COURT FILE NO.: CR-22-0007-00

DATE: 2024-01-25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King

J. Clouston and J. Little, for the Crown

• and -

Antonio Manzo

B. Sacevich, for the Accused

Accused

HEARD: September 25, 26, 27 and 28, 2023, in Fort Frances, Ontario

Mr. Justice J.S. Fregeau

Reasons For Judgment

INTRODUCTION

[1] Antonio Manzo (the “accused”) is charged with three firearm offences in relation to an incident at the Rainy River Health Centre (the “RRHC”), in Rainy River, Ontario on May 7, 2020, namely that he:

1. on or about the 7^th^ day of May in the year 2020 at the Town of Rainy River in the said Region, did intentionally discharge a firearm while being reckless about endangering the life or safety of another person, to wit the occupants of the Rainy River Hospital, contrary to section 244.2(1)(a) of the Criminal Code;

2. on or about the 7^th^ day of May in the year 2020 at the Town of Rainy River in the said Region, did have in his possession a weapon, to wit a firearm, for a purpose dangerous to the public peace, contrary to section 88(1) of the Criminal Code; and

3. on or about the 7^th^ day of May in the year 2020 at the Town of Rainy River in the said Region, did without lawful excuse, use a firearm, to wit a semi automatic rifle, in a careless manner, contrary to section 86(1) of the Criminal Code.

[2] The RRHC is a small, semi-rural hospital in Rainy River, Ontario which provides general, acute and emergency care and services. The RRHC also has a residential Long Term Care unit (the “LTC unit”). During the early morning hours of May 7, 2020, there were approximately 33-35 people within the RRHC: 21 LTC patients, 2 emergency patients and 2 patients in general care, with the balance of the occupants being staff members.

[3] There are two entrances to the RRHC, each with their own vehicular entrance. The main entrance faces 4^th^ Street (the "main entrance"), and the rear emergency entrance faces 5^th^ Street (the "emergency entrance"). Between the main entrance of the RRHC and 4^th^ Street, there is a crescent-shaped road with parking spots on either side (the “main parking lot”). This area can also be described as a “drive-through” parking lot, as vehicles enter the parking lot from 4^th^ Street, then drive in a counterclockwise direction past the main entrance, before reaching the exit back onto 4^th^ Street. Along both sides of the crescent-shaped parking lot are parking spots available to staff and members of the public. Drivers can either park their vehicle on the right side of the crescent facing the RRHC building (leaving approximately 5 to 10 feet of space between the vehicle and the building), or they can park on the left side of the crescent in parking spots nestled into the grassy area separating the parking lot from 4^th^ Street.

[4] Inside the RRHC, in the section of the building directly adjacent to the main parking lot, there is a “tuck shop”, a chapel, a boardroom and a portion of the LTC wing. Windows are spaced at regular intervals along this wall. LTC patients are regularly attended to by staff in their rooms, among other times, between 5:30 – 7:15 a.m. daily.

THE CASE FOR THE CROWN

[5] Christina Belluz is a Registered Nurse at the RRHC. Ms. Belluz testified that on May 6^th^, 2020, she arrived at the RRHC for a night shift (7:15 p.m. May 6, 2020 – 7:15 a.m. May 7, 2020). When she arrived at the RRHC main parking lot, she backed her vehicle into the last parking spot in the line of parking spaces closest to the RRHC building, with the front of her vehicle facing 4^th^ Street, and the back of her vehicle towards the building.

[6] During the early morning hours of May 7, 2020, Ms. Belluz was finishing her night shift and was getting ready for the staff turnover at 7:15 a.m. Between 6:50 a.m. and 7:00 a.m., while Ms. Belluz was standing at the front desk which faces the main entrance to the RRHC, she noticed a vehicle pull up and stop outside the main entrance area. This was not unusual, and Ms. Belluz thought nothing of it. She then walked from the front of the hospital to the emergency room area at the rear of the building to check on a patient. When she returned to the front desk area, she noticed the same vehicle pull forward and out of her line of vision. She described this vehicle as a “light grey SUV”.

[7] Ms. Belluz next recalled that at approximately 7:00 a.m., a member of the RRHC housekeeping staff arrived for work and told her that three staff members’ cars in the parking lot had flat tires. Ms. Belluz immediately went outside to the parking lot and observed what she described as “flattening tires” on three vehicles, one of which was the front, driver’s side tire on her 2018 Volkswagen Tiguan.

[8] Thinking the tires of these three vehicles had been slashed, Ms. Belluz called the police. After the police arrived, Ms. Belluz went home, leaving her car in the parking lot.

[9] Krista Bruszen, was a Health Care Aid/Personal Support Worker at the RRHC on May 7, 2020. On May 6, 2020, she also worked a night shift which ended at 7:15 a.m., May 7, 2020. Ms. Bruszen’s 2020 Kia Sodona was parked in the same strip of parking spaces along the RRHC building as Ms. Belluz’s vehicle, in a spot that was directly facing an occupied LTC room. Ms. Bruszen estimated that the distance from the front of a vehicle parked in this spot to the closest hospital window opposite the vehicle, was between 5 to 10 feet.

