Her Majesty the Queen - v. -, 2016 SKPC 81

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 081 Date: June 16, 2016 Information: 33387348 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Abdirahman Mohamed Islow and Omar Abidiaziz Issak Appearing: Mr. R. Ritter/ Mr. B. Pashovitz For the Crown Mr. N. Stooshinoff, QC For the Accused, Abdirahman Mohamed Islow Mr. M. Bodnar, QC For the Accused, Omar Abidiaziz Issak JUDGMENT B.G. MORGAN , J Introduction [ 1 ] Mr. Islow and Mr.

Issak are jointly charged with six counts arising out of the events of March 28, 2015, at Saskatoon, Saskatchewan. They were originally charged with a third party, Mohamed Abdi, although charges against him were the subject of a stay of proceedings entered by the then Crown, Mr. Ritter. (As Mr. Ritter became ill during the trial, Mr. Pashovitz completed it).

[2] The Crown called three civilian witnesses, and eleven police officers. Neither accused testified. In brief, there is no disputethat two African-American individuals alighted from a white four door pick-up truck and approached the complainant, who was sittingin his vehicle in a mall parking lot late at night. These individuals each approached a different door of the vehicle, pulled each door openin quick sequence, and said something to the complainant. Startled and fearful, he accelerated backwards at a great rate of speed.

Oneof these individuals pulled out a hand gun, and fired once or twice at the retreating vehicle, hitting it and causing damage to the front leftheadlight area. These individuals then jumped back into the truck, which fled the scene. [3] The complainant gave chase, obtained a license plate number for that vehicle, and a call was made to the Saskatoon Police.

Shortly thereafter, a vehicle that matched the description of the suspect vehicle was reported as being left in an apartment parking lot,with two males seen running from it. [4] The police then went to the location where the vehicle had been left, and started two separate tracks by trained police dogs. One track came across a loaded 45 calibre handgun, concealed in a hedge adjacent to a local golf course. [5] The second track headed east across the golf course, through a residential area, and ended at a Boston Pizza outlet in thesame general area. When the police entered that restaurant, Mr. Islow and Mr.

Issak were the only two patrons in the restaurant portion,and they were promptly arrested. [6] The above precis is designed to give some context to what will follow. I do not intend to review the evidence of eachwitness, as much of it covers the same things, albeit from a different perspective based on each individual’s involvement orobservations. I will lay out a time line of events, and I will go into the evidence in more detail when it is necessary to do so. [7] This is a circumstantial case which will initially turn or fall on the issue of identification.

In the event it is determined thateither or both of Mr. Islow and Mr. Issak were involved, that will necessitate a more detailed look at the individual charges. Again forthe purpose of

summary only, the charges include using a handgun in committing the assault, being the occupant of a motor vehicle inwhich each party knew there was a firearm, committing mischief by damaging the complainant’s motor vehicle, being in possession of astolen vehicle (this charge was subject of a successful non-suit application at the conclusion of the Crown’s case), careless use of afirearm and intentionally discharging a firearm while being reckless as to the life or safety of the victim. The individual counts are morespecifically set out in the Information.

Legal Principles [8] In a circumstantial case, the guiding principle is stated in R v Griffin, 2009 SCC 28 , the test for conviction based oncircumstantial evidence being that a jury “. . . must be satisfied beyond a reasonable doubt that the only rational inference that can bedrawn from the circumstantial evidence is that the accused is guilty” (para 33). [9] In analysing the case, and applying reasonable doubt, a court is not to do so by looking at each piece of evidence inisolation.

In reviewing the case, and making findings of fact, it is sometimes done by referring to each piece of evidence separately,somewhat as pieces of a puzzle are looked at, as of course evidence is often tendered as individual bites, if you will. However, the lawis clear that a trier of fact needs to consider the whole of the evidence in considering whether or not proof beyond a reasonable doubt hasbeen established.

In Stewart v The Queen, , [1977] 2 SCR 748, in citing an earlier case at p 761 SCR, the Court noted: It may be, and such is often the case, that the facts proven by the Crown, examined separately have not a very strong probative value; butall the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that mayconstitute a proper basis for a conviction. [10] Against that background, then, I will make my findings of fact, review the arguments of counsel, and determine the outcomeof this case.

