COURT FILE NO.: CR-23-3000519-0000 DATE: 20241129
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – DESHAI LOWE Defendant/Respondent
Counsel: Andrea McPhedrom, for the Crown Theoni Kapetaneas, for Mr. Lowe
HEARD: October 15 and 16, 2024
REASONS FOR JUDGMENT
NEWTON-SMITH J.
I. OVERVIEW
[1] On October 5, 2021, just before 9:30 pm a shot was fired in the stairwell of an apartment building located at 35 Trudelle Street in Toronto. Minutes later multiple shots were fired outside of the building.
[2] Mr. Lowe lived in the building in apartment 107 with his mother. Earlier that evening a group of four men had come to the building looking for Mr. Lowe. They encountered another tenant, Nina Hodder, in the stairwell and asked her to call Mr. Lowe to come to the stairwell. Ms. Hodder did as requested and returned to her apartment. Sometime later there was a commotion and a shot was heard inside the building. Shortly after Ms. Hodder looked out of her window and saw someone she identified as Mr. Lowe standing outside the main entrance to the building firing a handgun in the direction of the parking lot. She also heard the sound of shots in the distance that sounded like return fire.
[3] Mr. Lowe is charged with discharging a handgun with intent to endanger the life of unknown males, contrary to section 244(1) of the Criminal Code, and possession of a handgun without a licence contrary to section 91(1) of the Code.
[4] It is alleged that Mr. Lowe is the person who stood outside of the building that evening and fired a series of shots. The identity of that person was the only issue at trial. I will refer to that person as the shooter.
II. THE EVIDENCE
[5] The Crown called two witnesses, Erskine Pierre, the building superintendent and Nina Hodder. An Agreed Statement of Fact was also filed.
[6] 35 Trudelle is a rectangular shaped apartment building running east west. The main entrance to the building is on the north side. There are also exit doors on the southwest end of the building, and the southeast end. On either end of the building, between the exit doors and the main building, is a vestibule area containing stairwells. The stairwell areas are separated from the main building by a set of doors.
[7] Mr. Lowe lived with his mother in apartment 107 on the first floor. The main entrance to the building was to the west of Mr. Lowe’s apartment. Apartment 106 was to the west of his apartment and closer to the main entrance. The door to Mr. Lowe’s apartment faced the doors to the east stairwell and southeast exit.
[8] On October 5, 2021, at 9:29 pm the police received a radio call for the sound of gunshots. They arrived on scene at 9:37 pm and found a bullet and casing in the east stairwell. There was a hole in the wall where the bullet appeared to have hit. No bullets or casings were found outside of the building. Inside the building a pair of black Nike shoes were found scattered in the 1st floor hallway. One shoe was found near apartment 106 and the other was further down the hallway.
[9] There is a short video clip from outside of the building. It shows a person running in an easterly direction across the front of the neighbouring building at 9:26 pm. The quality of the video is poor.
[10] The person on the video has dark skin and is probably male. It is possible that the person has no shoes on. The person is wearing pants that look to be either blue or black, and possibly have a blue stripe down the side. The person has on a black t shirt with a white pattern on the front. The person has longish hair. The video is too short, and the quality too poor, to say any more than that.
[11] On October 6, 2021, a search warrant was executed at Mr. Lowe’s apartment and a bag of .22 calibre bullets were found inside of a shoe box. The bullets are not the same calibre as the bullet that was found in the stairwell of 35 Trudelle.
The Evidence of the Building Superintendent
[12] On the evening of the shooting the building superintendent, Mr. Erskine Pierre, was in his office with the door closed. Mr. Pierre’s office was on the east end of the first floor inside the main building. It was right next to the doors leading into the vestibule containing the east stairwell and exit.
[13] Sometime that evening, Mr. Pierre thought it was around 10 pm, he heard the sound of the buzzer to the interior door followed by the sound of someone pushing the door heavily. Within seconds Mr. Pierre heard what he described as a loud “pop”. The sound came from inside the building. He then heard the door slam and the sound of running followed by what he described as a big commotion and more running. Mr. Pierre got up to see what was going on. He opened the door to his office and looked out but all he saw was a pair of shoes in the hallway close to apartment 106. Mr. Pierre estimated that he opened his door not more than 5-10 seconds after hearing the pop.
