ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
C. Vandenbroek and S. Burdo, for the Crown
- and -
JESSE EHIOZOMWANGIE
K. Schofield and C. Szpulak, for the Accused
HEARD: July 24, 25, 26, 27, 2023 and January 18, 2024.
RULING
MIRZA J.
INTRODUCTION
1Mr. Ehiozomwangie is charged with 7 counts of firearm and drug offences in relation to an incident on December 9, 2020.
2The judge alone trial was conducted from July 24 to July 27, 2023 and January 18, 2024.
3It is not disputed that the incident centres around persons associated with two Mercedes vehicles that arrived at around 11:30 p.m. within a few minutes of each other, parked one right behind the other on Hatton Court, Brampton. The street is composed largely of row townhomes and is in the shape of an upside down “J” that turns to the right. The vehicles parked at the first bend, next to communal mailboxes.
4The first Mercedes that parked is the colour grey. The second Mercedes vehicle that parked a short distance behind is dark blue.
5Over the course of several minutes, persons associated with the vehicles had an interaction that culminated in a brazen shootout. The safety of the public and homeowners’ sense of security was violated during this shocking incident. Numerous shots were fired and pierced multiple vehicles in driveways. Fortunately no one was injured or killed.
6During the trial no evidence was led of prior police surveillance or investigation. However, residential security videos of varying duration, angles, and levels of quality captured aspects of the incident. Residents of the neighbourhood also testified about their observations from inside their homes.
7It is agreed that several shots were fired by two people: a person running and the driver of the dark blue Mercedes. Just before shots rang out, the driver of the dark blue Mercedes got back inside their vehicle and reversed in retreat. While being chased down the street by the person on foot firing shots , the driver crashed into a pole. The driver then fled the scene on foot and was not tried before this court.
8The Crown alleges that the shooter on foot is the accused. They also allege the accused possessed drugs for the purposes of trafficking, located in the trunk of the first parked vehicle. The central issues to be determined at trial was whether the Crown has met its burden of proof with respect to:
Identity; and
Possession of the firearms and drugs.
CHARGES
9In summary Mr. Ehiozomwangie pled not guilty to the charges of:
Possession of 0.65 grams of cocaine contrary to section 4(1) of the Controlled Drugs and Substances Act, (CDSA). (check amended information)
Possession for the purposes of trafficking 278.94 grams of cocaine located within a Mercedes vehicle, license plate CHMS463, contrary to Section 5(2) of the CDSA.
Possession of 8.13 grams of Fentanyl within Mercedes CHMS463, contrary to Section 5(2) of the CDSA.
Possession of a firearm, without being the holder of a licence under which he may possess it, contrary to Section 91(1) of the Criminal Code..
Without lawful excuse, use of a firearm in a careless manner, contrary to section 86(1) of the Criminal Code..
Possession of a weapon, to wit: a firearm, for committing an offence, contrary to Section 88(1) of the Criminal Code..
Intentional discharge of a firearm while being reckless as to the life or safety of a person, contrary to Section 244.2(1)(a)(b) of the Criminal Code.
10At the end of the trial, the Crown invited an acquittal on count 4. The Defence conceded guilt on count 1. Both concessions are accepted by the court.
FACTS
11An Agreed Statement of Facts (ASF) was filed. (It is attached as Appendix A.) The ASF will be referred to with the other exhibits as required.
CRIME SCENE
12Det. Cst. Patterson provided an overview of the investigation and evidence collected at the scene. He testified that at around 1 a.m. on December 10, 2020, he was dispatched to the area of Hatton Court and Dusk Drive in Brampton. This is a residential street. The photographs submitted depict row townhomes on both sides of the street.
13Det. Cst. Patterson worked in the Forensic Identification Unit of the Peel Regional Police (PRP). He attended the scene with two other officers to take notes. Cst. Scarchilli placed exhibit markers. Cst. George took photographs.
14This area became a crime scene because several gun shots were fired by two people on Hatton Court on December 9, 2020, between 11:30 p.m. and 11:45 p.m. The shooters came in two different vehicles.
15The shooters came in two different vehicles.It was agreed by the Crown and Defence that ammunition was located but no firearms.
16Peel Police Forensic Identification located four 9mm Luger cartridge cases; two 40 Smith & Wesson cartridge cases and one copper jacket which constitute prohibited ammunition.
17The bullet and copper jacket (cover for the bullet) project from the barrel of a firearm when fired. The casing is ejected from the firearm (usually to the right and a few feet) when fired.
18There were two Mercedes vehicles involved in the incident.
19A grey 2015 Mercedes, model GL250, was parked north of 20 Hatton Court on the road, facing north. Its license plate identification is CHMS 463. On the video it appears to be relatively lighter grey in colour. It was later searched pursuant to a search warrant. I will refer to this vehicle by its plate to reduce confusion.
20When police arrived on scene, vehicle CHMS 463, had all doors closed and locked.
21On the video footage, after shots are fired, the shooter on foot can be seen returning to vehicle CHMS 463 and then the vehicle’s rear lights blink repeatedly.
22On December 9, 2020, the accused was arrested a short time after the incident not far from the scene. A key fob for vehicle, CHMS 463, was located inside of Mr. Ehiozomwangie’s jacket during a search incident to arrest. The police transported the key fob to Hatton Court and Dusk Drive later that evening.
23The key fob unlocked vehicle CHMS 463, that was located on scene.
24During the execution of the search of the vehicle, Cst. Mocco photographed the vehicle interior contents.
25From the centre console of this vehicle, the following items were identified and seized:
Mr. Ehiozomwangie’s driver’s license, expiry June 15, 2020. Exhibit 5.
A rental car receipt from Platinum Car and Rental in the name of Mr. Ehiozomwangie, for a Hyundai vehicle. Dated, October 24, 2020. Exhibit 6.
Mr. Ehiozomwangie’s TD Visa Debit Card. Exhibit 7.
A Petro points card. (Name absent). Photographed. Exhibit 11.
Drugs, Cash and Cellphones Seized:
26During the search incident to arrest, of Ehiozomwangie the arresting officer, Cst. Chohan located 0.65 grams of the cocaine in the accused’s jacket pocket.
27In addition to the cocaine, the accused had two cellphones in his possession.
28The accused had cash enclosed in a rubber band in the amount of $1895 in various denominations.
29During the search of the Mercedes, CHMS 463, police located and seized drugs from the trunk inside a backpack.
30Inside the backpack was an additional plastic bag. Inside that plastic bag, was a smaller opaque bag, which contained 15 small clear bags of white powder.
31Pursuant to the ASF, the parties agreed to the following.
32278.94 grams of cocaine were seized. PRP drug expert, Det. Cst. Erik Grant assessed the approximate value of the cocaine to range from $16,936 to $33,473 depending on how it is sold. This assessment was based on the approximate prices of cocaine in Ontario in 2020.
338.13 grams of fentanyl were seized. Det. Cst. Grant assessed the approximate value of 8.13 grams of fentanyl to range from $1,463.40 to $3,252.00 depending on how it is sold. This assessment was based on the approximate prices of fentanyl in Ontario in 2020.
34Further, it was conceded that the quantum of each drug seized exceeds the amount that would be possessed by a single person for personal use.
Mixing Agents:
35There were also mixing agents for the drugs seized in two different locations.
36First, 25.13 grams of phenacetin was found on the accused’s person .
37Second, 363.97 grams of phenacetin was found in the bag seized from the truck of CHMS 463.
38Det. Cst. Grant said that phenacetin is one of the most common “cutting agents” found mixed with cocaine. Cutting agents are inexpensive substances that drug traffickers will add to their product in order to “stretch” the substance further to increase profits.
39Caffeine in the amount of 890.99 grams was also found in the vehicle, CHMS 463. The drug expert said caffeine is mixed with fentanyl due to the relatively high strength of fentanyl.
40The second Mercedes vehicle, dark blue in colour, plate identification CPZV 954, parked at the scene behind vehicle CHMS 463. CPZV954 was associated with the second person at the scene that eventually drove rapidly in reverse, then crashed and fled. There was damage to the vehicle’s front and rear and trunk. A light standard was damaged, and a stop sign knocked over.
41The police searched vehicle CPZV 954. Inside the vehicle was a spent .40 caliber Smith and Wesson, with Hornady brand cartridge casing.
42In addition, key chain was located. A prescription bottle with the name Jamal Lewis was located and seized.
43Overall, bullet casings were retrieved from two different firearms.
44Based on photographs by Det. Cst. Patterson explained markers in yellow that pointed out four, 9 mm. cartridge casings located on scene.
45Markers in blue highlighted two .40 Smith and Wesson casings.
46A copper jacket was located next to a sewer beside the curb on the northwest side of Hatton Court and Dusk Drive.
47The shots fired caused damage to three vehicles parked at different homes on Hatton Court.
48A Toyota 4 Runner parked on Dusk Drive had the rear window shot out. A bullet pierced a hole in the rear passenger head rest. A copper jacket was recovered. Pieces of a copper jacket were found inside the rear driver’s side.
49Two different Hyundai Santa Fe vehicles were damaged. One Santa Fe was parked at 18 Hatton Court. There was a bullet hole at the bottom of the rear driver’s side door. A copper jacket was recovered inside.
50A second Santa Fe vehicle was parked at 20 Hatton Court. This vehicle had a bullet hole on the rear passenger door near the door handle. A copper jacket fragment was recovered from inside the door.
Video and Photograph Evidence:
51The Crown played various videos collected from different residences that provide some evidence of the incident from different angles. The video-clips were obtained from the homes at 2 Hatton Court, 7 Hatton Court and 29 Dusk Drive.
52I will review their contents since they are from different angles, vantage points and timelines. Before doing so, I will make a few general observations. The videos have significant limitations with respect to identification. Identity cannot be ascertained based on the video clips alone. With some exceptions that I will discuss later, people are seen from a distance and at angles that make it hard to see them. They often appear as shadow figures.
53However, the clips provide relevant evidence of the incident, circumstances, and conduct of people.
54None of the clips are in colour. During submissions, I was informed by the Crown that they are all in grey scale. No evidence was called about the video technology, colour scale or variables that impact colour or shading.
55A live issue is whether there was only one person associated with each vehicle, especially CHMS 463, or if there were another person present at the scene.
56The following is an overview of the different video contents.
57After both vehicles are parked, the driver of vehicle CPZV 954 exits this vehicle first and goes towards the passenger side.
58Later, the driver of CHMS 463 exits this vehicle and runs to the left towards houses, and off screen. This person’s exact location is not visible.
59The individual that exited vehicle CPZV 954 remains in the immediate area of the two cars and walks in between them. Then this individual walks to the passenger side of vehicle CHMS463. This is close to the communal mailboxes.
60This person then returns to their vehicle, CPZV 954. To do so, they walk between the two cars and then enter the driver’s side. Once inside the driver’s seat the person rapidly reverses.
61A person comes from the left side of the screen on foot , shots are fired. The person on foot is shooting at the driver of CPZV 954. It appears the driver of CPZV 954 is also firing shots. The driver then crashes into the pole, and this vehicle comes to a rest. The shooting stops.
62The driver of CPZV 954 exits their damaged vehicle. The driver quickly goes in front of their car, looks at an item on the ground, leaves it, and then flees on foot.
63The shooter on foot turns around, goes to vehicle CHMS 463, and opens the driver side door. The rear lights of this vehicle flash when this person leaves. They flash four times on two occasions within 10 seconds. The person jogs out of sight, likely around the bend.
64Based on the bullet casings recovered, two firearms were discharged.
65The videos were submitted in folders associated with addresses and have digital labels. They were submitted without explanation of the speed with which they were taken or operated. I observed some discrepancies between the same relevant movements and timing in the videos. However, this does not ultimately impact their content described below.