The Facts [ 11 ] Mr. Nathan Huzan-Aalen was alone in his 2007 Dodge Charger in the parking lot at The Centre Mall in Saskatoon. The portion of the mall relevant to this case was bordered by 8 th Street East on the north, Acadia Drive on the west, and Moss Avenue on the south. It takes up roughly half of the north/south line between Parkdale Road and 8 th Street East, with residential dwellings on the southern half of that space. In the northeast corner of that parking lot is a Tim Horton’s outlet. Mr.

Huzan-Aalen was parked in his vehicle, facing west, south of the drive-thru lane, itself located just south of the Tim Horton’s outlet, waiting for some friends. [ 12 ] What happens next is best shown by Exhibit P-1, a surveillance video that captures the parking area in question, which was affixed to what is now a fitness centre that occupies the eastern most portion of the mall buildings. At 11:37 p.m., Mr. Huzan-Aalen’s vehicle is shown parked as indicated. The truck referred to approaches from the north, and parks facing south, directly in front of Mr. Huzan-Aalen’s vehicle.

The alignment of the vehicles would put the driver of that truck directly in front of Mr. Huzan-Aalen, with that truck blocking any forward progress that Mr. Huzan-Aalen may have tried to make. [ 13 ] Two individuals then get out of the back passenger side of the vehicle, with one individual approaching the driver’s side, and one approaching the passenger side. The doors are pulled open in rapid sequence, and almost immediately thereafter Mr. Huzan-Aalen accelerates very quickly backwards. At the same time, the truck turns slightly to the right, heading west, drives a short distance and then stops.

One can see two individuals left standing where Mr. Huzan-Aalen’s vehicle had been, and they quickly run back to the truck and jump in. That truck then roars away with Mr. Huzan-Aalen doing what might be described as a “donut” and giving chase. The vehicles are seen exiting the area in an eastbound direction just south of the Tim Horton’s outlet. [ 14 ] Mr. Huzan-Aalen stated that he was taken completely by surprise when the vehicle pulled up and his doors were jerked open, and I find that he was not aware of the presence of this vehicle until it arrived.

I also find that one of the individuals asked if they “were buddies”, or perhaps “Buddy” (the witness also said that one of the men asked if he were “Buddy”). I accept his evidence that the passenger door was opened first, then the driver’s door, and it was the individual by the driver’s door who had the gun. I accept his evidence as well that as he quickly backed up, one or perhaps two shots were fired from a handgun in the general direction of his vehicle, and that one bullet punctured his headlight.

I find that he chased the vehicle for approximately one kilometre and did get close enough to obtain a license plate number, which he passed on to the police. There is no evidence as to what that number was. [ 15 ] Although one cannot see a firearm, let alone it being discharged, on the video, I find it occurred. Confirmation of the fact of a shot being fired is found in the evidence of Ms. Bindle, who was also in the general area; she is familiar with firearms, and she heard two shots.

She could not identify anyone, and she could not even say if the two individuals were male; she did say each was wearing a hoodie, which was pulled up on each of those persons as each person approached the parked vehicle. [ 16 ] I find that there were at least three individuals in that truck initially; the two who exited, and at least one further person who had to be the driver. Although this person is not visible on the video, Mr. Huzan-Allen referred to seeing a driver, and the movement of that truck immediately after two individuals alighted from it can only mean there was a third individual driving it.

It is not possible to determine how many others, if any, were in the vehicle. [ 17 ] Police soon received information that the suspect vehicle was in a parking lot in an apartment complex on Tait Crescent, the lot being immediately adjacent to a grassy verge, that verge being adjacent to the Wildwood Golf Course. There is no evidence as to the source of the information as to that being the same truck, nor that it was in fact the same truck, although it certainly matched the description. Police officers converged on that scene, and two separate tracks were started with police dogs.

Constable Goodwin’s dog, Sabre, started a track from the driver’s side door of that vehicle, after it was confirmed that there was no one inside. The truck was parked amongst other vehicles in that parking lot, in what one officer referred to as a “congested parking” area.

The passenger door was left open, and the police had received information that two males had been seen running from that truck. [ 18 ] That track started northward and took a slight tack to the northeast towards the clubhouse, eventually leading to a 45 calibre loaded handgun located in a hedge that ran north/south along the last fairway on the west side of the golf course. The track then continued somewhat to the south, and then swung east across the golf course, at which point Constable Goodwin noted that Constable

Brake, who was doing another dog track with police service dog Dax, was ahead of him, it becoming apparent to Constable Goodwin that he was on the same track as Constable Brake. He therefore held back, although he remained in the area in case Cst. Brake’s group needed assistance. Having heard from that group that they were at the Boston Pizza, he somewhat doubled back through the golf course, and ended up exploring an area where the south part of the golf course joins up with a park, close to Heritage Crescent.

