R. v. Downey, 2011 NSPC 57

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Downey, 2011 NSPC 57 Date: August 3, 2011 Cases:2343166-2343198 Docket: Dartmouth Between: Her Majesty The Queen v. Shawntez Neco Downey and Landrel C. Beals JUDGE: THE HONOURABLE JUDGE CASTOR H.F. WILLIAMS TRIAL: August 3, 4, 10, 2011 DECISION: August 16, 2011 CHARGE: Landrel C. Beals - 86(2)(

b) x2; 88(1) x2; 90 x 2; 92(1) x2; 94(1) x 2; 95(

b) x2; 96(1) x 2 Criminal Code Shawntez Neco Downey -86(2)(

b) x 2; 88(1) x 2; 90 x 2; 92(1) x 2; 94(1) x 2; 95(

b) x 2; 96(1) x 2; 117.01(1) x 2; 145(3) x 3 Criminal Code . COUNSEL: Roland Levesque, for the Crown Trevor McGuigan, for Landrel C. Beals Patrick Atherton, for Shawntez Neco Downey Introduction [ 1 ] The Crown has presented that there was a shooting incident in the Woodside community in the Halifax Regional Municipality on April 27, 2011. Witnesses saw two black males, one wearing a hooded grey sweater and dark jeans and who appeared to have a gun in his hand, running away from the area. However, no witness testified as to who fired the shots.

Likewise, no witness testified that the two men who were seen fleeing the scene were also seen entering a motor vehicle. Nonetheless, a police witness saw a grey Honda Civic vehicle, bearing Ontario license plates, with two black occupants stopped on a street that was parallel to the highway on which he was speeding in response to a Code 1 call. [ 2 ] This officer testified that he saw one of the vehicle’s occupants, who was wearing a grey hooded sweater, that was disputed in cross-examination, get out and went into a nearby stand of trees, crouched and did something.

The vehicle and occupants left the scene and the officer did not see their faces. All that he could say definitively was that they were black males. A police canine unit subsequently attended on the scene and discovered two firearms, with fresh human scent, hidden in the same location where the man had crouched. However, when tested forensically, the weapons yielded negative results. [ 3 ] Another police witness saw the grey vehicle parked and supposedly abandoned in a driveway on another street about one kilometre from the first sited location.

Additionally, a third police witness saw two black males walk out of a wooded area that was about one half kilometre from the first sited and the abandoned car locations. These men fled from the police but were chased to a nearby Sobey’s store where one was apprehended and arrested in the parking lot. The other walked into the Sobey’s store where he and another black male were apprehended and arrested. [ 4 ] Thus, this case concerns the issue of the identification of the person or persons who were responsible for hiding the found weapons.

In short, has the Crown presented credible and reliable evidence of identification and circumstances capable of linking the accused persons, beyond a reasonable doubt, to the weapon offences, as charged?

Summary of the Evidence

[ 5 ] Carrie Kempton, who was the first witness, testified that at about 1700 hours on April 27, 2011 she heard the sound of four gunshots and then saw two men running. They were about 20-30 feet from her location on Mackenzie Street in Dartmouth, Halifax Regional Municipality. They ran up Woodside Ave and into the vicinity of Osborne Ave. She neither saw their faces nor could she distinguish their ethnicity. Nonetheless, she could say that one of them who was between five feet ten inches and six feet tall was wearing a hooded grey sweater and dark jeans. He also appeared to have a gun in his hand.

The other man who was of the same physical height was wearing black clothing. She called 911 to report the incident. [ 6 ] The second witness was David MacDonald. On the same date and time, he was at home on Everette Street. He testified that he also heard gunshots and saw two men, running on Mackenzie Street about twenty feet from him. He described them as “African- Americans or coloured.” As well, he did not see their faces but described them as dressed in black clothing. [ 7 ] Cst. Jules Laraque of the Halifax Regional Municipality Police Service was one of the first responders to the 911 call.

He asserted that, at 1736 hours, he was alone in a marked police cruiser travelling down Highway 111 toward Woodside. His speed was over 80kph as he was responding to a Code 1 call and he had activated his emergency lights and siren. All the same, when he had just passed the Mount Hope Ave overpass, his attention was drawn to a vehicle that was on his left and which he surmised to be about 50 to 60 metres away from his location on the highway. This vehicle was parked on Mason Street which was a street in the Woodside community that ran parallel to the highway.

It should be noted that Highway 111 has four lanes with a concrete median divider separating two inbound and two outbound lane. Cst. Laraque suddenly stopped his vehicle in one of the outbound lanes. He was separated from the vehicle on Mason Street by the dividing highway median barrier, two highway lanes and an unspecified distance of open low vegetated uneven land. [ 8 ] Even so, he averred that from the vehicle on Mason Street he saw a Black male enter a nearby stand of trees, crouched down and was doing something. He did not see anything in this person’s hands.