2 HATTON COURT VIDEO FOLDER
IMG 7988. MP4
66The video from 2 Hatton Court, labelled as IMG 7988, is approximately 8 minutes long. It is from an angle at the top of Hatton Court. This is a significant distance from the people of interest. The persons are hard to see and are essentially shadows. The clip depicts the following relevant events:
00:13: Mercedes CHMS 463 parks on Hatton Court beside the communal mailboxes near the first bend.
03:46: Mercedes CPZV 954 arrives and drives down Hatton Court.
03:54: CPZV 954 parks behind CHMS 463. The vehicle lights for CPZV 954 are still on.
o The occupant(s) of each vehicle are not visible as they pull in and park. It cannot be determined if there is more than one person in the vehicles.
03:58: The driver of CPZV 954 exists and is moving around the vehicles.
04:07: The driver of CPZV 954 walks around the front of this car in between the two vehicles.
06:09: The front driver’s side door to CHMS 463 opens. An individual exits the front driver door and runs left of the vehicle, off screen. (see also IMG 7989 at 0:15).
06:19: The person from CPZV 954 is still moving around both vehicles.
o (see also IMG 7989 at 0:26).
06:21: This person opens the driver’s side door to CPZV 954.
06:28: This person walks around the back of CPZV 954 and appears to be standing on the passenger side towards the front of the vehicle.
06:45: This person walks towards the passenger side of vehicle CHMS 463.
07:05: A person walks behind CPZV 954 towards the driver side door.
07:13: The rear lights to CHMS 463 appear to turn off.
07:19: The person at CPZV 954, gets into the driver’s seat.
o (see also IMG 7989 at 1:26)
- 07:24: CPZV 954 rear lights become more prominent. Then the vehicle reverses rapidly
o (see also IMG 7989 at 1:30)
- 0:7:25: A first flash/flicker of light (distinct from vehicle lights) is visible.
o This is consistent with gun fire. It is not clear which direction the shot comes from. It may have come from CPZV 954.
- 07:27: An individual can be seen running at the driver of CPZV 954, and firing.
o I will refer to this person as the shooter on foot.
- 07:28: Two flashes of light are observed.
o (see also IMG 7989 at 1:33)
- 07:32: The shooter on foot runs back to CHMS 463 The vehicle lights are off.
o (see also IMG 7989 at 01:38).
07:48: CHMS 463 rear lights flash four times.
07:53: A person runs off to the right in front of CHMS 463, out of sight.
o (see also IMG 7989 at 01:58)
- 07:55: CHMS 463 lights flash four more times.
o (see also IMG 7989 at 2:01)
08:00: After the crash, the person driving CPZV 954 gets out of vehicle, walks on Hatton Court, picks up bag or debris in the street and then puts it back down.
08:04: This person runs off Hatton Court down Dusk Drive. Their face is not visible. The jacket of the driver of vehicle CPZV 954 is dark.
IMG. 7989. MP4
67This video clip is from the house next to 2 Hatton. It is 4 minutes and 12 seconds. It is taken from an angle at the top of Hatton Court:
00:15: An individual exits the driver door of CHMS 463, runs to the left of the vehicle, and away from both vehicles.
00:26: A person is moving around CPZV 954 and CHMS 463.
01:26: A person gets into the driver’s seat of CPZV 954.
01:30: The driver of CPZV 954 reverses rapidly.
01:33: There is an initial flash of light.
o The flash is consistent with gun fire.
o An individual, comes from the left, running at Mercedes CPZV 954, there are a few more flashes of light.
o The flashes are consistent with gun fire.
o 3 flashes/shots in total are observed.
01:38: The individual on foot turns around and runs back to CHMS 463.
01:54: After the individual leave CHMS 463, rear vehicle lights flash four times.
01:58: The individual then runs to the right of the vehicle, out of sight.
2:01: The rear lights of CHMS 463 flash four more times.
2:55: A person (not alleged to be a suspect) jogs towards the vehicle CPZV 954.
IMG_7996.MP4
68This video is 2:58 second in duration. The angle is from where Dusk Drive meets the top of Hatton Court. The clip captures the point CPZV 954 hitting the pole.
00:37: The Mercedes CPZV954 crashes into the pole.
00:46: The driver of CPZV954 exits driver’s side.
01:01: The individual makes a move to go down Dusk Drive, then quickly turns around and comes back to CPZV954, goes to the vehicle and then in front of it.
01:11: The person runs down Dusk Drive.
7 HATTON COURT VIDEO FOLDER
69This series of sequential clips is from a relatively closer angle . The vehicles are parked in top left corner. CPZV 463 is visible. The view of CHMS 463 is largely obscured.
1. DV804_ch2_main_202012092333513_202012092338606
70This video starts around 11:35 to 11:36 and 6 seconds, about 52 seconds.
- Vehicle CHMS 463 parks on Hatton Court. For the first 10 seconds the vehicle’s rear lights are on.
2. DV804_ch2_main_202012092333606_202012092338857
71This video time marker is from 11:36:06-11:38:57. It is about 2 minutes 51 seconds.
Vehicle CHMS 463 parked. No apparent movement that is seen outside the car.
Rear lights are on.
3. DV804_ch2_main_202012092333857_202012092338947
72This video time marker is from 11:38:37-11:39:47. The run time 49 seconds.
Vehicle CPZV 954 up and parks directly behind CHMS 463.
At approximately 8 seconds, an individual immediately exits from the driver side of CPZV 954 and walks between the parked vehicles. The person walks in the direction of the passenger side of CHMS 463.
4. DV804_ch2_main_202012092333947_20201209234146
73The video time marker is from 11:39:47-11:41:46. It is 1 minute 59 seconds.
01:31: An individual exits CHMS 463 and appears to run to the left.
01:41:/11:41:30: the person associated with vehicle CPZV 954, walks back between the cars, and appears to access driver side door. Then the person walks around the back of the vehicle to the passenger side of the vehicles .
5. DV804_ch2_main_20201209234146_202012092338348
74The video time marker is from 11:41:46-11:43:48. The run time is 2 minutes 1 second.
The driver of CPZV 954 is out of the car and hangs around passenger side of CHMS 463. The person moves out of view toward the passenger side of CHMS 463.
00:19: / 11:42:05: A person is in view from the direction of passenger side of CHMS463 and is moving toward passenger side of CPZV 954.
00:21/ 11:42:08: A person appears to access the passenger side door of CPZV954 and then moves around the back of the car to return to the driver side.
00:44/11:42:30: A person appears to go in the driver’s seat, lights activate and CPZV 954 reverses.
00:52/ 11:42:39: A different individual’s legs are visible, then their body. The person is running south down Hatton, and then runs back to CHMS 463.
This individual’s clothes appear to be track pants and hooded top or jacket. The hood is down. The bottom of the jacket is a little below waist length.
o Their clothing appears to be a lighter tone of grey. Their top or jacket appears possibly lighter shade than their pants.
o The tone of the clothing is contrasted with dark pavement and dark and light-coloured vehicles. Also, the hair of the person appears darker than the clothing they are wearing.
01:04/11:42:50: The individual on foot appears to access Mercedes CHMS 463. The vehicles lights do not turn on or activate. The individual runs. At 1:14/11:42:58: There are 4 flashes of taillights. This coincides with the individual leaving.
01:19/11:43:07: The taillights activate and flash 4 times again.
VIDEOS FROM 29 DUSK DRIVE
1. Video.mov
75This clip is from the top of Hatton Court, where it meets with Dusk Drive. It captures the crash aftermath. It runs for 3 minutes and 15 seconds. It starts at 23:41:40 and the visible portion ends at 23:44:45.
01:50: Lights engage in the distance, and CPZV 954 begins to back up toward the camera.
02:00: CPZV 954 crashes. An individual is running away in the distance.
02:11: The driver gets out of CPZV 954, goes back in, then runs down dusk off screen. In the distance, there are two sets of taillights flashing on CHMS463.
02:26: The driver runs back to CPZV 954. The person seems to either access or look in the car, then run to the front of the car, bend down to examine an object, then and run off screen down Dusk again.
2. VIDEO-2020-12-10-02-01-54.mp4
76This clip has audio. It is 32 seconds in duration. The clip runs from 23:43:48 to 23:43:53.
An initial comment can be heard to the effect of “Yo, my ni**a” (n-word). I00:05: Post crash, a person stands at driver’s door of CPZV 954.
00:07: This person leaves and runs from CPZV 954.
00:09: The person briefly returns back to CPZV 954.
00:16: The person runs in front of the vehicle to examine an object on the ground.
00:20: The person runs off screen down Dusk Drive.
3. VIDEO-2020-12-10-02-02-38.mp4 (Audio and Video)
77This clip has audio. It is 36 seconds in duration. 23:43:04 to 23:43:40
- 0.00.02/ 23:43:06 to 0.00.22/ 23:46:26, a voice (or voices) can be heard before shots ring out, repeatedly, shouting “people are watching…” This is said about four to five times.
o This phrase is followed by other inaudible words.
o There may be a second voice. However, the words spoken are not decipherable.
00:23: Mercedes CPZV 954 begins to reverse down Hatton Court.
00:26: About 6 to 7 loud bangs consistent with gunshots are heard.
o One of the bangs may have been the vehicle crashing.
00:28: The rear window of Toyota 4 Runner is shattered by a gunshot.
00:33: CPZV954 collides with a pole and garbage can.
CIVILIAN WITNESSES
78Four civilian witnesses testified.
Ms. Parul Ghotra
79Ms. Ghotra testified that she was living on Dusk Drive on December 9, 2020. The home had surveillance video. She believed that the videos had the correct date and time stamps.
80She had a basement tenant, whose Toyota 4 Runner SUV vehicle was damaged during the incident. The rear window was shattered.
81She was in bed upstairs, not yet asleep, when she heard two loud bangs.
82Ms. Ghotra and her daughter came downstairs. Their dog was sleeping downstairs and they thought something had happened to him. She looked outside, opened the door, and turned on the light. From the garage door window, she saw a person running back and forth on the sidewalk. She thought it was a male probably in his twenties.
83He was wearing a black hoodie. He was running towards Elm Crest Street.
84She was not cross-examined.
Gupreet Sembhi
85Ms. Sembhi testified that she lived on Hatton Court on December 9, 2020.
86Shortly before the incident, she was watching and listening to her phone, without earphones, upstairs in her bedroom.
87In examination in chief, she stated that the incident was three years ago, and she did not have a good recollection. The Crown was granted permission to refresh her memory by reviewing her written statement to the police, with no issue taken by the Defence.
88She initially testified that the incident was around 10 or 11 p.m.. After she reviewed her statement, she agreed that it was between 11:30 and 11:40 p.m..
89She testified that she heard someone say words to the effect of, “Don’t do it; Everyone’s watching.” She heard yelling from one person. It was night and otherwise quiet.
90In cross-examination she agreed with the suggestion that she heard words along the lines of, “Everybody’s looking; everybody’s watching – just go, just go.” She said it was not a precise recollection of the words but as close as she recalled.
91She did not know who made the statement.
92In cross-examination, she agreed with suggestions that, from her perspective, it sounded like an argument. Someone was effectively saying to the shooter, or the person being shot at, “Let’s just get out of here.”
93She accepted the suggestion that to her this meant the person speaking was trying to tell someone else to not do it; essentially, saying let’s get out of here and not get involved.
94That’s when she looked and saw two people. She accepted the possibility that there may have been others present that she did not see. She accepted that from her perception, it was possible that one person was saying to their associate, let’s get out of here.
95She did not have sight of the people speaking.
96Out of concern, she looked outside. Her vantage point was from upstairs, looking from the back side of her home. Her room does not face the street.
97She saw a guy running and shooting. He had a lean build. It happened quickly and she was unable to get a good look at him. She was unable to describe his physical characteristics or attributes. She did not see anyone’s face.