[10] Between approximately 6:15 a.m. and 6:30 a.m. May 7, 2020, Ms. Bruszen was told that one of the tires on her vehicle was flat. Ms. Bruszen did not go out into the parking lot to examine her tire. She texted her husband who arrived at approximately 7:10 a.m. Mr. Bruszen unsuccessfully attempted to inflate the flat tire. He then arranged for his wife’s vehicle to be towed to Krieger Sales and Services for repair. Ms. Bruszen then took her husband’s car and went home.

[11] Melanie Miller was a Registered Practical Nurse at the RRHC on May 7, 2020. She had also worked the night shift from May 6 – May 7, 2020. Her responsibilities included caring for LTC patients. On the evening of May 6^th^, Ms. Miller arrived in the RRHC main parking lot, and backed her truck into a parking spot in the strip of parking spaces closest to the wall of the RRHC, with the rear end of her vehicle being approximately 5 to 6 feet from the building and in front of an occupied LTC room.

[12] During the early morning hours of May 7, 2020, Ms. Miller assisted patients with their morning routines starting at approximately 5:30 a.m. until approximately 7:15 a.m. Ms. Miller recalled seeing a white vehicle parked outside the front entrance of the RRHC between 6:00 a.m. and 6:45 a.m. on May 7, 2020. At approximately 7:15 a.m. that morning, Ms. Miller was told that one of the tires on her GMC Sierra truck was flat. Ms. Miller went outside and observed that her front passenger side tire was flat. Ms. Miller left her truck at the hospital and had her parents pick her up later that morning.

[13] Stephan Brown is an auto service technician. On May 7, 2020, he was employed by Martin Krieger at Krieger Sales and Service. That morning, Mr. Brown was tasked with repairing the flat tire on Ms. Bruszen’s Kia Sodona, which had been towed to Mr. Krieger’s shop. Mr. Brown removed the flat tire from its rim and found a piece of lead inside the tire. Mr. Brown testified that he is very familiar with firearms and recognized this piece of lead to be the lead from a .22 calibre cartridge. Mr. Brown advised Mr. Krieger what he had found, and Mr. Krieger called the police.

[14] Mr. Brown then attended the RRHC parking lot with Mr. Krieger, and the two of them removed the flat tires from Ms. Belluz and Ms. Miller’s vehicles, while under the supervision of the police. These tires were then taken back to Mr. Kruger’s shop. When these tires were removed from their rims, a small piece of lead was found in each tire.

[15] Betty Blight, born December 23, 1943, resides at 118 4^th^ Street, in Rainy River. Her home is directly across the street from the main entrance and main parking lot of the RRHC. Ms. Blight was interviewed by the police on May 20, 2020, and was asked if she had heard anything from the area of the hospital. Ms. Blight testified that she recalled hearing three gunshots in quick succession, a little after 6:00 a.m. one morning. She advised that she lived on a farm during her entire adult life and is familiar with the sound of gunshots.

[16] Ms. Blight told the court that she was in her bedroom at the time when she heard the gunshots, and that her bedroom window faces the RRHC. She acknowledged that she did not know the direction the gunshots came from. She also testified that she thought she heard the gunshots on May 16 or 17, 2020, but acknowledged that she was not sure about the date. However, she had never heard gunshots while living at her home on 4^th^ Street other than on this one occasion.

[17] Duane Van Meer and Sherry Van Meer operated the Walla Walla Inn in Rainy River, Ontario in May of 2022. It is an admitted fact that the accused checked into the Walla Walla Inn on May 6, 2020, stayed overnight, and checked out on May 7, 2020.

[18] Mr. Van Meer observed the accused when he checked in on May 6, 2020. He described his physical appearance to the court and testified that the accused was driving a white “Tahoe”, had two dogs with him, and was carrying a suitcase and a “greenish” gun case when he checked in. Mr. Van Meer recalled that the accused left the Inn at approximately 6:05 a.m. to 6:10 a.m. on May 7, 2020, while Ms. Van Meer’s recollection was that the accused “was gone by 6:00 a.m.” on May 7, 2020.

[19] Constable J. Machura is an OPP officer posted to the Rainy River detachment. He worked the day shift on May 7, 2020, starting at 6:00 a.m. At 7:48 a.m., he received a call advising him of a mischief incident at the RRHC that morning. He was further advised that Ms. Belluz had reported that three cars in the RRHC parking lot had flat tires. Cst. Machura arrived at the RRHC at approximately 8:25 a.m. and spoke with Ms. Belluz and Ms. Miller. Cst. Machura was directed to Ms. Belluz’s Volkswagen Tiguan and Ms. Miller’s GMC truck, both of which were in the RRHC parking lot each with a flat tire.

[20] Soon after he arrived at the RRHC, Cst. Machura was approached by Mr. Krieger who showed him the piece of lead that had been recovered from Ms. Bruszen’s Kia Sodona. When Cst. Machura examined this object, he determined that it was a lead bullet from a smaller calibre firearm. At approximately the same time, he was advised that Ms. Belluz and Ms. Miller had observed a spent cartridge casing near where the Kia Sodona had been parked. At this point, Cst. Machura called the sergeant on duty. While the sergeant was enroute to the RRHC, Cst. Machura located three other spent cartridge casings in the parking lot.

[21] Cst. Machura then viewed the video surveillance of the RRHC main parking lot and cross-referenced the video time stamp with either his phone or watch to confirm the accuracy of the time stamp indicated on the video.

