorin Geana who testified about the evidence found at the crime scene. The defence called Mr. Izaz and J.S, another occupant of the vehicle, who testified about their activities on the night in question. Video footage from the Oakdale Community Centre was played which captured the shooting. The parties also entered into a comprehensive Agreed Statement of Facts (ASF).

[4] The Crown contends that Mr. Izaz was the driver of the get-away car and that he is criminally responsible for the firearms related offences. Mr. Izaz admits to being the driver but denies that he had any knowledge of the occupants possessing handguns or intending to shoot anyone.

[5] For the reasons that follow, I have a reasonable doubt that Mr. Izaz knew, before the shooting, that the shooters had guns that they intended to discharge. I also have a reasonable doubt that he knew, both before and after the shooting, about the gun that was found near the rear right passenger door. Therefore, I find Mr. Izaz not guilty of the first 6 counts on the indictment. However, I am convinced beyond a reasonable doubt that, after the shooting, Mr. Izaz knew about the gun that was found in the front glove compartment of the vehicle. Accordingly, he is guilty of counts 7, 8 and 9.

Facts

[6] In the late evening of April 24, 2021, Emron Wilson, 20, and his friend Darron Mitchell, 19, were spending time together at a basketball court located directly behind the Oakdale Community Centre located at 350 Grandravine Drive in Toronto.

[7] The court was well lit with artificial lighting and Mr. Wilson and Mr. Mitchell had a clear view of Grandravine Drive from the benches where they were sitting. Between 10:47 p.m. on April 24 and 12:40 a.m. on April 25, 2021, Mr. Mitchell and Mr. Wilson separately observed a black, tinted four door sedan with distinctive yellow fog lights travelling along Grandravine Drive.

[8] At about 12:40 a.m., Mr. Mitchell and Mr. Wilson decided to leave the basketball court. They started to walk southbound, towards Grandravine Drive, on the pathway between the basketball court and the Oakdale Community Centre. They separately observed, for the second time, the same four door sedan travelling on Grandravine Drive.

[9] Mr. Mitchell realized that he forgotten his keys. Mr. Mitchell and Mr. Wilson pivoted on the pathway and walked back to the basketball court to look for the missing keys.

[10] The next set of events is described in an ASF.

12:47:00 a.m. Mr. Wilson and Mr. Mitchell search but cannot locate the keys at the basketball court. They decide to leave the basketball court, and walk southbound along the east side of the Oakdale Community Centre, towards Grandravine Drive.

12:47:30 Mr. Wilson and Mr. Mitchell turn right onto the cement pathway and walk westbound along the front of the community centre.

12:47:40 Mr. Mitchell and Mr. Wilson observe for a third time, a four-door black car, with distinctive yellow fog lights, travelling east to west on Grandravine Drive, which parks on the street, by the curb, in front of the Oakdale Community Centre.

12:47:51 Mr. Wilson observes someone dressed all in black, come out of the passenger door of the sedan, and run in his direction. Mr. Wilson observes this person shoot a firearm.

Mr. Mitchell observes someone wearing all black, run from the sedan onto the grassy terrain, directly beside the curb on Grandravine Drive.

12:47:52 Mr. Mitchell falls on the ground after being shot three times: once on the left leg, once on the left foot and once behind the left foot (calf). It is agreed that the shooters intended to wound Mr. Mitchell.

12:47:53 Mr. Wilson is running westbound from the shooters.

12:47:57 Mr. Wilson is still running away from the shooters.

12:47:59 The shooting stops shortly after Mr. Wilson trips into the bushes. It is agreed that the shooters intentionally discharged their firearms and were reckless to the life and safety of Mr. Wilson.

12:48:02 The shooters run back to the curb and re-enter the sedan. When re-entering the sedan, one shooter opens the front passenger door, and the second shooter opens the rear passenger door.

12:48:04 The sedan departs the scene. It heads in a westerly direction along Grandravine Drive, away from the Oakdale Community Centre.

12:50:00 PC Rietkoetter at 31 Division hears that a shooting is reported to have taken place outside the Oakdale Community Centre. Many people called 911 and reported the incident to police. A description of the vehicle is provided to police with its direction of travel.

12:52:45 PC Rietkoetter and his escort PC Mills intercept the subject vehicle at the intersection of Norfinch Drive and Finch Avenue West which is approximately 2.1 kms away from the Oakdale Community Centre.

[11] It is undisputed that Mr. Izaz was the sole and exclusive driver. Additionally, there was one person in the front passenger seat and four people in the back seat of the sedan.

[12] On April 25, 2021, police obtained and executed a warrant to search the sedan. Detective Constable Lee opened the glove box and located a firearm inside. The model was a Glock Model – 21, .45 auto calibre semi-automatic handgun with a barrel length of 117 mm. The side of the firearm was stuck back in an open position and the ten-round magazine was still inserted in the grip. The positioning of the firearm indicated that the magazine was emptied of all bullets in its capacity. The serial number on the firearm had been removed but restored. The police used the key to turn on the ignition and confirmed that the sedan had yellow fog lights underneath the headlights.

[13] Police located another firearm and a thirteen-round magazine, visible in plain view in the footwell by the rear passenger side door. The items were partially covered by a satchel. The magazine was not inserted into the firearm. There was a live round in the magazine and a second round in the chamber of the firearm.

[14] The model of the firearm in the back of the vehicle was a Glock Model – 30, .45 auto calibre, semi-automatic handgun with a barrel length of 96 mm. A Styrofoam tray (used to hold ammunition), loose ammunition, and an empty box of Winchester .45 ACP were also located in the footwell. PC Rietkoetter located one round of .45 ACP in the Styrofoam tray.

[15] The Glock Model 30 is a prohibited firearm and the Glock Model 21 is a restricted firearm as defined in s. 84 of the Criminal Code. Mr. Izaz was not a holder of an authorization, license or registration certificate for the firearms. The magazines of both firearms were at overcapacity and Mr. Izaz did not have a license to possess such magazines.

[16] A few minutes after the 911 calls were made, at approximately 12:52 a.m., police officers arrived at the community centre to assist Mr. Mitchell and investigate the shooting. They observed Mr. Mitchell laying on his stomach on the cement in pain and bleeding profusely from his left leg and foot.

[17] Police located and photographed 18 used cartridge cases in front of the community centre on the grassy terrain and the cement walkway. There were multiple holes in the glass walls and bullet fragments inside the Oakdale Community Centre.

Testimony of Officer Sorin Geana

[18] Office Geana is a Toronto Police Service (TPS) officer who has worked for the Forensic Identification Services (FIS) of the TPS since 2015. He attended 355 Grandravine Drive, the location of the Oakdale Community Centre, at 2:55 a.m. on April 25, 2021 to conduct a crime investigation. He documented the scene, took photographs and made notes which were presented at trial. In cross-examination, he agreed that the lighting in certain parts of the photographs he took of the crime scene was brighter due to the flash of his camera.

Testimony of Wasitt Izaz

[19] Mr. Izaz testified in his own defence. He had just turned 18 at the time of the alleged offences. He was born in February 2003.

[20] He testified that on the morning of April 24, 2021, he received a call from his friend B.H who wanted to purchase a PS5 (PlayStation). Mr. H wanted to know if Mr. Izaz could get a better price. Mr. Izaz went on to Facebook Marketplace and located a well-priced PS5 and advised Mr. H. that he could purchase the PlayStation for him. The vendor was in the Markham area. Mr. Izaz called his friend S. to come and pick him up. S. picked him up from his house in Scarborough and they headed to Markham. After they purchased the PS5, they headed to Mr. H’s place in the area of Tretheway and Jane Street. They arrived at Mr. H’s place between 12 and 1:00 p.m. They helped Mr. H set up the PS5 and hung out for a bit. Mr. Izaz and S left Mr. H’s house at about 1:45 to 2:00 p.m. and headed to Scarborough where they hung out in a school parking lot smoking weed, looking at TikTok videos, and blasting music for the next 5 to 7 hours.

