His Majesty the King v. Carlson Harris, Sajae Kildare, and Qadami Minto, 2026 ONSC 1173

Court File and Parties

CITATION: R. v. Harris et al, 2026 ONSC 1173

COURT FILE NO: CR-24-40000638-0000

DATE: 20260225

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

CARLSON HARRIS

– and –

SAJAE KILDARE

– and –

QADAMI MINTO

Joshua Tupper, for the Crown

Susan Pennypacker, for Mr. Harris

Kendra Stanyon, for Mr. Kildare

Alison Cormie-Bowins, for Mr. Minto

HEARD: January 12, 14, 15, 16, 19, and 20, 2026

rHINELANDER, J.

A. OVERVIEW

1Carlson Harris, Sajae Kildare, and Qadami Minto are charged with discharging a firearm with intent to wound, reckless discharge of a firearm, and possession of a firearm, contrary to sections 244(1), 244.2(1)(b), and 91(1) of the Criminal Code of Canada. The charges arose from a shooting outside 1230 Sheppard Avenue West, a commercial building with several units. Video footage was obtained from the interior and exterior of the building.

2An event was being hosted during the evening and early morning hours of September 3 and September 4, 2021. Just before 4:00 a.m. multiple shots were fired north towards the building where people were standing and to the south across the driveway where cars were parked and people are seen running.

3No eyewitness evidence was called identifying any of the shooters. The Crown relies on an array of circumstantial evidence and video footage obtained from CCTV cameras to identify the three individuals believed to have discharged firearms. The Crown’s position is the three individuals before the court are responsible for discharging firearms directed at other persons on that date. Further, that the three defendants were not acting in self defence when discharging and in possession of the firearms.

4Mr. Harris was arrested in relation to the shooting on September 8, 2021. Mr. Minto was arrested June 13, 2022, and Mr. Kildare was arrested March 6, 2024.

5For reasons set out below, I find that the Crown has not established beyond a reasonable doubt that the persons seen on video discharging firearms were not acting in self defence. I find that the persons observed on the video footage were in possession of firearms and that the Crown has discharged its burden regarding self defence as it relates to possession of a firearm. In terms of identity, I am satisfied the Crown has proven beyond a reasonable doubt the identity of Carlson Harris and Qadami Minto. I am not satisfied beyond a reasonable doubt of the identity of the third male seen on the video believed to be Sajae Kildare.

B. ISSUES

6The issues are:

i. Whether the three individuals before the Court are the three persons of interest believed to have been in possession of a firearm and to have discharged firearms on September 4, 2021.

ii. If so, whether the Crown has proven beyond a reasonable doubt, each individual accused person,

a) possessed a restricted firearm(s);

b) discharged the firearm with intent to wound and/or was reckless in doing so; and

c) was not acting in self defence.

C. SUMMARY OF EVIDENCE AT 1230 SHEPPARD

7The Topaz Catering & Event Centre (“Topaz”) is in a commercial building on the northeast corner of Sheppard Avenue West and Bakersfield Street in the City of Toronto. The building address is 1230 Sheppard Avenue West. The plaza is accessible from the west side off Bakersfield Street. There are several units in the building. The lower units facing Sheppard Avenue are numbered 1 through 11, from west to east.

8There is parking on the southside of the driveway the full length of the building. There are additional parking spots on the northside of the driveway in front of units six to eleven, and two parking lots east of and on the northside of the building. A chain link fence runs parallel to the parking spots on the south side and separates the property from the sidewalk below.

9On September 4, 2021, an event was being hosted at Topaz. The parking spots in front of the building were full, cars were parked in the east and northside lots, and cars were parallel parked on the sidewalk in front of units one to five.

10At approximately 3:48 a.m., multiple individuals discharged firearms outside Topaz.

11Officers attended on scene and used police tape to cordon off the area between units six and eleven where the shootout was believed to have occurred. Damage was noted to several cars and units of the building. Specifically, the windows of unit seven were damaged in the exchange of gunfire and projectile strikes were noted in the brick walls beside units six and seven. Eleven fired cartridge cases of two different calibres were found in front and near units six, seven, and the entrance to Topaz.