In that area, Sabre picked up a weak track, weak in the sense that this was some two hours after the track had commenced, and Sabre was too tired to pursue it effectively. According to Cst. Goodwin, Cst. Tuck had indicated that was the area where he had observed the fellow “running through the golf course” (this is referenced on paragraph 24). [ 19 ] Constable Brake’s track commenced from the other side of the vehicle, and Dax immediately picked up a strong scent that led him pretty well straight east across the golf course, crossing Boychuk Drive and entering into Blackburn Crescent into a residential area.

That track went through a walkway at one point, and proceeded generally in a southeasterly direction through that residential area, across Taylor Street east on Briarvale Road, which became Herold Road, continuing in a southerly direction. That track ended at the door of a Boston Pizza located at the intersection of Slimmon Road and Herold Road. [ 20 ] As the dog track evidence is important in this case, I wish to review it further. Cst. Brake was qualified as an expert dog master, one skilled in the handling of a police dog,

interpretation of the dog’s behaviour while tracking or locating, and the dog as a trained tracker or locator. As it is the dog doing the tracking that “knows” what he or she is doing, and for obvious reasons cannot be a witness, it therefore falls to the handler to explain and interpret the dog’s behaviour, which, it has been argued, can raise special considerations. [ 21 ] I accept Cst. Brake’s evidence that his police service dog, a male German Shepherd named Dax, had received training in the disciplines of tracking, searching, apprehending, and obedience, among others.

He noted that Dax would follow the “freshest human scent”, and that once the dog had determined that scent, he would hunch down, and pull hard on the tracking leash that was controlled by Cst. Brake.. The officer would start the track by “casting” Dax on the end of the harness, basically trolling him in a circular path to see if the dog would ascertain a scent. Once Dax had latched on to that scent, he would pull hard on the harness in following it.

If another scent crossed that track, he would investigate but would return to the original track after having done so. [ 22 ] In R v Robinson, 2016 BCCA 192 , a case provided by Mr. Pashovitz, the court had the opportunity to address the proper way to deal with such evidence. Although not binding on me, I find the reasoning expressed in that decision to be helpful. That is, the evidence of Cst. Brake needs to be assessed in the same way that the evidence of any witness is assessed.

As the court noted at para 26, which I adopt, there is no need for “...a specific instruction warning against the danger of convicting on dog tracking evidence either alone or in conjunction with other evidence, or requiring that such evidence be corroborated”. What to make of this evidence is a matter of weight; there is nothing special about it. [ 23 ] As mentioned, there were two tracks. On the evidence, I conclude that the track conducted by Sabre was “meandering”, to use the word of Cst.

Yurach, a member of the cover team for that track (as the handler is engrossed in dealing with his or her dog, a cover team of officers accompanies them to assist in the track and to and keep watch). As noted in paragraph 18 of this decision, this track was not successful in locating any person, although of course it located a handgun in the hedge. One would be suspicious that the weak scent that Sabre picked up near the end of the track, after returning to the golf course area, was Mr.

Abdi, for the reasons that follow. [ 24 ] Constable Tuck had set up a station at the corner of Heritage Crescent and Heritage Crescent (two legs of Heritage Crescent do converge to form an intersection) at the southeast corner of the golf course and the park immediately adjacent to it. While he was stationed there, at approximately midnight, he noticed a male walking towards him from the north. As he knew the suspects were African Americans, as this gentleman was, he detained that person. He noted that individual (Mr.

Abdi, against whom charges have been stayed) was breathing heavily, was wearing sweat pants and that one knee of his pants was wet (it was agreed that this was Mr. Abdi, and that his fingerprints were found on a can of Red Bull energy drink by the driver’s side of the truck located on Tait Crescent). [ 25 ] I note at this time that Cst. Tuck referred on three occasions to Mr.. Abdi as “walking”, at no point referring to him as “running”. Cst. Goodwin, as mentioned earlier, testified that Cst. Tuck told him that the area in which Sabre picked up the weak track was close to where Cst. Tuck apprehended Mr.