[14] Mr. Pierre described the running that he heard as a heavier run, like someone running behind someone. It sounded as though the person was running towards the main entrance doors.
[15] When he closed his door again Mr. Pierre heard “pop pop pop”. It was then that he realised what he was hearing were gunshots and called 911 immediately.
[16] After he called 911 Mr. Pierre went out to the east exit vestibule and saw a bullet hole in the wall close to the door and a casing on the ground.
The Evidence of Nina Hodder
[17] At the time of the shooting Nina Hodder lived on the second floor in apartment 208. She had been living there with her three children for two and half years. Her apartment overlooked the main entrance to the building.
[18] Ms. Hodder was shown a photo of Mr. Lowe taken on October 14, 2021. She identified him as “D”.
[19] Ms. Hodder knew D from the building. She knew that he lived on the first floor across from the stairwell. She estimated that she first met him six months prior to the shooting. She did not know him by any name other than D.
[20] Ms. Hodder saw D around the building and occasionally bought marijuana from him. She described him as her second source weed dealer. Ms. Hodder estimated that she probably spoke to him face to face once every week or two when she saw him around the building. She also communicated with him by messaging but only to buy weed.
[21] She described her relationship with D as a casual neighbourly relationship. She only ever contacted him if she wanted to buy weed and they did not otherwise hang out.
[22] On the evening of the shooting Ms. Hodder messaged D at 8:36 pm looking for 4 grams of marijuana. He responded telling her yes, but she had to wait a bit. After waiting a short time Ms. Hodder went out to the east stairwell to see if his car was in the parking lot.
[23] When she opened the door to the east stairwell, she was startled by a man in a ski mask and hat. Except for his eyes, the man’s face was completely covered. Ms. Hodder described him as heavier set wearing a black sweater and bright jogging pants. He also had a sweater wrapped around his waist.
[24] Ms. Hodder walked past him and down the stairs where she saw two guys standing in the vestibule by the interior door. D’s unit was across from that door. There was a fourth guy standing by the door to the exterior blocking the exit. The three guys that were on the ground floor of the vestibule were wearing hats and dark clothing. They asked Ms. Hodder if she knew D. She told them that she did. They asked her if she knew where he lived. When she told them that she did, they asked her to go and knock on his door. Ms. Hodder told them that she never went to his apartment, but she could call or text him.
[25] Ms. Hodder testified that she felt like she did not have a choice but to call D for them. The guy at the top of the stairs was blocking the door to the 2nd floor, another guy was blocking the ground floor exit and the other two were standing by the door into the building. Ms. Hodder understood the situation to be such that she had to do as they asked, or she wouldn’t be allowed to leave.
[26] She called D who told her to wait a bit and hung up before she could say anything else. Ms. Hodder then went back upstairs to her apartment. The guy on the second-floor landing nodded and let her pass. She testified that she felt very uncomfortable in the situation and wanted to leave. She was sweating and shaking and described her anxiety as being through the roof.
[27] As soon as she got back to her apartment, she “hit a popper” (marijuana and tobacco) which she smoked at the window.
[28] While she was at the window, she heard a bang coming from the stairwell. It sounded like something hit the wall. Ms. Hodder testified that a commotion followed the bang, and she went to her door to see what was happening. When she opened the door, she saw the man from the second-floor landing running past. He was running towards the west stairwell exit. She knew it was him because of the ski mask and sweater around his waist. Ms. Hodder testified that she saw him “book it out the exit door”. She then ran back inside her apartment and went back to the window.
[29] Ms. Hodder testified that she put her head out the window and saw D coming out of the main entrance. She yelled down at him to tell his friends to keep the noise down. Ms. Hodder testified in chief that he looked at back at her and they made eye contact before he turned back to face the parking lot. He then proceeded to pull out a gun which he fired four times in the direction of the parking lot.
[30] After he fired a fourth time Ms. Hodder heard other gun shots going off as though people were shooting back in his direction. She closed the window and dropped to the floor with her daughter who had come out of her room.
[31] When the firing stopped Ms. Hodder looked back out of the window. D was still there looking out in the direction of the return fire. He then turned around and walked back into the building. Ms. Hodder described him as in a little bit of a rush to get inside but not running.
[32] She estimated the distance from her window to where the shooter was standing to be about 15-20 feet. It was dark out, but the area was lit by a bright light in the front of the lobby.
