R v McGowan [2010] O.J. No. 1446

M. Mackinnon, Ms., Counsel for the Crown.

C. Cawkell, Mr., Counsel for the Accused.

1 J.C. MOORE J. (orally):— As a result of events that occurred in the evening hours of July 14th, 2009 and the early morning hours of July 15th, 2009, Ms. Candice McGowan was charged with several firearm related offences and one offence of dangerous driving. She appeared before me March 8th, 2010, entered pleas of not guilty and elected to be tried by me on her charges.

2 Several witnesses were called on behalf of the Crown over the five day trial, none for the defence. In addition to viva voce testimony, several photos, reports and two DVDs were introduced as exhibits. A videotaped statement provided by Ms. McGowan to the police was admitted in evidence after I ruled on a voir dire that the Crown had proven it to be a voluntary statement. As it turns out, the statement is an important piece of evidence for both the Crown and defence.

3 The theory of the Crown is quite simple. It is the Crown's contention that shortly after 8:00 p.m. on July 14th, 2009, Ms. McGowan drove three males to a housing complex in the Greenwood/Walpole area in Toronto in order to carry out a drive-by shooting. However, in the ensuing confrontation shots were fired by one or more persons from both groups. The defendant fled the scene in her vehicle, returned home and then she and a co-accused, Chris Kotsopoulos, shortly after 1:00 a.m. were observed to get into the same vehicle again being driven by her. Attempts by the police to pull over this vehicle failed and she led the police on a chase which only ended upon her being boxed in on a dead-end street.

4 In her defence, she maintains that she had no advance knowledge of any gun play, that she had no knowledge of the presence of any firearm in the vehicle and she fled the scene fearing for her life. As well, the reason that she fled from the persons several hours later, was due to the fact that she had no idea they were police officers and she again was in fear for her life, thinking the same people were attempting to finish her off for some unknown reason. This defence is expressed in her own words in the one-hour-long cautioned, under oath statement provided by her at about 7:00 a.m. on July 15th, 2009 at 55 Division station.

5 Civilian witnesses testified as to what occurred at the housing complex. A firearm with a magazine, along with bullets and shell casings were located at the scene and retrieved by the police. The firearm, an Intratec model AB-10, along with an oversized magazine and bullets are the subject matter of the gun-related charges. Both the firearm and magazine are prohibited devices. Ms. McGowan was not the holder of any firearms licence, nor was the firearm in question registered.

6 Police officers testified as to the dangerous driving charge. None of the civilian witnesses could identify anyone involved in the shooting, let alone identify Ms. McGowan as being an occupant of the vehicle in question. However, descriptions of a vehicle seen by various witnesses and a licence plate number led the police to the residence of Ms. McGowan at 22 Blevins Place in Regent Park.

7 Within four hours of the shooting the police had set up surveillance; observed her drive off in the same vehicle accompanied by a male, Chris Kotsopoulos. Eventually a chase began which ended in the arrest of Ms. McGowan prior to 2:00 a.m. on July 15th, 2009. Officers of Guns and Gangs and 55 Division in the meantime had taken witness statements, seized evidence from the scene of the shooting and taken photos of the scene.

8 A firearm expert testified that two or more firearms had in all probability been used - but only one firearm was located. No prints of the defendant were located on any item that was seized. As well, four search warrants executed revealed no evidence implicating Ms. McGowan. Once at the station, GSR testing was done on Ms. McGowan which revealed the presence of one GSR particle on her upper arm area, none on her hands. She displayed an injury to her upper arm/shoulder area on the left side which, she claimed, resulted from her driver's side window being blown apart by a bullet that narrowly missed her. The expert called by the Crown indicated that the presence of the one GSR particle had virtually no significance in this case.

9 With respect to the shooting incident, various witnesses, objects seized, including the firearm, leave no doubt that some sort of a shoot-out took place at the time Ms. McGowan's vehicle was present. It is the statement of Ms. McGowan that puts her at the wheel of the vehicle at the relevant time and place.

10 There is some discrepancy amongst the witnesses as to the operator of a vehicle, how many and of what colour occupants of the vehicle were, the location of a vehicle, the make of a vehicle, the existence or not of face covering, whether windows were up or down or tinted. The testimony of the various witnesses could lead one to conclude that perhaps there was another vehicle involved in the shooting.

11 As a first step on the gun-related charges, the Crown has to prove beyond a reasonable doubt that the gun located on the pavement by the speed bump on a circular driveway, along with a magazine clip was in fact in possession of an occupant of the vehicle being driven by the defendant. There is some evidence that that is the case. There is some evidence that falls short of that conclusion.

12 There is evidence by way of testimony that one could conclude that an occupant of Ms. McGowan's vehicle did possess the firearm, Exhibit 6, that fell by the speed bump as her vehicle reversed back down the circular driveway. But, there is no witness that could say with 100 percent certainty that the recovered firearm did in fact fall from her vehicle as it passed over the speed bump and fall to the ground.