98She said that the shooter was wearing a hoodie. She did not see the other person, reversing in the vehicle. However, she surmised that there were two people.
99Her memory about the individual she saw was strained because it happened quickly, she was observing the whole scene, and not focused on a particular individual.
100The person she observed ran to the parked car, and then towards the fence, which cut off her view.
101She testified initially that she heard between a minimum of two and a maximum of five shots fired. After refreshing her memory based on her written statement to the police , she agreed it was about four shots.
102She perceived that the person with the “lean build” firing the gun was deliberately not shooting directly at the other person. She thought that the person was too close to miss. She thought the shooter on foot was trying to scare the other person fleeing. In her view, if the shooter on foot wanted to in fact shoot the other person, given the close proximity, they could have. She did not know if the person fleeing returned fire.
103She saw a vehicle reversing. Then that vehicle banged into something. She was not able to see but heard the bang. She did not keep looking.
Ashley John
104Ms. John testified that she lived on Hatton Court on December 9, 2020.
105That night she was in bed sleeping.
106Before midnight she observed someone running down the street towards the Church.
107She heard cracking noises that sounded like multiple gunshots. She said it was more than three.
108She did not hear an argument or what preceded the shots being fired.
109She saw a person running down the street away from Dusk towards the Church. The person stopped at a car parked near the community mailboxes.
110She could not recall the make and model of the car, but it was dark in colour.
111The person went to the car, appeared to try to get in or out, and the lights flickered.
112The person kept running down the street towards St. Jeromes Church. There is a fence that runs along the first bend of Hatton Court, separating the property line of the homes and Church. She said that due to the fence a person cannot get directly into the Church parking lot, which comes before the building.
113She expected the person to round the corner and then return when they saw the fence, but the person did not return.
114She described the person as average height and build, wearing dark clothes. She could not tell if the person was male or female. However, when she reviewed her statement to the police reduced to writing, she agreed she told the police the person was a male and the hood was not up.
115In cross-examination, she acknowledged that she told the police she saw the person from the back. She said she was confident the person was wearing a hoodie or something, but it was not up and so she cannot be certain.
116After, she noticed that a different vehicle was involved in an accident.
Przemyslaw Sliwa
117Mr. Sliwa lived on Hatton Court, towards the end of court. If one was looking from Dusk Drive, his home is on the left side.
118Around 11:40 p.m., he heard about six loud bangs. He went to the window. He saw an individual running towards the Church. Then he lost sight of the person.
119He did not hear any arguments or what preceded the gun fire.
120He described the person that was running as about 5’11, and medium build.
121He also said that if a person was heading towards the Church, they would encounter a fence first. He can see the Church from his home.
122In cross-examination he said the person ran and jumped the fence and then he lost sight of him.
123He was wearing a Black jacket with the hood up.
Cst. Chohan and The Arrest of the Accused
124Cst. Chohan arrested Mr. Ehiozomwangie on December 9
125He was dispatched at 11:47 p.m. The dispatch call advised of a male driver running from the scene, going westbound on Dusk Drive, with a hood over their head. A vehicle had struck a lamp post. Witnesses heard possible gun shots, not confirmed.
126Cst. Chohan was directed to set up a perimeter. While in his cruiser he took a right on Chinguacousy Road, going north bound.
127At around 11:52 p.m., he saw a male with a winter black jacket. He could not see his face.
128He said in cross-examination that his hoodie was up over the persons head when he first saw the person. When he arrested the person, he could not recall the positioning of the hood.
129The accused was wearing navy blue sweatpants. He saw that there was writing on the top left leg. Cst. Chohan did not describe the writing further.
130Cst. Chohan saw the accused go from the east side of Chinguacousy Road to the west side. He was on the opposite side of Chinguacousy Road from the shooting location. He saw the accused running west at a fast-paced jog. The side the accused was crossing from was flanked by a park with a baseball diamond. He did not specifically see where the accused was coming from prior to that time.
131Cst. Chohan drove past the person, pulled a U-turn, and parked his car. He approached the male walking on the sidewalk, on the west side of Chinguacousy. The male was going northbound on the sidewalk. Cst. Chohan approached him and asked him why he was crossing the road. He then arrested the accused for failure to remain.
132He stated that the accused was sweating profusely. The temperature was about 2 degrees Celsius. He estimated that it was about a five-minute walk from Dusk and Hatton to the location of the arrest. In cross-examination, he admitted that he was estimating. He had not verified this estimate or mapped the distance. The walk could have taken longer, in the range of 7-8 minutes.
133He immediately handcuffed the accused. He searched his neck and waist area.
134Cst. Chohan stated that he could not recall the specific jacket pocket, right or left, but he located in an outer pocket a Mercedes key fob.
135In another pocket he located a single clear bag with a white rock-like substance and a white powder substance.
136He also located cash tied in a rubber band. The quantity of cash was later counted to be $1895. There were bill denominations of 5s, 20s, 50s, and 100s.
137Cst. Chohan seized two cell phones. One was a Blackberry. The other he described as a smartphone. He did not recall if one of the phones was in the accused’s hand or pocket. The accused had a driver’s license in his hand with one of the phones. He did not recall which phone was in his hand.
138Cst. Chohan was on scene from 11:52 to 12:25 a.m. He did not see anyone else.
139He was the only officer to deal directly with Mr. Ehiozomwangie during the arrest. He gave the items seized to Cst. Minh.
140Cst. Chohan transported Mr. Ehiozomwangie to 22 Division. He said the accused was wearing his jacket during transport.
141They arrived at the police station at 12:32 a.m. During booking, Mr. Ehiozomwangie’s property was logged, and the cash counted.
142In cross-examination, Cst. Chohan said that he did not recall what happened to the accused’s jacket and whether he continued to wear it. He had no recollection if anyone handled the jacket at the station. Cst. Chohan acknowledged that it was possible that Mr. Ehiozomwangie continued to wear the jacket while placed in the cells. He said that usually heavier clothing is logged and put in a locker, but he did not recall in this instance.
143With respect to the topic of potential gunshot residue (GSR) transfer, Cst. Chohan stated that he last did his firearm requalification on September 18, 2020. He believed he cleaned his firearm that day.
144He acknowledged that he had to handle Mr. Ehiozomwangie during the arrest, handcuffing him, putting him into the cruiser and placing him in the cells.
145Cst. Chohan said he was not wearing gloves during the arrest. He said that there was no time to do so.
146Cst. Chohan said that it did not enter his mind to attempt to preserve the accused’s hands, face, or clothes for GSR testing later. He was aware that the investigation related to possible shots fired but he was not instructed by any other officer to take additional steps.
147During the arrest, when he handcuffed Mr. Ehiozomwangie, he agreed that he could have touched the accused’s back to assist with control and balance. He acknowledged that on arrest, he may touch the person’s shoulder and back to assist and so that they don’t fall while their hands are behind their back. He said that Mr. Ehiozomwangie was cooperative.
148When removing the accused from the cruiser to go into the station, he assisted him to get out of the car. He agreed he may have placed his hands on his back.
149The officer said that he does not have a set police car. He is assigned on the day of work. He does not know who used the car before, when the last arrest was or what for if he was not involved.
150Cst. Chohan testified that there are no set number of times the cruiser is cleaned. Sometimes he is directed by his bosses to clean the vehicle but there is no regimen. He did not recall if the cruiser he was using had been cleaned. He could not assist further with the frequency with which the cruiser he operated is cleaned.
151He believed that there was someone being paraded before he arrived, causing him to wait.
GSR Collection
152It was an agreed fact that after Mr. Ehiozomwangie was arrested by Cst. Chohan on December 9, 2020, he was taken back to the cells area of the police division. His jacket was seized by Cst. Wilde #4272. This officer wore either his hatch gloves or new blue latex gloves. He has never fired his gun in the vicinity of his hatch gloves.
153At 2:21 a.m. on December 10, 2020, Det. Cst. Patterson was directed to conduct the taking of samples to detect GSR while the accused was in custody. Cst. Patterson attended an interview room where Mr. Ehiozomwangie was being held to take the sample between 2:21 and 3:20 a.m., and then returned to his desk.
154Prior to being placed in the interview room, it was Det. Cst. Patterson’s understanding that Mr. Ehiozomwangie was in the cells. He did not know if he was with anyone else in the cells.
155While the accused was in the interview room, Det. Cst. officer Patterson took samples using four dabbers from the test kit. The dabbers were applied to the top of the accused right and left hands, around the index finger and thumb web area, and the bottom, around the palm area. He also dabbed his facial cheeks. He did not recall what the accused was wearing.
156The dabbers were sealed in plastic containers and put back into the total packaging.
157After the taking of skin samples, Det. Cst. Patterson went to deal with the accused’s jacket. In cross-examination, he acknowledged that is a potential source of contamination. He did not know which officers had contact with the accused previously. Det. Cst. Patterson said that he did not have his firearm with him.
158He believed that he took the jacket from a bag, and put it into another bag, and sealed it for a Centre for Forensic Sciences (CFS) submission. He did not recall if it was originally in a paper or plastic bag. He did not know what happened to the jacket prior to taking possession. He said that he did not want to contaminate the jacket, so he did not test it.
159He did not take GSR samples from Mr. Ehiozomwangie’s jacket. He received the jacket from the officer with badge number 4272. He did not recall the officer’s name. He did not know when the accused’s jacket was taken from him. He did not know if it was placed on any surface at the police station. The booking video was no longer available.
160He did not put in his notes the specific time he went to the cells. He believes the jacket was processed between 2:22 and 3:15 a.m.
Andrew Wolfe, Centre Forensic Sciences (CFS)
161Andrew Wolfe, forensic scientist in chemistry at the CFS, testified.
162He stated that a single (1) GSR particle was identified by the CFS on the back of the accused’s jacket.
163No GSR particles were recovered from the samples taken from the accused’s face or hands.
164The technical tool used to detect GSR was Scanning Electron Microscopy – Energy Dispersive X-ray Spectroscopy (SEM-EDX).
165Mr. Wolfe’s evidence is that finding a GSR particle on a person is not proof that they discharged a firearm. The presence of GSR particles may be the result of activities such as discharging a firearm, being in proximity to a firearm during discharge, handling a firearm or a fired cartridge case, or contact with another surface bearing GSR. The number of GSR particles does not establish which activity deposited them.
THE LAW
Reasonable Doubt, Presumption of Innocence, and Circumstantial Evidence
166An accused person is presumed innocent. The presumption of innocence stays with the accused throughout the trial and is only displaced if the court is satisfied that the Crown prosecutors have proven the charges beyond a reasonable doubt. The Crown has the sole obligation or burden of proving each charge. The burden of proof rests with the prosecutor and does not shift to the accused. The Defendant has no obligation to prove anything or to call evidence.
167Proof beyond a reasonable doubt is a high legal standard. The requirement of proof beyond a reasonable doubt describes the degree of persuasion by the Crown that is required for a judge to find an accused guilty.
168While proof to an absolute certainty is not the standard the Crown must satisfy, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.
169A reasonable doubt is “logically connected to the evidence or absence of evidence”: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 36. It is not a doubt based upon sympathy or prejudice. It is not imaginary or frivolous.
170The question of whether there exists a reasonable doubt concerning a person’s guilt is to be assessed on the totality of the evidence, not simply on the proven facts.
171The Defence does not have a burden of having to establish facts from which such an inference may be drawn. Requiring proven facts to support explanations other than guilt, wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all the evidence.
172Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial: see, e.g. Schuldt v. The Queen, 1985 20 (SCC), [1985] 2 S.C.R. 592, at pp. 600-610. It is logically derived from the evidence or absence of evidence. It is a doubt based on reason and common sense. R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 28.