[33] Ms. Hodder testified that she could see the gun when he pulled it out but not where he pulled it out from. She described it as a not very big black handgun with a small barrel and a large but end. She testified that it looked like a .44 calibre and every time he fired it she could see a bluish white spark.
[34] When asked how quickly she determined it was D, Ms. Hodder responded “right away”. The Crown then asked how she knew it was D. Ms. Hodder testified that, “there is no one else that looks like D in my neighbourhood…no one has short dreads like he did, no one else wore baggy track pants all the time, usually in my neighbourhood people wear jeans”.
[35] When asked if she could see his facial features Ms. Hodder responded yes. She was asked how long his dreads were and she responded, “just below his shoulder”. When asked by the Crown how certain she was that it was D, Ms. Hodder responded “100%”.
[36] When the Crown first asked Ms. Hodder what the shooter was wearing, she testified that he had on “a white t-shirt and dark grey track pants”. After viewing her preliminary inquiry transcript, she testified that he was wearing a white t-shirt, black jogging pants and slides. After reviewing her preliminary inquiry transcript a second time, she testified that he was wearing a black t-shirt, black jogging pants and black and white slides.
The Cross Examination of Ms. Hodder
[37] When cross-examined with respect to her recollection of what D was wearing, Ms. Hodder was asked why she had initially testified that the shooter was wearing a white t shirt and grey joggers. Ms. Hodder responded that she had been sexually assaulted 6 weeks ago and was having a flash back to the description from that case.
[38] Ms. Hodder was cross-examined with respect to how she had contacted D that evening. In chief Ms. Hodder had first testified that she contacted D that evening through a messaging App called Discord.
[39] In cross examination a screen shot of a series of text messages was put to Ms. Hodder. Ms. Hodder agreed that these were text messages from her to D.
[40] There was a message from was from March 19, 2021, which read, “ Hey I need 6 grams ” with a response, “ Hey, I’m using Telegram to chat. Join me! Download it here: ” .
[41] The next message was from October 5, 2021, at 8:36 pm. It read “ Hey you have 4 grams? ” with no response. A message followed from the same date which read, “ Sorry dude. I didn’t think before speaking when poking my head out. ”
[42] Ms. Hodder testified that the message from October 5, 2021, at 8:36 pm was the message that she sent to D that evening looking for marijuana. It was put to her that this was not a message through Discord but rather was a text. Ms. Hodder responded that she must have misremembered about how she communicated with D that evening, and that in fact she texted him instead of using Discord.
[43] She also agreed that her recollection with respect to timing may have been incorrect and she wasn’t sure how much time passed between her first messaging D and going out to the stairwell to look for his car.
[44] When cross-examined with respect to her interactions with D, Ms. Hodder agreed that she had not smoked weed for roughly four months prior to the day of the shooting, and couldn’t remember when she last bought from D.
[45] Ms. Hodder was cross-examined with respect to how much marijuana she had consumed that evening. In chief Ms. Hodder had testified to only consuming one popper that evening. In cross-examination Ms. Hodder agreed that she had in fact smoked one before she heard the commotion, and then when she went back to the window smoked two more before she saw D outside.
[46] Ms. Hodder was cross-examined with respect to whether she knew the four guys in the stairwell, her recollection of their appearance and her state of mind following her encounter with them.
[47] She testified that she recognised two of the four guys from the stairwell. She had seen them at the 400 McGowan playground and her younger son had shot balls with them. Ms. Hodder agreed that she hadn’t told the police that she recognised the two younger men in the stairwell.
[48] It was put to Ms. Hodder that she had told the police that the three guys who were not wearing the ski mask had medical masks. She agreed that they had covid masks but explained that the masks were under their chins and not covering their faces. This is why she had testified at trial that the only person wearing a mask was the guy at the top of the stairs who had the ski mask covering his face.
[49] In chief Ms. Hodder testified that she thought that the two younger guys who were asking about D were wearing tight black jeans and that the other two blocking the doors were wearing baggy clothes. In cross examination it was put to her that she had testified at the preliminary inquiry that they were all wearing baggy clothing, that it was all very vague and that one of the four guys was wearing jeans and the others were wearing jogging pants. Ms. Hodder agreed that her memory was better then and that she thought that three of the four were wearing jogging pants.