However, thinking that what he saw could be of interest to the investigation he got out of his vehicle and crossed the two lanes of the highway. The male looked in his direction ran back to the vehicle and the vehicle drove off, not speeding, and headed toward Pleasant Street. Laraque declared that the person whom he saw had a dark complection with short hair, mediumly built and was wearing a grey hoodie. He did not see his face. Additionally, he observed that the driver of the vehicle was also a Black male and heavy set.

He described the suspect vehicle as a grey two door Honda Civic with white on blue front license plates with seven digits. He surmised, from his experience, that it was a vehicle that was registered in Ontario. Further, he declared that he called it in. [ 9 ] Laraque secured the area where he had observed the crouching man and radioed for the canine unit to conduct a search. Cst. Peter Gallant and his dog arrived on the scene at 1756 hours and the dog went into the same area where the man was seen crouching and discovered a firearm.

Laraque stated that he then went into the same area and discovered a second firearm. Thereupon, he called for the identification unit and Det. Cst. David Emberlin arrived. Emberlin tagged the scene, took photographs of the area, and seized the weapons. [ 10 ] Attending the Halifax booking area at 1948 hours Laraque saw three suspects in police custody. He observed one suspect dressed in a “bunny suit” and decided to check out the clothing that was taken from that individual.

Going to the identification office he saw a seized black sleeveless jacket and, in court, asserted that it appeared to be the same clothing that he observed that the man outside the car was wearing. However, he did not recognize the person who was then in custody and from whom he surmised that clothing had been taken. However, neither the physical clothing nor photograph of the clothing, although taken, were tendered as an exhibit. [ 11 ] In court, he watched Exhibit 5 which is the security video of the Sobey’s store on Baker Ave. At one point in the video he saw two males enter the store.

When he saw the video, he stated that at his out of court viewing he did not recognize the individuals. But, in court, he declared that one of the individuals was seated in the public gallery and the other he was 95% certain was wearing clothing that matched the clothing description of the person whom he saw on Mason Street. That person was depicted, in the video, as wearing a grey hoodie and a black sleeveless jacket.

He was also 95% certain that it was the same person whom he saw in the “bunny suit” at the Halifax police station and that person was now known to him as the accused, Shawntez Neco Downey. [ 12 ] In his cross examination Laraque was challenged as to his opportunity to observe the person whom he saw outside the vehicle. He stated that he was going quite fast, more than 80 kph and, for safety reasons, was focusing on his driving. He was still driving when he saw the male person on Mason Street. Slamming on his brakes and focusing on stopping safely he brought his car to a safe stop on the highway.

He saw the male go to the wooded area but did not see anything in his hands. Between him and the observed person were two lanes of heavy traffic on the highway, its shoulder and an open grassy area. As a result, he only saw, for seconds, a person, who he neither saw before nor with whom he was familiar. [ 13 ] He wrote in his notebook, soon after his observation and which he declared was accurate, that the person whom he saw outside the vehicle had a “shaved head” and was “wearing jeans.” He also admitted that another officer radioed him and requested information on what he had seen.

Likewise, he adopted and confirmed that his radio response to that request was: “all I saw was two black males.” [ 14 ] Additionally, he agreed and acknowledged that, although his radio communication device was operational and open, he broadcasted neither any detailed description of the person nor what he saw that person was wearing. As well, because he had his radio open, he accepted that he could hear the various broadcasted communications by other officers as the investigation unfolded and developed including Cst.

Curtis Gibson’s account and description of two suspects whom he, Gibson, had pursued to the Sobey’s store and the arrest of three suspects at that store and the descriptions of these persons and their clothing. [ 15 ] Similarly, Laraque confirmed that he attended the booking area of the Halifax police station to view the suspects who were then in police custody. He saw that one was wearing a “bunny suit” as his clothing had been removed. He testified that he did not recognize

this person as he had never seen him before. Even so, this person, was the accused Downey. Nevertheless, he stated that his viewing of the video, Exhibit 5, when testifying in court, was his second time. His first viewing of the video was months after the incident when he was in the Crown’s office for trial preparation. Moreover, he never was shown a forensic photographic line-up of the suspects. [ 16 ] Cst. Peter Gallant was the expert dog handler.

He testified that his dog found two guns “one on top of the other” bearing fresh human scent in the wooded area. [ 17 ] The identification forensic photographer was Cst. David Emberlin. He took a series of photographs in a book tendered as Exhibit 24. These photographs included the seized firearms and ammunition. The firearms and ammunition were tested forensically with negative results for fingerprints and DNA. Even so, laboratory testing indicated that the guns were operational and that the ammunition could be discharged from them.