173In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28; Villaroman, at para. 35.
174Reasonable doubt is to be considered based on all of the evidence and the absence of evidence, assessed logically, and in the light of human experience, reason, and common sense.
175A certain gap in the evidence or lack of evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
176With respect to circumstantial evidence, in order to convict, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference or reasonable inference that can be drawn from the circumstantial evidence is that the accused is guilty. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond the reasonable doubt standard. Villaroman, at para. 20.
177To justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative. This explains the line between plausible theories and speculation. A reasonable doubt, or theoretical alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence: Villaroman, at paras. 36 and 41.
178When assessing circumstantial evidence, the Court must consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown thus may need to negative these reasonable possibilities, but certainly does not need to disprove every possible conjecture which might be consistent with innocence.
179The analysis is focused on reasonable inferences inconsistent with guilt. When the court considers all of the evidence and the application of the only reasonable inference criterion, this does not mean that guilt must be the only possible or conceivable inference: R. v. Vernelus, 2022 SCC 53, 480 D.L.R. (4th) 619, at para.5.
180Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, and not on speculation: Villaroman, at paras. 36-37.
181The court considers the cumulative effect of all the evidence and whether the totality satisfies the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are to be examined in relation to the others, as a whole, and not separately or in isolation. It may be that items of evidence adduced by the Crown, examined separately, do not have strong probative value. However, all the evidence taken together may constitute a proper basis for a conviction: Cote v. The King (1941), 1941 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76; R. v. Uhrig, 2012 ONCA 470, at para. 13.
Assessing Credibility and Reliability
182The determination of whether a witness is telling the truth is fact and case-specific. There is no formula. Similar to the principles that ground the reasonable doubt standard, the witness’ evidence is evaluated by using a common-sense approach that is not tainted by myth, stereotype, sympathy, or assumption.
183Arriving at a verdict requires that I determine the credibility and reliability of the witnesses. In this case, the reliability of each witness is the central focus. Still, when appropriate, I have to decide whether the witnesses told the truth and if so, whether their evidence can be relied upon as accurate.
184Credibility relates to the honesty of the witness’ testimony. There are many factors that may be relevant in determining credibility. Some of the key factors include whether the witness’ evidence is internally consistent; whether their evidence is externally consistent with evidence from other witnesses or exhibits; whether inconsistencies in the evidence are about important or minor matters; what explanations are given for any inconsistencies; and whether the inconsistencies suggest that the witness is lying or not truthful, even in parts of their evidence.
185Reliability relates to the accuracy of the witness’ testimony which engages a consideration of the witness’ ability to accurately observe, recall and recount an event: R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41.
186There may be circumstances where a witness credibly recounts an observation or occurrence. However, that evidence may lack reliability. This may be for several reasons, including the conditions under which the witness made the observation as well as the impact of information received by the witness after an event. A witness whose evidence about some factual matter is not credible cannot be relied on to establish that fact. However, the converse is not automatically true as credibility is not a proxy for reliability. A credible witness may, nonetheless, give unreliable evidence: see R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) , at p. 526. A witness may genuinely believe something happened, but their recollection or observations are not accurate and therefore not reliable.
187I can accept some, none, or all of any witness’ evidence. I may find that even though I find the evidence of a Crown witness convincing on some points over the evidence favourable to the accused, I am still left with a reasonable doubt.
188It is not necessary that I believe the evidence that supports the Defence on a vital issue; rather, it is sufficient if viewed in the context of all of the evidence, the conflicting evidence leaves me in a state of reasonable doubt as to the accused’s guilt: R. v. Challice, 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.); Morin, at paras. 28, 42.
189In this case, the Defence did not call evidence. However, the analysis applies not only to instances where the Defence calls exculpatory evidence, but also to exculpatory evidence that is found within the Crown’s case. R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114.
190Consistent with the first two steps of the R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521 [W.(D.)] analysis, the evidence favourable to the accused must be considered in the context of the evidence as a whole.
191To be clear, the assessment is not simply whether the evidence favourable to the Defence, standing alone and without context, is believed or leaves a reasonable doubt: see R. v. Carriere (2001), 2001 8609 (ON CA), 159 C.C.C. (3d) 51 (Ont.C.A.), at para. 51; R. v. Hull, 2006 26572 (ONCA); R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.).
192The second step of the W.(D.) analysis restates the crucial point that credibility assessments in a criminal case are not dichotomous. In other words, there is a third alternative between complete acceptance and complete rejection of evidence favourable to the Defence: R. v. Edwards, 2012 ONSC 3373, 93 C.R. (6th) 387, at para. 20; R. v. J.M., 2018 ONSC 344 at paras. 9-20.
Law of Possession
193In R. v. Lights, 2020 ONCA 128, at paras. 44 to 52, Justice Watt speaking for the Court of Appeal provided a helpful summary of central features of the law of possession. Below, I repeat the relevant parts.
194Section 4(3) of the Criminal Code, R.S.C., 1985, c. C-46 defines possession to include:
Personal possession;
Constructive possession; and
Joint possession.
195Knowledge and control are essential elements common to both personal possession and constructive possession: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15.
196When personal possession is alleged, the knowledge element consists of two components. An accused must be aware that they have physical custody of the prohibited item alleged, and they must be aware of what that prohibited item is: Morelli, at para. 16.
197These elements of knowledge must co-exist with an act of control: Morelli, at para. 16; see also, R. v. Beaver, 1957 14 (SCC), [1957] S.C.R. 531, at pp. 541-42.
198When personal possession is not alleged or cannot be established on the evidence, the Crown may rely on constructive possession to prove its case.
199Constructive possession is established when an accused does not have physical custody of the item but has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3)(a)(ii).
200Constructive possession is complete where an accused:
(i) Has knowledge of the character of the object;
(ii) Knowingly puts or keeps the object in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and
(iii) Intends to have the object in the place for the use or benefit of the accused or of another person. Morelli, at para. 17
201In many cases, the evidence relied upon to prove constructive possession is wholly or substantially circumstantial.
202When items are found in a premises or place occupied by an accused, no presumption of knowledge and control arises simply from proof of occupancy.
203Occupancy does not create a presumption of possession: R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at para. 3.
204However, in some instances, occupancy of premises or a place, more particularly, the authority to control access to them, may support an inference of control over drugs found there when coupled with evidence of knowledge: R. v. Chambers (1985), 1985 169 (ON CA), 20 C.C.C. (3d) 440 (C.A.), at pp. 446-48; see also, R. v. Pham (2005), 2005 44671 (ON CA), 77 O.R. (3d) 401, at paras. 25-29.
205Knowledge includes not only actual knowledge but also wilful blindness. In R. v. Tyrell, 2014 ONCA 617, 123 O.R. (3d) 109, the Ontario Court of Appeal wrote at para. 30: "Proof of knowledge, or of its close cousin, wilful blindness, demands a subjective inquiry.” The question is based on the totality of evidence; "what did the accused know" and not "what ought he to have known": Tyrell, at para. 30.
206Wilful blindness involves awareness of the likely existence of the prohibited circumstances together with a conscious decision to refuse to make inquiries because they do not want to know the truth or want to remain ignorant. This is deliberate ignorance. R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at paras. 27-28; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 22-24; R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570, at p. 584.
207However, it is not the same as negligence in failing to acquire knowledge: Briscoe, at para. 23, citing Glanville Williams, Criminal Law: The General Part, 2nd ed. (U.K.: Stevens & Sons Ltd., 1961), at p. 159. An ought to have known standard is not sufficient.
POSITIONS
Provincial and Federal Crowns
208The Crowns submit that the total evidence proves beyond a reasonable doubt that the accused is the shooter on foot. His clothing on arrest of a black hooded jacket matched the description provided of the civilian witnesses. The Crown submits that the clothing of the shooter depicted on the videos is consistent with those worn by Mr. Ehiozomwangie on arrest.
209Further, the body type is consistent. On arrest, the accused possessed the key fob for vehicle CHMS 463. Inside the vehicle are Mr. Ehiozomwangie’s identification, debit card, expired license, and past rental agreement for another car.
210The flashes of the rear vehicle lights seen on the video indicate the shooter unlocks the vehicle, then locks the car and runs off towards the Church.
211The Defendant is arrested in the vicinity a short time after the shooting, jogging away.
212The single GSR particle is a piece of evidence connecting the accused to the shooting.
213The accused possessing cash and drugs go together with the gun to protect the drug business.
214The Crown submits that it is speculative that there are more than two people present during the incident. The videos support two people, entering and exiting vehicles. The witnesses described two people. The Crown acknowledges that it is difficult to see what is happening on the passenger side of the vehicles, especially the vehicle they associate with the shooter, CHMS 463.
215The Crown contends that the voices heard by Ms. Sembhi and captured on a clip from 29 Dusk Drive indicate that there are two opposing people shouting at each other. They submits that the accused having left his vehicle earlier, armed, is further away. As a result, his voice sounds more relatively faint. The louder voice is the person in the second vehicle standing at the cars and is saying people are watching.
216The Crown submits that there is no air of reality to self-defence on these facts. It is contrary to common sense to run after and shoot at an attacker that is fleeing in reverse in a vehicle. Although the accused has reason to use force to protect his property of the vehicle and drugs, the accused is the aggressor.
217The Crowns submit that they have proved beyond a reasonable doubt that the accused had knowledge and control of the drugs seized. The accused’s possession of cash, cellphones and cutting agent are indicative of a drug trafficking.
218The Crown submits that the accused’s possession of the key fob gave him exclusive possession and control over the vehicle trunk where the backpack with the drugs is located. His cards and documents also prove he had control over the car. It does not appear that the trunk was not opened during the incident which would suggest that the contents inside were present prior to the incident. The value of the drugs is significant and support the accused’s knowledge of the substances. They would not be entrusted to anyone else.
The Defence
219The Defence submits that the Crown has not proven that Mr. Ehiozomwangie is the shooter beyond a reasonable doubt. The Defendant’s clothing is distinguishable from what can be seen on the video. The video shows the shooter in light toned clothing not a black jacket and not navy track pants with writing. The length of the shooter’s jacket appears shorter, waist length, not below the waist like the accused’s.
220The eyewitness identification evidence is weak and does not establish the identity of the shooter. The conditions are darkness, late at night. People are at home resting and startled. Their observations are brief. They have significantly constrained sightlines. The suspects are not adequately seen, and no distinguishing physical features or attributes are established.
221Ms. Sembhi heard a person say words that are consistent with the presence of a person that did not want the shooting to transpire. The comments support a reasonable inference that there are more than two people at the scene.
222The Defence submits that the accused reasonably could have been the person that did not want the shooting to transpire and said words to the effect of, people are watching, and let’s go, intended to discourage.
223Contrary to the Crown’s submission about the key fob’s operation, the Defence submits that the court cannot take judicial notice of the operation of the key fob and meaning of the flashing or blinking rear lights.
224Also, the Defendant’s possession of a key fob, in light of all of the other evidence, does not exclude he was situated a proximate distance from the vehicle but not the shooter. It is also plausible that there was more than one key fob.
225The video evidence supports, and does not exclude, the reasonable plausibility of a passenger in or near vehicle CHMS 463. The occupants of this first vehicle parked at the scene cannot be seen. The driver of CPZV 954 spends time at the passenger side of CHMS 463, near the communal mailboxes, after the driver of CHMS 463 has exited. When all of the evidence including the different clothing of the shooter and the utterances heard are factored with the timing of these movements, it is reasonable to infer there is another person present in that area. That is also consistent with the area that the witnesses later see a person wearing a dark jacket leaving. In this moment, there could have been confusion or mistakes by the witnesses. Also, the Crown has not established the purpose the two vehicles meet in a residential area. They may have intended to meet with someone.