[22] On this video, at a time stamp of approximately 6:08 a.m., Cst. Machura observed an “older model” white GMC Yukon, with “after-market” mag rims, enter the RRHC main parking lot. Cst. Machura took photographs of this vehicle from the video and sent them to other police units in the general area. He also contacted the OPP communications centre and instructed dispatch to advise other police units to look out for this vehicle.

[23] Cst. Machura testified that he then conducted a closer review of the video surveillance, which was entered as an exhibit at trial. Cst. Machura told the court that he observed the white Yukon pull into the parking lot, stop in front of the main entranceway, pull ahead and stop again. Cst. Machura then observed a male exit the white Yukon, walk around to the rear door on the passenger side, then lift what appeared to him to be a firearm, and point it toward the parked vehicles. The male then got back into the white Yukon, turned the vehicle around and exited the parking lot.

[24] On cross-examination, Cst. Machura clarified that what he observed on the video was what he recognized, as an experienced hunter, to be a male performing physical actions consistent with raising a rifle to a shooting position. He acknowledged that due to the poor quality of the video, he was unable to say with certainty that this was a male raising a rifle. He further acknowledged that he was unable to read the license plate on the white vehicle, determine its exact make and model, or identify the accused from the video.

[25] Cst. C. Savage, from the Kenora OPP detachment, began work at 8:00 a.m. on May 7, 2020, as a general patrol and traffic enforcement officer. At 10:55 a.m., Cst. Savage received a “zone alert email” advising him that some vehicles in the RRHC parking lot had been “shot up” by an unknown male shooter at approximately 6:11 a.m. that morning. Cst. Savage received further information that the suspect was driving a GMC Yukon with mag wheels and was in possession of a .22 calibre rifle. Cst. Savage also received emailed copies of the photos which Cst. Machura had taken of the suspect vehicle from the RRHC surveillance video.

[26] Highway 71 travels in a north/south direction and connects with Highway 17 at the north end, and with Highway 11 at the south end. Highway 71 terminates at its north end where it intersects with Highway 17, approximately 20 kilometres east of Kenora. Highway 11 travels in an east/west direction between Fort Frances and Rainy River. Highway 71 terminates at its south end where it intersects with Highway 11, east of Rainy River.

[27] Cst. Savage parked his marked police cruiser in view of the junction of Highway 17 and 71, hoping to intercept the suspect vehicle. At approximately 11:33 a.m. May 7, 2020, Cst. Savage observed a white GMC Yukon westbound on Highway 17. Cst. Savage “ran” this vehicle’s license plate and was advised that the vehicle was registered to the accused, with whom Cst. Savage was familiar.

[28] Cst. Savage began to follow the GMC Yukon. Due to the possibility that there was a firearm in the vehicle, Cst. Savage intended to wait for back-up before pulling the Yukon over. However, the GMC Yukon soon pulled into a truck rest area which forced Cst. Savage to address the situation immediately. He activated his emergency lights, pulled up approximately 30 metres behind the GMC Yukon and ordered the driver to exit the vehicle. The driver complied and was handcuffed and arrested. At trial, Cst. Savage identified the accused as the driver of the GMC Yukon that he pulled over on May 7, 2020.

[29] Constable D. Smith, from the Kenora OPP detachment, was dispatched to the location where the accused had been arrested. Upon arrival, Cst. Smith was provided with a 12-gauge shotgun and a scoped .22 calibre semi-automatic Ruger rifle which had been seized from the rear seat of the GMC Yukon. Both firearms were cased and trigger locked when they were found in the accused’s vehicle.

[30] Also seized from the accused vehicle were two receipts. Exhibit #19, page 53, is a copy of a receipt from the McDonald’s restaurant in Kenora, dated May 7, 2020, 8:34 a.m. Exhibit #19, page 52, is a copy of a receipt from the Walmart store in Kenora, dated May 7, 2020, 8:54 a.m.

[31] Constable M. Engstrom is an Identification Officer with the Kenora OPP detachment and was assigned as the Identification Officer at the RRHC scene. When he arrived at the RRHC, two of the three vehicles with flat tires remained at the scene. Cst. Engstrom was advised that spent cartridge casings had been found in the RRHC parking lot. Cst. Engstrom, assisted by Cst. Machura, processed and recovered four spent cartridge casings from the RRHC parking lot. He was also provided with the small piece of lead that had been recovered from the tire of the Kia Sodona at Mr. Krieger’s auto shop.

[32] Cst. Engstrom observed Mr. Krieger and Mr. Brown remove the damaged tires from the two vehicles that were still present in the RRHC parking lot. He then attended Mr. Krieger’s auto shop and observed and seized the small pieces of lead removed from each of those tires.

[33] In June 2020, Cst. Engstrom shipped the .22 calibre semi-automatic Ruger rifle seized from the GMC Yukon to the Centre of Forensics Sciences, Firearms & Toolmarks unit (“CFS”) in Toronto, together with the four spent cartridge casings recovered from the RRHC parking lot.