12A black baseball cap was found by police in the parking lot a few feet from the sidewalk in front of unit seven. It had a small emblem on the front left panel depicting two mounted polo players with sticks and the words “U.S. Polo Assn” on the back. Beside the hat was a single fired cartridge case.

13The ammunition components were submitted to the Centre of Forensic Sciences to determine whether the spent casings had been fired from the same firearm. They were not. The ammunition components were fired from four firearms.

14Video footage was obtained from inside Topaz and the exterior of the front of the building. Police identified three persons of interest. I have identified them as Male 1, Male 2, and Male 3.

15I viewed the video footage collected from 1230 Sheppard and Topaz many times to make my own observations and form my own conclusions.

16The three individuals on the video can be described as:

• Male 1: Male, black, approx. 5’6”, black hair in braids, facial hair, trimmed beard, white patch in middle front of beard, wearing a light-coloured denim jacket and jeans, a black t-shirt, multi-coloured running shoes, a black baseball cap with “U.S. Polo Assn.” on the back, and two gold chains with pendants, one of which is a cross.

• Male 2: Male, lighter complexion, taller than Male 1 and Male 2, small mouth shape, facial hair (light moustache and goatee), wearing a bright yellow hoodie with black strings, white top underneath, jeans, yellow bandana in his back pocket, white running shoes with black trim on the sides and a gold pendant.

• Male 3: Male, black, approx. 5’4”, wearing a royal blue baseball hat with what appears to be an image of a paper plane on the front, a light-coloured t-shirt with an x-shaped arrows on the back, jeans with tears on the front, black running shoes, rings on his left hand, and two gold chains.

17The video footage from inside Topaz came from seven different cameras and angles. The video inside the bar area and hallway is in colour, however the dance floor area and entrance/exit hallway to/from the exterior is in black and white.

18The video footage inside the hallway of the Topaz is clear and very good quality. Having identified the three males from this footage, I was able to readily track their movements inside Topaz and outside the building from their clothing, body sizes, and movements, even when the images were in black and white and of lesser quality. Where there were tone or pigment changes in the colour of the clothing or when on the black and white video footage, it is clear it is the same person as they can be followed from inside Topaz to outside and vice versa.

19The following is a summary of the relevant video footage focused on Males 1, 2, and 3, up until they exited Topaz:

• The three males approached Topaz together on foot from the west.

• Male 3 was frisked or patted down on his front and back torso area prior to entering the club. Male 2 entered the club within seconds of Male 3. Male 1 remained outside finishing a cigarette.

• All three males are seen inside the bar on various cameras.

• An altercation occurs between Male 3 and a male dressed in a red sweatshirt with a Polo bear on the front.

• Male 1 headed in the direction of Male 3 but was physically stopped by a male dressed in black with a satchel across his body.

• It is clear from the video that the male in the red sweatshirt with the Polo bear was in the company of at least ten, if not more, other males.

• Male 2 and Male 1 were permitted to assist Male 3. Male 1 stopped to recover Male 3’s baseball hat, and hand it to him before they exited the bar area.

• A black object is visible in the right hand of Male 2, as the three males headed from the bar area to the exit/entrance hallway.

• Male 2 and Male 3 exit Topaz first, followed by Male 1.

20The exterior camera timestamps at 1230 Sheppard Avenue West are twenty-three minutes and five seconds (23:05) behind real time.

21The interior camera timestamps within Topaz are accurate.

22I have summarized the evidence in more detail in my analysis including events that occurred after the three males exited Topaz when considering whether the essential elements of each offence have been proven beyond a reasonable doubt.

D. DISCUSSION

Fundamental Legal Principles

23Mr. Harris, Mr. Kildare, and Mr. Minto are all presumed innocent. That presumption remains with them unless and until the Crown establishes their guilt beyond a reasonable doubt. There is no obligation for them to prove their innocence. They each remain innocent unless and until the Crown has proven the elements of each offence beyond a reasonable doubt.

24The Crown has the sole burden of proving each of the three individuals, Mr. Harris, Mr. Kildare, and Mr. Minto, guilt with respect to each of the charged offences and the respective elements.

