Reasons for judgment

S.F. Dunphy J.

[1] Earlier today, I released my reasons for dismissing the applications of the defendants to exclude evidence from this trial pursuant to s. 24(2) of the Charter of Rights and Freedoms or to stay proceedings under s. 24(1) of the Charter based on alleged breaches of s. 8, 9, 10(a) and 10(b) of the Charter.

[2] The Charter applications were heard in a combined hearing along with the trial proper. The following is my judgment on the charges for which they were tried before me.

[3] Mr. Pyne and Mr. Zorjani are both charged with reckless discharge of a firearm (s. 244.2(1)), possession of a restricted firearm (s. 92(1)), possession of a prohibited firearm (s. 92(1)), possession of a loaded restricted firearm (s. 95(1)), possession of a loaded prohibited firearm (s. 95(1)) and possession of proceeds of property (a motor vehicle) having a value exceeding $5,000 knowing it had been obtained by an indictable offence (s. 354(1)).

[4] The basic facts of the case are set forth in my reasons for decision in relation to the Charter applications which I shall not repeat at length here, confining myself to the particular facts relevant to each of the charges under review. In summary, the charges all relate to an incident that occurred on June 21, 2021 when gunshots were reported by numerous callers. I refer to my reasons for decision on the Charter applications for the general factual context of the evidence that I shall review herein.

Count 1 – Reckless Discharge of a Firearm

[5] The only discharge of firearms that I am considering for the purposes of this Count 1 is the two Glock handguns found in the back seat area of the white pick-up. While I find that a third firearm – a .357 Magnum revolver – was also in the white pick-up at all material times, it cannot be established beyond a reasonable doubt whether this firearm was actually fired on Parma Court at the relevant time. As a revolver, it retains the spent shell casings after firing instead of ejecting them and no ballistics evidence was presented to confirm whether any of the bullets removed from Mr. Apau’s vehicle came from this firearm. It is thus of very limited relevance to this decision beyond providing some circumstantial evidence on the issue of common purpose.

[6] I DO find that the .357 Magnum was in the white pick-up truck on Parma Court, that one of the occupants took it with him when the white pickup truck was abandoned and discarded it while fleeing from police after exiting the alleyway at 1131 O’Connor and making his way to the plaza where the defendants were apprehended. The circumstantial evidence very strongly points to this conclusion and to no other.

(a) Multiple shots were fired near 40 Parma Court shortly before 1 am

[7] There is direct evidence that several shots were fired from a gun shortly before 1 am on June 21, 2021 in the vicinity of 40 Parma Court.

[8] Parma Court proceeds westbound off Victoria Park about the distance of a short city block before curving approximately 90 degrees to the north, then proceeding in a straight line an equivalent distance to dead end turnaround area. From one end to the other, the street is perhaps the equivalent of a single long city block in length.

[9] It is an agreed fact that police received multiple calls beginning at 12:56 am reporting the sound of between five and eighteen gun shots in the area of 40 Parma Court.

[10] A total of eight shell casings were found scattered along the area of the bend in the roadway over an area of several car lengths near 40 Parma Court. I draw the obvious inference and find that the shell casings discovered in the roadway on Parma Court and the reports of gunfire heard in the same area are connected (i.e. that the shell casings were ejected in the course of the firing of the guns reported by the multiple callers to the 911 operators).

(b) The shots were discharged from a firearm “at a place”

[11] During their investigation, Police observed bullet holes in the windows of two parked cars on Parma Court. One of them was parked before the bend in the road on the Victoria Park side of the road, the other beyond the curve nearer to the dead end turn around area. One had a single bullet hole on the driver side windshield while the other had two bullet holes on the driver side window. In both cases, the driver side of the vehicle opened on to the roadway (as opposed to the sidewalk).

[12] Crime scene photographs of the position of the two impacted vehicles relative to the bullet casings found on the roadway is clearly consistent with the shots having been fired from the roadway in the area of where the shell casings were found. The eight shell casings were found scattered in the middle of the roadway.