Abdi, the “fellow running through the park”. l make note of this only for the purposes of illustrating the point that different officers were assigned different roles, and of course observed different things, and minor discrepancies of this nature are to be expected. The facts as I find them are based on compiling all of these observations to create the overall picture.

[ 26 ] Returning to Constable Brake’s track, I find that his track ended where he said, his evidence being that Dax went to the “front door” of the Boston Pizza “and just stopped”. Other officers made the same observation. One could of course conclude from this that the suspect being tracked must be inside the Boston Pizza.

It was never established who the person was that was being tracked. [ 27 ] Constable Chomyn, one of the officers providing cover on Constable Brake’s track, checked in the Boston Pizza because it was open for business, and it seemed logical to him that would be a good place for a suspect to take cover. There was a bit of a lull in things at this time as the cover team officers were switching with each other, as the track had been quite vigorous and they were all quite tired, so he went into the Boston Pizza and noted “there were a bunch of people in the lounge”.

However, the only two individuals sitting in the restaurant area itself were Mr. Islow and Mr. Issak, both of them were quickly arrested. It was never established how many people were in the lounge, what their racial backgrounds were, and/or whether any of them had wet clothes. [ 28 ] As noted, there were a number of different police officers involved, with each providing details of what they did or saw.

Some provided specific times of events, some did not, but based on that evidence, in tying everything together, I can safely lay out the following time line: 11:41 p.m. - time of the shooting recorded on the video; 11:43 p.m. - 911 call to police; 11:49 p.m. - report of two males running from a white truck from parking lot on Tait Crescent; 11:57 p.m. - start of track by Constable Goodwin and police service dog Sabre, accompanied by Sgt. Bzdel and Constable Yurach 12 midnight - approximate time Mr. Abdi is arrested by Constable Tuck at the corners of Heritage Crescent; 12:03 a.m. - Mr. Issak and Mr.

Islow enter the Boston Pizza; 12:11 a.m. - time Constable Brake starts his track with police dog, Dax, accompanied by Acting Sergeant Gresty, Cst. Vossen, and Cst. Chomyn; 12:12 a.m. - Cst. Yurach locates a 45 calibre handgun in the bushes along the track being done by Constable Goodwin; 12:43 a.m. - Constable Brake’s track ends at the Boston Pizza, police enter within minutes; 12:51 a.m. - Constable Vanthuyne arrested Mr. Issak, Cst. Lavallee dealing with Mr. Islow. [ 29 ] Returning to the events at Boston Pizza, Mr. Casey Rushbridge was the manager on duty that night.

His evidence was that when he was at the front of the store around midnight, serving a take-out customer, two individuals came in from outside, both of whom he seated in the restaurant area. These were Mr. Islow and Mr. Issak. [ 30 ] He said that it would have been five or ten minutes after he served these two individuals that he first noticed the police vehicle across the street by the Royal Bank, which would be the police officers accompanying Constable Brake on his track. I mention that at this time, as that would not fit in with the time line.

I am satisfied that it was at 12:03 a.m. when these gentlemen entered Boston Pizza; I

suspect it was quite some time later that Mr. Rushbridge first noticed the police. [ 31 ] When Constable Chomyn entered the Boston Pizza, there were two individuals, and only two individuals in the restaurant. These were Mr. Islow and Mr. Issak. [ 32 ] A/Sgt. Gresty testified that Mr. Islow was “soaked....absolutely drenched from just below his knees down his pants to the point where there was water dripping”. He testified that he was “exactly the same as my condition”.

This last reference is to the wet conditions that were encountered on the track; as one example, the track did lead through a somewhat submerged walkway, and the pursuing officers were wading through shin deep water. [ 33 ] Constable Vossen testified that his legs “were soaked to my duty belt”, again a reference to the submerged walkway and the generally wet conditions. He testified that Mr. Islow’s “pants appeared to be wet”, touching them to confirm his observation. [ 34 ] I find that in fact Mr. Islow’s pant legs were wet, but not to the point described by A/Sgt. Gresty. He was no doubt convinced that Mr.

Islow was the subject of the track, a not unreasonable belief, based on all the facts. Most of the officers testified that the conditions were wet; this was spring, the snow was melting, and there had been a heavy rain earlier that night. All the officers were consistent that this was a fast track through sloppy conditions, and they were all tired and breathing hard by the time they reached the Boston Pizza. However, no other officer described Mr. Islow’s condition as being that severe. The manager of the restaurant seated them, and he made no mention of Mr.