25It is not enough for me to believe that each of the three defendants is possibly or even probably guilty. I must be convinced of their guilt beyond a reasonable doubt. If after careful consideration of all the evidence, I am not satisfied the Crown has proven beyond a reasonable doubt that Mr. Harris, Mr. Kildare, or Mr. Minto committed the offences charge, I must find them not guilty.

Assessment of Witness Testimony

26As in all cases, the court must assess the credibility and reliability of the evidence of the witnesses. To be relied on, a witness's evidence on an issue must be both credible and reliable. The Court may believe some, none, or all the testimony of any witness, including an accused person.

27Credibility relates to the honesty or veracity of a witness, whether the witness is expressing themselves truthfully to the best of their ability.

28Reliability relates to the accuracy of a witness’ testimony - whether a witness has a strong recollection and memory of the event, whether they can recount details, and whether they are accurate.

Circumstantial Evidence

29The Crown’s case against each of the defendants turns largely on identification and circumstantial evidence. I must be satisfied beyond a reasonable doubt that Mr. Harris, Mr. Kildare, and Mr. Minto’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33 at para. 20.

30Inferences consistent with innocence need not arise from proven facts. They may also arise from a lack of evidence: Villaroman, at para. 35. Accordingly, a trier of fact must consider other plausible theories and reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. The Crown must negate these reasonable possibilities, but it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence. R. v. Campbell, 2023 ONSC 5284, at para. 42 referencing R. v. Lights, 2020 ONCA 128 at para. 37.

i. Whether the three individuals before the Court are the individuals observed on the video footage?

31In R. v. Nikolovski, the Supreme Court of Canada held that triers of fact are in as good, if not better position, to determine whether the individuals captured on video footage committing an offence, are in fact, the accused persons before the court. Videotape evidence, depending on its clarity and quality, can be clear and convincing evidence of identification that a trier of fact can use as the sole basis for identification: 1996 158 (SCC), [1996] 3 S.C.R. 1107, at para 23.

32The degree of clarity and quality of the videotape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight that may be placed upon the evidence. Where it is the only evidence on the issue of identity, these factors are crucial: R v Nikolovski at paras. 22-23, 29-30.

33As stated by Boswell, J. in R. v. Campbell, 2023 ONSC 5284, recently upheld by the Ontario Court of Appeal 2026 ONCA 58, apart from the general quality and clarity of the videorecording, I must consider such factors as, amongst others:

• the length of time the subject is visible on the recording;

• the extent to which the subject can be observed in the recording – is his full face visible or only partially visible?

• the presence or absence of any distinctive features about the subject;

• the circumstances in which the subject can be seen;

• whether the subject’s appearance has changed since the time of the alleged offences; and,

• concerns about cross-racial identification: R. v. Mathias, 2018 ONSC 221, at paras. 88-89.

34DC Dhaliwal provided evidence about the video footage collected from several different locations including 1230 Sheppard and Topaz. During his testimony, he referred to each of the accused by name based on the police belief of their respective identities.

35Although DC Dhaliwal referred to the persons seen on the video using the names of the three accused before the Court, the Crown made clear as did all counsel for the defendants, that the officer’s testimony was not being proffered as identification or confirmation that the persons on the videos were in fact the individuals before the Court. The issue of identification was one solely for the Court. The ultimate determination of the identification of each of Male 1, Male 2, and Male 3 is for me and me alone, as the trier of fact.

36Videotape footage, booking tapes, still photographs, and an agreed statement of fact are in evidence.

37I must determine if the Crown has established beyond a reasonable doubt the identity of each of the individuals.

38I propose to address the evidence of the identification of Males 1 and 2 together as it is intrinsically intertwined, followed by Male 3.

ii. Identity of Male 1 believed to be Carlson Harris and Male 2 believed to be Qadami Minto

39Approximately two hours after the shooting, police attended at the residence of Mr. Harris for a completely unrelated investigation. Officers were in attendance to execute search warrants for Mr. Harris’ home, a storage locker, and two vehicles associated to him: a 2015 white Ford Explorer with Ontario licence plate CHFA 127 and a 2007 silver BMW Bx5 with Ontario licence plate CBEJ 149. The items to be searched for included firearms, ammunition, components of firearms or ammunition, and paraphernalia related to firearms.