226The single GSR particle on the back of the accused’s jacket is of no value. Innocent transference is plausible on this record. Further, the location of the single particle is inconsistent with the accused being the shooter, given the number of shots fired and extensive samples taken of the accused’s hands and face. There is no other forensic evidence connecting him to the shooting or drugs. There are many other reasonable explanations for the presence of the GSR particle.
227The Crowns have not proven to the requisite standard that the accused had knowledge and control over the drugs concealed in the backpack, located in the trunk. This contraband is well hidden inside a bag in the backpack.
228The ownership of the vehicle was not established. There is insufficient evidence of the accused’s recent occupancy or accessing the trunk. The backpack could have been in the vehicle prior to this date. The accused’s expired license, debit card, and rental agreement in the console do not mean he is the customary user of the vehicle. The console can be used as temporary storage. Occupancy and control do not prove knowledge.
229The Defence ultimately conceded on January 18, 2024 that there is not a sufficient foundation for self-defence.
ANALYSIS
230I recognize that I must always consider the totality of evidence and the cumulative circumstantial evidence when deciding whether the Crown has met their burden of proof beyond a reasonable doubt.
231My review of the evidence that will follow is for the purposes of an organized discussion in relation to the offences charged, while maintaining a totality analysis.
COUNT 1:
232At the conclusion of the trial, Mr. Ehiozomwangie conceded that he is guilty of possession of 0.65 grams of cocaine found on his person because of the search incident to arrest. Accordingly, I find him guilty of count 1.
233The evidence revealed that Cst. Chohan located this cocaine on the accused in his jacket pocket.
234The evidence proves Mr. Ehiozomwangie’s knowledge and control of the cocaine in his possession, beyond all doubt.
FIREARM OFFENCES
COUNTS 4-7:
235As noted above, the Crown invited an acquittal on count 4. I accept this submission. There shall be a finding of not guilty on this count. Counts 5, 6, and 7 allege various offences related to the possession and use of a firearm during the incident.
236The Crown’s theory is that Mr. Ehiozomwangie is the shooter seen on video running down the street firing at the person in the vehicle driving in reverse, that crashes. The driver of that vehicle fled and is not before this court. The parties submit that in total, there is circumstantial evidence that there were two people shooting at each other. I agree.
237The Crown and Defence agree that there is no real issue with respect to the core elements of counts 5, 6, and 7 being made out in relation to the shooter on foot.
238For example, it is not disputed this person discharged a firearm while being reckless as to the life and safety of a person pursuant to section 244.2(1)(a)(b) (count 7). Similarly, there is no issue that the person that used the firearm used it in a careless manner pursuant to section 86(1) (count 5), or that the person possessed the firearm to commit an offence dangerous to the public peace or for the purpose of committing an offence (count 6). There is no disagreement that the person knew the criminal character of the gun.
239I accept that there can be no doubt that the person on foot, firing the loaded gun numerous times at the driver of the vehicle CPZV 954 on December 9th in a residential street was engaged in this criminal prohibited conduct.
240Accordingly, the central issue for the court to determine is the identity of the shooter on foot. In particular, whether the Crown has proven beyond a reasonable doubt that Mr. Ehiozomwangie is that shooter. For ease of reference, moving ahead, I will refer to this person as the shooter since this is a single-accused trial.
241Based on the totality of evidence, I have a reasonable doubt that Mr. Ehiozomwangie is the shooter. In simple terms, based on the totality of evidence I am not sure.
242The Crown’s case with respect to identification is largely circumstantial. There is no direct evidence identifying the accused. I have considered all of the evidence in its totality and not in a piecemeal manner.
243The totality of evidence includes but is not limited to the crime scene evidence, photographs, witness testimony, videos, location of the arrest relative to the crime scene, and items seized on the accused incident to arrest including jacket, cash, phones, key fob, drugs and cutting agent. In addition, there are the contents of the vehicles, GSR, documents and cards in the CHMS 463 vehicle, exhibits, and car lights.
244As a preliminary finding, I am satisfied beyond a reasonable doubt that the person that is seen on the video exiting vehicle CHMS463 and running to the left earlier is the same person that returned later, running, and shooting at the driver of vehicle CPZV 954.
245In particular, prior to the shooting, the driver of CHMS 463 exits, goes to left of the screen and cannot be seen. Then the shooter later comes from that same area a short time later. No one else appears from that direction. The shooter then returns to vehicle CHMS 463 after the shoot-out. It appears that this person opens the driver door of CHMS 463 and closes it before running off to the right in front of the vehicle. The vehicle lights flash proximate to this person leaving.
246I acknowledge that the low quality of the video-clips and visibility in relation to this person leaving the vehicle prevent a reliable identification. The identity of the person that exits the driver’s side of the vehicle cannot be ascertained. Their face is not visible. Their back is to the cameras. Their relative age is unknown. It is nighttime. It is dark and the lighting is weak. There are no clear or distinguishing features visible that would permit a reliable identification. These constraints also prevent a reliable comparison between the person that leaves and returns.
247I have considered the submission that the shooter may have been a different person than the individual that left the vehicle CHMS 463 earlier. I have considered that there is no evidence about the investigative background as to why the persons in the vehicles park on this residential street that borders with the premises of a Church. I cannot exclude or reject the reasonable possibility that the occupants attended the area to meet up with someone else.
248However, based on all of the evidence I find that the only reasonable inference is that the driver that exits CHMS 463 returns a short time later, and is the shooter. This person leaves the vehicle and goes toward the left and then returns from the same area, firing. After, this person goes directly back to the vehicle to the driver’s side. The same part of the vehicle that they exited earlier.
249I will now review the areas of evidence in more depth that support a finding of reasonable doubt on these counts. I will commence with a brief overview.
250First, I am not satisfied that the shooter’s clothing matches the clothing of the accused on arrest. There are important distinctions and omissions.
251Second, when factoring the cumulative evidence, it is reasonably plausible that the accused was at or near the passenger side of vehicle CHMS 463 during the incident, then fled, and was later arrested. In other words, he is not the same person that exited the driver’s side of CHMS 463 and returned firing.
252Third, there were utterances heard by Ms. Sembhi and caught on audio that rendered it reasonably plausible that another person was present; that did not want the shooting to occur between the two people; and wanted to leave. It is reasonably plausible that this person was the accused. I do not agree with the Crown’s submission that the only reasonable inference is that the driver of CPZV 954 said “people are watching.”
253Party liability was not argued by the Crown. It is their position that the accused is the principal. However, for completeness, I find that the utterances heard on video and by the witness, would cast a reasonable doubt on the accused’s liability as a party. The person’s utterances indicate the intention that there not be a shooting and to leave. I have a reasonable a doubt that this other person did not help or aid in the shooting.
1. Distinguishable Clothing:
254As seen on video the distinguishable features including the clothing, between the shooter and the accused leave me in a state of reasonable doubt that the accused is the shooter.
255Before reviewing the particulars, I will summarize the applicable principles.
256I must consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable the court to conclude that identification has been proven beyond a reasonable doubt. R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, at paras. 29-30. In this case, the videos are part of the totality of evidence and not relied on to conclusively establish identity.
257The residential video camera recordings are of varying degrees of quality and clarity. They are from different angles and viewpoints. They are not in colour.
258A few clips have sound. Most do not. The Crown and Defence did not dispute that the clarity, quality, timing, and colour schemes did not permit a finding of identity based on the video-evidence alone.
259I have considered the length of time the suspect is visible in the recording and the extent to which the suspect can be observed. I have examined whether the clothing is visible, face is visible even in part, the presence or absence of any distinctive features about the suspect, the circumstances in which the suspect can be seen, as well as the other relevant evidence.
260The shooter’s clothing is a hooded top that appears to be a jacket. It is at or a little longer than waist length.
261The video-recordings do not offer a clear view of the face, hair, or related features of the shooter. The person’s age is not discernible. At most, the time that the suspect’s clothing visible is for a short duration, of up to five seconds.
262I cannot safely determine the features of the shooter’s face, including the shape of their nose, mouth, eyes colour, his skin tone, or other features compared to the accused before the court.
263The shooter may be racialized, but I cannot discern this safely. The accused is a black man. When dealing with an accused and a suspect from the same or a similar looking ethnic group as the accused, generic similarities or descriptions are not helpful. Evidence of a clear distinguishing feature is important in relation to both the suspect and the accused to lend some measure of certainty that the accused and the suspect are the same person. R. v. Mathias, 2018 ONSC 221, at paras. 88-89
264There are no distinctive facial or body related features visible.
265The videos are not in colour. They are in black, grey, and white tones.
266During closing submissions, the Crown submitted that the videos are in grey scale. Unfortunately, no evidence was called about the video technology, colour scale or variables that impact colour or shading. I accept as a matter of common sense that with respect to video footage taken at night, with street and house lighting, there may be some light distortion impacting tones. However, I must still consider the contents of the video-evidence as it plainly appears.
267On video-clip, taken from 7 Hatton, [DV804_ch2_main_2020120923_4146_20201209234348, 7, Hatton] at the mark of 11:42:40/ 00:54 the shooter is running towards vehicle CPZV 954 for about 4 to 5 seconds. The shooter’s clothing is visible as they run into street and housing light.
268First, the shooter’s clothing appears to be light grey colour. This is distinct from the colour of the accused’s clothing when arrested. On the video, the lighter tone of the shooter’s clothing is easily contrasted by the surrounding dark colour pavement, garbage bin, and dark colour vehicles.
269On video IMG_7988, taken from a different angle, the shooter is seen from a greater distance. The colour of their clothing as they enter the streetlight also appears a light grey tone and not black.
270Second, on the 7 Hatton video there does not appear to be writing on the shooter’s left jogging pant leg, a feature that Cst. Chohan said was visible on the accused’s navy blue track pants upon arrest.
271I find that these dissimilarities are important. They reasonably distinguish the Defendant’s clothing from the shooter. Chartier v. Quebec (Attorney General), 1979 17 (SCC), [1979] 2 S.C.R. 474, at p. 494. They are capable of resulting in a reasonable doubt.
272A dissimilarity in the clothing can mean there is no match to support identification: R. v. Boucher (2000), 2000 3270 (ON CA), 146 C.C.C. (3d) 52, at para. 19. Similarly, a lack of confidence from the clothing seized on the accused compared to that seen on the video footage of the incident can support a reasonable doubt concerning identity.
273A puffer style of the jacket on the shooter is also not clear on the videos. I observe that the shooter’s top is not necessarily inconsistent with a puffer style, but I cannot be sure that it is in fact a puffer jacket. It may be a track jacket. As a general observation, without more reliable features to tie the identification together, I am mindful that this type of clothing is widely worn in society. This style is highly common and generic in the modern era. R. v. Spencer, 2020 ONCA 838, 154 O.R. (3d) 1, at paras. 46-48.
274I have considered the witnesses descriptions and compared them to the description of the accused’s clothing and items seized by the police.
275On arrest, Cst. Chohan said that that the accused was wearing navy blue track pants and there was writing on the left leg. The writing on the left leg is a distinguishing feature that was not described by the civilian witnesses as worn by the shooter.
276Cst. Chohan said the accused was wearing a black Canada goose, waist length jacket. It has a puffer style.
277This clothing is generally consistent with the civilian witness descriptions that there was a person present that they observed wearing a dark or black hooded top or jacket.
278However, it is important that I consider that the witnesses were making observations from inside their home, close to midnight, in dark conditions, and the incident was fast paced. Some were settled in their rooms in a state of rest and were startled by the commotion. They made observations at different times and angles. I must be cautious of the frailties of eyewitness identification in these conditions. These combined circumstances impact the reliability of their observations including the clothing of the shooter. R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 50.