[21] It was the time of Ramadan on the Islamic calendar. As Mr. Izaz is Muslim, he was supposed to be home in the evening by iftar [1] to break his fast with his father. S dropped him off at home where he ate supper with his father. He had plans thereafter to go to his mother’s residence in the Lawrence and Bathurst area. His father notified his mother that he was coming.

[22] As Mr. Izaz did not have a car, he called his friend A who lived close by, and asked if A was willing to bring him to his mother’s place. A agreed and picked him up at about 8:30 to 9:00 p.m. A was driving his own vehicle. Before arriving at his mother’s place, they planned on stopping to get some food and hanging out for a little bit longer. While he and A were on their way to his mother’s place, he got a call from Mr. H who said that his car was not accelerating and not driving properly. Mr. H asked where Mr. Izaz was, and he responded that he was on his way to his mother’s place. Mr. H called Mr. Izaz because Mr. H knew that Mr. Izaz knew a lot about cars even though he was not a mechanic.

[23] Mr. Izaz asked Mr. H what he was doing with the car before it messed up and Mr. H said that Mr. H’s friend José S was driving the car and kept on playing with the positive and negative shifts on the automatic vehicle. Mr. H asked Mr. Izaz if he could come by to help with the car. Mr. Izaz asked A, who was driving, and A had no objection. Mr. H sent an address to either him or A and they headed over to the address.

[24] Once they arrived at the address, Mr. Izaz noted that it was an empty parking lot except for one vehicle. He went to the driver’s side of the vehicle. Mr. S, who was in the driver’s seat, opened the car door. Mr. Izaz noticed that there were five people in the car. Mr. H was in the back seat, in the middle. Mr. Izaz asked Mr. S to let him take a look at the car. He started fiddling around with the instruments such as the gear shifts, putting it into reverse, neutral and turning the car on and off two or three times. He was diagnosing the vehicle and spent about two minutes fiddling with the instruments.

[25] He was not sure what the other occupants were doing. A said that he needed ten minutes. He was going to fill gas, grab a drink, and come back.

[26] Once A left, Mr. Izaz asked Mr. S if he could drive the car around the parking lot. As he drove it around, the other people remained in the vehicle, but not Mr. S. Mr. Izaz drove the car around in circles in the parking lot for about five or six minutes and realized that the car was not going any faster. It was stuck at a certain speed. Once he realized this, he did not want to take a risk and damage the car any further, so he turned it off. Mr. S re-entered the vehicle.

[27] Mr. Izaz waited for about 10 to 15 minutes for A to return. Mr. Izaz had left his phone on the charger in A’s car. He had left his father’s place with a sweater, pair of pants, a pair of shoes and his phone. Once A left the parking lot, he did not have anything on him other than his jacket and the clothes he had on.

[28] He did not talk to the occupants other than Mr. S and Mr. H as he did not know them. Mr. S and Mr. H asked him if the car could be fixed. He had a rough idea that something was wrong with the transmission. He believed that the car could have been in “limp mode” where the engine automatically puts a limiter on when it redlines. He was standing on the fender thinking that A would be back any minute now. He was not sure of what the occupants were doing.

[29] He called A numerous times but no one answered. After a while, everyone started getting anxious in the car wanting to go home. Mr. S and Mr. H said that they should start heading out. He had only been briefly introduced to the other occupants of the car. The conversation was mostly about the car.

[30] He did not have his phone, it was late at night, and he was expected home. He was in the middle of a plaza and he was not familiar with the area. He was going to sit in the back but he is a large person and there were already three people in the back seat and he could not fit. Mr. S, who is much smaller than him, and who could fit in the back, asked him if he wanted to drive. He said yes. He had to pull his seat all the way forward. He recalled that Mr. S was sitting on someone’s lap at the back.

[31] He realized that, as the car was unable to go fast, it was not safe to go on the highway. They decided to drive around the neighbourhood to see what could be done. He did not formulate a plan as to where they were driving. It was “kind of a gray area as to whether they could make it to the next stop light or stop sign.” He was not sure what people in the car were doing. He was focused on getting himself home above anything. He was thinking that if he could get the car out of limp mode, he and Mr. S could get themselves home.

[32] He did not have a GPS so he decided to go in random directions and pray that A returned. He exited the plaza. People told him to just test out the car. He reversed and made very sharp turns. He remembered stopping five or six times. The first two times it was at his discretion because he wanted the car to cool down. The other times people told him to stop, either to stretch their legs or to take a smoke break. He thought that maybe luck of the draw would result in the transmission starting to work properly.

[33] As they approached the Oakdale Community Centre, he was told by an unfamiliar voice from the back to pull over. The voice was pretty close behind him and was not that of Mr. S or Mr. H. He thought the stop was for the same reason, to smoke or to stretch out their legs.

[34] As soon as he stopped, he asked Mr. S if he could use his phone. He was about to reach over and grab Mr. S’s phone when he started hearing extremely loud shots. He ducked down and crouched as much as possible. He demonstrated this in court by holding his hands over his head and crouching down in a seated position. He saw nothing because “it was such a flash.” He just put his head down and saw nothing. Everybody else’s head was down ducking and “screaming almost.” He thought they were getting shot at. He had not paid attention to who exited the vehicle but noticed that the right-side doors were open.

[35] Next, he heard two people coming into the car and heard “go, go, go.” He was not sure who said it. He put the car into drive and slammed the pedal. He was frustrated that the car was not going any faster. He made sure the car was in drive. He just wanted to get out of there. He did not see what the individuals who got back into the car were doing. He made a right or left turn at the end of the road, driving almost mindlessly. He was looking in front. He did not see what others were doing because they were wearing baggy clothes, it was dark, and he was not paying attention.

[36] He remembered driving out of the neighbourhood and as soon as he got out, the cops came, a gun was pointed at him, and he was on the ground.

[37] He denied knowing at any point that the occupants had a gun. He thought they were being attacked. He learned once he was being escorted by the police officers that the police had recovered a firearm from the vehicle.

[38] He was asked to clarify why he was driving the vehicle for that period of time. He testified that he did not want to take the car on the road because he did not know if it was going to hit the speed limit and he could get pulled over. Another reason was that he did not have his G2 Driver’s licence, he only had his G1 licence and he did not have it on him, so he would be driving unlicensed. Another reason was that the occupants were smoking weed and he did not want to get pulled over driving on a main road “without knowing that this car is very loud, it’s very loud, I’m going to get pulled over because it’s so – it’s almost definite because you can tell that there is something wrong with the car, [it] shouldn’t be on the road.” That was why he did not hit the main road.

[39] At the time, he was 18. He testified that “none of us” had bank accounts so even if he wanted to call an Uber, he personally could not, as he did not have his phone and nobody else had it set up. He thought of taking a taxi but did not want to pay the fare, or have his mother pay the fare, when he got home. He did not have his wallet with him.

[40] At the time he had known Mr. H for about two or three years, and he had known Mr. S, Mr. H’s friend, for a couple of months. He had never met the other occupants previously.

Cross-examination

[41] In cross-examination, he agreed that the parking lot where he met the other occupants of the car, was the plaza where the Pho Mi Viet Ho restaurant was located, in the northwest region of Toronto.

[42] He agreed that he and Mr. H were close friends. Mr. H is a year younger than him. They did not attend the same high school. At the time, he saw Mr. H on average around three times a month. Mr. H did not have a car at the time and only got his first car around the time of the trial in 2023.

[43] He testified that he did not grow up loving cars, but when he was 14, 15 or 16 he started to gain a little bit more interest in cars and did his own research and had gotten into situations where somebody’s car had gone bad and needed help. At the time of trial, he ran a car detailing business.

[44] He indicated that when he was with S in the school yard, he smoked a “quarter”, which is around seven grams of marijuana. He indicated that he is not a chronic weed smoker.