[13] It is an agreed fact that neither vehicle had bullet holes in them at the time they were parked on Parma Court on June 21, 2021.

[14] I find that the bullet holes in these two vehicles were the result of the shots fired that resulted in three of the eight shell casings found on the roadway.

[15] Mr. Apau testified to passing a white pick-up truck with construction things in the back as he approached the area of the turn-about at the end of Parma Court. Shortly after passing the white pick-up truck he heard (and could smell) three shots being fired. While he did not notice that his vehicle had been hit, he noticed three bullet holes in his vehicle the next morning when preparing to go to work.

[16] Mr. Apau’s vehicle was in the process of preparing to park and let off a passenger near the entrance to the dead end turnaround area of Parma Court when he heard and smelled the gun shots.

[17] The inference that the three bullet holes (and two bullets extracted) found in Mr. Apau’s vehicle were the product of three of the gun shots that produced the casings deposited on the roadway is a strong one but it is at least possible that the .357 Magnum was responsible. The only vehicle or pedestrian remarked upon by him immediately before the sound of the shots was the white pick-up truck that he had crossed paths as it exited that turnaround area he was approaching. There is however no expert evidence to connect the two bullets extracted from Mr. Apau’s vehicle to any of the three guns seized by police including the two Glock guns seized from the white pick-up truck that were found to have been the source of the eight shell casings found in the roadway or the .357 magnum revolver found later that day.

[18] The actus reus of s. 244.2(1)(a) requires that the firearm must be discharged “into or at a place”. The term “place” is defined to include any building or structure or part thereof or any motor vehicle. Both aspects of this definition are satisfied here. Shots were fired from the area of the bend in Parma Court and struck three motor vehicles. The density of residential buildings on both sides of the street in the area where the shell casings were found permits the inference that some or all of the shots were also “into or at” one of the neighboring buildings in the line of sight of shots fired from the roadway on a bend in the road.

[19] I find that at least eight shots were fired “at a place” as defined by s. 244.2(2) on Parma Court shortly before 1 am on June 21, 2021 resulting in the deposit of the shell casings discovered on the roadway. The actus reus of s. 244.2(1)(b) is not restricted to the discharge of a firearm at a place but requires a particular mens rea to be discussed below.

(c) The shots were intentionally fired by someone

[20] The number of bullet impacts (six including the three found in Mr. Apau’s vehicle) and the number of casings found (eight, fired by two Glock handguns later found in the white pick-up described by Mr. Apau) is utterly inconsistent with anything other than a deliberate, intentional action of firing the guns. It is impossible to conceive of that number of shots having been fired from at least two guns accidentally.

[21] It is an admitted fact that the shell casings found on the roadway were the product of eight shots fired from the two Glock handguns that were found by police in the rear of the white pick-up truck.

[22] I find that all eight shots from the discharge of two firearms that resulted in the eight shell casings identified on Parma Court were the result of the intentional discharge of at least such firearms (i.e. the Glock handguns found in the white pick-up truck).

(d) Mens Rea: The intentional discharge of a firearm was with knowledge or reckless

[23] The mens rea of the offence of reckless discharge of a firearm requires proof that the intentional discharge of the firearm was either (a) “knowing that or being reckless as to whether another person is present in the place” if fired at a place or (b) the intentional discharge of a firearm occurred “while being reckless as to the life or safety of another person” if not. Both types of mens rea have been proved beyond reasonable doubt here.