13 Then there is the statement, Exhibit 1A, of Ms. McGowan, in which she provides an explanation as to how it was that she ended up at the location and an unequivocal denial of any knowledge whatsoever of any gun being in her vehicle, or being used by anyone in her vehicle at the relevant time with her knowledge. This is a statement given under oath, with the clear warning of criminal consequences and a caution regarding the use of such statement with her as a potential witness. There are details in her statement that could easily be checked, details that do correspond with information provided by witnesses at the scene of which she would have no knowledge; and details that she provided that could be compared to any possible statement being provided by Mr. Kotsopoulos.

14 Her defence is simple: no gun and no knowledge of any gun. If one listens carefully to her videotaped statement, it is unclear as to exactly when it is and how it is, according to her, that all three of the males in her vehicle completely disengaged themselves from any contact with her vehicle. And there is no evidence to support an inference that anyone was in her vehicle when it turned down and proceeded southbound on Greenwood.

15 From the Crown's perspective, the evidence of dangerous driving comes from the testimony of the Guns and Gangs police officers, i.e. Febbo, Peacock, and Steeves. The dangerous driving would consist of breaking away from two attempts to box her in, excess speed, failure to stop at stop signs, backing up into a vehicle behind her, unsafe cornering, coming to a stop by striking a barrier. In addition, there was testimony from Detective Constable Peacock and Febbo that a flashing blue and red light had been activated in Febbo's vehicle which should have brought home to her that it was the police, not someone else, that were attempting to box her in and then pursue her.

16 The specifics of her driving were never put to her by Detective Constable Grieves but, she was adamant that:

• 1.
  She never saw any police flashing lights.
• 2.
  She was unaware they were police trying to stop her.
• 3.
  She was in fear for her life as she believed that somehow, that the persons involved in the earlier shooting were the ones after her again.

17 The evidence of the Crown in this regard was the testimony of Officers Peacock, Febbo and Steeves of the Guns and Gangs Division of the Toronto Police Service. It was the three of them who described the attempted takedowns and it was Peacock who described most of the pursuit. It was the testimony of the three police officers that four police vehicles were being used, operated by four police officers. None of the vehicles were identifiable as police vehicles. None of the four police officers were identifiable as police officers.

18 A first attempt to box her in when she had stopped for a red light failed, as she was able to make her way out from the box as it was not tight enough. The second attempt to bring her to a rolling stop failed when she managed to stop, back up striking the vehicle behind her and then drive off. One vehicle being used by the police was a van; another was a big black SUV.

19 Constable Peacock testified that when he initially exited from his vehicle from the driver's side, he did so with his firearm drawn and in a crouching position, whilst making eye contact with her and yelling, "Police, don't move". He was to her left. Detective Constable Febbo came up her right side and as he did this, he activated a red and blue flashing light which he placed on the dashboard to his right.

20 No photo of this device was ever placed before the Court. As well, the time was about 1:30 a.m., with traffic, vehicular and other lighting in the area. In her statement she denies ever seeing any flashing lights. She does appear to acknowledge seeing Peacock and his gun and says, she felt she was about to be shot and therefore took off. In her statement she says that she and Kotsopoulos were on their way to a hotel for the rest of the night. She knew he was in police custody and could not know for sure what he did or could have said by way of any explanation at the police station.

21 With respect to the gun-related charges, the Crown is relying for the most part on the testimony of the civilian witnesses. I think it is fair to say that their credibility is not really an issue at all. Of more concern would be the overall reliability of their evidence, coupled with what weight to give certain parts of their testimony.

22 There are several possibilities here.

• 1.
  That none of the occupants of her vehicle had a firearm.
• 2.
  That the firearm located on scene came from another source.
• 3.
  That if one or more occupants of her vehicle had a gun, it was not the gun located on the scene.
• 4.
  That there were one or more firearms in her vehicle and she had no knowledge until they were used.
• 5.
  That she knew full well of the existence of a firearm prior to the three males getting into her vehicle, and she knew full well what was going to occur.

23 There is conflicting evidence as to what, if any, firearm was present and used in her vehicle. The Crown submits that the inference can be drawn that the firearm located at the scene was possessed by one of her passengers with her knowledge and consent. In her videotaped cautioned sworn statement she categorically denies any such suggestion.

24 Might her explanation reasonably be true? The Crown suggests that, as it is with any witness, one can accept all, part or none of a person's evidence. The Crown asks me to find as a fact that Ms. McGowan is lying in her statement when she disavows any knowledge of a gun but, telling the truth when she admits being present at the scene.

25 To my mind, the parts of her statement that deal with the knowledge of a gun before, during and after the event may very well be true. In addition, taking the Crown's evidence as a whole, including that of the various civilian witnesses, I have a real concern with respect to what, if any, gun was present in her vehicle and her knowledge of such a gun at the relevant times, and whether or not it could have been restricted or prohibited. It would be unsafe to convict the defendant on the totality of the evidence. The Crown having fallen short of proof beyond a reasonable doubt on the gun-related charges, Ms. McGowan is acquitted on counts one, two, three, four, six, seven and eight.