[34] Constable R. Ivanowich of the Rainy River OPP detachment was assigned to this investigation and obtained a number of relevant surveillance videos. These videos included two from the RRHC, one from the Rainy River High School (the “High School”), and one from the JD Junction Store (“JD Store”). The High School is located on Mill Avenue between the Walla Walla Inn and the RRHC and is approximately 800 metres from the RRHC. The JD Store is located at the northeast corner of the junction of Highway 11 and Highway 71 and is approximately 50 kilometres east of Rainy River.

[35] Cst. Ivanowich testified about his review of the May 7, 2020, video surveillance from the High School. Cst. Ivanowich observed, at time stamp 6:07:26 a.m., a white vehicle matching the description of the white GMC Yukon travelling from west to east past the High School, toward the RRHC, on Mill Ave.

[36] Regarding the surveillance videos from the RRHC, the first camera captures the emergency entrance, and the second camera captures the main entrance. Cst. Ivanowich testified that when he reviewed the emergency entrance video, he observed, at time stamp 6:07 a.m., a white SUV circle through the vehicle entrance without stopping. In reviewing the main entrance surveillance video, Cst. Ivanowich testified that he observed, at time stamp 6:08 a.m., the same vehicle stops in front of the main entrance before it pulled forward and stopped again. The driver then got out of the vehicle, went to the passenger side door, and paused before returning to the driver’s seat and driving out of the parking lot.

[37] With respect to the JD Store surveillance videos from May 7, 2020, Cst. Ivanowich further testified that he observed, at time stamp 6:45 a.m., an east bound white GMC Yukon on Highway 11 turn north onto Highway 71. Cst. Ivanowich told the court that as part of his investigation, he drove from the RRHC to the junction of Highways 11 and 71. The distance was 51 kilometres and it took him 36 minutes to travel this distance at the posted speed limit.

[38] It is an agreed fact that the trip from the RRHC to the location where Cst. Savage arrested the accused takes two hours and 36 minutes when driving at the posted speed limit.

[39] Cst. Ivanowich told the court that he took still shots of the white GMC Yukon that he had observed in the RRHC, the High School, and the JD Store surveillance videos. On June 2, 2020, Cst. Ivanowich created a Vehicle to Video Comparison Report. This Report compared the still shots of the white vehicles captured from these surveillance videos (excluding the still shots from the JD Store video), to pictures he took of the GMC Yukon that the accused was driving when he was stopped by Cst. Savage. Cst. Ivanowich’s June 2, 2020, Vehicle to Video Comparison Report was entered as an exhibit at trial.

[40] Judy Chin is a Forensic Scientist with the Firearms & Toolmarks unit of the CFS in Toronto. On consent, she was qualified as an expert witness allowed to provide opinion evidence regarding the identification and comparison of fired ammunition components to suspect firearms.

[41] Ms. Chin confirmed that the OPP requested that the CFS test fire the .22 calibre semi-automatic rifle seized from the accused’s GMC Yukon and compare the spent casing from this discharge to the cartridge casings recovered from the RRHC parking lot.

[42] Ms. Chin testified that CFS Forensic Scientist, Shane Staniek, conducted the required testing in this case and authored the related July 23, 2020, Firearms Report. Ms. Chin testified that Mr. Staniek is no longer employed with the CFS. She reviewed Mr. Staniek’s report, concluded that it was correct, and adopted it as her own for the purposes of her testimony in this case. The accused took no issue with this at trial.

[43] Ms. Chin opined that the four spent cartridge casings recovered by the OPP from the RRHC parking lot on May 7, 2020, and which were submitted to the CFS, had been fired by the .22 calibre semi-automatic Ruger rifle seized from the accused’s vehicle by the OPP on May 7, 2020. Ms. Chin’s opinion and conclusion were not seriously challenged on cross-examination.

THE CASE FOR THE ACCUSED

[44] The accused did not call evidence.

THE POSITION OF THE CROWN

[45] The Crown recognizes that there is no direct evidence identifying the accused as the person who discharged a firearm four times in the RRHC parking lot on May 7, 2020. The Crown submits, however, that the circumstantial evidence in this case cannot reasonably support any other inference.

[46] The Crown submits that the circumstantial evidence in this case proves beyond a reasonable doubt that the accused discharged the .22 calibre semi-automatic rifle that was seized from his vehicle four times in the parking lot adjacent to the main entrance of the RRHC shortly after 6:00 a.m. May 7, 2020. The Crown further submits that in doing so, the accused shot into the tires of three vehicles parked at the RRHC on May 7, 2020, and that one discharge remains unaccounted for.

[47] The Crown notes that it is admitted that the accused checked into the Walla Walla Inn on May 6, 2020, stayed overnight, and left the next morning at approximately 6:00 a.m. The Crown further notes that Mr. Van Meer observed the accused carrying a gun case when he checked in on May 6, 2020.

[48] The Crown submits that the video from the High School on Mill Ave., approximately 800 metres from the RRHC, captures a vehicle similar to the one being driven by the accused when he was stopped by Cst. Savage, driving past the High School toward the RRHC, at time stamp 6:07 a.m., May 7, 2020.