279Ms. Ghotra saw a person running towards Elm Street after hearing loud bangs. She said it was a male, probably in his twenties. Based on the conditions and timing of this observation, it is not necessarily or specifically tied to the shooter. Even if it is consistent with the shooter, it is a limited observation.
280After hearing shots fired, Mr. Sliwa saw a person wearing a black jacket running towards the Church. This evidence is not incompatible with the accused fleeing from the scene but does not necessarily mean he’s the shooter.
281Ms. Sembhi saw the shooter wearing a hoodie, running, firing shots. She did not describe the colour of the top. She could not see the mailbox from the window but knows its directly beside her house demonstrating her limited vantage point.
282Ms. John saw the person wearing dark clothes. She saw the person from the back.
283There were no other distinguishing features of the clothing described by these witnesses.
2. Physical Descriptions:
284The physical descriptions by the witnesses are limited. They are insufficient on their own, or in combination with the total evidence, to establish identity beyond a reasonable doubt.
285Mr. Sliwa described the person he saw as medium build, about 5’11. Ms. John said the person she observed was average height and build.
286Those two height descriptions are not necessarily the same.
287The witnesses did not see the person’s face. They did not describe the person’s race or skin tone.
288Ms. Sembhi said that the person appeared to be in their mid-twenties.
289In the 7 Hatton video in which the shooter is briefly visible, this person appears to be of medium to slim build. Their facial features are not seen. Their race is not clear or apparent. Their height cannot be safely determined. The shooter’s age is not discernible other than to say they are not elderly.
3. Movements on the Videos
290Based on the totality of movements of the driver of CPZV 954 walking and standing around the passenger side of CHMS 463 for a period of time, I draw an inference that there was communication between the driver of CPZV 954 and a person near the passenger side of CHMS 463.
291The video angles and dark conditions render it not permissible to see who is on that side. However, the movement of the driver of CPZV 954, timing, positioning, different clothing, and utterances I will discuss later, support the reasonable inference that there was a person in that area.
292It makes sense that the driver of CPZV 954 walked over to and stood at the passenger side of CHMS 463 more than once, and hanged around there, because someone else was present.
293As I will review in greater detail, in multiple video clips, the occupant of vehicle CPZV 954, exits their vehicle, and walks to the passenger side of vehicle, CHMS 463. This person casually hangs around this area, consistent with having an interaction with another person on that side.
294This behaviour continues after the driver of CHMS 463 has fled to the left. In other words, after the driver of CHMS 463 leaves their vehicle, the driver of CPZV 954 goes to the passenger side of CHMS 463 and spends time in that area.
295It is plausible that the driver of CPZV 954 was interacting with another person on the passenger side of the vehicle shortly before the shooter emerged from the other side of the street. The driver does so up to until he returns to his car and reverses in flight, as the shooter emerges from the other side of the street and runs after him.
296Various excerpts of the relevant video clips provide visuals that demonstrates the plausibility of this circumstance. I have considered that they are taken from various angles. Some clips are consecutive. I have also considered their limitations including constrained visibility, dark lighting, angles etc.
297I have taken into account that no third person is specifically seen. The passenger side of vehicle CHMS 463 is a dark area, shaded and without adequate lighting.
298However, as I will discuss further, I am satisfied that a reasonable inference can be drawn from the total evidence that there was another person present at the passenger side, which is not the shooter.
299The following is a summary of the video evidence that supports the driver of CPZV 954 leaves his vehicle, walks between the vehicles and over to the passenger side of CHMS 463. Including after the driver of CHMS 463 has exited and runs to the left off screen.
IMG 7988: 2 Hatton Court: Video duration is 8 minutes long.
04:07: The driver of CPZV 954 walks around the front of his car in between the two vehicles towards the passenger side of CHMS 463.
06:09: The front driver’s side door to CHMS463 opens. A person exits the front driver seat of Mercedes CHMS 463 and runs left of the vehicle. (see also IMG 7989 at 0:15).
06:19: The driver from Mercedes CPZV 954 moves around both vehicles (see also IMG 7989 at 0:26).
06:21: This person opens the driver’s side door to CPZV 954.
06:28: This person then walks around the back of CPZV 954 and appears to be standing on the passenger side.
06:45: Still on the passenger side, this person walks fast towards the passenger side of vehicle CHMS 463.
07:05: A person walks behind CPZV 954 towards the driver side door.
07:13: The rear lights to CHMS 463 appear to turn off.
IMG 7989: 2 Hatton Court: 4 minutes and 12 seconds.
00:15: A person exits CHMS 463, runs left of the vehicle and away from both vehicles.
00:26: A person(s) is moving around vehicles CPZV 954 and CHMS 463. The person is moving around both vehicles.
DV804_ch2_main_2020120923_33513_20201209233947: 7 Hatton Court: 49 seconds.
Vehicle CPZV 954 rolls up and parks behind CHMS 463.
The driver of CPZV 954 exits from the driver side and walks between the parked vehicles. This person walks in the direction of passenger side of CHMS 463.
DV804_ch2_main_2020120923_33513_202012092338146: 7 Hatton Court: 1 minute 59 seconds.
- 01:41:/11:41:30 A person associated with vehicle CPZV 954, walks back between the cars, and appears to access driver’s side door. Then this person walks around the back of the vehicle to passenger side of the vehicles.
DV804_ch2_main_2020120923_33513_202012092338348: 7 Hatton Court: 1 minute and 54 seconds.
Driver of CPZV 954 is out of their car and hangs around the passenger side of CHMS463.
00:19: / 11:42:05: A person is in view standing at the passenger side of CHMS 463 and moving toward passenger side of CPZV 954.
00:21/ 11:42:08: A person appears to access passenger side door of CPZV 954 then moves around the back of the car to return to the driver’s side.
4. Utterances:
300Witness and audio evidence provide evidence of utterances that support that there was a third person present on the passenger side of vehicle CHMS463.
301Ms. Sembhi was called by the Crown. Her evidence was that she heard someone say words to the effect of, “Don’t do it; everyone’s watching.” She believed that she heard yelling, from one person.
302In cross-examination she agreed that she heard words along the lines of, “Everybody’s looking; everybody’s watching – just go, just go.”
303Ms. Sembhi agreed with the suggestions, that from her perspective, it sounded like someone was effectively saying “let’s get out of here” and trying to tell someone to not do it; let’s get out of here and not get involved.
304She accepted the possibility that others could have been present that she did not see. She didn’t have sight of the people speaking.
305The Crown submitted that given her position and perspective, her evidence was not reliable. The Crown also challenged her credibility in accepting suggestions put to her by the Defence.
306With respect, I do not agree. I find that she was credible and reliable. She was a reluctant witness. She acknowledged that it was not a precise recollection, and she did not know who made the statement.
307However, the independent audio evidence from one of the video-clips corroborated her recollection.
308On the third video-clip VIDEO-2020-12-10-02-02-38.mp4 from 29 Dusk Drive, there is audio. Between 23:43:06 to 23:46:26, a person’s voice can be distinctly and repeatedly heard saying, “People are watching”, followed by inaudible voices before the shots are fired. The voice is speaking with a sense of urgency, yelling. The comments are repeated up to five times. After the vehicle crashes, a person yells, “Yo, my n---a” (n-word). An odd comment after a shoot out.
309At times the phrase, “people are watching”, is followed by other inaudible words. I have considered the supplementary written and oral submissions by the Crown and Defence ordered after I listened to this audio on my own and sought further input from counsel on January 18, 2024. Prior to this, the audio from the clip was described in the Crown’s written submission generically as yelling. The Defence did not take a position on this part.
310In the end, both Crown and Defence counsel agreed that the phrase “people are watching” repeatedly yelled, can be heard. The other words spoken are the parties’ best guesses and cannot be confidently ascertained. I find that the other words are inaudible. It would be unsafe to make a definitive finding about them. However, I find more is being said.
311In the end, I find the repeated comment “people are watching” is clear. It is close in time to the shooting. The comments are after the individual leaves CHMS 463 and runs to the left.
312I recognize that Ms. Sembhi’s evidence about the utterances she heard that a person was communicating “everybody’s watching, just go”, are not verbatim. But I am satisfied that her understanding of the nature of the communication, when considered in combination with the audio on this clip, makes sense.
313Although the declarant’s identity is not known, it was logically a communication between people present to the incident.
314There are not circumstances of suspicion precipitating the comment given the totality of evidence. It is stated repeatedly, seconds before the shots are fired. The statement was made in a dynamic, urgent, and rapid situation. The comment, “people are watching” repeatedly stated right before the shooting is not ambiguous. The conditions were quiet. There is no suggestion of a motive to lie or mislead.
315I find that amongst the persons present, there was an individual who was vocally concerned about an incident escalating to violence with people looking or watching. It can be inferred that this person was counselling against the shooting that eventually resulted.
316It is plausible that the urgent comments were made by a person that was not involved in the shooting. The combined evidence indicates that this person did not want the shooting to transpire and when it did, that person fled.
317Based on all of the relevant evidence, the fact the driver of the second parked vehicle, CPZV 954, spends time at the passenger side of the first parked vehicle, CHMS 463, well after the driver of this vehicle left, renders it plausible that there is another second person, at the passenger area of CHMS 463, and that it was this person that was telling the shooter people are watching repeatedly with a view of trying to dissuade the shooting.
318Despite these efforts, the shooting took place between the driver of CHMS 463, who was on foot, and the driver of CPZV 954.
319I have contemplated that it is also plausible that these comments were said by the driver of CPZV 954. However, that person remained even after the driver of CHMS 463 ran off. The driver of CPZV 954 also fired at least one shot. Based on the video and sequence of flashes of light consistent with gun fire, it is possible the driver of CPZV 954 fired first. See video IMG. 7989. MP4 at around the 1:30 mark.
320I do not find that the driver of CPZV 954 was the same person saying, “people are watching” and words to the effect of “lets go” or leave. In my view, this is not the only available reasonable inference.
321I find that the comments heard by Ms. Sembhi and as captured on the audio were said by a third person at the passenger side of CHMS 463 that did not want the shooting to transpire and subsequently fled.
322The circumstantial evidence, assessed in light of human experience, supports this third person could have been the accused. Similarly, the circumstantial evidence does not exclude this reasonable alternative. See Villaroman, at para. 35.
5. Flight and Arrest Location:
323I find that a person or persons near the community mailboxes that fled the shooting would run in a direction to get away from the person in vehicle CPVZ 954, who was at the top of the street and armed. It makes sense the accused ran in the direction seen by the witnesses factoring the configuration of this street. I am satisfied that one of the persons fleeing was the accused.
324Based on the overall context, a person fleeing the scene, may reasonably go in the direction of the Church. It would not make sense for a third person to run towards vehicle CPVZ 954 or to the person shooting at the vehicle, given the risk to their safety.
325Ms. John and Mr. Sliwa said that the person they saw flee, ran off in the direction of the St. Jeromes Church. There is a fence blocking it from Hatton Court.
326Ms. Sembhi said a person was running towards Elm Crest Street.
327Mr. Sliwa said in cross-examination that the person ran and jumped the fence, and then he lost sight of him. Due to the fence a person cannot get directly into the Church parking lot, which comes first, before the building.
328At around 11:52 p.m., the accused was seen by Cst. Chohan at the east side of Chinguacousy Road crossing to the west side, the opposite side of Chinguacousy from the shooting. He was jogging. When stopped, he was sweating. Cst. Chohan did not see where he came from. Cst. Chohan agreed that it was in the range of a 5 to 8 minute walk. He did not map or time it.
329The shooting transpired around 11:43 p.m.
6. GSR:
330I have considered the single gunshot residue (GSR) particle that was located on the back of the accused’s jacket. The evidence with respect to how this particle may have come to be located on the accused’s jacket is not a reliable basis as one ingredient in the totality of evidence to infer that Mr. Ehiozomwangie was the shooter.