40As stated above, this investigation was completely unrelated to the shooting that had occurred a few hours earlier. The team of officers executing the warrants had not been informed of the earlier shooting. The warrants were executed at 6:24 a.m. No items sought were found during the search.

41Mr. Harris and Mr. Minto were both found in the back yard of Mr. Harris’ residence. Police confirmed their names, dates of birth, home address of Mr. Minto, and noted descriptions of the men including their clothing.

42Mr. Harris provided a date of birth of August 8, 1975. He was described as approximately five feet ten inches in height, male, black, with a very distinctive white patch on his beard, also referred to as a “sole patch” which is a beard with white in the middle chin area, “wearing light jeans – like acid-wash jeans very light colour, jean jacket same colour as his pants, multi-coloured shoes, black t-shirt, and gold chains around his neck.”

43Mr. Minto provided a date of birth of January 1, 1989, and a home address on San Romanoway including a unit number. Mr. Minto was described by an officer as wearing a bright yellow hoodie, with a white tank top underneath, and light jeans. Mr. Minto’s hair was described as braided, and he had tattoos on his neck, with wording believed to read “Trust in God”, and four stars.

44A second officer, DC Dhaliwal, described Mr. Minto as male black, about 200 pounds, hair in a pony style bun, brown eyes, four stars tattooed on his neck, and on the other side was writing that read, “Trust in God.” He noted the same clothing description for Mr. Minto.

45Mr. Harris was arrested on charges unrelated to the shooting at Topaz. He was transported to 31 Division where he was processed and held for a bail hearing.

46Mr. Minto was released unconditionally from the scene.

47Later that day, officers involved in the execution of the search warrants were tasked to assist with the shooting investigation. In reviewing video footage from the inside of Topaz, officers noticed two of the persons inside the club were wearing the same or similar clothing as Mr. Harris and Mr. Minto who they dealt with earlier.

48Officers collected video footage from the complex where Mr. Harris lived and the booking tape for Mr. Harris’ arrest that morning. They also obtained video footage from the building and floor of the address provided by Mr. Minto.

49Mr. Harris appeared on the booking tape wearing the clothes he had on when he was arrested. He had on light coloured jeans, a similar coloured denim jacket, a black t-shirt, black sneakers with multi-colours, and two gold chains with pendants. One of the pendants is a large gold cross. His hair was in short braids, about collar length, and he had a trimmed beard, that had a distinct white patch in the front. The clothing and pendants were entered as exhibits.

50The black baseball hat found at Topaz was examined and sampled for DNA analysis. Carlson Harris could not be excluded as a contributor to Mixture 1 that was taken from the inside front headband of the baseball hat. The STR DNA results are estimated to be 11 billion times more likely if they originate from Carlson Harris and two unknown people than if they originate from three unknown people unrelated to Carlson Harris. The report is limited to whether bodily fluids/DNA were present on the baseball hat and from whom it may have originated. The report is unable to address how or when the DNA was deposited. The hat was an exhibit in these proceedings.

51Having compared the booking video with the video footage obtained at Topaz, there is no doubt in my mind that Male 1 is Mr. Harris even without the other evidence before the court, some of which is set out below.

52I have reviewed the video footage from Mr. Minto’s apartment complex from September 4, 2021. It is all in colour and of good quality and clarity.

53The video footage shows a male exiting a 29th floor unit and headed to the elevator. He is wearing a bright yellow zip-up hoodie, light coloured jeans, a yellow bandana in his left rear pocket, white sneakers with distinctive black trim/markings, and a gold medallion. His hair is pulled back into a bun-type ponytail. The male is seen entering the elevator.

54DC Dhaliwal attended the 29th floor and walked past the unit the male in the yellow hoodie was seen exiting from and confirmed it was the same apartment number given by Mr. Minto to police at the execution of the search warrant on the morning of September 4, 2021.

55The male exited the elevator at the lobby and walked towards the doors. While standing in the lobby, a tattoo that looks like cursive writing is visible on the right side of his neck. The male met a delivery person and received a white take-out food container with a marking on the top and exited the building. He tossed a red cup in the garbage and entered the rear passenger side of a silver BMW SUV with licence plate CBEJ 149. This is the same description and licence plate of a vehicle associated to Mr. Harris. The passenger in the front seat is wearing a light-coloured t-shirt.