Islow being in such a condition, and one would think he would have observed that. Further, A/Sgt. Gresty would have just come from those wet conditions. Mr. Islow, on the other hand, would have been sitting in the restaurant at the time either track started. He would have been there for at least forty minutes, plenty of time for the pants to dry somewhat. This would explain why it was that Cst.

Vossen felt the need to touch the pants to confirm his observation that the pants appeared to be wet. [ 35 ] I also find that Mr.Issak’s pants were completely dry; again, all the officers involved in the arrest were consistent on that score. [ 36 ] I find as well that neither Mr. Islow not Mr. Issak appeared to have any means with which to pay for the chicken wings that had been ordered by one of them. They had no identification no wallets, no debit or credit cards, and no cash. [ 37 ] As a major component of this case deals with identification, or lack thereof, I now turn to that topic. [ 38 ] Mr.

Huzan-Allen would have been 21 years old at the time and he was sitting in his vehicle having a coffee and looking through his phone when he noticed a truck pull up in front of him. When asked to identify these individuals at the trial, he pointed to Mr. Issak and Mr. Islow, both of whom at the time were in the prisoners’ box. He then identified Mr. Abdi who was sitting in the body of the court. These were the only three African American males in the court room.

He stated that he had not ever seen any of those individuals before and he said it was the individual who opened the driver’s side door who had the gun, although not at the time he opened the door. During a cross-examination in which Mr. Huzan-Aalen became increasingly feisty (to be fair, Mr. Huzan-Aalen testified that he suffered from an anxiety problem, but even allowing for that, he was quite defensive with Mr.

Stooshinoff, who was being very fair in his cross-examination), and defensive respecting this identification, to an extent I found to be beyond what was reasonable. [ 39 ] However, the point to be made is that at most, Mr. Huzan-Aalen would have had three or four seconds in which to identify either individual, and he agreed in cross-examination that he “didn’t get a clear picture of their faces”. [ 40 ] When shown a photo line-up by Sergeant Kiesman, he referred to recognizing “a few familiar faces” that he picked out, claiming certainty of about 80%. However, when asked directly by Mr.

Stooshinoff how he knew these individuals in court were the same individuals who were in the parking lot, he replied “they’re convicted, aren’t they?”, which I take to mean an expression that they are the individuals in court charged with the offence, as if that makes a necessary connection. [ 41 ] In these circumstances, I have no hesitation in concluding that Mr. Huzan-Aalen is sure in his mind that the individuals he saw in court are guilty, that is, that they assaulted him. However, I am equally satisfied that he thinks so not because he recognizes them,

but because they are the ones in court charged with these offences. I place no weight whatsoever on the in court identification by Mr. Huzan-Aalen. Similarly, I give no weight to the identification he made shortly after these events transpired from the photo line-ups shown to him by Sergeant Kiesman, for the following reasons. [ 42 ] Exhibit P-5 was a photo line-up which contained pictures of nine African American males, from which Mr. Huzan-Aalen picked out the photo of Mr. Issak, photo #3, stating “this looks like he was on the passenger, not completely positive”.

He then said he was “50% sure” respecting individual #2, who was not one of the individuals charged and was never investigated by the police. [ 43 ] Exhibit P-6 contained a photograph of Mr. Islow, along with eight other black African Americans, and Mr. Huzan-Aalen did not pick out anyone from that photo line-up. [ 44 ] Mr. Abdi’s photograph was contained in Exhibit P-7, as photo #5, to which Mr. Huzan-Aalen said “middle

section of face looks familiar from driver window; not dead set on it tho”. [ 45 ] None of those identifications are particularly strong, and of course Mr. Islow is not identified at all, despite his photograph being in Exhibit P-6. [ 46 ] It might be that a tentative photo identification coupled with other evidence, such as identification at the scene, or a firm connection to the crime, could provide useful evidence. However, in this case, I am satisfied that at best Mr.

Huzan-Aalen had three or four seconds to observe two strangers in quick sequence, each opportunity arising as that individual jerked open one of the doors to his vehicle. He may well have correctly identified Mr. Abdi as the driver of the vehicle but that’s a moot point in light of the fact that a stay of proceedings has been entered against Mr. Abdi. [ 47 ] Further, there is nothing distinctive nor particularly consistent in the description of the clothing worn, nor of the individuals, other than their race. Mr.