He also took photographs of clothing that were neither tested forensically nor included in Exhibit 24. [ 18 ] Another officer, Cst. Curtis Gibson went onto the Mount Hope exit off Highway 111. As he approached the intersection of Mount Hope Ave and Lansing Ct., he saw two black males, who had emerged from a nearby wooded area, walking toward him. It was about 1730 hours. When they were six feet from him, he had a good look at them. Still in his vehicle he asked them their names but they, however, fled from him and ran toward the Sobey’s store that was six hundred metres away.

He got out of his car and pursued them. [ 19 ] Gibson described the men as matching the description that Laraque broadcasted. He, however, described Beals as wearing all black. Downey was tall and skinny with braided hair on the back of his head and was wearing a grey hoodie and a black puffy vest and black jogging pants. Neither was wearing any headgear. He broadcasted his contact, location, activities and these identifying descriptors over the air. [ 20 ] Concentrating on the movements of Beals, who was in the store’s parking lot, he, however, saw Downey walk into the store.

In any event, at 1745 hours he arrested Beals and he saw Downey and another male in police custody emerged from the store. He was able to identify the person whom he saw on Mount Hope Ave and the person whom he chased to Sobey’s and saw walking into Sobey’s and exiting in police custody, as the accused Downey. Moreover, he corroborated his description of Downey by viewing the store’s security video, Exhibit 5. [ 21 ] Approaching from different locations, Sgt. Kevin Hobey, Csts. Gyles Gillis, Curtis Osmond and Susan Lynch also responded to the emergency call.

They all heard Gibson’s radio communication that he was on foot pursuit of two suspects who were running toward the Sobey’s store on Baker Drive. As a result, they converged onto the store. On information received they went into the store to locate and secure two suspects. One was found in and was arrested coming out of the female washroom and the other, identified as Downey, was found in and was arrested coming out of the male washroom. When he was searched, incidental to arrest, the police found a black face mask in Downey’s pocket.

In the female washroom the police discovered a baseball cap together with a Honda vehicle car key. [ 22 ] When he was on his was to the Sobey’s store, Osmond noted that he saw on the shoulder of Highway 111 opposite the area where Laraque had spotted the Honda vehicle, that fellow officers had two other men under arrest. All the same, Cst. David Comer discovered a two-door grey Honda vehicle, similar to that seen, by Laraque, parked in a driveway on Herbert Street. The vehicle bore Ontario licence plates and he ran a vehicle check.

The police seized the vehicle and towed it to their HQ compound at Brunswick Street. Comer opined, although he never measured it, that the distance from where Laraque saw the vehicle to where it was eventually found was “roughly one kilometre.” The Crown ’ s Theory [ 23 ] The Crown essentially submitted that one of the accused persons, Shawntez Neco Downey , was he who was spotted in the stand of trees, hiding the firearms. Likewise, he was seen coming from a wooded area near to the crime scene and soon after the event.

Further, he fled from the police and was chased into a nearby Sobey’s store where the police arrested him. [ 24 ] Relying on the Criminal Code s.4(3)(

a) the Crown posited that he had personal possession of the firearms and ammunition. The shots were fired at 1700 hours. At 1736 hours Laraque spotted a Black man in a stand of trees fifty to sixty metres away from him on the Highway 111, on Mason Street. Moreover, at 1742 hours, six minutes later, Sobey’s security video captured Downey entering the store wearing similar clothing as observed by Laraque that the person was wearing on Mason Street. Additionally, he gave a false name to the police on his arrest.

All this points to post offence conduct. [ 25 ] As a result, in all the circumstances, his identification was not in doubt.

Consequently, he was therefore guilty of storing or carrying firearms in a careless manner; being the occupant of a vehicle in which he knew there were firearms; possessing restricted and prohibited firearms with readily accessible ammunition capable of being discharged in the same firearms; beaches of orders of prohibition to possess firearms and breaches of a recognizance to possess any firearm, maintain a house arrest condition with specific exceptions and failing to keep the peace and be of good behaviour. [ 26 ] Additionally, the Crown’s theory is that the other accused, Landrel C.

Beals , was a party only to the offences of possession of the weapons, as charged, as he had knowledge that Downey had them in his possession. Here, the Crown was relying on the Criminal Code s.4(3)(b) “constructive possession.” This was the case, according to the theory, only because he was with Downey when seen together coming from the wooded area not far from the location where the police found the weapons and shortly after the police had seen an individual dressed in similar clothing, presumed to be Downey, at the crime scene and soon after this event.

Furthermore, as they both ran when accosted by the police this conduct can be considered as post offence conduct.

Defence Rebuttal (

a) on behalf of Shawntez Neco Downey [ 27 ] Counsel submitted that the Crown’ theory is seriously flawed and that it has not proved beyond a reasonable doubt Downey’s guilt on the weapons related offences. Firstly, there was no physical forensic evidence linking the accused to the weapons. Secondly, this was an identification case based on what Laraque saw on Mason Street. Thirdly, Laraque was only 95% sure of his identification of the person whom he subsequently declared was Downey.