331The cross-examination of the police officers and Mr. Wolfe of the CFS established that the transfer of a single GSR particle onto the back of the accused’s jacket are consistent with numerous other explanations that do not establish Mr. Ehiozomwangie as the shooter. First, this particle could be from a source other than the gun(s) used in this incident. The arresting officer’s police vehicle history of usage and cleaning was unknown. The possibility of a tainted police vehicle interior was not negated. The accused wore his jacket during transport. He may have also continued to wear it after being booked at the station and placed in cell.
332Second, Officer Chohan handled the accused during the arrest, cruiser placement, and placing him in the cells. He did not wear fresh gloves. It was not established that the accused had no contact with anyone else in the cells.
333Officer Chohan agreed that he may have touched the accused’s back. It did not enter his mind to attempt to preserve the accused’s hands, face, or clothes for GSR testing later. He was aware that the investigation related to possible shots fired but he was not instructed by any other officer to take that step for preservation.
334Third, Det. Cst. Patterson took hand samples from Mr. Ehiozomwangie. The jacket was not tested by him. Det. Cst. Patterson received the accused’s jacket from another officer, whose badge number was provided only and did not testify. Det. Cst. Patterson then rolled the jacket into a bag. He did not recall if it was paper or plastic bag.
335Further, Mr. Wolfe’s report and testimony stated that finding a GSR particle on a person is not proof that they discharged a firearm. It may be that the person had contact with another surface that had GSR that does not include the gun. It is also plausible Mr. Ehiozomwangie was near the shooter, including after.
336Even if the single particle of GSR retrieved was from the gun used, it is not clear when, how, and from which source that particle may have been transferred.
337I find that there is a significant risk of transfer of the single particle from a source that is inconsistent with involvement given the totality of circumstances noted above. The lack of procedural safeguards to reduce the risk is obvious. The concerns about innocent transfer were not negated by any other evidence. The overall circumstances do not establish that this single particle located on the back of his jacket is sufficiently reliable.
338There is no other forensic evidence connecting the accused to a firearm. No firearm was recovered.
339There is also a lack of forensic evidence linking any specific individual to any of the items that were seized from the vehicle and the compartment. No fingerprints were developed or lifted. There is no DNA evidence.
7. Key FOB and Flashing Lights:
340When arrested, the accused had a key fob for vehicle CHMS 463 in his pocket. This is circumstantial evidence of his control over the vehicle that night, including its contents.
341On the video immediately after the shooting, the shooter walks back towards vehicle CHMS 463. After, the shooter remains at the driver’s side door and then leaves. The rear lights flash 4 times. About 10 seconds after, the rear lights flash another four times. The flashes are proximate to the shooter being close to the vehicle.
342The accused’s personal possession of the key fob for CHMS 463 in combination with his identification, bank card and rental document for another vehicle, found within CHMS 463, places him with this vehicle. As noted, the shooter returns to the vehicle and lights flash after he leaves.
343However, no evidence was called to establish how the key fob and vehicle lights interact and the meaning of the number of times the lights blink or flash. The range of the key fob was not established. Although the key fob was brought back to the scene by the police after being seized from the accused, the police witnesses did not testify about testing the key fob or how it interacts with the vehicle lights.
344The Crown submits that it must be inferred that this was the shooter using the key fob to open and lock the vehicle. They submit that this is consistent with the driver being proximate, synchronicity of the timing, and generally how key fobs work.
345In the reasonable doubt analysis, I must consider this aspect with all the evidence, including but not limited to evidence that points away from the accused being the shooter, such as his different clothing, the utterances, and a lack of reliable or distinguishable identifiers.
346Even if unlikely, the combined evidence and absence of evidence does not negate that a key fob could have been in the possession of someone else proximate to the scene. The lights do not flash until after the shooter leaves the vehicle. It does not appear the lights turned on to open the vehicle. The first and second set of four flashes of the rear lights occur after the shooter runs.
347More importantly, I must be cautious about how far I can rely on the Crown’s submission about the operation of the key fob, and the meaning of the multiple times the lights blink or flash.
348Evidence was not called about the key fob operation and vehicle lights for this vehicle.
349Although key fobs are common with modern vehicles, this particular key fob’s operation, range, and number of light activations, with respect, is not an area that I can take judicial notice. I cannot take judicial notice that the vehicle lights flashing or blinking four times is unlocking or locking this particular model. Depending on the vehicle, a key fob can trigger lights of a vehicle to come on to varying number of times for different purposes, and when a person is some distance from a vehicle.
350Even if there was only one key fob, I am not able to take judicial notice of the extent of the range from which the fob can be used. For example, a person could be in the area and use the key fob without being right next to it and be present but not visible on video.
351Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice in a criminal trial is strict; a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48.
8. Documents in CHMS463:
352The accused’s driver’s license identification that was expired as of June 15, 2020, bank card, and a prior rental agreement for another vehicle from late October 2020 were in the console of the vehicle CHMS 463.
353I accept that these items are significant circumstantial evidence that connect the accused to being inside of vehicle CHMS 463. They suggest he is the user of the vehicle. It is reasonable to infer that he had control over the vehicle on December 9, given the possession of the key fob and these items in the console.
354That said, when the accused started to use the car is not established. The Crown submits that the expired license and placement of these items in the console are evidence of prior and continued use, likening the console to a purse. I find that the items permit the inference of prior use, but it would be speculative to find when this commenced.
355The presence of the items in the console do not negate the reasonable plausibility that on December 9, the accused was the passenger at the relevant time.
356In conclusion, I find Mr. Ehiozomwangie not guilty of counts 4, 5, 6 and 7.
DRUG OFFENCES
COUNTS 2-3
357Mr. Ehiozomwangie is also charged with possession of cocaine for the purposes of trafficking (count 2) and possession of fentanyl for the purposes of trafficking (count 3), contrary to section 5(2) of the CDSA.
358The evidence in support of these charges is based on the contents of a backpack located by the police in the trunk of vehicle CHMS 463.
359The significant quantum of cocaine and fentanyl were concealed in the backpack, inside another bag, that covered further smaller bags.
360Knowledge and control are essential elements in both personal and constructive possession: Morelli, at para. 15.
361The central issue for these alleged offences is knowledge.
362The accused did not have the backpack in his actual physical possession on arrest.
363Absent evidence of actual physical possession, the Crown is required to show that possession of the drugs in the backpack could be attributed to the accused under s. 4(3)(a)(ii) of the Criminal Code (constructive possession) or that he was in joint possession of them under s. 4(3)(b).
364To establish constructive possession, the Crown is required to prove that the accused knew the backpack was inside the vehicle, that it contained drugs, that he intended to possess the drugs, and he had the necessary control over them.
365Since the evidence the Crown relied upon was circumstantial, to establish the accused’s guilt beyond a reasonable doubt the Crown is required to prove each essential element is the only reasonable inference available on the evidence taken as a whole.
366As noted, the accused had a key fob to this vehicle which establishes he had control of the vehicle CHMS 463 on the night in question.
367However, I find that the totality of the evidence does not establish beyond a reasonable doubt that the accused had knowledge of the concealed contents of backpack in the trunk.
368The backpack was closed and its contents not visible. There was no identification in, on, or attached to the bag. No forensic evidence linked the accused to the bag. There was no evidence of the bag’s origin or how it came to be positioned in the trunk.
369The accused is not seen with a backpack earlier. He is not seen accessing the trunk of the vehicle or, particularly, the backpack.
370It was not established that the evidence of the accused was the owner or renter of this vehicle. Since there is no prior investigation before this incident, he was not previously observed with a similar bag or backpack, or alternatively in the company with someone else holding the bag. When the bag was placed in the vehicle is not proven.
371The purpose of the meeting on that street and with the driver of CPZV 954 was not established.
372Mr. Ehiozomwangie’s identification, bank card, and rental car document (for another vehicle) in the console establish his connection to the interior of the vehicle. They do not prove knowledge of the contents of a closed backpack, containing further bags concealing drugs, situated in the trunk. I recognize that the accused’s cards and documents including rental car receipt for another vehicle from an earlier date in the console could be construed as evidence of prior usage of this vehicle to store such a document. However, in my view, that is not sufficient to establish his knowledge of the drugs concealed in the backpack in the trunk.
373Since the items are concealed inside different layers of bags, even if the accused was aware of the backpack’s presence in the vehicle, his knowledge of the drug contents is not established beyond a reasonable doubt. I find that there is insufficient evidence about when the backpack was placed in the vehicle and by whom.
374I recognize that the relatively small quantum of cocaine in his possession that is consistent with personal use, with the cutting agent phenacetin, is consistent with some of the similar drug related items in the backpack. However, this is circumstantial evidence of an intent to traffic or involvement in the drug trade in general. His possession of phenacetin does not establish possession of the contents of the backpack. The PRP drug expert officer Grant testified phenacetin is not distinct, describing it as one of the most common cutting agents used. It is also inexpensive.
375The two cellphones and cash found on the accused at the time of his arrest is circumstantial evidence of possible involvement in the drug trade. That said the Crown did not prove the phones and cash were in fact from drug work or charge the offence of proceeds. If it had made that allegation, it is incumbent on the Crown to prove beyond a reasonable doubt the unlawful origin of the currency of which the appellant had in his possession.
376There is no evidence that the cocaine in his possession is from the backpack. Also, it is not proven that the small amount of cocaine on his person, consistent with personal use, was part of the larger supply for the purposes of trafficking.
377I accept that in some cases, where an accused is alleged to be in possession of a controlled substance of significant value, it is open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself. It can be a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container: R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 157. The argument being that the substance is too valuable and possibly too risky to leave behind.
378While acknowledging this reasonable position, it depends on the facts of each case.
379When there is plausibly more than one person associated with a vehicle, it cannot be presumed that the other person knows what is in their companion’s personal bags or containers.
380The Crown also submits that the desire to protect the drugs or vehicle may have been the reason for the shooting. However, this argument loses force when the drugs in the trunk concealed were left behind and so too was the vehicle. The valuable items worth protecting were not taken from the scene, even with the opportunity to do so.
381Overall, the Crown has not proven that Mr. Ehiozomwangie had knowledge or was aware of the contents of the cocaine and fentanyl hidden inside the backpack in the trunk.
382Accordingly, I find Mr. Ehiozomwangie not guilty of drug trafficking based on counts 2 and 3.
SELF-DEFENCE
383In the event that I found the Mr. Ehiozomwangie was the shooter, he raised self-defence in relation to the shooting offences. During supplementary closing submissions on January 18, 2024, Defence counsel abandoned the self-defence argument. The Defence conceded that they had not led a foundation for self-defence for the Crown to seek to prove beyond a reasonable doubt it should not succeed. The Defence did not submit particulars of which counts the self-defence would conceivably apply to. They previously acknowledged the self-defence evidence was sparse. Mr. Ehiozomwangie did not testify or call Defence evidence. I agree with these concessions.
384However, I will address this issue briefly since it was raised in the past and based on my factual findings about the sequence of shots fired.
385The shooter on foot carelessly used a firearm and repeatedly fired shots in a residential community causing incredible danger to the life and safety of people in the area. The bullet holes in multiple vehicles parked in driveways demonstrate the clear danger posed to people, pets, and property.
386Since the Defence did not call evidence and Mr. Ehiozomwangie did not testify, (had he been found to be the shooter) there is no evidence of his state of mind to explain why the shooting was necessary for self-defence. The accused’s belief that this force was necessary must be based on reasonable grounds.
387I recognize that in some cases, an air of reality and reasonable inferences about the accused’s intentions and conduct may arise from the Crown’s case.
388However, on these facts, the totality of evidence demonstrates that the shooter on foot is the aggressor, attacking, and not defending.
