IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Two Transit police officers followed Daon Glasgow as he ran from a parking lot into the Scott Road SkyTrain Station. They believed that he was trying to avoid them, and wanted to find out why. One officer spotted the accused seated among commuters awaiting an eastbound train. As the officer approached him, Glasgow took a handgun from his waistband, shot the officer twice and fled the station. He was arrested five days later.

[2]         The accused has been charged with attempted murder of the officer; discharge of a firearm with intent to endanger the officer’s life; discharge of a firearm while being reckless as to the life or safety of other persons; and unlawful possession of a restricted firearm.

[3]         The accused admits that the evidence supports convictions on the latter three counts. He denies however, that when he fired the shots, that he intended to kill the police officer. Thus, the only issue at this trial is whether the Crown has proven the charge of attempted murder.

[4]         The Crown says that the only reasonable inference to be drawn from the circumstances is that Glasgow did intend to kill the officer. He was desperate to avoid the police because he was carrying a loaded restricted firearm, and was unlawfully at large from a halfway house. If the police found this out, he would be returned to prison. The accused clearly intended to shoot at the officer and did so from relatively short range. He must therefore have intended the natural consequence of that act – the death of his target.

[5]         The accused says that he panicked when he saw the police officers. His only thought was to get out of their presence. Once he had reached the SkyTrain platform, he believed that he had successfully evaded them, and would get further away from them by boarding the next eastbound train. He was shocked at the officer’s sudden appearance. He said that he fired the shots without thinking of anything other than escaping from the officer.

[6]         The two questions that must be resolved are: 1) Whether the only reasonable conclusion, based on the evidence produced by the Crown, is that the accused intended to cause the officer’s death. 2) Whether the testimony of the accused raises a reasonable doubt concerning the allegation that he intended to cause the officer’s death.

[7]         Section 239(1) of the Criminal Code states: “Every person who attempts by any means to commit murder is guilty of an indictable offence…” A person can only be convicted of attempted murder if the prosecution proves beyond a reasonable doubt that the accused intended to cause the death of another person. The Queen v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225.

[8]         The essence of any charge of attempting to commit a crime is that the accused must have the intention to commit that very crime. A person may be convicted of murder who either intends to kill another person, or who in the words of section 232(a)(ii) of the Criminal Code, “means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not”. But, an accused may only be convicted of attempted murder if it is proven that he intended to cause the death of the other person. A person who commits a violent reckless act with the state of mind defined by section 232(a)(ii) cannot be convicted of attempted murder. In most circumstances, however, that person can be convicted of an included offence such as aggravated assault.

[9]         A person who points a handgun at a vital part of another person’s body and shoots at that person, may be convicted of attempted murder. That is, it is a reasonable presumption that persons intend the normal and probable consequence of their actions. It is perhaps an understatement to say that it can be inferred that if a person points a firearm and shoots at a vital part of another person’s body, they intend to effect the probable consequence of that act, which is the death of the person targeted.

[10]      This concept is summarized by Cory J.A. (as he then was) in R. v. Bains, [1985] O.J. No. 41 (CA) at para. 5:

[11]      That logical, even compelling pronouncement, does not mean that in every circumstance where one person shoots at another with a firearm, that the shooter is guilty of attempted murder. As in almost all trials, much depends upon the unique circumstances of the case. For example, in R. v. Ali, [2015] B.C.J. N0. 2440 (BCSC), the accused fired eight shots from a vehicle at the driver of another vehicle. One of the bullets hit and wounded the driver. The incident appeared to be connected to some gang dispute. Ali was acquitted of attempted murder but convicted of related firearms offences and aggravated assault. See also R. v. Barr, [2015] B.C.J. N0. 1530. Barr went to the home of an acquaintance, with whom he had a dispute over some property which Barr claimed to own. He shot the victim three times with a shotgun, hitting his arm, leg and hip. The victim was severely wounded. However, Barr spoke to the victim after he had been shot, and decided to go no further, and left the scene. The decision by the accused not to kill the victim, caused the trial judge to have a reasonable doubt that when the accused fired the shots at the victim that the accused intended to kill him. However, he convicted the accused of discharging a firearm with intent to wound, and discharging a firearm while being reckless as to the life or safety of others.