However, his opinion was based only on clothing and his ability and opportunity to observe was very brief. [ 28 ] Furthermore, what Laraque saw was not very much. He was driving fast and there was heavy traffic on the highway that would partly obstruct his observation. He only saw the person between the trees and crouching down.

From his distance, fifty to sixty metres away, under the prevailing conditions, it was difficult for him for the few seconds of his observation, to make out any distinguishing facial characteristics other than that the person outside the vehicle was a Black male and that the driver was also a Black male.

There were two Black males was all he broadcasted when asked what he saw. [ 29 ] As the person who was the first to see the suspects and on whom, presumably, the other investigators were relying upon for identification of the suspects, Laraque’s going to the station to view them for purposes of identification was an improper and subjective method of identification. Furthermore, he was never shown a photographic lineup of the suspects. Significantly, he was unfamiliar with Downey and had never seen him before and did not recognize him at the police lock up.

Additionally, he only saw the store security video months after the event when preparing for trial and the clothing and appearance of Downey was different on the video from that of his own accurate notes. Downey was depicted as having hair braided at the back as distinct to Laraque’s notes indicating that the person had a shaven head. [ 30 ] Counsel further submitted that Laraque’s testimony was inconsistent concerning the clothing that he testified he did see compared to what the video depicted that Downey was actually wearing.

The video depicted Downey wearing a grey hooded sweater and a bulky black vest and black jogging pants; Laraque testified that the person was wearing only a grey hoodie and jeans. [ 31 ] Because of these discrepancies in Laraque’s testimony, counsel submitted that his, Laraque’s clothing description of the person, whom he saw was influenced by the various police communications that he overheard particularly the clothing description that was broadcasted by Gibson.

That would account for Laraque’s inconsistencies which made his evidence of identification sufficiently unreliable. [ 32 ] As to the inference of post offence conduct, the Crown had not proved beyond a reasonable doubt the index offence of the weapons possession so the notion of post offence conduct does not arise. In any event, Downey was on house arrest bail conditions and that reasonably would be a rational explanation for him trying to avoid the police. If anything, Downey would be guilty only of the breaches of his bail conditions. (

b) on behalf of Landrel C. Beals [ 33 ] Counsel for Beals submitted that the Crown has not proved beyond a reasonable doubt any case against him. First, the Crown has admitted that Beals was not in the vehicle that Laraque spotted. Secondly, he was not seen in the company of the person who presumably was hiding the weapons.

Thirdly, his mere presence with Downey coming from the wooded area does not and cannot make him liable for any offence, if any or at all, supposedly committed earlier by Downey one kilometre away on Mason Street. [ 34 ] There was no evidence that he knew what the person on Mason Street had or did. Likewise, there was no evidence that he consented to any of the activities that occurred in the stand of trees off Mason Street. Also, there was no evidence of where, when and why Beals met with Downey before Gibson spotted them. In short, the Crown’s case against Beals is zero.

Finding of Facts and Analysis [ 35 ] First, I should note that, on the Information tried before me, there were nineteen (19) counts of criminal offences allegedly committed by the accused persons. Fourteen (14) were weapons related offences allegedly committed jointly, and five (5) were either breaches of prohibition orders and breaches of a recognizance committed only by the accused Shawntez Neco Downey . [ 36 ] And, I accept and find that the Crown, in his submissions, has informed me and has conceded that, on the Information tried before me, there was: (

a) no evidence to prove the guilt, beyond a reasonable doubt, that the accused, Landrel C. Beals , stored or carried firearms in a careless manner as charged in counts 1 and 2. (

b) no evidence to prove the guilt, beyond a reasonable doubt, that the accused, Landrel C. Beals and Shawntez Neco Downey possessed weapons for a purpose dangerous to the public peace or for the purpose of committing offences as charged in counts 3 and 4. (

c) counts 7 and 8 are a repeat of counts 11 and 12, possessing both a restricted and a prohibited firearm and that counts 7 and 8 ought to be stayed against the accused, Landrel C. Beals and Shawntez Neco Downey. (

d) no evidence to prove the guilt, beyond a reasonable doubt, that the accused, Landrel C. Beals , was the occupant of a motor

vehicle in which he knew there were firearms as charged in counts 9 and 10. [ 37 ] Therefore, as I understand the Crown”s theory, it cannot prove, beyond a reasonable doubt, that the accused Beals and Downey were the persons at the shooting location at Mackenzie Street. The Crown has conceded that there was no evidence, beyond a reasonable doubt, to place them there.

As a result, I conclude and find accordingly. [ 38 ] However, the theory is that Downey was the man who Laraque saw crouching in the stand of trees doing something and that it was Downey who got into the passenger side of the vehicle before it drove away. The theory goes further to posit that it was Downey who hid the weapons that the canine unit found in the location where it is alleged that it was he who was crouching. [ 39 ] With respect to the vehicle, the theory postulates that it was a grey Honda Civic with Ontario licensed plates.