[24] These intentionally fired shots were fired in a manner that was either with actual knowledge of the presence of other persons in the vehicles and buildings at which the firearm was intentionally discharged or reckless as to the presence of other persons in those places. I infer this from the following evidence in particular:

a. Mr. Apau’s vehicle was still in motion about to be parked on Parma Court to let his passenger alight. It would be plain and obvious that his vehicle had persons inside and the three shots were fired at it which struck the vehicle and equally plainly placed the lives or safety of the two occupants at considerable risk.

b. The two other vehicles impacted were parked but at a sufficient distance from the shell casings that it can safely be inferred that the person discharging the firearm could not know with any confidence whether either vehicle had people in it. Discharging a firearm at such vehicles in those circumstances was clearly reckless as to the potential for persons to be present in them and for the shots so discharged to have put such a person in danger of life or safety. Indeed, the place of impact of the shots passing through ordinary auto glass could well have killed someone sitting in the driver seat waiting to pick up a friend or loved one from one of the nearby buildings.

c. The area in which the shots were fired is a dense residential area. Bullets can travel a long distance once fired and can pass through many obstacles such as wood or glass or the metal of a car frame (as did at least two of the bullets that hit Mr. Apau’s car). The time of day would have ensured that most residential units would be occupied. The discharge of multiple shots from a firearm in that location could not fail to have placed the life or safety of the occupants of those buildings in jeopardy as well.

[25] The circumstances in which the shots occurred permits me to infer beyond reasonable doubt that the person or persons who discharged the two Glock firearms from the white pick-up truck in those circumstances had the requisite mens rea for either s. 244.2(1()(a) or (b). I so find.

(e) Is either defendant responsible for discharging the firearms?

[26] There is no direct evidence as to who held the two guns when they were fired. Nobody witnessed the shots being fired and the only surveillance video capturing the shots fired is from a considerable distance affording some equivocal evidence that the shots came from a white pick-up truck. Can either or both defendants be held responsible for discharging the firearms on Parma Court in the circumstances I have just described?

[27] In my view the totality of the evidence establishes beyond reasonable doubt that (i) the two Glock guns were discharged by one or more occupants of the same white pick-up truck abandoned by three males shortly after 1 am at Yardley and O’Connor; (ii) that the occupants of the white pick-up were the same before the shooting as at the time the pick-up truck was abandoned on Yardley Avenue a few minutes afterwards; and (iii) Mr. Pyne and Mr. Zorjani were two of the three occupants of that vehicle at all relevant times; and (iv) in all of the circumstances, the defendants are liable for discharging the two firearms regardless of which of them actually pulled the trigger of either of them whether as principals, joint principals or aiders.

(i) The firearms were discharged on Parma Court by one or more of the occupants of a white pick-up truck subsequently found abandoned at Yardley and O’Connor

[28] The evidence establishes beyond reasonable doubt that the shots were discharged by the occupants of a white pick-up truck and that the white pick-up truck described by Mr. Apau and captured by Parma Court surveillance video and the white pick-up seized by police a relatively few minutes later on Bermondsey (opposite Yardley Avenue and O’Connor) are one and the same vehicle.

[29] The white pick-up truck described by Mr. Apau at Parma Court and captured by surveillance video at Parma Court is very clearly the same white pick-up truck that the surveillance video at Yardley and O’Connor depicted stopping at a stop light on Yardley before being abandoned by its three occupants. This occurred only a short distance from Parma Court and only a few minutes after the reports of gun shots from Parma Court.

[30] The report of two vehicles leaving the scene received by the 911 operators is consistent with Mr. Apau’s vehicle and the white pick-up truck leaving the area for which there is independent evidence. There is no evidence beyond speculation of any other vehicle or person being involved in the shooting incident beyond the occupants of the white pick-up truck.

[31] There are numerous distinct features of the pick-up truck captured on the Parma Court surveillance videos and the Yardley Avenue surveillance videos as well as in the SOCO photos of the truck itself that support this conclusion. Further, it is an admitted fact that all eight shell casings found on Parma Court were fired from one or the other of the two guns found in the back of the white pick-up truck when this was seized by police. The conclusion that the surveillance images from the two locations are of the same pick-up truck is inescapable.