[49] The Crown contends that the May 7, 2020, video from the main entrance of the RRHC captures this same vehicle, with its driver, doing the following:

1. Appears outside the RRHC main entrance at 6:08:30, and remains stationary until 6:09:30;

2. Drives forward at 6:09:30, then stops again, before the driver is seen exiting the vehicle, walking over to the passenger side, opening the front passenger door, before moving out of the camera’s view;

3. The driver then returns to the driver’s seat of the vehicle at 6:10:20, pulls the vehicle forward, stops again at 6:10:32, exits the vehicle and again walks over to and opens the front passenger door, appears to take something from the vehicle and raises his arms up; and

4. At 6:10:53, the driver returns to the driver’s seat, reverses the vehicle, and exits the parking lot through the same entrance from which he came in.

[50] The Crown submits that the two locations in the RRHC parking lot where the driver of this vehicle is seen stopping, then getting out of the vehicle, and then going to the front passenger door, are consistent with the general locations where the spent cartridge casings were recovered from and where the three vehicles with damaged tires were located.

[51] The Crown submits that the video from the JD Store, located at the Highway 11 and 71 intersection, depicts this same vehicle travelling east on Highway 11 and then turning north on Highway 71, between 6:45:05 and 6:45:17 a.m. May 7, 2020.

[52] The Crown contends that at 11:33 a.m. on May 7, 2020, Cst. Savage observed a white Yukon traveling westbound on Highway 17, just west of the Highway 17 and 71 intersection. Cst. Savage stopped this vehicle and identified the accused as the driver. A .22 calibre semi-automatic Ruger rifle was located in the back seat, which was seized.

[53] The Crown submits that Ms. Chin’s expert opinion confirms that the four spent cartridge casings found in the RRHC parking lot on the morning of May 7, 2020, had been fired from the .22 calibre semi-automatic rifle seized from the accused’s vehicle.

[54] The Crown submits that the only reasonable inference to be drawn from the circumstantial evidence in this case is that the accused drove to the RRHC on the morning of May 7, 2020, and discharged a .22 calibre semi-automatic Ruger firearm four times in the RRHC main parking lot.

[55] The Crown submits that the three damaged vehicles were parked in the portion of the RRHC parking lot closest to the building such that the accused, from his location, was pointing the firearm in the direction of the building’s windows and rooms when he discharged the rifle four times. The Crown submits that discharging a firearm multiple times from this location and in the direction of the LTC unit which was occupied with 21 LTC patients, recklessly endangered the lives and safety of these RRHC occupants.

[56] The Crown further submits that the discharge of a firearm four times in this location and in the manner established by the physical evidence also establishes use of a firearm in a careless manner and possession of a firearm for a purpose dangerous to the public peace.

THE POSITION OF THE ACCUSED

[57] The accused submits that in a trial where the only evidence implicating the accused is circumstantial, the Crown is required to establish that there are no rational inferences or explanations other than the guilt of the accused.

[58] The accused submits that the time frame within which the tires of the three vehicles in the RRH parking lot were damaged is broad because all three vehicles had been parked in the lot overnight.

[59] The accused acknowledges that Ms. Blight testified that she heard three gunshots shortly after 6:00 a.m. one morning in May 2020. The accused submits, however, that given her age and poor sleep habits, the evidence of Ms. Blight is simply unreliable and cannot support the suggestion that she heard shots fired shortly after 6:00 a.m. May 7, 2020.

[60] The accused submits that the May 7, 2020, surveillance video of the RRHC main entrance area is of very poor quality and captures the relevant evidence from an awkward angle. The accused submits that this video cannot establish beyond a reasonable doubt that the driver exited the vehicle and discharged a firearm in the direction of the RRHC. The accused further submits that Mr. Van Meer’s evidence establishes that the accused was in possession of a gun case when he checked in on May 6, 2020, without any evidence as to what, if anything, was in the gun case.

DISCUSSION

[61] Recognizing the seriousness of the conduct that led to the charges in this case, and further recognizing the circumstantial nature of the evidence against the accused, the OPP conducted a very thorough investigation, and the Crown presented a very well organized and comprehensive case.

[62] In the recent case of R. v. Jaggernauth, 2023 ONSC 3539, Woollcombe J., at paras. 9 and 10, summarized how courts should analyze circumstantial evidence:

[9] When assessing circumstantial evidence, consideration must be given to other reasonable possibilities or plausible theories that are inconsistent with guilt. While the Crown must negate other reasonable possibilities, it is not required to negate every possible conjecture, no matter how irrational or fanciful, consistent with innocence. The basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than guilt. If it is, the accused must be acquitted.

[10] Circumstantial pieces of evidence are not to be considered separately, divorced from each other. As explained in R. v. Hudson, 2021 ONCA 722 [Hudson], at para. 70, consideration of a circumstantial case,

…does not involve an examination of individual items of circumstantial evidence in isolation and separately from the rest, adjudging them against the criminal standard of proof and rejecting them if they are found wanting, as surely they will be. No individual item of circumstantial evidence is ever likely to do so. They are the building blocks of proof, not the final product. It is commonplace that individual items of evidence adduced by the Crown examined separately and in isolation, have not a very strong probative value. But all the pieces have to be considered. Each one in relation to the whole. And it is the whole of them, taken together, whose cumulative force must be considered and may constitute a basis for conviction.

[63] For the reasons that follow, I am satisfied beyond a reasonable doubt that the accused, shortly after 6:00 a.m. on May 7, 2020, discharged a .22 calibre semi-automatic Ruger rifle four times in the parking lot of the RRHC, and in the general direction of the RRHC building, from a location or locations in the main parking lot that were in close proximity to occupied areas within the RRHC, and within the lethal range of a .22 calibre rifle. In doing so, the accused struck the tires of three vehicles parked in that parking lot.