As the police discovered a grey Honda Civic two-door sedan bearing Ontario licensed plates in a driveway about one kilometre from the crime scene, the theory is that this was the car that left the crime scene with Downey as a passenger. Furthermore, as the police saw Downey accompanied by Beals emerging from a wooded area about half a kilometre from where the police had located the supposedly abandoned Honda Civic vehicle, the premise is that Downey walked away from the vehicle and through the wooded area to where he and Beals were confronted by Cst.

Gibson. [ 40 ] Before the trial commenced the Crown also submitted that there were: (

a) no evidence to prove the guilt, beyond a reasonable doubt, that the accused, Landrel C. Beals and Shawntez Neco Downey carried concealed weapons as charged in counts 5 and 6. The Crown moved that these counts be dismissed for want of prosecution. They are now dismissed for want of prosecution (

b) no evidence to prove the guilt, beyond a reasonable doubt, that Landrel C. Beals and Shawntez Neco Downey , did possess firearms knowing that they were obtained by the commission in Canada of an offence as charged in counts 13 and 14. The Crown moved that these counts be dismissed for want of prosecution. They are now dismissed for want of prosecution. [ 41 ] Consequently, on the total evidence before me I will find and address the issues raised as follows: (

a) Has the Crown proved beyond a reasonable the guilt of the accused, Landrel C. Beals, as charged? [ 42 ] First, I note that the Crown has conceded, that it cannot prove beyond a reasonable doubt that Beals stored or carried firearms in a careless manner as stipulated in counts 1 and 2 on the Information tried before me. On a consideration of the total evidence, I agree with the Crown’s submission on this point.

As a result, I conclude and find that there was no evidence presented before me, to prove beyond a reasonable doubt, that Beals stored or carried firearms in a careless manner. [ 43 ] Secondly, I note that the Crown has conceded that on the evidence presented Beals cannot be said to be in possession of weapons dangerous to the public peace or for the purpose of committing offences as stipulated in counts 3 and 4 on the Information tried before me. On a consideration of the total evidence, I agree with the Crown’s submission on this point.

Consequently, I conclude and find that there was no evidence presented to prove beyond a reasonable doubt that Beals possessed weapons for a purpose dangerous to the public peace or for the purpose of committing offences. [ 44 ] Thirdly, I acknowledge that the Crown has informed me that it has presented no evidence to prove the guilt, beyond a reasonable doubt, that Beals carried concealed weapons as stipulated in counts 5 and 6 on the Information tried before me. On a consideration of the total evidence, I agree with the Crown’s position on this point.

As a result, I conclude and find that the Crown has not proved beyond a reasonable doubt, that Beals carried any concealed weapons. [ 45 ] Fourthly, on a review of the of the Information tried before me I agree with the Crown’s position, with no objection from defence counsel, that counts 7 and 8 are duplicitous of counts 11 and 12. As a result, the Crown has submitted that on the Kienapple principle, they ought to be stayed against him.

Consequently, a stay of counts 7 and 8 will be ordered. [ 46 ] Fifthly, I also acknowledge that the Crown has informed me that it has presented no evidence to prove the guilt, beyond a reasonable doubt, that Beals was the occupant of a motor vehicle in which he knew there were firearms as stipulated in counts 9 and 10 on the Information tried before me. On a consideration of the total evidence, I agree with the Crown’s position on this point.

As a result, I conclude and find that the Crown has not proved beyond a reasonable doubt, that Beals was the occupant of a motor vehicle in which he knew there were firearms. [ 47 ] The Crown’s theory was that Beals had “constructive possession” of the weapons. The basis of this assertion was because he was seen with Downey coming from a wooded area near Herbert Street and not far from Mason Street. [ 48 ] First, I accept and find that one of the persons that Gibson saw emerging from the wooded area near Mount Hope Ave and Lansing Ct., was indeed the accused Beals.

After all, Gibson had a good look of him, kept him under constant surveillance when chasing him and also subsequently, without losing site of him, arrested him. I do not doubt Gibson’s testimony of identification which was not impeached in any manner. [ 49 ] Even so, in my opinion and with respect, I find that no evidence was presented to link Beals as a party with Downey when Downey was supposedly seen on Mason Street.

The fact that the Crown cannot place Beals in the vehicle and has abandoned those charges, counts 9 and 10 presents it with a dilemma in imputing that Beals was even a party to the offence of the person, Downey,

actually in possession of the weapons. See. R v. Terrence, (SCC), [1983] 1 S.C.R. 357. Thus, if he were not in thevehicle with Downey, assuming that it was indeed Downey, in my view, it cannot be said that, without some other cogent evidence, thathe had knowledge that Downey possessed the weapons or that he exercised some measure of control or consented to what Downey didwith them. See also: R.v. Morelli (2010), 2010 SCC 8 , 252 C.C.C. (3d) 273 (S.C.C.). [50] In my opinion, the Criminal Code s.4(3)(

b) does not apply. I say so, as on the total evidence, the Crown has not presented thesemblance of any cogent evidence that would have persuaded me, on the above cited authorities, constituted or imputed in Beals,knowledge of, control over or consent to dispose of the weapons as it was alleged was in Downey’s possession. [51] His mere presence with Downey, without more, in my opinion, cannot make him liable for any criminal deed allegedlycommitted by Downey at an earlier period of time when he was not present. Moreover, there is no evidence of when, where and why hemet Downey.