[50] She then agreed that the fact that D was wearing joggers that evening was not actually distinctive.
[51] Ms. Hodder agreed that she had testified at the preliminary inquiry that she thought the guys in the stairwell were just chill. It was suggested to her that this was inconsistent with her evidence that she was terrified. Ms. Hodder responded, “I think I was just saying it, I don’t feel that way, I don’t think I was chill, I was on the spot my palms were sweating and I was fearful for my life”.
[52] The cross-examination of Ms. Hodder took place over two days.
[53] On several occasions it was suggested to her that she had not in fact seen D’s face that evening. Ms. Hodder repeatedly affirmed that he had looked back at her when she called out to him to tell his friends to keep quiet.
[54] When asked if she had identified D from the back, Ms. Hodder responded that she knew what he looked like from behind because of his distinctive dreadlocks but that it was when he turned back to her after she yelled out to him that she knew it was him.
[55] A series of questions were then put to her about what she had told the police and what she had testified to at the preliminary inquiry. It was suggested to her several times that the reason she had not said to the police or at the preliminary inquiry that she saw his face was because it didn’t occur. Ms. Hodder responded that she couldn’t remember her statement, but she knew that he looked back at her because she had shouted at him, and he turned to look at her which is how she knew it was him. She testified that she may not have specifically told the police that she saw the shooters face, but she did tell the police that she recognised the shooter as D.
[56] The last question of that day was “Is it possible this didn’t occur because you didn’t mention it until today’s date?”. Ms. Hodder responded “yes”.
[57] The next day, towards the end of the lengthy cross-examination, Ms. Hodder was asked if she remembered testifying that it was possible that she hadn’t seen his face. She answered yes. It was then suggested to her, “Is it not possible that if you are incorrect about so many points that you are not 100% sure you know the identity of the shooter?”. Ms. Hodder responded, “No, I don’t 100% know”.
[58] In re-examination Ms. Hodder was asked if she remembered seeing the shooters face and she answered that she did. She was asked why she had eventually answered in cross that she wasn’t sure. Ms. Hodder responded, “the way that she puts it makes it feel like I said something wrong or I am lying but what I seen is the gentleman sitting there I had a clear picture of his face from the light of the building”.
[59] She was also asked in re-examination who had sent the text “Sorry dude. I didn’t think before speaking when poking my head out.” Ms. Hodder confirmed that she had. The Crown then asked when she had written that text and Ms. Hodder responded, “right after I seen him shooting the gun”.
[60] Ms. Hodder testified that when she first spoke to the police it was at her apartment right after the shooting. All of her children were with her and one was crying. The statement that she gave that evening was only eight minutes long and difficult to hear over the cries of her child. Ms. Hodder described herself as being distracted by her children who were upset and scared, and she was concentrating on them rather than the details of what she was telling the police.
[61] She also testified that as a mother of three children, including one who was autistic, she had a lot going on and couldn’t remember everything.
III. ISSUES AND ANALYSIS
[62] The identification of the shooter was the only issue at trial.
[63] It is agreed that if it is proven that Mr. Lowe was the person who Ms. Hodder saw shooting that evening the offences before the court have been made out.
[64] Ms. Hodder testified that she had seen D standing outside of the building shooting.
[65] There is no issue that the person that Ms. Hodder knew as D is Mr. Lowe. Her identification of Mr. Lowe as D from the photograph taken of Mr. Lowe on October 14, 2021, is not in issue. What is in issue is her identification of the shooter as being D.
A. Eyewitness Identification Evidence
[66] The inherent frailties and dangers of eyewitness identification evidence have long been recognised. It is effectively opinion evidence based on a host of factors of which the witness is often not cognizant and are difficult to assess: R. v. Miaponoose, [1996] O.J. No. 3216.
[67] The concerns arising from eyewitness identification evidence are heightened in situations where the person identified is a stranger to the witness, the circumstances of the identification are not conducive to an accurate identification, the pretrial identification processes are flawed and there is no other evidence tending to confirm or support the identification evidence: R. v. Tat, [1997] O.J. No.3597 (C.A.), at para. 101.