[64] It is an admitted fact that on May 6, 2020, the accused stayed overnight at the Walla Walla Inn and checked out on May 7, 2020. Mr. Van Meer testified that the accused was driving a white “Tahoe” vehicle and was carrying a green gun case when he checked in on May 6, 2020. He further testified that the accused left the Inn at approximately 6:05 to 6:10 a.m. on May 7, 2020. Ms. Van Meer’s recollection was that the accused was “gone by 6:00 a.m.” May 7, 2020. It is common knowledge that a Tahoe is a full-size SUV.

[65] I find as a fact that the accused checked out of the Walla Walla Inn shortly after 6:00 a.m. on May 7, 2020, and that he was driving a white full-size SUV that morning.

[66] At approximately 11:33 a.m., May 7, 2020, Cst. Savage observed a white GMC Yukon westbound on Highway 17, just west of the intersection of Highway 17 and 71. Cst. Savage stopped this vehicle. The accused was driving the white Yukon and was arrested. A .22 calibre semi-automatic rifle was seized from the back seat of the white Yukon vehicle which the accused was driving (the “Manzo vehicle”).

[67] It is an admitted fact that it takes a vehicle driving at the posted speed limit two hours and 36 minutes to travel from the RRHC to the location where the accused was arrested by Cst. Savage.

[68] Also seized from the Manzo vehicle were two receipts, one of which was Exhibit #19, page 53, a receipt from the McDonald’s restaurant in Kenora, dated May 7, 2020, 8:34 a.m. I find as a fact that this receipt from the McDonald’s restaurant in Kenora places the Manzo vehicle and the accused at that location at 8:34 a.m. May 7, 2020. I take judicial notice of the fact that the McDonald’s restaurant in Kenora is approximately 15 minutes by vehicle west from the location where Cst. Savage arrested the accused. I find that it would therefore take a vehicle driving at the posted speed limit approximately two hours and 51 minutes to travel from the RRHC to the McDonald’s restaurant in Kenora.

[69] I accept the expert opinion evidence of Ms. Chin and I am satisfied beyond a reasonable doubt that the .22 calibre rifle seized from the Manzo vehicle shortly after 11:33 a.m. on May 7, 2020, and forwarded to the CFS by the OPP, is the firearm that was discharged in the RRHC parking lot shortly after 6:00 a.m. on May 7, 2020.

[70] I have reviewed the video seized from the High School, located on Mill Ave. in Rainy River, approximately 800 metres from the RRHC and between the Walla Walla Inn and the RRHC. At 6:07:27 a.m., an all-white, full-size SUV is seen driving past the High School and in the general direction of the RRHC. This occurred very shortly after the accused checked out of the Walla Walla Inn on May 7, 2020.

[71] I have reviewed the video seized from the RRHC which covers the main entrance and main parking lot areas of the RRHC. At 6:08:36 a.m. May 7, 2020, an all-white, full-size SUV pulls up in front of the main entrance and stops. At 6:09:30, this vehicle pulls forward slowly and stops after a short distance at 6:09:38 a.m. A male exits the driver’s door, walks behind the vehicle to the front passenger side and opens the front passenger door. At this point, the man appears to be in a crouched position and is partially obscured by another vehicle. He remains outside the passenger side of the vehicle (the side closest to and parallel with the RRHC) for a few seconds, with the passenger door remaining open. He then walks in front of the vehicle and gets back into the driver’s seat through the driver’s door. The vehicle moves forward again and stops, the driver exits and walks around the rear of the vehicle and opens either the front or back passenger door. The male is outside the vehicle momentarily with the passenger door open. He then closes the passenger door, walks around the front of the vehicle, and gets back in through the driver’s door. The vehicle reverses, turns around, and exits the parking lot the same way he came in.

[72] I was unable to discern, from this video, movements or positioning consistent with this man either having a rifle, or raising a rifle, to an upright shooting position.

[73] I have reviewed the video seized from the JD Store, located at the junction of Highway 71 and Highway 11, a location 51 kilometres and approximately 36 minutes by vehicle at the posted speed limit, from the RRHC. At 6:45:15 a.m., May 7, 2020, an all-white, full-size SUV is shown travelling east bound on Highway 11 and turning north on Highway 17.

[74] I have further reviewed Cst. Ivanowich’s June 2, 2020, Vehicle to Video Comparison Report. In this report, Cst. Ivanowich compares details of the Manzo vehicle with the vehicle captured in the High School video, and in the RRHC videos.

[75] Cst. Ivanowich compared what I will refer to as numerous “trim details” on the roof, passenger side, passenger side wheel rims, rear end including trailer hitch assembly, decals and lights on the Manzo vehicle to the same trim details on the white SUV in the High School and RRHC videos. Having reviewed this report, I am satisfied beyond a reasonable doubt that the Manzo vehicle is the same vehicle that was captured in the video from the High School and the RRHC. I am further satisfied beyond a reasonable doubt, based on both Cst. Ivanowich’s report and the timing at which a full-size white SUV is captured on the JD Store video, that the vehicle in the JD Store video is the Manzo vehicle.