All I am left with are mere speculation and suspicions that have no probative value. [52] The fact that he ran from the police, again, in my opinion, cannot without more, conclude, without a reasonable doubt, postoffence conduct. If, in fact the Crown had established a positive nexus, either directly or indirectly, between Beals and the weapons, Ithink that in the absence of an explanation, I could draw a reasonable inference from his flight from Gibson. See; R. v. Cooper, (SCC), [1978] 1 S.C.R. 860. [53] Furthermore, as I opined in R. v Sykes, [2007] N.S.J.

No. 361 2007 NSPC 46 at paras; 54 and 55: 54 True, the rapid departure by the accused was suspicious, but in my view lacked context or nexus to the robbery. It was contextuallyambiguous as the evidence points to other speculative activities of the accused. Sure, it may well be consistent with a guilty consciousand may be inconsistent with the conduct of an innocent person. But, the question is: what is the guilt?

Given the relationship betweenthe accused and the authorities, as disclosed by the evidence, his avoidance of the police may well be for other rational reasons. 55 I do not think that it can be said, beyond a reasonable doubt, that because the accused avoided the police that he is automaticallyguilty of the robbery or that he needs to give an explanation for his conduct, absent any proven nexus to the index crime.

Therefore, Iconclude and find that all we have are speculations and suspicions that cannot be the basis to ground any liability in a criminal trial.Here, for the same reasons, it is also my opinion, that they do not establish circumstantially a consciousness of guilt with respect to therobbery. [54] I think that those words are apposite. I would therefore adopt and apply the same reasoning in this case.

Thus, on the totalevidence, I conclude and find that the Crown has not proved, beyond a reasonable doubt, that Beals possessed either a restricted or aprohibited firearm with readily accessible ammunition capable of being discharged in the same firearms. (

b) Has the Crown proved beyond a reasonable doubt the guilt of the accused, Shawntez Neco Downey, as charged? [55] In my opinion, identification of the man seen on Mason Street, by Laraque as Downey, is the prime consideration. As asecondary consideration, should the first proposition fail, is whether the identification of one of the men emerging from the wooded areaas seen by Gibson was indeed Downey. And, if so, was he also the same person who was seen by Laraque on Mason Street? [56] The authorities are clear concerning the weight I should give to eyewitness identification. In R.v.

Miaponoose, (ON CA), [1996] O.J. No. 3216 (C.A.). Charron J.A., (as she then was) stated at para 16: 16 The weight of eyewitness identification will obviously vary greatly depending on the circumstances. In an often quoted passagefrom the decision of R. v. Smierciak, (1946) (ON CA), 87 C.C.C. 175 Laidlaw J.A., in writing for the Ontario Court ofAppeal, succinctly set out a number of relevant factors to be considered in the assessment of identification evidence.

His words areparticularly useful to the review of this case (at p. 177): The weight of evidence of identification of an accused person varies according to many circumstances. A witness called upon to identifyanother person may have been so well acquainted with him or her as to make the identification certain and safe. The person to beidentified may possess such outstanding features or characteristics as to make an identification comparatively free from doubt. Theconditions under which an observation is made, the care with which it is made, and the ability of the observer, affect the weight of theevidence.

In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witnesswho is to be relied upon to identify a person suspected of wrongdoing or who is under arrest. If a witness has no previous knowledge ofthe accused person, so as to make him familiar with that person's appearance, the greatest care ought to be used to ensure the absoluteindependence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias, createddirectly or indirectly.

Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonablyprejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that aperson is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoner alonefor scrutiny after arrest is unfair and unjust.

Likewise, permitting a witness to see a single photograph of a suspected person or of aprisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person. [57] In my opinion, as there was neither forensic nor DNA evidence linking Downey to the crime scene or to the weapons Laraque’s

evidence of identification was very critical. In this case, Downey was unknown to Laraque. Thus, Laraque’s identification is a mereopinion and entirely dependent on his perception and recollection of the events of April 27, 2011 and the attention-getting features of theindividual whom he saw in the woods. See for example: R.v. Smith (1952), (ON CA), 103 C.C.C. 58 (Ont. C.A.). [58] I find that his first observation of the man whom he later said was Downey was when he was in a speeding police cruiser on abusy highway. That man was 50 to 60 metres away on his left on another street that ran parallel to the highway.