[68] Given the inherent frailties in identification evidence it is often the case that the credibility of the witness is less probative than the totality of the circumstances pertinent to the identification. Even the most honest witness can be mistaken when it comes to eyewitness identification. A witness’s certainty in the identification cannot be equated with reliability: R. v. Biddle, [1993] O.J. No.1833 (C.A.)
[69] The weight to be given to eyewitness identification depends greatly on the circumstances of the case. In R. v. Smerciak (1946), 87 C.C.C. 15, at p.177 Laidlaw J.A. set out a number of relevant factors to consider in the assessment of identification evidence:
The weight of evidence of identification of an accused person varies according to many circumstances. A witness called upon to identify another person may have been so well acquainted with him or her as to make the identification certain and safe. The person to be identified may possess such outstanding features or characteristics as to make an identification comparatively free from doubt. The conditions under which an observation is made, the care with which it is made, and the ability of the observer, affect the weight of the evidence. In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witness who is to be relied upon to identify a person suspected of wrongdoing or who is under arrest. If a witness has no previous knowledge of the accused person so as to make him familiar with that person's appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias created directly or indirectly.
[70] Cross-racial identification is another factor which can present difficulties for a witness and can erode the reliability of the identification: R. v. McIntosh, [1997] O.J. No.3172 (C.A.); R. v. Richards, [2004] O.J. No.2096 (C.A.) at para. 32. When a witness from one race identifies a suspect from another race solely based on features that are uncommon to the witness’s race but common to the suspect’s race extra caution is required. A cross-racial identification based solely on a common characteristic of one race is unreliable: R. v. Mathias, [2018] O.J. No.752 (S.C.) at paras. 88-89.
[71] Recognition evidence is just another form of identification evidence and carries with it the same concerns. The level of familiarity between the witness and the accused can enhance the reliability of the identification but does not mean that the concerns with eyewitness identification need not be addressed. That being said, there is a critical difference between a case of recognition and the identification by a witness of a complete stranger. When a witness makes an identification based on recognition the timeline of the identification narrative is instructive with respect to the reliability of the identification. The immediacy of the recognition in relation to the commission of the offence can enhance the reliability of the identification: R. v. Charles, 2016 ONCA 892, [2016] O.J. No.6061 (C.A.) at paras. 50-51; Mathias, at para. 19.
B. The Identification by Nina Hodder
Ms. Hodder’s Credibility and Reliability
[72] The credibility and reliability of Nina Hodder’s identification of D was challenged.
[73] It is the position of the defence that there were inconsistencies in her evidence with respect to what the shooter was wearing, her recollection of how she contacted D that evening and whether she had seen the face of the shooter. The defence also pointed to inconsistencies in her evidence with respect to what the men in the stairwell were wearing, what she told the police about the men in the stairwell and her knowledge of who they were. Her recollection of the timing of the incidents that evening was also challenged, as was her evidence with respect to how many “poppers” she had consumed that evening.
[74] The defence also points to two answers that Ms. Hodder gave in cross-examination and submits that they are devastating to her identification of D.
[75] The first was Ms. Hodder’s answer “yes” to the question, “is it possible that this didn’t occur because you didn’t mention it until today’s date”. This question came at the end of the day and was the last in a series of questions in which Ms. Hodder had repeatedly maintained that she saw the shooters face when he turned to look back at her. The above answer came after it was being suggested to her that if she had important information, she would have told the police and the court at the preliminary inquiry about it. To which she agreed. The suggestion was then made to her that “is it possible that this didn’t occur because you didn’t mention it until today’s date”. It was at this point in her evidence that Ms. Hodder answered, “yes”.
[76] The next day, at the end of her cross-examination Ms. Hodder was asked, “is it not possible if you are incorrect about so many points, that you are not 100% sure that you know the identify of the shooter?”. Ms. Hodder responded, “no, I don’t 100% know”.
[77] In re-examination Ms. Hodder was asked why she had testified that she was certain about what she had seen but had then given the above answers. Ms. Hodder explained that she was made to feel like she was saying something wrong or lying and re-iterated that what she knew was that she had “a clear picture of the shooters face in the light from the building and it was D.
[78] Her explanation is consistent with the manner in which she testified. When defence counsel put the above series of suggestions to Ms. Hodder, she appeared exhausted, frustrated and confused. She had otherwise been consistent in her evidence that the shooter had turned to face her when she called out to him. It was never suggested to Ms. Hodder that she had not called out to him, the suggestion was only that he hadn’t turned to face her.