Huzan-Aalen said the two individuals “weren’t in dark clothes”, referring as well to at least one having a baseball cap. Ms. Bindle referred to one of them as having a slim build and wearing a dark coloured bunny hug. Mr. Rushbridge referred to one as having dark clothing with a windbreaker and baseball cap, the other dressed much the same, and both of them as having medium builds. There is no description of the men seen running from the truck. [ 48 ] One officer testified as to discovering a jacket outside the Boston Pizza, found under one of the police cars that were present, after that car left the scene.

There is no clear connection of that jacket to anybody. [ 49 ] These events occurred in a parking lot which did not appear to be brightly lit, late at night in Saskatchewan in March, all of the evidence being provided by an individual who I find to be predisposed to believe has been a victim at the hand of the individuals he identified in court. He told one of the officers that night that he could not give a description of the individuals, a fact I do not find surprising in the circumstances. [ 50 ] That Mr.

Huzan-Aalen was the victim of somebody is beyond dispute; however, I place no weight on his evidence identifying any of those individuals as the perpetrators of the offence. Position of the parties [ 51 ] Each counsel made cogent and helpful arguments, although for the purposes of this decision I will parse them considerably. All agree that identification is a key component of this circumstantial case. [ 52 ] The Crown’s theory is that the individual who was being pursued through the golf course and residential area by Constable Brake’s team was Mr. Islow.

The reasoning is that all of the officers involved in that particular track were consistent in their evidence

that Dax was setting a very strong pace, and everyone was wet, and physically exhausted. This was described in various ways: Constable Chomyn said that he was “gassed” at the end of the track, and noted that the pace “was fast. . . I was out of breath”. He noted that the dog was “moving pretty quick”, and that it was “quite a long track, we were running fast”.

Constable Brake testified that Dax was moving at speeds from a “good trot” to a “full run”. [ 53 ] Constable Goodwin referred to the golf course as having “sloppy spring conditions”, and he noted that all the members were nearly soaked at the end of the track (I appreciate his track was for almost two hours, whereas Constable Brake’s was slightly over half an hour). [ 54 ] Of particular note is that Constable Brake’s track went through a walkway in the residential area that all witnesses on that track described as being submerged.

That is, it was a walkway between fences, was in a somewhat lower area, and with the combination of the geography and the wet conditions, the members of that team were basically wading through it. It was so wet in that area that, as they emerged on the other side, they could clearly see one set of wet footprints being left on the track they were following, gradually dissipating in strength as the person being followed moved further from the wet area. [ 55 ] Mr. Bodnar argues that the only connection in this entire case to Mr.

Issak is the rather weak identification in the photo line- up, and the worst that can be said of his client is that he was sitting with Mr. Islow. He noted that the track that located the gun did not connect up to anyone at Boston Pizza, and he argues that party liability is not established as the evidence as a whole simply doesn’t allow for any such connection to be made. [ 56 ] Mr. Stooshinoff argus the identification is contradictory, that there is no forensic evidence, and no photo identification of any value, as Mr. Huzan-Aalen was shown a photograph of Mr.

Islow and did not identify him As the officers were all exhausted when they arrived at the Boston Pizza, one would expect Mr. Islow to be, but he was not. In sum, at best, the evidence may establish that Mr. Islow was the subject of a dog track; is that enough to found guilt beyond a reasonable doubt? Conclusion [ 57 ] I will start with Mr. Islow. I find that it is quite possible, indeed one could say likely, that he was the subject to the track through the golf course. The path to convict him would be moored largely on the wet pants, based on the conditions encountered on the track, and his racial heritage.

It is more than a bit odd that one would enter a restaurant with pants that were wet from the knees down, and then sit and order a meal without the apparent means to pay for it. [ 58 ] But for the circumstances under which he was located, there is scant evidence to connect him to this offence. [ 59 ] I note that Mr. Islow entered the restaurant at 12:03 a.m., according to the manager.

When he did so, although coughing occasionally, he exhibited no other signs of exhaustion or anxiety at that time; presumably, if he was running as hard as the pursuing officers were, he would be as tired at the time of arrival (he would, of course, have had lots of time to recover his breath in the forty odd minutes before the police arrived, which would account for the lack of signs of exhaustion at that time).