56Mr. Harris is seen parking this same vehicle in the parking lot of his residence at 3:58 a.m., approximately ten minutes after the shooting. Male 3 is seen exiting the vehicle with Mr. Harris. Male 2, in the yellow hoodie, is seen walking towards the vehicle about five minutes later, smoking a cigarette, with what appears to be a bandana hanging out of his back pocket. Other than a cigarette it does not appear he has anything in his hands. This footage was in black and white.

57Male 2 and Male 3 head towards a door near the parking area and wait for Mr. Harris. The video footage here is in colour, of very good quality and clarity. Male 2 is dressed in a bright yellow hoodie, light coloured jeans, white running shoes with the same distinctive markings. He is holding a take-out food container. Upon closer inspection, the logo on the top and the size resemble the earlier food delivery box he received at his apartment building.

58Mr. Harris joins the two males and uses a key to give them access to the building. He is dressed in the same clothing observed at Topaz less the baseball hat.

59On the day of Mr. Minto’s arrest June 13, 2022, video footage was obtained of him in an elevator from an address on Buttermill Avenue. Mr. Minto’s hair is in several braids to the back where it meets in a bun. Mr. Minto has star tattoos on the side of his left neck that are clearly visible. Also visible is a tattoo on the right side of his neck.

60RICI photos of Mr. Minto taken on April 9, 2018, and June 13, 2022, were part of the evidence. The photographs clearly show four stars tattooed on the left side of his neck, on the right side is a tattoo that reads Aleha, and a tattoo on the top of his right hand that looks like a sun behind a word.

61In addition to the constellation of circumstantial evidence, to establish the identity of male 2 as Mr. Minto, I have had the opportunity to see him in court. His hair has been styled differently, he wore glasses throughout the trial, and due to his clothing, the neck tattoos were not visible.

62I am satisfied beyond a reasonable doubt that Male 2 is Mr. Minto.

iii. Identity of Male 3 believed to be Sajae Kildare

63I have described my observations of Male 3 as seen at Topaz. I am satisfied that this Male is the same person who returned to Mr. Harris’ address and entered the building with Mr. Harris and Mr. Minto.

64I have reviewed the videos from Topaz and Mr. Harris residence together with a booking video of Mr. Kildare, and RICI photos.

65The RICI photographs are consistent with my observations of Mr. Kildare during his trial. A male, black, with a shaved or bald head, facial hair, a trimmed beard, approx. 5’4 or 5’5, shorter than Mr. Harris and Mr. Minto. His ears are small, and he has almond shaped eyes. The RICI photo depicted a sleeve of tattoos on his left arm.

66I have reviewed the video footage from Topaz and Mr. Harris' residence. The videotape evidence alone does not allow for a positive identification of Male 3. I can not say with any confidence, yet alone beyond a reasonable doubt, that Male 3 is Mr. Kildare.

67To conclude on this issue, this is not a case where the video evidence stands alone for Mr. Harris and Mr. Minto. When I look at the evidence in its totality, I am satisfied that Male 1 is Mr. Harris and Male 2 is Mr. Minto. I am not satisfied of the identity of Male 3. I can not be certain that Male 3 is Mr. Kildare.

i. Essential Elements of Counts 1 and 2

68To establish guilt of discharging a firearm with intent to wound unidentified persons gathered at 1230 Sheppard Avenue, the Crown must prove i) the person charged intentionally discharged a firearm; ii) the person charged intentionally discharged a firearm at another person; and iii) the person charged intended to wound somebody.

69A “firearm” is a weapon with a barrel from which a shot, bullet or other object that could kill or seriously injure someone, can be discharged.

70To intentionally discharge a firearm at someone else means to intentionally point it at or towards the other person and fire the gun at them. The other person may be anybody. It does not matter whether the bullet, shot or other thing fired from the gun hit or hurt the person(s) at whom an accused person shot, or anybody else.

71A person intends to wound another when they mean to injure another person so that the other person’s body is penetrated or their skin is torn by the bullet, shot or other thing fired by the gun.

72Intent can be inferred as a matter of common sense that a person usually knows what the predictable consequence of their conduct is and intends to bring those consequences about. The Crown does not have to prove that anyone was wounded from the discharge of the firearm.