But, a concrete highwaymedian and two busy lanes of opposite travelling traffic and an unspecified distance of land also separated him from the person. [59] I do not doubt that he saw a man but, I find that his opportunity to observe this man, in the circumstances, was brief as he alsohad to contend with safety issues on the highway. On his own testimony I accept and find that he did not see any distinguishing facialcharacteristics of this person but could only say that the person was a Black male.

Likewise, I accept and find that he had no previousknowledge of the person whom he saw and, at the time, he was attempting to process as much information as he could, in the set ofcircumstances, to identify not only the person outside the vehicle but also the driver and the vehicle itself.

In these set of circumstances,for the several seconds of observation, according to his testimony, I find that his attention was not entirely focused on the person outsidethe vehicle. [60] Furthermore, I accept and find that the only identifying descriptor he broadcasted, upon inquiry of what he saw, was: “all I sawwas two black males.” Except for these words I accept and find that he broadcasted no other identifying descriptors such as height,weight or clothing of the person whom he saw on Mason Street.

However, I accept and find that contemporaneous to his observations hewrote in his notebook that the person whom he saw had a “shaved head” and was “wearing jeans.” [61] On the total evidence, I think that it is reasonable to conclude that when he was preparing for trial, aided by viewing the securityvideotape, he then recalled, in my view, subjectively, the manner of the dress that the person whom he saw was wearing. I say sobecause, after all, the only clothing he noted, at the time of the incident, as he then recorded, was that the person was wearing jeans.

It ishowever significant that he heard the police chatter concerning the description of the suspects. Of particular significance is the clothing description that Gibson broadcasted of one of the individuals whom he spotted and chased toward the Sobey’s store. Also, when Laraquelearned that the men who were pursued to the Sobey’s store were under arrest, as suspects of the crime under investigation, he went tothe police station to view them when they were in custody.

However, he said that he then did not recognize any of them. [62] Laraque, however, was a prospective police witness and I think that his viewing, as he did, of the suspects was not onlyinappropriate and unorthodox but it was also unconventional and inconsistent with the processes and procedures established to identify asuspect. Furthermore, he did not view a forensic photo line up that included the person whom he saw. I therefore conclude and find thathis action was intended to reinforce his own opinion as to whom he believed was the person he saw on Mason Street.

Thus, in myopinion, his conduct tainted significantly, the identification process. [63] Additionally, I find that his viewing of the videotape evidence, months after the incident was not only suggestive but it alsodirectly or indirectly further impaired his independent recollection of the event. I say so as his own independent recollection, as I havefound, differ from the image of the person whom he declared was Downey on the videotape. The videotape shows that person wearing agrey hooded sweater and a fluffy black sleeveless jacket and a pair of black jogging pants not jeans as he recorded in his notebook.

Likewise, the person had hair with braids at the back and not a shaved head as he recorded in his notebook. [64] Nonetheless, although he stated that at one point in time that he did not know the person shown in the videotape and even thoughdiscrepancies existed between his prior observations and the security videotape images he declared that he was 95% certain that Downeywas the person shown in the videotape and was likewise the person whom he saw on Mason Street and at the police lock and now incourt. [65] In my opinion, the pretrial identification of Downey by Laraque was problematic.

The identification procedure adopted by himrendered his identification very dubious and of little weight. I bear in mind that his first broadcasted identifying descriptor of the personwhom he saw was generic and that it could be the description of any black male. In particular, his surreptitious viewing of the suspectswhen under arrest and in custody was to reenforce his subjectivity as to whom he saw. Likewise, his viewing of the security videotapefor trial preparation created a tunnel vision effect as it focused on the accused as the perpetrator of the crime.

Moreover, his in courtidentification of Downey, in my opinion, does not add any weight to his initial identification as it is a mere bald statement that the man inthe courtroom was the same man who was put before him, for identification purposes, in the security videotape. [66] It seems to me that the integrity of the identification process is important and ought not to be minimized.

Similarly, it is importantthat nothing is done to render the process unfair and that everything possible ought to be done to minimize the inherent dangers ofeyewitness identification and to prevent irreversible prejudice to the accused by the use of improper or inappropriate police procedures. Here.

I find that, on the total evidence, Laraque’ s evidence of identification was inconsistent, unreliable and untrustworthy and it left mewith reasonable doubt as to the correctness of his identification of Downey as the person whom he saw on Mason Street. [67] Even so, I find that Gibson’s evidence of identification of Downey as the person coming from the wooded area in the vicinity ofMount Hope Ave and Lansing Ct. as credible, reliable and trustworthy.

He broadcasted identifying descriptors of the person, lateridentified as Downey and whom he saw as tall and skinny with braided hair on the back of his head and wearing a grey hoodie and ablack puffy vest and black jogging pants. He chased this person to the Sobey’s store keeping him insight. He saw this person enter thestore. The store’s security videotape, Exhibit 5, captured the image of a person matching this description entered the store at the timeGibson saw him enter. Likewise, Gibson saw the same person leaving the store in police custody under arrest.