[76] As a result, I find as a fact that the JD Store video captures the Manzo vehicle travelling east on Highway 11 away from the Town of Rainy River and turning north on Highway 71, towards the junction where Highway 71 meets Highway 17.

[77] I accept the submission of the Crown that the two locations in the main RRHC parking lot where the Manzo vehicle stopped shortly after 6:00 a.m. May 7, 2020, are consistent with the general locations where the spent cartridge casings were found and where the vehicles with the damaged tires were parked.

[78] I accept the evidence of Ms. Blight that she heard gunshots in quick succession coming from the direction of the RRHC at approximately 6:00 a.m. one morning in May 2020.

[79] As noted in para. 70 of Hudson, individual items of circumstantial evidence are the building blocks of proof, not the final product. Each piece of circumstantial evidence has to be considered in relation to the whole. It is the cumulative force of the whole that must be considered in determining if facts in issue have been proven beyond a reasonable doubt.

[80] The individual items of circumstantial evidence, viewed chronologically, are as follows:

1. The accused left the Walla Walla Inn alone at approximately 6:00 a.m. May 7, 2020, driving the Manzo vehicle;

2. The Manzo vehicle was observed on video driving past the High School in the direction of the RRHC at 6:07:27 a.m. May 7, 2020;

3. The Manzo vehicle was observed on video in the main parking lot of the RRHC at, and following, 6:08:36 a.m. May 7, 2020, and a male was observed exiting the Manzo vehicle both times it stopped in the parking lot;

4. At approximately 6:45 a.m. May 7, 2020, the Manzo vehicle was observed on video at the junction of Highways 71 and 17, traveling east from the direction of Rainy River, then turning north on Highway 17. This location is 36 minutes, by way of a vehicle driving at the posted speed limit, from the RRH;

5. At approximately 7:00 a.m. May 7, 2020, witnesses observed three cars in the parking lot of the RRH with flat or “flattening” tires;

6. At 8:34 a.m., May 7, 2020, the Manzo vehicle attended the McDonald’s store in Kenora. This location is approximately two hours and 51 minutes, by way of a vehicle driving at the posted speed limit, from the RRH. I find that this distance could be easily travelled, by vehicle, in approximately two hours and 30 minutes; and

7. The accused was alone in the Manzo vehicle when stopped by Cst. Savage just west of the junction of Highways 17 and 71. The .22 calibre rifle that was discharged four times earlier that morning in the RRHC parking lot was found in the back seat of the Manzo vehicle being driven by the accused when stopped by Cst. Savage.

[81] I note that the accused’s final submissions did not provide the court with any other reasonable possibilities or plausible theories inconsistent with the conclusion the Crown asks the court to draw in this case.

[82] Having reviewed and analyzed all the circumstantial evidence in this case, and considering that evidence in its totality, I am satisfied beyond a reasonable doubt that the accused discharged a .22 calibre semi-automatic Ruger rifle four times in the parking lot of the RRHC shortly after 6:00 a.m. May 7, 2020. I further find that he did so in the general direction of and in close proximity to occupied areas of the hospital, which are within the lethal range of a .22 calibre rifle.

COUNT #3

[83] Count #3 alleges that the accused used a firearm, to wit a semi-automatic rifle, without lawful excuse and in a careless manner on May 7, 2020, contrary to s. 86(1) of the Criminal Code. I have found that the accused discharged a .22 calibre semi-automatic rifle in the parking lot of the RRHC four times shortly after 6:00 a.m. on May 7, 2020. He did so very close to and in the general direction of occupied areas of the hospital. It is not in issue that this rifle is a firearm.

[84] As per the Supreme Court of Canada’s decision in R. c. Gosset, 1993 CanLII 62 (SCC), [1993] 3 S.C.R. 76, 83 C.C.C. (3d) 494 [Gosset], the actus reus of the s. 86(1) offence is established if the accused used a firearm in a manner that constitutes a marked departure from the standards of reasonable person in all of the circumstances of the case.

[85] Gosset also describes the mens rea or objective fault requirement for this offence as the objective foresight of risk of harm, which is normally inferred from the facts absent evidence raising a reasonable doubt as to the incapacity to appreciate the risk.

[86] I am satisfied beyond a reasonable doubt that the accused's actions in discharging the .22 calibre rifle as he did, and where he did, on May 7, 2020, constitutes a marked departure from the standards of a reasonable person in the circumstances. Mr. Manzo brought a semi-automatic rifle into the parking lot of a hospital and long-term care facility, in close proximity to the building’s main entranceway. He then fired 3 bullets into three separate vehicle tires. One bullet remains unaccounted for. Embarking on such an activity generally, and particularly in a parking lot immediately beside a building with occupied rooms, is dangerous. Based on these facts, it can be inferred that Mr. Manzo failed to direct his mind to the risk and the need to take care. There is no evidence that Mr. Manzo was incapable of appreciating the risk involved in his conduct.

[87] The accused is found guilty on Count 3 on the indictment.

COUNT #2

[88] Count #2 alleges that the accused, on May 7, 2020, had a firearm in his possession for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code. For the accused to be found guilty of possession of a weapon for a purpose dangerous to the public peace in relation to his conduct on the morning of May 7, 2020, the Crown must prove beyond a reasonable doubt:

1. That the accused possessed a weapon;

2. That the accused knew what he possessed was a weapon; and

3. That the accused possessed the weapon for a purpose dangerous to the public peace.

[89] I am satisfied beyond a reasonable doubt that the accused possessed a weapon, and that he knew that what he possessed was a weapon, when he discharged a .22 calibre rifle in the RRHC parking lot on May 7, 2020.