73To establish guilt where a person intentionally discharged a firearm while being reckless as to the life or safety of another person, the Crown must prove, i) the person charged intentionally discharged a firearm; and ii) the person who discharged the firearm was reckless as to the life or safety of another person. In simpler words, the person who intentionally discharged the firearm must have know that other persons were present and were aware or knew there was risk that someone could be injured but went ahead and discharged the firearm despite the risk.

74The defence argued if I find that Males 1 to 3 are in fact the defendants before the court, they were acting in self defence.

75The Supreme Court of Canada in R. v. Khill, 2021 SCC 37 at para. 37 set out the three elements necessary to claim self defence as follows:

i. the accused person must reasonably believe that force is being used against him or another person;

ii. the accused person’s subjective purpose for responding to the threat must be to protect himself or another; and

iii. the accused’s act must be reasonable in the circumstances.

76Put another way, the Crown bears the onus of proving beyond a reasonable doubt that the defendants were not acting in self defence. The three elements of self-defence are set out in se.34(1)(a) to (c) of the Criminal Code. Specifically, I must ask:

a. Has the Crown proven beyond a reasonable doubt that the defendants did not reasonably believe that force or a threat of force was being used against them when they discharged a firearm?

b. Has the Crown proven beyond a reasonable doubt that the defendants were not acting for the purpose of defending or protecting themselves when they discharged a firearm?

c. Has the Crown proven beyond a reasonable doubt that the defendants act of discharging a firearm was not reasonable in the circumstances?

77Where there is an air of reality to the defence, the burden is on the Crown to disprove self-defence beyond a reasonable doubt. If the Crown disproves any one of the three elements, it has discharged its burden, and the defence is not available: R. v. Khill, at para. 185.

Analysis

78Ammunition components were collected from the front of units six to nine and submitted to the Centre of Forensic Science. It was determined these ammunition components came from four different firearms.

79The video footage showed Mr. Minto in the vicinity of units six to nine shooting in a south direction and Mr. Harris near unit five shooting in the same direction.

80DC Wu testified there were bullet strikes to the windows of unit seven, behind where Mr. Harris, Mr. Minto and Male 3 were seen on the video footage. There is no evidence that the three males shot in any direction other than south.

81No evidence was collected from inside unit seven where three bullet holes are clearly visible in the windows and door of the unit.

82Nor is there evidence before the court that police swept or did a search of the area in front of units one to five or the southern border of the parking area on both sides of the fence.

83It is agreed that the CCTV footage from the interior and exterior of 1230 Sheppard Avenue West is not a complete record of the incident or the events leading up to the shootout. The CCTV footage does not capture all the events, all the angles, or all the individuals involved.

84There is no evidence to suggest the three Males shot behind themselves. The only other conclusion is someone was shooting in their direction. The bullet holes in the glass door and two further panes of glass of unit seven is consistent with someone on the move while shooting.

85During submissions, I asked the Crown if he disputed there was an air of reality to the self-defence claim as it related to the discharging of firearms (counts 1 and 2). Based on the evidence presented, he stated he did not. Later in submissions, I inquired whether the Crown was satisfied it had proven beyond a reasonable doubt that the defendants were not acting in self defence. Mr. Tupper quite fairly conceded he had not, based on the evidence before the court.

86It was clear there were bullet shots and strikes in the vicinity behind and in the area where Mr. Harris, Mr. Minto, and Male 3 were standing. The Crown position was the three males were shooting south.

87The Crown conceded there was an air of reality to each element of self defence based on the totality of the evidence in relation to the discharge of the firearms, I have not detailed the movements of the other male individuals involved in the physical and verbal altercations in the bar as depicted in the video footage tendered as evidence.

88As stated earlier, I reviewed the video footage repeatedly. Had the Crown not reasonably agreed he failed to disprove his onus regarding self defence, I made the following findings:

• A physical and verbal exchange occurred inside the club between Male 3, Mr. Minto, and Mr. Harris and approximately 8 to 10 males.

• Male 3 (alleged to be Mr. Kildare) was grabbed from behind in a chokehold, banged into the bar, held physically while surrounded by several males from the other group.