[32] Parma Court surveillance video also shows the white pick-up truck on Parma Court including a distant view that appears to show muzzle flashes coming from the vehicle. While this evidence is both circumstantial and equivocal as to the source of the gun shots, it is corroborated significantly by Mr. Apau’s evidence. Mr. Apau did not see the shots being fired, but he did hear and smell the shots very shortly after passing the white pick-up heading out of the same turnaround area that he was entering at the end of Parma Court. The pick-up truck he described was exiting the turn around area and he did not notice any other occupied vehicles or pedestrians. This supports the inference of the shots coming from the vehicle as does the location and scattering of the shell casings in the middle of the roadway and the evidence tying those shell casings to the two Glock handguns found in the white pick-up truck.

[33] The location of the shell casings is consistent with shots fired from a slowly moving vehicle from one or more guns being fired outside the vehicle and ejecting the casings as the vehicle slowly advanced down the roadway.

(ii) There was no change to the identity of the occupants of the white pick-up truck

[34] The totality of the evidence persuades me beyond reasonable doubt that there was no change to the occupants of the white pick-up from the time Mr. Apau first observed it (before shots were fired) until Ms. Castro (and the surveillance video from her building) observed three males running away from the pick-up truck while idling at the stop light at Yardley and O’Connor a minute or two before Ms. Castro contacted the 911 operator at 1:05 am.

[35] Three males were seen by Ms. Castro exiting the white pick-up truck on Yardley Avenue. Her evidence is corroborated by the surveillance video that shows three figures, all apparently male exiting the pick-up truck. Two emerged from the driver side of the truck (front and rear doors) while a third emerged from the front passenger side. While Mr. Apau only remarked upon two people in the front seat when he passed the pick-up truck, he also said that he could not see into the rear seat because the windows were tinted. His observation does not weaken my conclusion.

[36] The white pick-up was headed towards Victoria Park Avenue when Mr. Apau last saw it and the surveillance video from Yardley Avenue (which runs between Victoria Park and O’Connor) captured what is clearly the same pick-up truck pulling up to the red light at Yardley and O’Connor a few blocks to the south and west only a few minutes later. There are no missing minutes and there is no evidence to support the idea of a rapid “crew change”. The same people were in the pick-up truck at all material times.

[37] The two Glock handguns were found by police in plain sight in the back of the white pick-up when it was found just opposite Yardley and O’Conner after it was abandoned. The vehicle had been under continuous surveillance from the time it was abandoned until police arrived to search it. There is no prospect of some other person having placed the guns there after the three males were witnessed by Ms. Castro and a surveillance camera fleeing from it.

[38] I find that there was no change to the occupants of the white pick-up truck from the time it entered Parma Court until the time it was abandoned at Yardley and O’Connor.

(iii) The defendants were both occupants of the white pick-up truck at all material times

[39] I am satisfied from a review of the surveillance video of Yardley Avenue and the other video from that area that night that it was Mr. Zorjani who was in the driver seat of the vehicle when it was abandoned. The surveillance video does not provide a distinct view of the two males who emerged from the driver side of the vehicle because the vehicle partly obscured them from the camera as they emerged. These two subsequently ran swiftly to the nearby alleyway with sufficient speed that the camera captured only a low resolution image of them.

[40] Despite the limitations of this initial video evidence from this location, Mr. Zorjani is clearly identifiable by the white flashing on the knee area of his pants. The flashing is distinctly visible in this initial video and in substantially all of the subsequent surveillance video of the three men in the alleyway, of them fleeing from the squad car driven by P.C. Folkes and of them entering the parking lot behind the Harvey’s at 1100 O’Connor. This initial video shows that the person wearing those distinctively marked pants was the one who exited from the driver-side front seat. While the initial image of Mr. Zorjani is blurred, several of the subsequent ones displaying the same white flashing also provided clear views of Mr. Zorjani’s face permitting a very confident identification of Mr. Zorjani as the one wearing those pants (in which he was also arrested and can be seen to wear in the booking video as well).