[45] His plan after leaving his father’s place was to go to his mother’s place, where they would wake up together and eat sehri [2] early in the morning.

[46] He testified that the occupants of the car were smoking weed but he was not sure who was smoking. He definitely saw one person smoking and assumed that everybody in the back was too. He kept the windows down in the car so it did not become a “hotbox”, but “you could still visibly see smoke coming out of the car if you were to look at the car.”

[47] He agreed that it would have been around 10:30 p.m. when he reparked the car and turned the engine off after driving it around the parking lot. After parking the car, he tried calling A continuously from Mr. S’s phone for about 25 to 30 minutes. A’s phone was ringing but no one answered.

[48] He testified that “they” – presumably the occupants of the car - wanted him to leave the parking lot. Mr. Izaz did not ask the other five occupants to take over the wheel at any point.

[49] He agreed that, at about 11:15 p.m. the car left the plaza and started driving through the neighbourhood. Over the next one and a half hour or so, the car stopped five or six times. Some breaks were 10 minutes long, others were 20 minutes. Every time the car stopped, somebody got out, whether it was to stretch or do something. There was one passenger in the front beside him and four passengers in the back the entire time.

[50] Neither he nor any of the other occupants suggested going back to the parking lot where A had dropped him off. He testified that this was because A could have called him back on Mr. S’s phone. Mr. H had his phone on him, but it was dead.

[51] The vehicle did not go past a certain speed. The car was making a lot of noise. He was scared for engine safety. He was worried that the car was going to stop working but he was not certain that driving the car around would cause complete damage. He testified that “we were mostly praying that the car fixes itself.” That is why they kept on driving it around the neighbourhood.

[52] He testified that he did not want to call his mother or father for assistance. He wanted to sneak into his mother’s house unnoticed, and did not want to involve his father who he described as “scarier than his mother.” He has two younger siblings who were too young to assist him.

[53] Ultimately, he agreed that the vehicle passed by the Oakdale Community Centre on Grandravine Drive at least four times before the stop associated with the shooting. And that he was doing so at the direction of the person who was behind him. He did not think it was strange because “everybody was giving me directions at some point in time.”

[54] He claimed that it was fairly hard to see outside at all as the car windows were tinted. It was also pretty dark outside.

[55] He clarified that, when the car stopped at the community centre, he left it running but put it in park. He heard the doors slam close. When he heard “go, go, go”, it just took him one second to shift gears by clicking a button and moving the gearshift to drive, and then slamming the accelerator.

[56] He did not remember an interior car light being on when the occupants returned to the car. He also denied seeing the person who came back to the front passenger seat holding a gun or, at any time, seeing or hearing the glove compartment open or close. He similarly denied seeing the individual who returned to the rear passenger seat holding a gun. He also denied seeing a box of ammunition or any bullets on the floor of the car.

[57] Once the shooting had happened, the occupants had returned to the car, and the car had left the scene, he described the conversation as “everybody’s like…what the fuck is going on?” People were in the back screaming “like what the fuck?” and “holy shit.” He felt like he was in shock because he did not know what was going on. He does not even remember turning onto the main road. The next thing he remembers is getting pulled over at gunpoint and being on the ground. He denied that there was any conversation about firearms, them being shot at, or about calling 911. He was primarily focused on getting out of there because he thought he was going to die.

[58] He disagreed that the car stopped for about 25 seconds in front of the basketball court before advancing to the community centre where the shooters got out. He denied that he was driving up and down Grandravine Drive to find an opportunity to shoot Mr. Mitchell and Mr. Emron. He insisted that he was only driving in the neighbourhood praying that the car could be fixed, and to avoid being pulled over on a main road. He denied knowing that any of the occupants had guns or ammunition. He also denied knowing when the car stopped at the community centre that two of the occupants would jump out and shoot Mr. Mitchell and Mr. Emron. He denied ever seeing the two men, let alone seeing them get shot. In fact, he thought he was the one who was being shot at.

Testimony of J.S

[59] Mr. S was 16 years old at the time he was a passenger in the car. There was a party that he was invited to on the evening on April 24, 2021. He told his friend, Mr. H, to come pick him up because he had lent Mr. H his aunt’s car the day before. Mr. H picked him up at around five or six in the evening. He and Mr. H hung out, played some video games and smoked. After that, they went and picked up Moses (MJ) who lived in Brampton. Moses was a friend that he had known for around two years. Moses was with two other individuals who Mr. S did not know and whose names he did not remember. Moses told them that he had to pick up something in Toronto and all five of them (Mr. S, Mr. H, Moses and the two individuals) left Moses’ place after about an hour or two. These five individuals and Mr. Izaz were the six occupants of the car at the time of the shooting. They headed to a girl’s house in the Jane and Finch area, and Moses got out of the car to pick the item up. Mr. S was pretty sure that it was weed.

[60] After the pickup, the car started acting weirdly, it was not pushing as fast and could not go faster than 40 kms/hr. He and Mr. H knew that Mr. Izaz knew a lot more about cars than them, so Mr. S called Mr. Izaz and told him to come and help them out. They parked at a nearby plaza and waited for Mr. Izaz to arrive. Mr. S believed the car problem may have been related to the fact that he was playing with the gears throughout the day, but he was not sure.

[61] At this point, he had known Mr. Izaz for about a year. Mr. Izaz and a friend came to the parking lot and started looking at the engine. Mr. Izaz’s friend left to get some gas. Moses kept on asking them to leave, but Mr. Izaz’s friend had not yet returned, and no one could get a hold of him. So, they decided to test drive the car around the neighbourhood. As Mr. Izaz was large and could not fit into the back, Mr. S suggested that Mr. Izaz drive the car. He recalled that the order of seating at the back of the car from left to right was Moses, Mr. S, Mr. H and Moses’s friend on the far right. He sat on the laps of Moses and Mr. H because there was not enough room.

[62] He recalled that the car stopped three or four times. He got out a couple of times because his legs were all cramped up. They heard the car making noises so they wanted to stop to find out what was wrong. They were smoking weed in the back.

[63] Moses told them to stop beside the community centre. All he heard was “go, go, go” and then the car just took off. He had not seen guns on anyone prior to the shooting or after the occupants returned to the car. He heard Moses telling them to go and then they got stopped by a cop car. He denied that anyone mentioned anything about guns during the car ride. He did not know the victims, Mr. Mitchell or Mr. Wilson, and those names were not mentioned by anyone during the ride. They never made it to the party because it got cancelled.

[64] In cross-examination, Mr. S was presented with a statutory declaration that he signed on July 13, 2022 which stated, in part, “After the shooting happened and I became aware that there were firearms inside the motor vehicle, I did not have an opportunity to exit the vehicle before I was detained by the police. The vehicle fled the scene and was detained moments later.” He was asked to explain which was correct, his statement at trial that he never knew firearms were in the vehicle, or his earlier statement in the Statutory Declaration that he became aware of guns after the shooting? He stated that it was the former.

The Charges against Mr. Izaz

[65] Mr. Izaz is charged with nine offences:

Count 1 – Discharge firearm with intent to wound Darron Mitchell, contrary to s. 244(1) of the Criminal Code. Count 2 – Discharge firearm recklessly with respect to Emron Wilson, contrary to s. 244.2(1) Count 3 – Aggravated assault against Darron Mitchell, contrary to s. 268(2) Count 4 – Aggravated assault against Emron Wilson, contrary to s. 268(2) Count 5 – Occupy motor vehicle knowing a firearm (Glock Model 30) was in it, contrary to s. 94(2) Count 6 – Possess a loaded prohibited firearm (Glock Model 30), contrary to s. 95(1) Count 7 – Possess a loaded prohibited device (Over Capacity Magazine), contrary to s. 91(2) Count 8 – Occupy motor vehicle knowing a firearm (Glock Model 21) was in it, contrary to s. 94(2) Count 9 – Possess a loaded prohibited firearm (Glock Model 21) without being the holder of an authorization or licence permitting such possession, contrary to s. 95(1)

[66] Broadly speaking, the first four counts relate to the shooting of the two victims, and the last five counts relate to the possession without a licence of a prohibited or restricted firearm including in a motor vehicle.