[90] In considering the accused’s purpose, the proper test to be applied is a hybrid subjective-objective test, as described by the Supreme Court of Canada’s in R. v. Kerr, 2004 SCC 44, [2004] 2 S.C.R. 371 [Kerr]:

the trier of fact must first determine what was the accused person's purpose; this is a subjective determination. The trier of fact must then determine whether that purpose was in all the circumstances dangerous to the public peace; this is an objective determination.

[91] The accused’s purpose in having the .22 calibre rifle on May 7, 2020, is a subjective determination. The only evidence as to the accused’s purpose for possessing the .22 calibre rifle on May 7, 2020, is the fact that he used it and the way he did so. In the absence of any other evidence as to the accused’s purpose, inferences as to purpose must be drawn from his actual use of the rifle, namely firing four shots, three of which struck three different tires of vehicles in the parking lot.

[92] The only logical and, in my view, reasonable inference to be drawn from these facts is that the accused’s purpose in possessing the rifle on May 7, 2020, was to do exactly what he in fact did: damage the tires of the vehicles in the parking lot of the RRHC. The reasons for this bizarre purpose are unknown and, in any event, irrelevant.

[93] In the event I am wrong about the accused's purpose that morning when he left the Walla Walla Inn, I can easily infer that once the accused arrived at the RRHC parking lot, his purpose in stopping his vehicle, walking around to the passenger side, and removing his .22 calibre rifle from the case, was to use it in a manner that was dangerous to the public peace. This is clear because after he removed the gun from the case, he fired it four times and hit several cars in the parking lot.

[94] I am satisfied beyond a reasonable doubt that Mr. Manzo’s purpose immediately prior to using the rifle was to use it in a manner that was objectively dangerous to the public peace.

[95] A .22 calibre rifle is a small calibre rifle but nevertheless a dangerous firearm. This was a public parking lot located directly beside the RRHC. The direction of the discharge of the rifle was towards the vehicles which were located directly in front of occupied areas of the RRHC, particularly the LTC unit. The very fact that there were vehicles in the parking lot would have made it obvious to the accused that the RRHC was occupied on the morning of May 7, 2020.

[96] The accused is found guilty on Count #2 of the indictment.

COUNT #1

[97] Count #1 alleges that the accused, on May 7, 2020, did intentionally discharge a firearm while being reckless about endangering the life or safety of another person, to wit the occupants of the Rainy River Hospital, contrary to s. 244.2(1)(a) of the Criminal Code.

[98] Section 244.2(1)(a) of the Criminal Code provides as follows:

(1) Every person commits an offence

(a) Who intentionally discharges a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place.

[99] Section 244.2(2) of the Code states that for the purpose of paragraph (1)(a), “place” means any building or structure – or part of one – or any motor vehicle, etc.

[100] Section 244.2(1)(b) of the Criminal Code provides as follows:

(1) Every person commits an offence

(b) Who intentionally discharges a firearm while being reckless as to the life or safety of another person.

[101] As I read the indictment and having heard the evidence and submissions of counsel, there appears to be an error on the face of the indictment in regard to count #1.

[102] The wording used in the indictment for count #1 – “intentionally discharge a firearm while being reckless about endangering the life or safety of…the occupants of the Rainy River Hospital” – employs the language of s. 244.2(1)(b) of the Code yet references s. 244.2(1)(a) of the Code.

[103] Section 244.2(1)(a) of the Code criminalizes the intentional discharge of a firearm into a “place” – which includes a motor vehicle – while knowing or being reckless as to whether another person is present “in the place”. Section 244.2(1)(b) of the Code makes it an offence to intentionally discharge a firearm while being reckless “as to the life or safety of another person” at large.

[104] Arguably, the facts which I have found to be proven beyond a reasonable doubt could support a conviction on either s. 244.2(1)(a) or (b). Upon review, it is not clear to me if the closing submissions of the Crown were in reference to s. 244.2(1)(a) or (b). The closing submissions of the accused appeared to have been directed only at s. 244.2(1)(a) of the Code.

[105] In my view, it is unfair to the accused to proceed any further in my decision on count #1 until I hear further from Crown counsel. Specifically, is the reference to s. 244(1)(a) in count #1 an error and, if so, does the Crown move to amend the indictment to refer to s. 244.2(1)(b) rather than (a)? Further, if the Crown moves to amend the indictment, what is the position of the accused?

[106] The accused is found guilty on counts #2 and #3 in the indictment. Having heard from counsel regarding the issue with count #1 and having amended count #1 of the indictment at the request of the Crown, the accused taking no position, this matter is adjourned to allow me to further analyze the evidence in relation to count #1, as amended.

[107] This matter is adjourned to, and the accused is remanded to, Regional Assignment Court on February 26, 2024, at 2:00 p.m. to set/confirm a date for the release of additional Reasons for Judgment on count #1.

“originally signed by”

The Hon. Mr. Justice J.S. Fregeau

Released: January 25, 2024