There is nothing to connect him with the gun, or the concealment of it, or the truck, other than the track, which I note does not end with him; it ends at the door of a location he and a number of others were in. There is no visual identification by photo line-up, and no other compelling identification of him. There is simply nothing to connect him to this crime, outside of the track. [ 60 ] I note that the track ended at the door to the restaurant. There is no evidence that Dax was ever tasked with confirming that Mr. Islow was the person being tracked.

The assumption seems to be that one of the two African-American individuals found in the restaurant had to be the subject, and the wet pants on Mr. Islow provided confirmation of his guilt. Yet the evidence was that there were a “bunch of people” in the lounge, any one or more of whom could have been the subject of the track. Ther is no evidene that any manner of inquiry was made of the people in the lounge area. [ 61 ] As for other evidence that could be used, there is of course the gun that has been found. Assuming that was in fact the gun

used in the shooting, it would have been located by the police service dog by following the scent of the human he was tracking to that firearm. But who was that? Was it Mr. Abdi, who I note had a wet knee when he was detained, a wet knee he could have picked up while bending down to conceal the gun in the hedge? If it was, the track that dog was on certainly did not lead to where he was detained; in fact, that track petered out. Was it Mr. Islow or Mr. Issak, both of whom were at the Boston Pizza?

If so, one would have thought that the track would have continued from the point the gun was found to the Boston Pizza, which it did not, or that the track that did lead to Boston Pizza would have first located the gun, which also did not occur. There is no evidence as to fingerprints, nor is there any evidence as to who fired the gun. I do not know that the shell casing that was located at the scene of the shooting matches the gun. [ 62 ] What do I make of the wet pants on Mr. Islow, or the fact that neither of Mr. Islow nor Mr.

Issak were in possession of any money, or credit or debit cards, to pay for the chicken wings they were sharing when the police arrived? I think it is a safe inference that the track was following one person, as evidenced by the fact of one set of wet footprints leading out of the submerged walkway that the officers crossed. If it was Mr. Islow who traversed that submerged area, and he was the person being tracked, when does Mr. Isaac enter the picture?

And the lack of any means to pay for the chicken wings can as easily be due to a forgotten wallet and/or mis-communication over who was to pay. [ 63 ] The track commenced from an abandoned vehicle in a “congested” parking area, albeit I conclude within a very short time of it being left there. The track picked up “the freshest human scent”. Was that scent that of a person who had been involved in a shooting minutes earlier?

There is of course no evidence that anyone else approached the truck, and the direction of the track would make that unlikely at best (who would walk by an apparently abandoned truck and then run across a golf course)? I am not basing this decision on speculation; I am merely observing that an automatic connection does not exist between the track, the site of the shooting, and the restaurant. [ 64 ] And even if I were to be satisfied that it was in fact Mr.

Islow who was being tracked, which is certainly a strong possibility, the best that does is connect him to the area where the track started; it does not connect him to the shooting. At most, if could conceivably place him in the vehicle. However, I have no idea how many people were in that vehicle, other than to say there had to be at least three, and I have no idea who did what, or who knew what. I have no idea why the complainant’s vehicle was approached, and the circumstances are too unclear to allow me to find facts or to draw inferences that would allow me to apply party liability to Mr.

Islow (and this applies equally to Mr. Issak) under either s.21(1) or 21(2) of the Criminal Code . [ 65 ] I have reviewed some of the evidence in isolation for ease of reference, but the test to apply is in looking at the evidence as a whole. In doing so, on all the evidence, I am not able to conclude beyond a reasonable doubt that Mr Islow is guilty, and I find him not guilty. [ 66 ] Mr. Issak has less of a connection with this mater than Mr. Islow.

I accept that unlike Mr Islow, he was tentatively identified in the photo line-up, but so was another individual who otherwise has nothing to do with this case, and I am not prepared to give any weight to the identification of Mr. Huzan-Aalen in any event. I am not able to conclude beyond a reasonable doubt that Mr. Issak is guilty, and I find him not guilty. [ 67 ] I am aware that it is not an all-or-nothing proposition; one could be guilty, the other not, or both could be guilty, or both not.

I have made my determination in this case on the basis of the evidence, or lack thereof, of each of these individuals separately. [ 68 ] I conclude by thanking in particular Mr. Bodnar, Mr, Stooshinoff, and Mr. Pashovitz, as the majority of this case was handled by them. Admissions and agreements were made at various times that simplified matters, without in any way detracting from either the defence or Crown case. This was an exceptionally well-handled case by competent and courteous counsel. ____________________ B.G. Morgan, J