[41] Mr. Zorjani’s DNA was very positively identified on the partly consumed water bottle that was found in the front driver’s cup holder inside the vehicle, offering further circumstantial confirmation of his identity as the driver.

[42] I find that Mr. Zorjani was the driver of the white pick-up truck at all material times. While I have found that Mr. Zorjani was the driver, it makes no material difference to my analysis whether he was in the driver seat or the rear driver side seat.

[43] The identity of the other two males captured by the surveillance camera as they emerged from the pick-up truck and abandoned it can also be established with a very high degree of confidence as a finding of fact.

[44] Police apprehended a young person hiding behind one of the trailers two minutes after the defendants were apprehended. I am satisfied that this same young person (not charged before me) is the person captured by the initial video emerging from the front passenger seat of the pick-up and then captured by the later videos running somewhat behind Mr. Zorjani and Mr. Pyne, eventually following them to their hiding place by the trailers behind the Harvey’s Restaurant at 1100 O’Connor. The blue in the top he was wearing as well as the white markings on his sneakers are both clearly visible on the initial Yardley Avenue video and then consistently picked up on most of the subsequent videos from the alleyway or the vicinity of the trailers with greater and lesser clarity. He was consistently trailing the other two but is very clearly identifiable from his size, gait, and the markings on his sneakers through almost all of the video clips until the point where he was apprehended minutes later. This young man was one of the occupants of the pick-up truck – seated in the front passenger seat – when the shootings occurred on Parma Court.

[45] Mr. Pyne cannot be distinctly made out at the point he exited the rear passenger seat of the white pick-up truck on the Yardley surveillance video but he is clearly distinguishable (and wearing a short-sleeved shirt) in several of the following videos as he fled from police towards the Harvey’s building where he was apprehended a few minutes later. The surveillance video of the chase consistently showed Mr. Pyne and Mr. Zorjani running closely together (the latter carrying a hoodie) while the young person was trailing further and further behind the other two.

[46] Ms. Castro provided a description of the three males she saw exiting the vehicle when she phoned 911 at 1:05 am. The description she then gave was of three males, one wearing a grey hoodie, two wearing caps and all three wearing blue latex gloves. Her later testimony repeated the observation of the blue gloves and the two black caps (that she described as toques) but also suggested that she remembered all three sporting grey hoodies. I find that she was simply confused as to this latter detail, but nothing in particular turns on it.

[47] The surveillance video of the young person who exited the front passenger seat is sufficiently clear to confirm (i) that he wore blue gloves (briefly visible on the door as he exits) as described by Ms. Castro; and (ii) that he was wearing a blue shirt or sweater of some kind and not a grey hoodie as he left the vehicle and ran to the alleyway. The same blue top is clearly visible in many of the later video clips during the chase. It can be clearly seen in these that the young person was not carrying a grey hoodie at any point.

[48] By contrast, Mr. Zorjani was clearly captured running with a hoodie in his hand in multiple video clips of a clarity admitting of no mistake. Police subsequently recovered the grey hoodie near the trailers.

[49] Prior to being spotted and chased down the parking alleyway by Officers Folkes and Lam in squad car 5512, the three were seen by Ms. Castro emerging from the alleyway to look at the pick-up truck they had earlier exited and which, following their exit, had rolled across the intersection at idle speed before coming to a rest up on the sidewalk and in collision with a parked car. When Ms. Castro spotted them emerging from the laneway they had changed their clothes somewhat. She no longer saw a grey hoodie and none of them were wearing blue gloves anymore. They spent approximately five minutes in the alleyway prior to fleeing down the alleyway when chased by Officers Lam and Folkes and had plenty of time to do so and to dispose of any evidence.

[50] I find that Mr. Zorjani and Mr. Pyne occupied the driver seat and the rear driver side passenger seat respectively of the white pick-up truck. The young person not charged before me occupied the front passenger seat. The three exited the vehicle as a group, fled as a group, entered the parking lot behind Harvey’s as a group and were apprehended within a few feet of each other while attempting to hide from police. The identity of the occupants of the white pick-up truck as consisting of the young person and the two defendants is clear, consistent and admits of no reasonable doubt.