Relevant Legal Principles

[67] I have instructed myself with respect to several important legal principles that arise in this matter.

Presumption of Innocence and Requirement of Proof Beyond Reasonable Doubt

[68] Mr. Izaz is presumed to be innocent, unless and until the Crown has proven the offences against him beyond a reasonable doubt. It is not enough for me to believe that he is possibly or even probably guilty. I must be convinced of his guilt beyond a reasonable doubt. As a standard, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

W.D. Analysis

[69] I must comply with the analysis in R. v. W.(D)., [1991] 1 S.C.R. 742 (“W.D.”), at p. 758:

First, if [I] believe the evidence of the accused, obviously [I] must acquit.

Second, if [I] do not believe the testimony of the accused but [I am] left in reasonable doubt by it, [I] must acquit.

Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask [myself] whether, on the basis of the evidence which [I] do accept, [I] am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[70] I also accept that, in deciding whether the accused’s evidence leaves me with a reasonable doubt, I cannot consider the accused’s testimony in isolation from the rest of the case: W.D., at p. 757.

Party Liability Under the Criminal Code

[71] Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability.

[72] Under section 21 of the Criminal Code,

21 (1) Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[73] In R. v. Briscoe, [2010] 1 S.C.R. 411, the distinction between aiding and abetting was explained, at para. 14:

The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, “[t]o aid under s. 21(1)(b) means to assist or help the actor. . . . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed”: R. v. Greyeyes, [1997] 2 S.C.R. 825, at para. 26.

[74] Here, the perpetrators of the first four offences were the two occupants of the car who shot Mr. Mitchell and Mr. Emron. However, Mr. Izaz may still be found guilty under party liability principles of the Criminal Code if he aided or abetted the perpetrators in the shooting.

[75] The parties agree that the main issue in this case is whether Mr. Izaz aided (i.e. assisted) the perpetrators. Whether he abetted (or encouraged) the perpetrators in the shooting is not an issue.

[76] The parties agree that the actus reus component of each of the nine charges has been proven beyond a reasonable doubt. However, the central question is whether the Crown has proven beyond a reasonable doubt that Mr. Izaz had the requisite mens rea such that he should be found guilty of some or all of the offences charged.

[77] The various modes of participation were helpfully explained by Conlan J. in R. v. Watson, 2022 ONSC 6021:

[176] There are various modes of participation set out in the Criminal Code – joint principals under section 21(1)(a), aiding under section 21(1)(b), abetting under section 21(1)(c), and common purpose under section 21(2).

[177] The actus reus and mens rea for aiding and abetting are distinct from those of the principal offence; the actus reus is doing something, or in some instances omitting to do something, that assists or encourages the perpetrator to commit the offence. The mens rea for aiding requires both knowledge and intent. The aider must have intended to help the principal commit the offence, and the aider must have known that the principal intended to commit the offence. The aider can only be found to have intended to assist the perpetrator to commit the offence if the aider knew the crime that the perpetrator intended to commit. R. v. Phillips, 2017 ONCA 752, at paragraphs 195 and 196; R. v. Briscoe, 2010 SCC 13, at paragraphs 13-14 and 16-17; R. v. Maciel, 2007 ONCA 196, at paragraph 88, leave to appeal to the Supreme Court of Canada refused, [2007] S.C.C.A. No. 258.

[78] The Crown advised that it did not intend to prove that Mr. Izaz was guilty under s. 21(2), the common purpose section of the Criminal Code.

Wilful Blindness

[79] The Crown submits that when considering Mr. Izaz’s knowledge in this matter, his wilful blindness must be considered as well. In Briscoe, the concept of willful blindness was explained as follows:

[21] Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, [1985] 1 S.C.R. 570, and R. v. Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

Offence of Discharge Firearm with Intent

[80] In R. v. Duru, 2018 ONSC 2401, J.D. McCombs J. described the offence of Discharge Firearm with Intent to Endanger Life, which is the same offence as count 1 on Mr. Izaz’s indictment:

[33] For there to be a conviction for the offences of discharge firearm with intent to endanger life, the Crown must prove that the accused knew or was wilfully blind to the fact that the shooter was armed with a firearm. The Crown has advanced two alternative bases for party liability: s. 21(1)(b) or s. 21(2). Party liability under s. 21(1)(b) requires proof that the accused knew that the shooter intended to discharge a firearm and intended to aid him in pursuit of that goal. Party liability under s. 21(2) requires proof that the accused formed an intention in common with the shooter to carry out an unlawful object and ought to have foreseen that in carrying out that unlawful object, the offence of discharge firearm with intent to endanger life was committed: R. v. Jackson (1991), 68 C.C.C. (3d) 385 at 421. The unlawful object could be, for example, the formation of an intent to discharge the firearm in the air to perhaps frighten the victims. If the other elements are proved, and if it can be said that the accused ought to have foreseen the risk that the shooter would discharge the firearm at the occupants of the victim vehicle, the offences would, it seems to me, be established.

[34] The common theme for all of the charges faced by the accused is that the Crown must prove knowledge of or wilful blindness to the fact that the shooter was armed with a firearm.

[35] It follows that the first area of inquiry must be whether the evidence satisfies me beyond a reasonable doubt that the accused knew or was wilfully blind to the fact that the shooter was armed with a firearm. As I have already stated, if knowledge cannot be established with the requisite degree of proof, then the accused is entitled to be acquitted. If I were to conclude that knowledge is established, then further consideration is necessary to determine what offence or offences have been proved by the Crown.

[36] The central focus must be on the state of mind of the accused.

Burden of Proof as Applied to Circumstantial Evidence

[81] The Crown acknowledges that its case against Mr. Izaz is built on circumstantial evidence concerning his intent and knowledge in respect of whether the shooters had firearms in the vehicle and their plans to discharge the weapons on April 24, 2021.

[82] In R. v. Abshir, 2023 ONSC 4297, Nakatsuru J. commented on the burden of proof as applied to circumstantial evidence.

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

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

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

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

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

[83] The Crown submits that the only reasonable conclusion to be drawn from the evidence is that Mr. Izaz not only had knowledge that the shooting was to take place, but drove to and away from the community centre with the intention to assist the shooters.

Constructive Possession

[84] It is not suggested that Mr. Izaz brought the two firearms into the vehicle, or that he physically handled them or owned them. Accordingly, the Crown submits that the charges against Mr. Izaz alleging possession must incorporate the concept of constructive possession.

[85] In R. v. Morelli, [2010] 1 S.C.R. 253, the Supreme Court of Canada held:

[17] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person” (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person.

[86] Crown counsel submits that willful blindness is a subset of the knowledge component even for possession charges. So, if Mr. Izaz’s suspicion arose and if a reasonable person would have felt the need to make inquiries and Mr. Izaz deliberately chose not to do so, because he did not want to be faced with the knowledge that: (1) the object in the car was a firearm; (2) the firearm was being kept in the car; and (3) an occupant would have the use or benefit of the firearm, the offence of possession would be made out.

Discussion

[87] I note that, at the time of the shooting, at least three of the six occupants of the vehicle were teenagers. Mr. Izaz was 18, Mr. H was 17, and Mr. S was 16. Moses was described as an adult and no evidence was presented about the age of the other two occupants who were Moses’s friends. I accept that teenagers have limited life experience and that I should keep that in mind when I am examining Mr. Izaz’s conduct.

[88] I find Mr. Izaz and Mr. S’s evidence of car problems to be credible. Mr. Izaz testified that he was a bit of a “gearhead”. I note that, at the time of trial, he ran a car detailing business which is consistent with his self-declared passion for cars. I find it likely that when Mr. S and Mr. H ran into car problems, they turned to their friend Mr. Izaz, rather than consult a professional mechanic.