Thus, on the totalevidence I do not doubt and find that Gibson’s evidence of the identification of Downey as correct.

[ 68 ] Although I find, on the total evidence, that there is reasonable doubt that Downey was indeed the person on Mason Street, I, however, do not doubt that he was the person seen and pursued by Gibson from Mount Hope Ave to the Sobey’s store on Baker Drive.

Respectfully, and in my opinion, on the total evidence, there is no cogent connecting evidence of identification to support, beyond a reasonable doubt, the Crown’s theory that he must be the one and the same person seen on Mason Street and then soon after near Lansing Ct. and Mount Hope Ave. [ 69 ] I am not persuaded beyond a reasonable doubt on this hypothesis. For example, clothing was a critical identifying factor and the evidence was that police seized and photographed clothing. From whom were they seized? They were never tendered as exhibits to support the Crown’s theory.

Additionally, the evidence was that the clothes were never tested forensically. But, were they seized from the person believed to have been in the stand of trees and who hid the weapon between the leaves? Further, they were tested “ with negative results.” Does this mean that there was no fingerprints or other physical evidence linking the accused persons to the weapons or that there were no fingerprints at all? That critical piece of evidence, in my opinion, was dangerously vague and ambiguous. [ 70 ] But, there was direct identification by Gibson.

Thus, in my view, without any cogent nexus between Downey and the weapons found at the crime scene it is mere speculation to say that he was, in fact, on Mason Street. He was only positively identified when walking with Beals. Further questions that need answers arise. Was he and Beals together at all times? Where did they come from?

The fact that they were near Herbert Street or Mason Street, in my opinion, by itself and without more, does not prove their involvement or connection to any event on those streets at an earlier period of time. [ 71 ] As commented upon earlier, the fact that they ran, without more, does not establish consciousness of guilt. See: Sykes , supra . Cooper , supra . A rational explanation why Downey was avoiding the police could be that he was on bail under house arrest conditions. See Exhibit 22.

Conclusions [ 72 ] On the total evidence, as identity of the person seen on Mason Street was contested, I conclude and find that it cannot be said beyond a reasonable doubt that the person then seen was Downey. Additionally, I conclude and find that no nexus has been established beyond a reasonable doubt between the person seen on Mason Street and the two persons seen by Gibson on Mount Hope Ave.

Additionally, I conclude and find that there was no forensic evidence linking the accused persons to the weapons found. [ 73 ] Therefore, on my assessment of the total evidence and upon my observation of the witnesses as they testified and my assessment of their testimonies I conclude and find as follows: (

a) with respect to the accused Landrel C.

Beals - counts 1 and 2 stored or carried a firearm in a careless manner - not guilty as charged; - counts 3 and 4 - possessed weapons for a purpose dangerous to the public peace or for the purpose of committing offences - not guilty as charged; - counts 7 and 8 are hereby stayed; - counts 9 and 10 - he was the occupant of a motor vehicle in which he knew here were firearms - not guilty as charged; - counts 5 and 6 - carried concealed weapons - dismissed for want of prosecution; - count 13 and 14 - possess firearms knowing that they were obtained by the commission in Canada of an offence - dismissed for want of prosecution; - count 11 and 12 - possessed a restricted and a prohibited firearm with readily accessible ammunition capable of being discharged in the same firearms - not guilty as charged. [ 74 ] Thus, I find that the accused Landrel C.

Beals is acquitted of all counts on the Information tried before me. (

b) with respect to the accused Shawntez Neco Downey - count 3 and 4 - possessed weapons for a purpose dangerous to the public peace or for the purpose of committing offences - not guilty as charged; - counts 7 and 8 are hereby stayed; - count 5 and 6 - carried concealed weapons - dismissed for want of prosecution; - count 13 and 14 - possess firearms knowing that they were obtained by the commission in Canada of an offence - dismissed for want of prosecution; - counts 1 and 2 - stored or carried a firearm in a careless manner - not guilty as charged; - count 9 and 10 - he was the occupant of a motor vehicle in which he knew here were firearms - not guilty as charged;

- counts 11 and 12 - possessed a restricted and a prohibited firearm with readily accessible ammunition capable of being discharged in the same firearms - not guilty as charged; - counts 15, 16 and 17 possession of a prohibited weapon contrary to an Order of Prohibition and a Recognizance - not guilty as charged; - count 18 and 19 - failing to remain at his residence (curfew) and failing to keep the peace and of good behaviour contrary to his Recognizance - Guilty as charged. [ 75 ] Thus, I find the accused, Shawntez Neco Downey guilty only of breaching his curfew conditions and failing to keep the peace and be of good behaviour. Convictions will be entered accordingly. J.