(iv) The defendants are responsible for firing the two Glock handguns that were fired on Parma Court

[51] I have thus found that at least eight shots were fired from the white pick-up truck occupied by the defendants and young person, that the shots were intentionally fired and that at least three of them were fired at two different motor vehicles and that the others were fired at the buildings that densely dominate the streetscape. I have also found that the person (or persons) firing those guns in those circumstances necessarily knew or was reckless to the risk that the buildings and vehicles may have contained people whose lives and safety would be placed at great risk by the discharging of the firearms in those conditions.

[52] There are no witnesses to the actual discharge of the firearms who testified. In my view, the circumstances (i) in which the shell casings were found on Parma Court, (ii) the manner in which three occupants of the truck were dressed in the vehicle; (iii) the manner in which they acted following contact with police; and (iv) the manner in which they left the truck all provide relevant circumstantial evidence as to the joint nature of the unlawful enterprise undertaken by its occupants who included the two defendants throughout.

[53] The scattering of the shell casings in the middle of the roadway strongly suggests that guns were fired from the driver side of the vehicle (as opposed to the passenger side that would face the curb side). This inference is supported by the location of the bullet holes on the two vehicles found parked with bullet holes on Parma Court when the SOCO photos were taken. I should not overstate the weight of this consideration because it is far from a conclusive observation. However, it is a factor that can be added to the mix of direct and circumstantial evidence. As noted, I have concluded that the defendants occupied the driver side of the vehicle.

[54] Given the admitted fact that the two guns found in the pick-up truck fired each of the shots that deposited the spent shell casings in the roadway, it is quite improbable that a single person should have fired one gun and then fired further shots from another when neither was out of ammunition (both guns were found loaded with usable ammunition). It is far, far more likely that two persons fired one gun each and that the defendants – occupying the driver side of the vehicle – were the ones doing the firing.

[55] The way in which three occupants of the pick-up truck were dressed indicates quite strongly that they were united in a commonality of purpose towards an unlawful goal involving the discharge of the firearms found in the vehicle:

a. The two defendants at least wore multiple layers of clothing both top and bottom – a feature that would permit each of them to alter their appearance quickly should they choose[^1].

b. The weather was comparatively warm that evening (20C) which would offer little in the way of alternative explanation for such layering.

c. They each wore blue latex gloves. Such gloves would act to prevent fingerprints or gun shot residue from being left on their skin. The unusual fact that all three occupants of the vehicle had the same blue latex gloves supports the inference that they were engaged in a common enterprise for which the wearing of blue latex gloves served a purpose. Such gloves would prevent fingerprints from being left behind and would also prevent gunshot residue from collecting on the hands or wrists of the wearer.

d. The two defendants were each found to have black balaclava or ski-type masks in their pockets when arrested a detail which is consistent with a desire to be able to disguise their faces if needed. While toques are a fashion accessory worn by some even in summer, no such vogue has ever been noted for face-disguising ski masks nor would fashion eccentricities explain the concealment of the masks in their pockets.

e. All three occupants were also dressed in dark clothes which tended to obscure their identity at night. The wearing of multiple layers of tops and bottoms by the two defendants permitted a swift and easy change of appearance if the need arose.

[56] It is hard to imagine an innocent explanation for all three occupants of the vehicle to have donned such gloves and dressed in this manner particularly in the presence of two handguns in the vehicle. This combination of circumstances very strongly points towards a common purpose shared by all three in relation to the use of those guns and I so find.

[57] It is an agreed fact that the pick-up truck was not registered to any of the three but had been reported stolen on April 6, 2021 (i.e. about ten weeks prior to the incident). There is no evidence of there being any legitimate connection between any of the three and this stolen vehicle. It is logical to infer that the three intended to use a stolen vehicle that could not be traced to them given the other steps taken by them to conceal their identity and participation in the use of the guns. This too supports the common purpose inference.