[89] There was some confusion in Mr. Izaz’s testimony about whose car it was. Initially he described the car as belonging to Mr. H and then changed that to Mr. S’s car, and finally described it as Mr. S’s aunt’s car. I do not put much weight on this, as the evidence suggests that Mr. S lent his aunt’s car to Mr. H the previous day. I can see why the group of young men may have simply referred to it as Mr. H’s car, meaning the car that he was driving at the time.

[90] I also find credible Mr. S’s evidence that he believed that the reason why the car may have been experiencing problems was that he had been playing with the gears throughout the day, although it is not clear how Mr. S would have had the opportunity to do so if he had been picked up by Mr. H who also had the car the previous day. I find it believable that a 16 year old would be playing around with the gears on the car, not fully appreciating the consequences.

[91] Three objective pieces of evidence support the conclusion that there was a problem with the car’s speed. One is that, based on how fast the car travelled between the shooting and the police interception, the car’s average speed was relatively slow and consistent with Mr. Izaz’s description of the car not being able to travel faster than 40 km/h. I infer this from the vehicle departing the crime scene at 12:48:04 a.m. and being intercepted by police at 12:52:45 a.m., a period of 4 minutes and 41 seconds. A google map of the neighbourhood introduced at trial showed two routes that the vehicle could have taken between the two points: the more likely route being 2.1 kms away; the longer and less likely route being 2.4 kms away. The vehicle’s average speed based on the more likely route was 31.4 km/hr. If the slightly longer route was taken, it was 35.8 km/hr. Either way, this suggests that, even when trying to get away as fast as it could from the shooting, the vehicle travelled less than 36 km/hr.

[92] Two, evidence from the body-worn camera (BWC) of PC Rietkotter indicates that after the occupants had exited the vehicle, and just before police turned the engine off, the vehicle was making a sound as if the engine or muffler was compromised. As no expert evidence regarding the vehicle was introduced at trial, I do not put much weight on this second point, but it is an inference that I draw from the BWC evidence.

[93] Third, whatever video footage there is of the vehicle as is travels along Grandravine Drive shows it to be travelling relatively slowly. Of course, it could be that at other time the vehicle was travelling much faster, but this third point is additional evidence that suggests that there was a problem with the car’s speed.

[94] The evidence suggests that, earlier in the evening of April 24, 2021, after Mr. H picked up Mr. S, they picked up Moses and his two friends and then headed to a girl’s house in the Jane and Finch area. Moses picked up an item, possibly weed. The car started acting strangely at that point and was not able to go faster than 40 kms/hr.

[95] There was a contradiction between Mr. Izaz and Mr. S on the point of who contacted Mr. Izaz for help. Mr. S said that he called Mr. Izaz and asked him to meet at what turned out to be the parking lot near the Pho Mi Viet Ho restaurant, whereas Mr. Izaz said that Mr. H spoke to him while he was being driven by his friend A on the way to his mother’s place. I do not place much weight on this contradiction as nothing much seems to turn on this point.

[96] Where Mr. Izaz’s testimony becomes questionable, in my view, is his claim that for about one and a half hours, the six occupants were driving around the neighbourhood, almost randomly, hoping that the car would fix itself.

[97] The timeline is that by 10:30 p.m. Mr. Izaz had re-parked the car in the parking lot. He had already attempted to diagnose the car problem by fiddling with the gears for about two minutes, and driving it around the parking lot for about five to six minutes. The car was not going any faster.

[98] Between 10:30 and around 11:15 p.m., it appears that Mr. Izaz was standing for about 15 minutes waiting for his friend A to return, and then calling him almost continuously for the next half hour or so. A never returned.

[99] By his own evidence, at about 11:15 p.m., Mr. Izaz found himself late at night in a parking lot that he was not familiar with, along with three other men that he had never met before.

[100] Additionally: a) At this point, according to Mr. Izaz, “everybody wanted to go home.” b) He was keen to retrieve his cell phone from A’s car because he is “almost naked without his cell phone.” c) His father had told his mother that Mr. Izaz was on his way home, and she would have been expecting him. d) He had to wake up pre-dawn the next morning to participate in sehri with his mother. e) He did not want to drive because he did not have his G1 driver’s license or wallet on him, which was also in A’s car. f) The occupants were smoking weed and he did not want to get pulled over in that situation. g) The car was making very loud sounds and could not go past 40 km/h and so could not go on the highway. h) As a large person, he was cramped in the driver’s seat as it had to be pushed forward to accommodate the passengers in the back.

[101] Based on Mr. Izaz’s testimony, I surmise that the later he got home, the more trouble he would be in with his parents, albeit he suggested that he would try to sneak into his mother’s place.

[102] I must balance these reasons for Mr. Izaz not wanting to drive around or stay out late, with the reasons that he gave for doing so.

[103] He testified that he was still keen on diagnosing the problem with the car. While it is possible that driving around and testing the car further may have revealed something new, it is difficult to understand why the car would disclose something that was not already evident in his earlier inspection in the parking lot. Common sense would also suggest that driving a defective vehicle around could also significantly aggravate the problem, or even cause permanent damage to the engine.

[104] Mr. Izaz claimed that one of the reasons he stayed in the car was that he did not want to pay taxi fare or have his mother do so, and that he did not have his phone on him to call an Uber. He claimed that none of the occupants had bank accounts to take advantage of Uber. That would presuppose a conversation amongst the occupants about their transportation options, and I heard no evidence of such a conversation in the car.

[105] The defence submits that, as a teenager, Mr. Izaz was not thinking rationally and that a reasonable inference to draw is that he was swept up with his friends in trying to find out what was wrong with the car. I am not inclined to draw this inference because it was Mr. Izaz’s own evidence that everyone, including himself, was anxious to get home.

[106] While I can understand Mr. Izaz, Mr. H and Mr. S’s interest in diagnosing the car’s problems, I fail to see what interest Moses and his two friends had in the car. There was no evidence that these three occupants had any interest in the car’s problems, or cars generally.

[107] On balance, it does not make sense that Mr. Izaz chose to drive the car in such circumstances, or that once he decided to do so, he drove around for a very long time with five other occupants in the car, instead of simply finding the quickest way home.

[108] I also find Mr. Izaz’s description of what was happening over the one-and-a-half hour just prior to the shooting not credible. He claimed that, since he did not have GPS, the car went in random directions hoping that the transmission would fix itself. He reversed and made very sharp turns. While the first one or two of up to six stops were at his discretion, he simply followed someone else’s instructions concerning the rest of the stops.

[109] Bizarrely, despite the importance of reconnecting with A and getting back his cell phone, wallet and clothing, neither he nor anyone else suggested going back to the parking lot where A had dropped him off. While it is true that A could have called him back on Mr. S’s phone, by 11:15 p.m. this had not occurred, and A had been gone for around 45 minutes. It would have been reasonable for Mr. Izaz to conclude that, although A’s phone was ringing, A may have misplaced or lost his phone and returned to the parking lot, so that they could complete the trip to Mr. Izaz’s mother’s place.

[110] Mr. Izaz’s description of the nature and frequency of the stops before the shooting also seems implausible. He testified that the car stopped five or six times with each break being between 10 or 20 minutes long. Even assuming shorter breaks, it would mean that the occupants spent 50 to 60 minutes of the next 90 minutes stretching their legs and taking smoke breaks. Such frequent and lengthy breaks would appear to detract from the apparent purpose of driving the car around, which was to diagnose what was wrong with it.

[111] In sum, I do not believe that Mr. Izaz and the other five occupants spent the time between the parking lot and the shots being fired driving around for the purpose of determining what was wrong with the car. I find, for reasons explained further, that at some point in those 90 minutes, one or more occupants of the car either conceived of a plan or operationalized an existing plan to discharge firearms that night. Even so, Mr. Izaz must be found not guilty unless the Crown proves that Mr. Izaz had knowledge or was willfully blind to the fact that an occupant was armed with a firearm.