26 Now turning to the charge of dangerous driving. On behalf of his client, Mr. Cawkell does not take issue with the testimony of the various police officers with respect to the nature of the driving. He does take issue with the testimony regarding the use or not of a police emergency flashing light in the vehicle of Detective Constable Febbo.

27 I do not think there is any doubt that the actions of Ms. McGowan as she drove her vehicle that night constituted dangerous driving. Mr. Cawkell conducted virtually no cross-examination on this issue, nor did he make any submissions.

28 Without referring to section 8(3) of the Criminal Code and without mentioning the word necessity, both Ms. Mackinnon for the Crown and Mr. Cawkell seem to recognize that the possible defence here is one of necessity. Ms. Mackinnon submits that the testimony of the police is to be accepted and an inference can be drawn that Ms. McGowan knew full well it was the police who were attempting to block her in and she was simply trying to escape. And that again, she is lying in her statement when she denies that she knew they were police officers who were attempting to stop her and that she was fleeing for her life.

29 The Supreme Court of Canada's decision in R. v. Perka (1984), 42 C.R. (3d) 113, makes it quite clear that the defence of necessity does exist in Canada. It is a recognition that an otherwise criminal act is excused on the basis of necessity. Chief Justice Dickson stated that the following criteria must be met for the defence to be successful:

• 1.
  There must be circumstances of imminent risk where the action was taken to avoid a direct and immediate peril.
• 2.
  The act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law.
• 3.
  The harm inflicted must be less than the harm sought to be avoided.

30 There must at least be an air of reality to the defence established by the defendant; and the evidence must show that the predicament faced by the defendant is not one in which he or she voluntarily and without blame placed themselves.

31 The Supreme Court of Canada's decision in R. v. Latimer (2001), 39 C.R. (5th) 1, allows for a test that falls somewhere between an objective and a subjective test. In other words, one must look at both the undisputed facts and the reasonable perception of the defendant, in deciding whether the defence is viable in all the circumstances of the case at hand.

32 On behalf of the Crown, Ms. Mackinnon takes the position that the necessity defence simply does not exist in this case due to:

• 1.
  The inferences to be drawn from the police testimony; and
• 2.
  That the defendant is lying in her videotaped statement.

33 No one can read Ms. McGowan's mind.

34 Therefore, we are left with the police evidence and her statement. What we do know is:

• 1.
  That some four or five hours earlier she had been involved in what was probably a life-threatening situation.
• 2.
  Four or five hours later she is in the same vehicle, with the same plates, with one of the same persons.
• 3.
  Four unmarked vehicles, driven by four males not in police uniform, tried to box her in an aggressive manner twice.
• 4.
  One of these males pulled his gun and pointed it at her.
• 5.
  Even if a blue and red flashing light was activated, it was placed on the passenger side dash of Detective Constable Febbo's vehicle, which is a large black SUV, and Ms. McGowan was in the driver's seat of her vehicle, several feet distant.
• 6.
  It was dark, there was traffic, there would be other colours and types of lighting present.
• 7.
  Both attempts to box her in occurred very quickly.

35 The inference the Crown is asking me to draw is that Ms. McGowan knew that the persons trying to stop her were police officers. That inference is based on two pieces of evidence.

• 1.
  Detective Constable Peacock's assertion that he yelled out to her that he was a police officer.
• 2.
  The inference that she saw the flashing blue and red light and that she therefore knew that they were police officers.

36 There is no evidence at all that anyone else heard Detective Constable Peacock yell those words, let alone Ms. McGowan. As well, based on the totality of the evidence, including that of the police officers and the lack of other evidence as to what possibly could be seen by Ms. McGowan, I have serious reservations - based on the Crown's evidence alone - regarding the identity of the persons operating the four vehicles. Again, in addition we have her videotaped, cautioned, sworn statement as a potential witness, in which she denies that she knew they were police officers. That is not the end of the matter however.

37 Her defence is that, "I did not know they were police officers. I neither saw nor heard anything to suggest to me they were police officers. And based on what had occurred four or fives hours earlier, I feared for my life and the only choice I had was to flee in my vehicle and to try to get to a place of safety". She was never asked why she did not head to a police station or call 911 if she had a cell phone - but, so be it.

38 Taking into consideration the totality of the evidence, including that of the police, the undisputed facts and her statement, I find that there is at least an air of reality to her defence and more so, it may very well be true. Having come to that conclusion, it seems to me that applying this somewhat modified objective subjective test, that the defence of necessity is applicable to the facts of this case.

39 I find as a fact that the Crown has not proven beyond a reasonable doubt that she knew or should have known that it was the police attempting to box her in. I find that her assertion that she believed the persons to be the same ones from earlier and were again trying to kill her to be believable. Having concluded this, I find that her only option was to flee and drive her vehicle in the manner she did in order to escape from imminent peril. And, in doing so, any harm she inflicted was less than the harm she sought to avoid.

40 I therefore conclude that the defence of necessity has been established. And the result therefore, is that that Ms. McGowan is acquitted on the charge of dangerous driving, which is count nine on the information.

qp/s/qlcct/qljxr/qlced