[58] Mr. Zorjani’s DNA was also found on both handguns found in the white pick-up although the confidence level of that identification is closer to that of probable than of certain. The weaker DNA signal on the handguns and the fact that Mr. Zorjani wore latex gloves at the time he exited the vehicle is consistent with that DNA having been deposited at an earlier time which further points towards a commonality of purpose that night among the three in the vehicle.

[59] The three occupants of the vehicle displayed what can only be described as panic behaviour at the sight of police shortly after the gunshots were fired at Parma Court. Mr. Zorjani abandoned the white pick-up truck at Yardley and O’Connor seconds after seeing a police car racing down O’Connor in front of them with lights flashing. He did so without even putting the vehicle in park such that it rolled unguided through the intersection and eventually came to a stop on the other side after colliding with a parked vehicle. The other two passengers followed him within seconds. They used at least some of their time in the alley to change their appearance by discarding the blue gloves and possibly also removing (or carrying) a hoodie.

[60] The three again fled at high speed when seeing two police cars passing in front of the parking laneway they had initially fled to and were chased to the parking lot where they were found hiding under a trailer moments later. The surveillance video provides consistent evidence of their progress through the laneway, through the parking lot and behind the trailers were they were found moments later. There can be no doubt at all about the continuity – the three males apprehended were certainly the three males wo fled from the pick-up truck.

[61] It is also relevant to note that the evidence supports the inference that there were and three guns in the vehicle and not just two. While it is proved beyond doubt that the two Glocks fired the shots that ejected the casings on Parma Court, it cannot be said that the third gun – a .357 Magnum - was fired at Parma Court (as opposed to at some other place and time).

[62] The .357 Magnum revolver was found on the grass beneath a window at 1131 O’Connor on the route the three former occupants of the vehicle took to flee from Officers Lam and Folkes who were chasing them down the laneway. While none of the video evidence positively confirms that any of the three left the white pick-up with a gun in hand, the images are insufficiently clear to rule this out either. Further, a bullet of the same brand as the ones found on Parma Court was found in the swimming pool of a neighbouring house (that backed on to the same alleyway but fronted on to the parallel street Westview Blvd. - an easy throw from the same laneway.)

[63] The .357 Magnum revolver had four unfired bullets and two shell casings remaining in the revolving chamber after the bullets they contained had been fired.

[64] In the context of all of the evidence of the activities of the three in the alley that night, I find that the revolver was brought with one of them from the white pick-up truck, but I cannot conclude with any certainty that it was fired that night or who carried it. However, the presence of a third handgun (the revolver) in a vehicle with three occupants and two other guns that were fired fortifies the conclusion that each of the three occupants of the vehicle had a common purpose when at least two of the firearms were discharged from this vehicle on Parma Court.

(f) Conclusion Count 1

[65] Based on the forgoing evidence viewed as a whole, I find that the Crown has proved beyond reasonable doubt that Mr. Zorjani and Mr. Pyne were present in the white pick-up truck at Parma Court when the shots were fired from the two Glock handguns present in the vehicle and remained in occupation of the vehicle at Yardley when the vehicle was abandoned. I similarly am persuaded beyond reasonable doubt by the foregoing evidence that regardless of which of them fired which gun, the two defendants acted in pursuit of a common unlawful purpose in pursuit of which the guns were intentionally fired in the manner I have described by one, the other or both of them. Whether liable as sole principal, joint principals or as aiders, both defendants are liable for intentionally discharging both firearms at a place reckless as to the life or safety of another person and while reckless as to the life or safety of another person regardless of who actually pulled the trigger: R. v. Portillo, 2003 CanLII 5709 (ON CA) and R. v. Carter, 2015 ONCA 287.