• Mr. Harris moved towards Male 3 when he was physically blocked by a male from the other group. A verbal exchange took place between them.

• Mr. Minto went to assist and escort Male 3 from the club. Mr. Harris, Mr. Minto, and Male 3 left the bar area and headed towards the exit.

• A male wearing a red adidas jacket seemed to direct the males from the other group to follow Mr. Harris, Mr. Minto, and Male 3. The male who put his fist on Mr. Harris’ chest to interfere and block his effort to go to Male 3 made a gesture with his arm in response to the direction of the male in the red adidas jacket, and several others still in that area of the bar. All moved towards the exit in pursuit of Mr. Harris, Mr. Minto, and Male 3.

• Mr. Minto and Male 3 exit Topaz first. Both are holding black objects in their right hands that clearly resemble firearms. Prior to exiting Topaz, a black object was clearly visible in Mr. Minto’s right hand.

• Mr. Minto looks in both directions before taking a few steps towards unit seven and is seen putting the object that clearly resembled a firearm down the front of his pants.

• Within seconds, the group of males from inside Topaz, exited the club and approached Mr. Minto. At one point, he is jostled. Initially, it was unclear if he was intentionally shoved, but then other males surrounded him, and he is jostled, making it clear it was intentional.

• Mr. Minto was surrounded by several males from the group inside the bar. Within a minute, people are running in different directions.

• Mr. Minto appears to pick something up from the ground and head in the direction of unit six. He is seen extending his arm, pointing southward and what looks like two muzzle flashes. Mr. Minto walked back towards and entered Topaz.

• Mr. Harris ran toward unit five, he cut through two cars parked in front of units six and seven. While standing behind a dark sedan, he extended his arm towards the south side of the parking lot. A black object is visible in his hand. He then moved further west behind a white vehicle and raised and extended his arm a second time. On this occasion, two flashes are seen from the area of his hand, in what I describe as a muzzle flash. Mr. Harris is no longer wearing the black baseball hat.

• Male 3 is seen with a black object in his hand that resembles a firearm. He is seen to extend his right arm in front of him while near the dark sedan where Mr. Harris stood.

• Mr. Harris and Male 3 ran towards Bakersfield.

• A vehicle exiting the commercial premises drove past Mr. Harris and Male 3. Male 3 stopped, extended his arm in the direction of the SUV. He was holding a black object in his hand. The SUV passed, Male 3 lowered his arm and continued westbound out of the parking lot with Mr. Harris.

• Mr. Minto went back inside Topaz when everyone was dispersing. He is seen in the bar and dancefloor areas with his phone in his hand and is last seen in the hallway area.

• Multiple individuals in possession of firearms discharged several rounds of ammunition outside 1230 Sheppard Avenue West, Toronto. At a minimum, casings, bullet fragments, and a projectile were found at the scene from four different firearms.

• Three windows of unit seven were damaged by bullets striking the glass. These windows were immediately behind where Mr. Harris, Male 3, and later Mr. Minto are seen.

• Two additional bullet strikes were located. The first struck a portion of the exterior wall that jutted out just east of unit seven. The second bullet strike was further west outside unit six, on the exterior wall of unit five which is a corner area due to the design of the building complex. It is not alleged nor is there evidence that Mr. Harris, Mr. Minto, or Male 3 shot in that direction.

• Video footage shows persons on the south side of the parking lot across from where the defendants were positioned moving along the fence but remaining hidden by parked vehicles. At least two persons by the fence were moving in tandem with Mr. Harris and Male 3.

89The CCTV footage from the interior and exterior of 1230 Sheppard Avenue West, is not a complete record and does not capture all the event, all the angles, or all the individuals who may have been involved.

90The collection of the items of evidence do not speak to the sequence in which guns were fired.

91Based on the evidence led at trial, the Crown has failed to discharge its burden that Mr. Harris and Mr. Minto were not acting in self defence when the firearms were discharged.

ii. Essential Elements of Count 3

92To prove this offence, the Crown must prove that each of the defendants were in possession of a restricted firearm on September 4, 2021, and that each defendant was not the holder of an authorization, licence or registration to possess the restricted firearm beyond a reasonable doubt.