[112] I find that Mr. Izaz was not truthful about two critical facts that were proven via objective evidence: a) the vehicle stopped for about 24 seconds at a location with a clear view of the basketball court, before advancing further along Grandravine Drive to where the shooting occurred; and b) the interior light of the vehicle came on and stayed on when the shooters exited the car.

[113] I will deal with each of these facts in turn.

[114] The Crown contends that footage from two cameras at the Oakdale Community Centre indicates that the vehicle with the six occupants stopped briefly closer to the basketball court, before advancing further west to where the shooting happened. The defence disagrees and suggests that it is not possible to confidently draw such a conclusion from the camera footage.

[115] The significance of this issue is important. If the footage convincingly demonstrates that the vehicle stopped earlier, it tends to support the Crown’s position that Mr. Mitchell and Mr. Emron, who were returning from the basketball court, were targeted by the occupants in the vehicle, and it casts doubt on Mr. Izaz’s testimony since he made no mention of the brief stop, and claimed to not remember the interior light coming on when the shooters exited the car.

[116] The relevant video footage comes from Camera #1 and Camera #11 of the Oakdale Community Centre. The footage was played several times in court.

[117] Camera #1 faces eastward, showing the area to the east of the community centre. Closest to the camera view is a footpath that runs north-south between the basketball courts to the left (north) side of the view, and Grandravine Road to the right (south) side of the view. At 12:47:17 a.m., Mr. Mitchell and Mr. Wilson come into view walking on the footpath in a southwardly direction. At exactly the same time, a yellow light in the shape of one or two fuzzy dots appears on Grandravine Drive which is toward the right (south) side of the camera view. The yellow light remains on and stationary for the duration of the video which ends at 12:47:29. The parties agree that the vehicle the shooters emerged from had distinctive yellow fog lights.

[118] Camera #11 faces eastward showing the southern side of the community centre and traffic running east-west along Grandravine Drive. As it was late at night, the lighting in the footage is poor. However, the headlights of cars can be seen clearly, as they pass by the community centre on Grandravine Drive.

[119] At 12:47:16 a.m., which is 35 seconds before the shooting, a yellow light appears for the first time in the top centre of the camera view. The location of the yellow light corresponds with a more easternly point along Grandravine Drive. The yellow light remains stationary until 12:47:40, at which point it begins to move westbound along the road approaching the community centre. As the yellow light approaches, it is obvious that it is a vehicle. At 12:47:49, the vehicle stops and an interior light in the vehicle comes on and stays on. The parties agree that the shooting occurred at 12:47:51. At 12:47:53, Mr. Wilson appears in the grainy footage running westbound, remaining visible until 12:47:59 when he falls into some bushes. Around 12:48:02, the interior light of the vehicle goes off, and the vehicle leaves at 12:48:04 heading westbound.

[120] I find, based on the footage from Camera #1 and Camera #11, that the vehicle with the shooters stopped for about 24 seconds between 12:47:16 and 12:47:40 farther east along Grandravine Drive, before advancing again along the road towards where the shooting took place. I find, based on overhead maps of the community centre area shown at trial, that the brief stopping point would have given the vehicle occupants a clear view of the well-lit basketball courts near the community centre. This is also consistent with the ASF which states that Mr. Wilson and Mr. Mitchell had a clear view of Grandravine Drive from the benches where they were sitting. Between 12:47:00 and 12:47:30 is precisely when, according to the ASF, Mr. Wilson and Mr. Mitchell were walking southbound along the east side of the community centre just before they turned right onto the cement pathway where, seconds later, they were shot.

[121] The defence argues that one cannot safely conclude that the light that appears stationary between 12:47:16 and 12:47:40 comes from the vehicle containing the shooters. The defence submits that it could have been another car, or simply another source of light.

[122] I disagree.

[123] The light has a distinctive yellow tinge to it, and does not appear in the footage earlier than 12:47:16. Moreover, as the yellow light approaches the camera, it is obvious that it is coming from a vehicle. And it is agreed that the vehicle with the shooters had distinctive yellow fog lights. The appearance of an interior light between 12:47:49 and 12:48:02 is consistent with the normal operation of a vehicle, whereby an interior light comes on when any door opens. I have no doubt that the timing of the interior light appearing and disappearing in the camera footage corresponds with the doors of the vehicle opening and closing as the shooters exited and re-entered the vehicle before it sped off.

[124] I would also add that when Mr. Izaz was cross-examined about when he stopped, he did not mention the brief stop of 24 seconds, but he confirmed that there were no cars ahead of him. This is additional evidence that when the Mr. Izaz’s vehicle stopped, there was no car just ahead of him, whose headlights could be confused with Mr. Izaz’s car on the video footage.

[125] Mr. Izaz testified that the vehicle stopped five or six times with each stop being between 10 and 20 minutes. At no point did he mention that, just before the shooting, the vehicle stopped for less than 30 seconds and then carried on. I do not believe that Mr. Izaz simply forgot about this brief stop. The difference between 10 or 20 minutes and 24 seconds is too great. Moreover, given that the brief stop happened only 35 seconds earlier than the shooting, one would think that Mr. Izaz would remember doing so. To be fair, it could be argued that Mr. Izaz forgot about the brief stop because a far more significant event – the shooting – followed so quickly thereafter.

[126] In any event, I draw an inference that there must have been a point to the brief stop. It was too short to have allowed the occupants to get out and stretch their legs. The fog lights were not turned off, so I assume that the engine kept running. I find that the most likely explanation is that the brief stop was connected to the shooting that happened 35 seconds later. Given the uncontested evidence that the vehicle had driven by the Oakdale Community Centre at least four previous times that evening, and that the brief stop would have given the occupants a clear vantage point to the basketball courts, I find that the purpose of the brief stop was to target Mr. Wilson and Mr. Mitchell, and for the shooters to prepare to shoot those two young men.

[127] I draw a further inference, given that there were two shooters who exited from the front and rear passenger doors simultaneously, that the shooters must have had to coordinate and communicate with each other, or through someone else, before they exited the vehicle simultaneously. It appears, based on Mr. Izaz and Mr. S’s testimony, that it was Moses who told Mr. Izaz to stop at the community centre when the shooting occurred. This was the first time that Mr. Izaz had met Moses and his friends. It seems incredible that, notwithstanding his strong desire to go home, that Mr. Izaz followed Moses’s instructions where and when to stop. Recall that Mr. Izaz agreed that he passed by the community centre at least four times and that he was doing so each time at the direction of the person behind him – who was Moses.

[128] Moses was on the far left of the rear passenger seat and the shooters emerged from the front and rear right passenger doors. I find that Moses directed Mr. Izaz to stop the car just before the shooting happened. Mr. Izaz denies hearing any conversation about shooting or about the intended victims at any time in the car. The question is how the shooters knew to jump out of the car simultaneously and start shooting at Mr. Mitchell and Mr. Emron. There are myriad possibilities ranging from a full and open discussion in the car about planning to and then shooting these two victims, to a plan only known to Moses and his two friends that was spoken about in some cryptic manner.

[129] Another inference that I draw is that, if six people, which includes at least three teenagers, were cramped in the car driving around for an hour and a half – which includes anywhere from three to six breaks – they are likely to have talked to each other. Mr. Izaz was very circumspect about any conversations that happened in that hour and a half before the shooting. He testified that they were limited to comments about the problematic car, and telling him where and when to stop. This is another part of his evidence I find to be problematic. I accept that some or all of the occupants were smoking weed. I am not prepared to speculate whether smoking weed made the occupants more or less likely to converse. However, Mr. Izaz never testified that the occupants were silent or “zoned out.”

[130] That Mr. Izaz’s description of the conversation in the car was so limited is another factor that leads me to believe that he was not being truthful when he described what was going on in the car for about an hour and a half.