389First, under s. 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against them or someone else. Second, under s. 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others. Third, under s. 34(1)(c), the accused’s acts must be reasonable in the circumstances.
390The evidence is that the shooting starts when a person emerges and charges on foot at the driver of CPZV 954, armed with a firearm. Prior to the person on foot firing and running at the driver moving in reverse, it is not established that the driver used force or threatened to use force against the shooter on foot. The driver is retreating, driving fast to get away while being shot at.
391I recognize that the evidence of a person’s utterances prior to the shooting of words to the effect of – people are watching; or everyone is watching and let’s go, suggests that force was contemplated and discouraged by a person present.
392Missing is specific evidence that the accused reasonably believed the force was going to be used against him or someone else. Unless the accused subjectively believed on reasonable grounds that force or a threat thereof was being used against their person or that of another, the Defence is unavailable: R. v. Khill, 2021 SCC 37, 409 C.C.C. (3d) 141, at para. 52.
393Second, the accused advanced no evidence relevant to the personal purpose in committing the act that constitutes the offence.
394The motive provision ensures that the actions of the accused are not undertaken for the purpose of vigilantism, vengeance, or some other personal motivation: Khill, at para. 59. Clarity as to the accused’s purpose is critical, as the spectrum of what qualifies as a reasonable response may be limited by the accused’s purpose at any given point in time. The range of reasonable responses will be different depending on whether the accused’s purpose is to defend property, effect an arrest, or defend themselves or another from the use of force. Khill, at para. 60. The purpose for acting may evolve as the incident escalates. Khill, at para. 61.
395Third, the record is silent about the accused’s response to the use or threat of force and requires that “the act committed [be] reasonable in the circumstances”.
396The shooter on foot’s conduct to initiate the shootout is not a reasonable response in the circumstances. I appreciate that the shooter on foot firing back at the driver could be seen as defensive in that moment. However, the shooting starts from an unreasonable foundation that the shooter on foot has decided that a shootout is necessary on a residential street despite being counselled not to. The severity of the wrongful conduct weakens the justification for the use of force. Further, community norms and values could not reasonably condone or find that this unnecessary and egregious resort to violence is self-defence: Khill at para. 62.
397Also, there is no evidence about the relevant circumstances of the accused person, the other parties, and the act. This standard broadens the inquiry covering how the act happened and what role each person played and modifies the objective standard to take into account certain characteristics of the accused and their experiences. See s. 34(2)(c) of the Criminal Code. This refers to the accused’s conduct, such as actions, omissions, and exercises of judgment, during the course of the incident, from beginning to end, that is relevant to whether the ultimate act was reasonable in the circumstances.
398The focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time. Khill, at para. 65.
399The relevant factors include but are not limited to: s.34(2)
(a) The nature of the force or threat;
(b) The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) The person’s role in the incident;
(d) Whether any party to the incident used or threatened to use a weapon;
(e) The size, age, gender, and physical capabilities of the parties to the incident;
(f) The nature, duration, and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) Any history of interaction or communication between the parties to the incident;
(g) The nature and proportionality of the person’s response to the use or threat of force; and
(h) Whether the act committed was in response to a use or threat of force that the person knew was lawful.
400The “relevant circumstances of the accused” in s. 34(2) can also include any mistaken beliefs reasonably held by the accused: Khill, at para. 66.
401This part raises the question of what would a reasonable person with the relevant characteristics and experiences perceive? The law expects the person to behave reasonably, including in the person’s assessment of threats to himself or herself, or others.
402There is no evidence from the accused about key factors including but not limited to the accused’s conduct, communications, perception, or belief of the threat, including an honest but mistaken belief.
403On the available evidence, the shooter on foot, makes the ultimate decision to be the aggressor in a shootout. This is not reasonable behaviour in this context.
404Based on the limited video evidence and flashes of light I accept it is plausible that while in retreat the driver of CPZV 954 fired the first shot. But to be clear, if the driver did fire the first shot, this is after the person on foot emerges armed and initiates the confrontation. The person running fires a rapid succession of multiple shots and is chasing down the driver of CPZV 954, who is retreating. This conduct indicates a clear intention by the person on foot to attack in an act of unlawful aggression that is excessive.
405Based on this evidence, there is no defensive or protective purpose at the outset. As a result, the rationale for the self-defence disappears.
406I am satisfied that on those facts, there is no air of reality to self-defence.
407Even if there was, I am satisfied that self-defence has been negated beyond a reasonable doubt. This conduct is not reasonable or proportional. There were other means available to the shooter on foot, including simply leaving, rather than charging at and firing at the driver multiple times while he tried to flee in reverse. There is no evidence before me that the shooter on foot was in imminent peril when he decided to charge at the driver to shoot at him continuously.
FINAL CONCLUSION
408Mr. Ehiozomwangie is guilty of count 1. He is not guilty of all other charges.
Mirza J.
Released: March 5, 2024
APPENDIX A
STATEMENT OF ADMISSIONS
Pursuant to section 655 of the Criminal Code, the following facts and admissions are made and can be relied on for their truth at trial:
Identity – that the Jesse Ehiozomwangie who was arrested on December 9, 2020 in Brampton, Ontario is the same Jesse Ehiozomwangie that is present in court in answer to the indictment in this case.
Date – that the cocaine and fentanyl was seized in this case on December 9, 2020.
Jurisdiction – that the cocaine and fentanyl seized in this case were seized in Brampton, Ontario.
Nature, Weight, and Continuity of Substance (Cocaine) – that during a search of Mr. Ehiozomwangie’s person, police located 0.65 grams of a substance. A sample of the substance was submitted to Health Canada for analysis and was determined to be a controlled substance pursuant to schedule I of the Controlled Drugs and Substances Act, namely cocaine.
Nature, Weight and Continuity of Substance (Cocaine) – that during a search of a grey Mercedes bearing Ontario plate CHMS 463, police located 278.94 grams of a substance. A sample of the substance was submitted to Health Canada for analysis and was determined to be a controlled substances pursuant to schedule I of the Controlled Drugs and Substances Act, namely cocaine.
Purpose of Possession (278.94 grams of cocaine) – that Peel Regional Police drug expert, Detective Constable Erik Grant, assessed the approximate value of 278.94 grams of cocaine to range from $16,936 to $33,473 depending on how it is sold. This assessment was based on the approximate prices of cocaine in Ontario in 2020. Based on the drug expert’s assessment, the parties agree that this is the approximate value of the cocaine seized in this case.
The parties further agree that 278.94 grams of cocaine exceeds that which would be possessed by a single person for personal use and instead is a quantity, which would be possessed for the purpose of trafficking.
Nature, Weight and Continuity of Substance (Fentanyl) - that during a search of a grey Mercedes bearing Ontario plate CHMS 463, police located 8.13 grams of a substance. A sample of the substance was submitted to Health Canada for analysis and was determined to be a controlled substances pursuant to schedule I of the Controlled Drugs and Substances Act, namely fentanyl.
Purpose of Possession (8.13 grams of fentanyl) – that Peel Regional Police drug expert, Detective Constable Erik Grant, assessed the approximate value of 8.13 grams of fentanyl to range from $1,463.40 to $3,252.00 depending on how it is sold. This assessment was based on the approximate prices of fentanyl in Ontario in 2020. Based on the drug expert’s assessment, the parties agree that this is the approximate value of the cocaine seized in this case.
The parties further agree that 8.13 grams of fentanyl exceeds that which would be possessed by a single person for personal use and instead is a quantity, which would be possessed for the purpose of trafficking.
- Seizure and Continuity of Phenacetin – that during a search of Mr. Ehiozomwangie’s person, police located 25.13 grams of a substance and during a search of a grey Mercedes bearing Ontario plate CHMS 463, police located 363.97 grams of a substance. Samples of these substances were submitted to Health Canada for analysis and were determined to be phenacetin.
The Peel Regional Police drug expert, Detective Constable Erik Grant, noted that in his experience, phenacetin is one of the most common “cutting agents” found mixed with cocaine. Cutting agents are inexpensive substances that drug traffickers will add to their product in order to “stretch” the substance further to increase profits.
- Seizure and Continuity of Caffeine – that during a search of a grey Mercedes bearing Ontario plate CHMS 463, police located 890.99 grams of a substance. Samples of this substance were submitted to Health Canada for analysis and were determined to be caffeine.
The Peel Regional Police drug expert, Detective Constable Erik Grant, noted that in his experience fentanyl will be mixed with other substances due to its relatively high strength. A cutting agent that is commonly mixed with fentanyl is caffeine.
Authenticity of Surveillance Footage at Hatton Court and Dusk Drive – that the video footage depicting the scene at Hatton Court and Dusk Drive on December 9, 2020 is authentic and admissible at trial.
Continuity of the Hatton and Dusk Drive Scene – Calls came in from civilians calling 911 regarding a shooting at Hatton Court and Dusk Drive; police were immediately dispatched at 11:45pm on December 9, 2020. The first officers on scene arrived 2 minutes after that. The scene was protected from disturbance for the Peel Police Forensic Identification Service officers. Continuity of the scene is not an issue at this trial.
Ammunition located but no firearm – Peel Police Forensic Identification located four 9mm Luger cartridge cases, two 40 S&W cartridge cases and one copper jacket at Hatton Court and Dusk Drive, which constitute prohibited ammunition. The bullet and copper jacket (which covers the bullet) are what project from the barrel of a firearm when fired. The casing is what is ejected from the firearm (usually to the right and a few feet) when fired. There is no issue that the ammunition located is prohibited. Canine was called to track, but no firearm was located.
Continuity of Mercedes Key Fob - that during a search of Mr. Ehiozomwangie’s person on December 9, 2020, police located a Mercedes key fob. This key fob was transported to Hatton Court and Dusk Drive later that evening. The key fob unlocked a grey Mercedes bearing Ontario plate CHMS 463 that was located on scene.
Continuity of Vehicles – On December 9, 2020, police located five vehicles at Hatton Court and Dusk Drive (see locations on the topographical map). Those vehicles included:
Toyota 4Runner bearing Ontario plate ALISELLS; with the rear windshield broken and hole in the headrest of the rear passenger seat. A partial copper jacket was located on the floor inside vehicle.
Hyundai Santa Fe bearing Ontario plate CMCX 938; with a hole at bottom of the rear driver door. A projectile was located in this hole, on the inside of the door, as well as on the floor in between the driver seat and the floor panel.
Hyundai Sante Fe bearing Ontario marker BZBS 74; with a hole on the rear passenger door of the vehicle near the door handle. A projectile was retrieved from the door.
Mercedes 2015 bearing Ontario plate CHMS 463; when police arrived on scene, the Mercedes bearing Ontario plate CHMS 463 had all doors closed and locked.
Mercedes 2018 bearing Ontario plate CPZV 954; with collision damage.
The Mercedes vehicles, bearing Ontario plates CHMS 463 and CPZV 954, were transported to a police division, where a search warrant was executed on both vehicles. Continuity of the Mercedes vehicles and their contents is not an issue at this trial. The Toyota 4Runner and two Hyundai Santa Fe vehicles were transported to a police division for further examination. The continuity of these vehicles and their contents is not an issue at this trial.
- Continuity of Jesse Ehiozomwangie’s Jacket - After he was arrested by Cst. Gurpreet Chohan on December 9, 2020, he was taken back to the cells area of the police division. His jacket was seized by Cst. Tyler Wilde #4272. This officer wore either his ‘hatch gloves’ or new blue latex gloves. He has never fired his gun in the vicinity of his hatch gloves.
COURT FILE NO.: CR-21-1086
DATE: 2024-03-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
C. Vandenbroek and S. Burdo, for the Crown
JESSE EHIOZOMWANGIE
K. Schofield and C. Szpulak, for the Accused
RULING
Mirza J.
Released: March 5, 2024