[79] I consider the value of those answers given by Ms. Hodder to be limited.
[80] When Ms. Hodder was confronted with inconsistencies in her description of what the shooter was wearing and what the four men were wearing as between what she had testified to at trial, what she had said to the police, and what she said at the preliminary inquiry she readily accepted her earlier descriptions. She testified that she had a lot going on in her life and it was hard for her to recall the details. In the circumstances of this case, for reasons that I explain when considering the circumstantial evidence, little turns on Ms. Hodder’s recollection of what the shooter was wearing.
[81] Ms. Hodder’s evidence at trial was more detailed than her statement to the police. When she spoke to the police that evening, she told them that she knew the shooter as D. There is no evidence that she was asked by the police to explain how she knew that it was him. She only spoke to the police for 8 minutes and was simultaneously dealing with her children who were audibly upset and demanding her attention. The fact that she gave more details with respect to the identification when she later testified is not an inconsistency. Her identification of D as the shooter was immediate and consistent.
[82] The defence submits that these inconsistencies in her evidence, the evidence she gave that she couldn’t be 100% sure, coupled with the inherent frailties of eyewitness identification, render Ms. Hodder’s identification of D as the shooter unreliable.
[83] Ms. Hodder was clearly an overwhelmed and unsophisticated woman who was dealing with many challenges. She was the single parent of three children including a high needs child. She was unemployed and living on social assistance. She had recently been the alleged victim of a sexual assault.
[84] Her recollection of the events that evening was not perfect, and she testified in a somewhat scattered manner. It is clear that she was consuming marijuana that evening and had initially downplayed how much.
[85] Accordingly, I approach her evidence with some caution.
The Circumstances Surrounding Ms. Hodder’s Identification
[86] Unlike many identification cases, this was not a case of stranger identification.
[87] Ms. Hodder and Mr. Lowe were known to each other. They lived in the same building. Ms. Hodder often saw Mr. Lowe around the building, and they exchanged pleasantries. She had his cell phone number and purchased marijuana from him on occasion. It is clear from the text messages in evidence that their relationship went back at least 7 months from the day of the shooting.
[88] Ms. Hodder had a reasonable opportunity to observe the shooter.
[89] When Ms. Hodder saw the shooter, she was looking out of her second story window to the entrance of the building which was directly below her. The shooter was standing in front of the entrance. It was nighttime but there were bright lights lighting up the front of the building and entryway. Ms. Hodder called out to the shooter, and he turned to face her. They made eye contact, and she had what she described as a clear picture of his face in the light from the building. While her opportunity to observe him was brief it was more than fleeting.
[90] I accept her evidence that the shooter turned to face her. It makes sense given that she called out to him – a fact which was not in dispute.
[91] Ms. Hodder identified the shooter as D immediately.
[92] It was D that the four men were looking for. Ms. Hodder was concerned with the noise that they had made. When she saw the person standing out front of the building, she called out to him believing that he was D and telling him to “tell his friends to keep the noise down”.
[93] Right after the shooting Ms. Hodder texted D, “Sorry dude. I didn’t think before speaking when poking my head out.” It was the shooter to whom she had spoken when she “poked her head out” of her window.
[94] When the police arrived shortly after the shooting and spoke with Ms. Hodder, she identified the shooter as D. Her identification was entirely unprompted. There is no suggestion that the police had any information as to who the shooter was prior to speaking with Ms. Hodder.
[95] Ms. Hodder gave only two “identifying features”.
[96] When asked in court how she knew “right away” when she looked out the window that it was D standing outside, Ms. Hodder responded, “there is no one else that looks like D in my neighbourhood, no one has short dreads like he did, no one wore baggy track pants all the time, people in my neighbourhood usually wear jeans”.
[97] Standing alone track pants and dreadlocks are not particularly distinctive features. Ms. Hodder herself agreed in cross-examination that track pants were not so distinctive and that three of the four men in the stairwell were also wearing track pants.
[98] Ms. Hodder is white and Mr. Lowe is black. Dreadlocks are more common on black people than white people. Ms. Hodder described D’s dreadlocks as being distinctive because they fell “just below his shoulder”, which she described as short.