93A restricted firearm is a firearm that is not a prohibited firearm. A prohibited firearm is a firearm that has a barrel equal to or less than 105 mm in length or is designed or adapted to discharge a 25 or 32 calibre cartridge.

94None of the firearms discharged were recovered. There is no evidence that the firearms had a barrel equal to or less than 105 mm in length qualifying the firearms m as a prohibited firearm. Therefore, if I am satisfied the black objects held by Mr. Harris, Mr. Minto and Male 3, are firearms, by virtue of the definitions any or all 3 would be classified as a restricted firearm.

95It is admitted that none of the three defendants before the Court were the holders of an authorization, licence, or registration certificate to possess a firearm.

Analysis

96To be satisfied the objects seen in the hands of Mr. Harris and Mr. Minto are firearms, I must consider the circumstantial evidence available. If the circumstantial evidence raises any reasonable inferences inconsistent with the guilt of the accused, he is entitled to be acquitted. The standard of proof beyond a reasonable doubt requires that the guilt of the accused be the only reasonable inference to be drawn from the proven facts: R v Villaroman, at paras 20, 30.

97I rely on my findings and conclusions regarding the events of at 1230 Sheppard Avenue as set out above to assist in my analysis of count 3, including what the video footage showed before, during, and after the shooting.

98It is clear from the video footage that the actions of Mr. Harris were intentional when he stood behind the car with his hand extended holding a black object and pointed to the south and a flash consistent with a muzzle flash is visible.

99Similarly, it is clear from the video footage that the actions of Mr. Minto were intentional when he extended his arm and pointed to the south with a black object in his hand and several muzzle flashes are visible.

100I am satisfied that the black objects held by Mr. Harris and Mr. Minto are firearms. It is a reasonable inference that the objects in possession of Mr. Harris and Mr. Minto are firearms based on the flashes as described above.

101I am satisfied the Crown has proven beyond a reasonable doubt that Mr. Harris and Mr. Minto were in possession of a firearm.

102I set out the three questions regarding self-defence. If the Crown has proven any one of the three issues beyond a reasonable doubt, then the defence of self-defence fails.

a. Has the Crown proven beyond a reasonable doubt that the defendants did not reasonably believe that force or a threat of force was being used against them when they possessed a firearm?

b. Has the Crown proven beyond a reasonable doubt that the defendants were not acting for the purpose of defending or protecting themselves when they possessed a firearm?

c. Has the Crown proven beyond a reasonable doubt that the defendants act of possessing a firearm was not reasonable in the circumstances?

103The video footage confirmed Mr. Harris, Mr. Minto, and Male 3 were only at 1230 Sheppard Avenue West for less than twenty minutes from the time they arrived until they left.

104The paths of Mr. Harris, Mr. Minto, and Male 3 can be followed through Topaz. No issues of concern arose until the incident at the bar involving Male 3 resulting in all three leaving Topaz.

105The individuals that surrounded Mr. Minto outside Topaz were involved in the altercation with Male 3 inside and were clearly not friends. I base this conclusion on the actions inside and outside Topaz.

106Mr. Minto was clearly seen exiting Topaz with a firearm in his hand.

107At the time shots were discharged, the persons surrounding Mr. Minto, and in vicinity of Mr. Harris and Male 3 were the other group of males from inside that were involved with Male 3.

108As a result, I conclude that Mr. Harris and Mr. Minto were in possession of a firearm prior to their arrival at Topaz. Lastly, Mr. Harris, Mr. Minto, and Male 3 were each seen with a firearm at or around the same time such that it cannot be suggested it was shared or passed amongst them.

109Therefore, the answer to all three questions is in the affirmative. The Crown has discharged its burden, and the defence of self-defence is unavailable on the possession of a restricted firearm.

110I find that Mr. Harris and Mr. Minto were in possession of the firearms prior to the shootout. They are not holder of licences and/or authorizations. I am not satisfied they were in possession of the firearms for self-defence.

DISPOSITION

111Mr. Harris is found not guilty of counts 1 and 2. He is found guilty of count 3.

112Mr. Kildare is found not guilty of counts 1, 2, and 3.

113Mr. Minto is found not guilty of counts 1 and 2. He is found guilty of count 3.