[131] Thus far, I have concluded that: a) There was a problem with the vehicle in that it could not travel beyond 40 kms/hr. b) The vehicle had passed by the community centre at least four times before the stop associated with the shooting. c) The vehicle stopped for about 24 seconds at a location with a clear view of the well-lit basketball court before advancing further west along Grandravine Drive to where the shooting occurred. d) The purpose of the brief stop was to target Mr. Wilson and Mr. Mitchell, and for the shooters to prepare to shoot these two young men. e) The interior light of the vehicle came on and stayed on when the shooters exited the car. f) Mr. Izaz was not truthful when he testified that the car did not stop for a few seconds shortly before the shooting, and that the interior light of the vehicle did not come on.

[132] Does this mean that I must find Mr. Izaz guilty of the first four offences related to the shooting of the two victims because he must have aided the shooters? I find that it does not. I am still not convinced beyond a reasonable doubt that, before the shooting, Mr. Izaz had knowledge of the guns in the vehicle, and that he knew that some of the occupants had plans to discharge the weapons at the two victims.

[133] This is not an entirely circumstantial case. Mr. Izaz and Mr. S testified. I am entitled to believe all, some or none of their testimony. That I find these defence witnesses not credible with respect to some of their testimony does not mean I must reject their evidence in its entirety. Here, they both testified that the vehicle had a problem such that it could not be driven more than 40 km/hr. and I accept that part of their evidence as credible and true.

[134] But it is mostly a circumstantial case. I find that a reasonable alternative inference on the totality of the evidence is that Mr. Izaz was the dupe of the occupants who planned and executed the shooting. It is unclear whether or to what extent Mr. Izaz’s friends, Mr. H and Mr. S, were aware that a shooting was going to occur. I cannot say whether the planning for the shooting was days, hours, minutes or seconds in advance of it occurring, but it is reasonable to infer that, if the shooting was planned in advance of April 24 evening, the perpetrators would not have chosen a get-away car that was limited in speed and noisy, or one with distinctive yellow fog lights that would make the car easily identifiable. For reasons that are not clear, Mr. Izaz ended up being the driver when the shooting occurred.

[135] I find it a reasonable possibility that, even though Mr. Izaz was driving the vehicle up and down Grandravine Drive for more than half an hour before the shooting, he did not know that the occupants had guns that they intended to discharge. Mr. Izaz testified that when he first approached the subject vehicle in the empty parking lot sometime after 9 p.m., there were already five people in the car. A reasonable inference is that it was dark and the two shooters were not openly displaying their firearms. Mr. Izaz’s evidence that the occupants were wearing baggy clothes is borne out by the BWC evidence of PC Rietkoetter showing the occupants with overcoats, hoodies or other similar clothing under their overcoats, and comfortable pants (possibly trackpants) as they are handcuffed and led away by police officers. Based on the size of the two handguns, I find it a reasonable inference that the shooters hid their handguns until the last possible few seconds. Ammunition was found only in the footwell of the rear passenger seat under a satchel bag. I find it a reasonable possibility that Mr. Izaz did not see what was on the bottom of the rear passenger seat in the dark and crowded car, even assuming that a firearm and ammunition was there before the shooting.

[136] While I am skeptical of Mr. Izaz’s limited description of the conversation in the vehicle prior to the shotting, I find it a reasonable possibility that the shooters and/or Moses communicated in code and that, even if Mr. Izaz physically heard what they said, he did not understand that the shooters had guns that they intended to discharge that night. There was no evidence of Mr. Izaz’s prior association or communication with Moses and/or the shooters prior to the night in question. There was no evidence that Mr. Izaz was associated with any gang activity or that he or Mr. S had heard of or knew the victims in any way. I also factor in Mr. Izaz’s age of 18 to conclude that Mr. Izaz may have easily been misled by Moses and/or the shooters as to the purpose of repeatedly driving past the community centre. I simply do not have sufficient evidence allowing me to conclude beyond a reasonable doubt that prior to the shooting, Mr. Izaz knew the shooters had guns and intended to discharge them that night.

[137] I therefore find Mr. Izaz not guilty of the first four charges that involve aiding in the shooting of the two victims.

[138] However, I reach a different conclusion about Mr. Izaz’s guilt in respect of the three charges associated with his constructive possession of the Glock 21, the firearm found in the glove compartment of the vehicle. I base my conclusion on finding that Mr. Izaz had the necessary knowledge and control of the Glock 21 after the shooting occurred to assign criminal responsibility to him.

[139] The objective or agreed-upon evidence is that: a) The shooters exited, one each from the front and rear right passenger door. b) The shooters fired 18 bullets at the two victims from the grassy terrain that was beside the vehicle as it was parked on the roadway just beside the front entrance of the Oakdale Community Centre. c) The shooting lasted roughly 11 seconds. d) Two seconds after the shooters re-entered the vehicle, the vehicle departed the crime scene. e) The vehicle was stopped at gunpoint 4 minutes and 41 seconds later. f) The first firearm, the Glock 21, was found in the glove compartment of the car. g) The second firearm, the Glock 30, was found under a satchel in the footwell by the right rear passenger door, along with a Styrofoam stray, loose ammunition and an empty box of bullets.

[140] Not only do I disbelieve Mr. Izaz that he never saw a gun after the shooter in the front passenger seat returned, but I am also convinced beyond a reasonable doubt that Mr. Izaz had constructive possession of the Glock 21 after the shooting occurred.

[141] For Mr. Izaz to have had constructive possession of the Glock 21, he must have had: (a) knowledge that the object was a firearm; (b) knowledge of its location; and (c) an intention to have the firearm in place for the “use or benefit” of himself or that of another person: Morelli, at para. 17. Mr. Izaz must also be found to have had knowledge if he remained willfully blind.

[142] I have already indicated my reasons for finding that the interior light of the vehicle stayed on for the 11 seconds duration of the shooting. Even though it was dark outside, this would permit Mr. Izaz to see, at a minimum, what was going on in the interior of the car. His evidence was that he was in the process of turning to his right, attempting to get a phone from Mr. S who was in the back, when multiple shots rang out and he ducked down towards the centre console of the car. The direction and placement of Mr. Izaz’s head would be towards the location of the glove compartment and front passenger door of the vehicle.

[143] Whereas prior to the shooting, I found that a reasonable inference is that the front seat shooter hid the firearm in his baggy clothing until the last few seconds, after the shooting I must account for how the firearm moved from the front shooter’s hands into the vehicle’s glove compartment. I find that the only reasonable inference is that this must have occurred between the time the shooter returned to the car and when police found it, and that, due to Mr. Izaz’s close proximity to the glove compartment and the circumstances of the shooting, Mr. Izaz knew or was wilfully blind to the fact that the gun had been placed in the glove compartment.

[144] It is not disputed that Mr. Izaz knew that a shooting had occurred. He testified that he initially believed that the shots were, in fact, being directed at the vehicle he was in. While I accept that Mr. Izaz was likely in a state of shock, I also find it reasonable that, on some level, he would have made a connection between the occupants who had just exited and re-entered the car, and the possibility of them having something to do with the shooting and possessing guns.

[145] Mr. Izaz testified that he heard doors slam and someone say “go, go, go.” The car was still running. He moved the gearshift to drive and then slammed the accelerator. Assuming that the front seat shooter managed to place the firearm into the glove compartment within seconds of his re-entry, I find that Mr. Izaz would have seen and heard the opening and closing of the glove compartment as he lifted his head from the direction of the front console, or when he moved the gearshift to drive. It would have been virtually impossible, given the close confines of the front of the car, for Mr. Izaz to have not seen or heard the glove compartment open and close and the shooter place the gun inside. I accept that, logically, the interior light would have gone out when both car doors closed which would have occurred before the car departed the scene. Still, even without the interior light, I find that Mr. Izaz knew after the shooting, that he was driving with at least one firearm in the car.