[99] If her identification of D was based solely on the fact that he had what she described as “short” dreadlocks this would give great cause for concern. However, when her evidence is considered in its totality it is clear that her identification of him was not based solely on the dreadlocks. When she first looked out the window the shooter had his back to her. Ms. Hodder testified that she was able to recognise him from behind because of his dreadlocks. When she called out to him, he turned to face her. It was then that she confirmed in her mind that it was D.
[100] This was recognition evidence in circumstances where Ms. Hodder had an opportunity to see the shooter’s face when he looked up at her. He was standing in front of the building in an area which was well lit and her identification of him was immediate.
C. The Circumstantial Evidence of Identification
[101] I consider the video of the person running outside of the building proximate to the shooting to be of little to no evidentiary value. The quality of the video is so poor that it establishes nothing other than that someone was running past the building shortly before the police were called. It could well be the shooter, one of the four men in the stairwell, or someone else running at the sound of gunshots.
[102] Similarly, the shoes in the hallway are of little value. There is no evidence as to who they belong to. They could belong to anyone involved in the altercation in the stairwell who was running away.
[103] There is no evidence as to where the bullets were found in Mr. Lowe’s apartment, other than that they were found in a shoe box. There is no evidence as to what kind of bullets were fired by the shooter as no casings were found outside of 35 Trudelle. The only evidentiary value to be drawn from the bullets found in Mr. Lowe’s apartment is a finding that Mr. Lowe may have had access to bullets.
[104] The credibility and reliability of Nina Hodder’s evidence identifying D as the shooter was challenged, as was the evidence which she gave with respect to the four men in the stairwell. What was not challenged was the sequence of events and how they unfolded.
[105] There was no issue that four men, strangers to the building, appeared in the stairwell looking for D. Nor was the fact that they asked Ms. Hodder to summon D, and she did.
[106] Ms. Hodder encountered four young men in the stairwell. The men were not from the building. They were looking for D and asked Ms. Hodder to call him for them. They intimidated Ms. Hodder, and their intentions did not appear to be benign. Ms. Hodder called D and asked him to come out to the stairwell. He responded “give me a bit” and hung up. She then left. D’s apartment was on the ground floor across from the stairwell.
[107] Some time not long after the superintendent heard the ground floor inner door to the stairwell open. Almost immediately after a shot was fired in the stairwell and there were the sounds of a commotion.
[108] Someone ran back down the hallway in the direction of Mr. Lowe’s apartment and the main door to the building. It sounded to the superintendent like a person being chased. On the floor above one of the four men who had been blocking the second-floor door to the stairwell ran from the stairwell past Ms. Hodder’s apartment towards the exit at the other end of the building.
[109] After the man ran past Ms. Hodder’s apartment she went to her front window and saw a man standing in front of the building looking out. She called out to him, and he turned to look back at her before turning back, taking out a gun and firing it. There were sounds of return fire from the direction in which he shot. The man then turned and went back into the building.
[110] These facts are all circumstantial evidence of the identity of the shooter.
D. Conclusion
[111] It is reasonable to infer that the person who went into the stairwell sometime not long after Ms. Hodder called D to the stairwell was D.
[112] The men in the stairwell were looking for D. There were four of them and they had positioned themselves in the stairwell such as to block the entrances. They made it clear to Ms. Hodder that she would not be allowed to leave until she summonsed D for them. They did not ask her to tell D that they were looking for him, they asked her to get him for them.
[113] It is reasonable to infer that they wanted D for the purposes of some kind of confrontation.
[114] There was a confrontation and a shot was fired. Someone ran away in the direction of D’s apartment.
[115] Shortly after a man stood outside of the building looking out in the direction of the parking lot. He fired out towards the parking lot and someone returned fire. The man then went back into the building.
[116] It is reasonable to infer that the shooter resided in the building.
[117] Ms. Hodder identified that shooter as D. The circumstantial evidence supports her identification.
[118] The chain of events surrounding the shooting and the timeline of Ms. Hodder’s identification point in one direction and one direction only. That the shooter was D. There is no other inference that is available on the evidence, or the absence of evidence.
[119] In considering all of the circumstances here, the only available conclusion is that D was the shooter.
[120] There is no issue that D is Mr. Lowe.
[121] Accordingly, I find Mr. Lowe guilty of all counts.
Newton-Smith J.
Released: November 29, 2024