[66] A verdict of guilty shall be entered in respect of Count 1 for both defendants.

Count 2 – Possess Restricted Firearm (Glock 48)

[67] It is admitted that the Glock 48 found in the rear seat of the white pick-up is a restricted firearm that neither defendant has a license authorizing him to possess. For the reasons set forth in relation to Count 1, I find that each defendant was in possession of the Glock 48 found in the white pick-up truck.

[68] A verdict of guilty shall be entered in respect of Count 2 for both defendants.

Count 3 - Possess Prohibited Firearm (Glock 43)

[69] It is admitted that the Glock 43 found in the rear seat area of the white pick-up is a prohibited firearm that neither defendant has a license authorizing him to possess. For the reasons set forth in relation to Count 1, I find that each defendant was in possession of the Glock 43 found in the white pick-up truck.

[70] A verdict of guilty shall be entered in respect of Count 3 for both defendants.

Count 4 – Possess Loaded Restricted Firearm (Glock 48)

[71] It is admitted that the Glock 48 found in the rear seat of the white pick-up is a restricted firearm that neither defendant has a license authorizing him to possess. It is also admitted that this handgun contained functioning ammunition. For the reasons set forth in relation to Count 1, I find that each defendant was in possession of the Glock 48 found in the white pick-up truck whether they possessed the gun directly or whether they had sufficient control of it as an occupant of the truck engaged in a joint enterprise involving the use of such gun.

[72] A verdict of guilty shall be entered in respect of Count 4 for both defendants.

Count 5 – Possess Loaded Prohibited Firearm (Glock 43)

[73] It is admitted that the Glock 43 found in the rear seat of the white pick-up is a prohibited firearm that neither defendant has a license authorizing him to possess. It is also admitted that this handgun contained functioning ammunition. For the reasons set forth in relation to Count 1, I find that each defendant was in possession of the Glock 43 found in the white pick-up truck whether they possessed the gun directly or whether they had sufficient control of it as an occupant of the truck engaged in a joint enterprise involving the use of such gun.

[74] A verdict of guilty shall be entered in respect of Count 5 for both defendants.

Count 6 – Possess motor vehicle over $5,000 knowing it is proceeds of indictable offence

[75] It is an admitted fact that the white pick-up truck had a value in excess of $5,000 ($40,000) and that it had been reported stolen on April 6, 2021. I have found that both defendants were in this stolen pick-up truck that night in possession of two loaded handguns that they had no right to possess and in pursuit of a common unlawful purpose to use those handguns both of which were in fact used. Has the Crown proved beyond reasonable doubt that they knew or were willfully blind to the fact that the vehicle was a stolen vehicle and thus obtained by means of an indictable offence?

[76] The evidence clearly demonstrates the lengths to which the defendants went to prevent any crime they might have committed that night being traced to them. They wore latex gloves, had multiple layers of clothing that they might remove quickly to alter their appearance and each possessed a black balaclava or ski mask that might further disguise their appearance.

[77] It would be logical and reasonable to infer in these circumstances that they would not knowingly have chosen to use a truck that they believed might easily be traced back to them through the license plate. It would be illogical and unreasonable to infer that having taken all the steps they did take to prevent police from connecting them to the vehicle or any crimes committed from it, that they should have selected a truck for their transport that could easily be traced to one of them even if it belonged to a friend or acquaintance who loaned it to them. There is not a shred of evidence before me to suggest a reasonable explanation for their presence in this stolen vehicle that night that is not consistent with guilt and reasonable doubt cannot be based on evidence-free speculation.

[78] A verdict of guilty shall be entered for Count 6 in respect of both defendants.

Disposition

[79] In conclusion, a verdict of guilty shall be entered for both defendants on all six counts before me.

___________________________ S.F. Dunphy J.

Released: June 21, 2024

[^1]: There is no evidence as to what layers if any were worn by the young person.

R. v. Pyne 2024 ONSC 3589

Case Summary