[146] The second possibility is that the front shooter only placed the firearm in the glove compartment during the 4 minutes and 41 seconds ride before the police stopped the vehicle at gunpoint. Here too, while there are all sorts of possibilities of how this might have occurred, the Crown does not need to negative every possible conjecture. Presumably, after a few seconds, Mr. Izaz would have concluded that neither he nor anyone else in the car had been shot and, as he testified, the discussion turned to “what just happened?” In my view, this does not present a better time for the shooter to slip the firearm into the glove compartment than earlier, so I reach the same conclusion about Mr. Izaz’s knowledge of the existence and placement of the handgun.

[147] The third possibility is that the front shooter managed to move the Glock 21 from his baggy clothing into the glove compartment just as the police stopped the car and before the front shooter exited the vehicle. While I agree that Mr. Izaz would have clearly not been focusing on what was going on inside the vehicle at that point, I also find it highly unlikely that the shooter would have risked opening the glove compartment, placing the loaded firearm within, and closing the glove compartment at the very moment that the police were pointing firearms at the car and ordering the occupants out.

[148] Mr. S’s statutory declaration stated that he became aware that there were firearms inside the motor vehicle after the shooting happened. I find that Mr. S was not a credible or reliable witness at trial as he attempted to back out of this position and testify that he never knew there were firearms present. In particular, I reject Mr. S’s testimony about what was happening in the car after the shooting.

[149] I do not find Mr. Izaz was credible in his testimony about the conversation in the car after the shooting. He described the conversation as “everybody’s like…what the fuck is going on?” and “holy shit.” The Defence submits that whereas more conversation may have actually occurred, I should keep in mind that Mr. Izaz was likely in shock. Hence it was entirely reasonable for Mr. Izaz to have only remembered the overall sentiment in the car. I accept that Mr. Izaz may have been shocked by what had taken place but still do not accept that, even subjectively, this is all that Mr. Izaz heard or remembered. The car was stopped by police 4 minutes and 41 seconds after the shooting. Mr. Izaz did not testify about him or anyone asking if someone was shot, or why someone would shoot at the car, or whether anyone was following the car or what they should do next. He did not testify that he or anyone else asked why the two occupants got out and then reentered the car. He did not testify that he or anyone else asked about why the car stopped at the community centre. I find the lack of detail in Mr. Izaz’s description of the conversation to be intentional. I find it related to his covering up his knowledge of what transpired if not before or during the shooting, then definitely after the shooting. Mr. Izaz’s incredible testimony of the conversation in the car after the shooting is another factor why I find that Mr. Izaz had knowledge of there being a firearm or firearms in the car.

[150] In sum, while it is possible that the front seat shooter managed to move the Glock 21 into the glove compartment without Mr. Izaz’s knowledge, I find that this amounts to an irrational or fanciful possibility and that the only reasonable inference is that Mr. Izaz had knowledge of the existence and placement of the Glock 21 into the vehicle’s glove compartment.

[151] In terms of control of the Glock 21, the Crown relies on cases that hold that, as driver of the vehicle, Mr. Izaz had control of any uses of the car and, by implication, the handgun.

[152] In R. v. McIntosh: 2003 CarswellOnt 1099 at Para. 62, Hill J. held:

[62] A vehicle driver who knows a legally prohibited item is in a vehicle is not in the same position as a passenger who may merely acquiesce to another's, i.e. the driver's possession: R. v. T.(S.) (2001), 2001 24185 (ON CA), 140 O.A.C. 122 (Ont. C.A.), at 123-4; R. v. Williams (1998), 1998 2557 (ON CA), 125 C.C.C. (3d) 552 (Ont. C.A.), at 555, 557-8. A driver, operating the vehicle with the owner's consent, determines what is permitted to enter and stay in the vehicle and can "control access to the vehicle and exclude others from the vehicle": R. v. Belnavis (1996), 1996 4007 (ON CA), 107 C.C.C. (3d) 195 (Ont. C.A.), at 209 (affirmed R. v. Belnavis, [1997] 3 S.C.R. 341, at 419). [emphasis added]

[153] In R. v. Bonilla-Perez, 2014 ONSC 2031 at para. 46, Code J. held, referring to R. v. Mohamad (2004), 2004 9378 (ON CA), 182 C.C.C. (3d) 97 at para. 61 (Ont. C.A.) and R. v. Savory (1996), 1996 2001 (ON CA), 94 O.A.C. 318 (C.A.):

[46] ……The same principles apply to the owner or driver of a car who generally has authority to control both access to the car and any uses of the car, as opposed to a mere passenger or occupant of a car who generally lacks such authority. See: R. v. Terrence (1980), 1980 74 (ON CA), 55 C.C.C. (2d) 183 (Ont. C.A.), aff’d R. v. Terrence, supra; R. v. T.(S.) (2001), 2001 24185 (ON CA), 140 O.A.C. 122 (C.A.); R. v. Williams (1998), 1998 2557 (ON CA), 125 C.C.C. (3d) 552 at 555-8 (Ont. C.A.); R. v. Belnavis and Lawrence (1996), 1996 4007 (ON CA), 107 C.C.C. (3d) 195 at 209 (Ont. C.A.), aff’d ([1997] 3 S.C.R. 341](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii320/1997canlii320.html)). [emphasis added]

[154] The Defence submits that Mr. Izaz did not have control over the Glock 21 since the front shooter had control and authority over it. I would agree with the Defence up to the point that the Glock 21 remained with the front seat shooter and, as I cannot say when exactly that changed. However, when that shooter transferred the handgun into the glove compartment, Mr. Izaz had both knowledge of the handgun and control over it because he exercised control over the location where the firearm was stored. His choices at that point included refusing to be the driver of the car or exiting the vehicle. The extent of Mr. Izaz’s possession was limited to under 5 minutes. This short duration does not detract from Mr. Izaz’s criminal liability, albeit it may impact his sentencing.

[155] Accordingly, I find Mr. Izaz guilty in respect of the three charges associated with his constructive possession of the Glock 21.

[156] The reason that I find Mr. Izaz not guilty in respect of the two charges in respect of the Glock 30, the firearm that was found in the footwell of the rear passenger seat, is that I have a reasonable doubt about whether, both before and after the shooting, Mr. Izaz had knowledge of the existence of that firearm. I find that it is reasonably possible that Mr. Izaz, given his location in the driver’s seat, may not have been able to see the gun that was placed in the footwell location. Unlike the Glock 21, which was placed after the shooting in the front glove compartment, which had to be opened and closed right in front of Mr. Izaz, the Glock 30 could have remained swaddled in the rear shooter’s clothing before and after the shooting. The rear shooter could have easily and silently placed the Glock 30 under the satchel in the rear passenger seat without attracting Mr. Izaz’s attention.

Conclusion

[157] As I am left in reasonable doubt about whether Mr. Izaz knew that the occupants of the vehicle had firearms and intended to discharge them, I find him not guilty of counts 1 to 4 on the indictment.

[158] I am also left in reasonable doubt as to whether Mr. Izaz had knowledge of the Glock 30 that was found in the back of the vehicle. Accordingly, it is not proven that he had possession of the Glock 30 and must be found not guilty on counts 5 and 6, the counts that pertain to that firearm.

[159] However, I find that, once the shooting occurred, Mr. Izaz had constructive possession of the Glock 21, which includes its magazine which was over capacity, making it a prohibited device. Accordingly, I find Mr. Izaz guilty of counts 7, 8 and 9.

Pinto J. Released: May 6, 2024

COURT FILE NO.: CR-22-40000448 DATE: 20240506

ONTARIO SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING – and – WASITT IZAZ

Reasons for judgment Pinto J.

Released: May 6, 2024

Footnotes:

[1] The meal eaten after sunset during Ramadan in the Islamic calendar.

[2] Sehri is the meal consumed early in the morning by Muslims before dawn and before beginning their fast during the Islamic month of Ramadan.