[12]      The prosecution’s case concerning the intention to cause the death of Constable Harms is based on circumstantial evidence. The court must be careful in assessing circumstantial evidence to keep in mind that the ultimate issue is whether the Crown has proven the case to the standard beyond a reasonable doubt. There is always a danger that the court may “fill in the blanks” or “jump to conclusions” when considering what conclusions can be drawn from the circumstances. An inference of guilt should only be drawn if the court decides that this is the only reasonable inference that can be drawn based on all of the evidence (or sometimes, the lack of evidence.), R. v. Villarroman, 2016 SCC 33 (CanLII), [2016] S.C.J. No. 33.

[13]      The concept of proof beyond a reasonable doubt means that the prosecution’s case must establish the accused’s guilt beyond a standard of mere probability. However, the Crown is not required to prove its case to a standard of absolute certainty.

[14]      In assessing the weight to be given to the testimony of an accused person, the court must approach this task as directed by the Supreme Court of Canada in R. v. W (D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. I paraphrase the Court’s direction as follows: If I believe the accused, I must acquit. Even if I do not believe the accused, but his testimony leaves me with a reasonable doubt, I must acquit. Even if I reject his evidence, I can only convict if upon considering all of the other evidence presented in the case I am satisfied that the guilt of the accused has been proven to the standard beyond a reasonable doubt.

[15]      The purpose of this three-step process is to make sure that the court does not unintentionally fall into a trap of making a finding of guilt because the court finds the crown evidence more believable than the defence evidence. The process requires that the court focus on the ultimate issue of whether the crown has proven the case beyond a reasonable doubt. R. v. Dick, 2015 BCCA 343 at para. 27.

[16]      During his testimony, pursuant to s. 12 of the Canada Evidence Act, the accused admitted to having a criminal record. A copy was filed as an exhibit. The court can make only limited use of that record. It can usually be used only to assist the court in assessing the credibility of the accused. Except in rare circumstances, it cannot be used as evidence which tends to prove that the accused has a propensity to commit crimes similar to his current charges.

[17]      The effect of having a criminal record on the credibility of accused varies considerably. An accused who has a lengthy history of criminal convictions, close in time to the alleged crime for which he is being tried, may not be a credible person. On the other hand, the credibility of an accused who has a record of criminal convictions which occurred many years before, may not be adversely affected by that criminal record.

[18]      This limited use of the criminal record of an accused was summarized by Dickson C.J. in R. v. Corbett, 1988 CanLII 80 (SCC).

[19]      Constable Josh Harms and Constable Chris Elvidge are both members of the Metro Vancouver Transit Police. On January 30, 2019, they were assigned to plainclothes duty with an emphasis on investigating “suspicious” persons at SkyTrain stations. They were looking for example, for persons who might be violating terms of their bail or probation orders. Although they were wearing plainclothes, they were easily identifiable as police officers. They were wearing protective vests, carrying firearms, and had their badges displayed on their belts.

[20]      Just after 4:00 p.m., they were at the parking lot area of the Scott Road station. They were in an unmarked police vehicle. They had just finished interviewing a suspicious man they had encountered in the area of the Home Depot, which is a short distance east of the SkyTrain Station. After letting this man go, they got in their vehicle and drove towards 110 Avenue.

[21]      As they were about to make a turn on 110 Avenue, Constable Harms saw the accused, on foot, in a parking lot south of the SkyTrain Station. The accused was looking directly at Constable Harms, and held his gaze on the officer. They both concluded that the accused had identified them as police officers. They then noticed that the accused was walking away from them, and continually looking back at them over his shoulder. He then started to run towards the station.

[22]      Neither officer had seen the accused do anything illegal and did not know who he was. Nonetheless, it seemed obvious that he wanted to avoid them because they were police officers. They followed him to find out why he was so desperate to avoid them.

[23]      Most of the remaining actions of the parties are captured on the SkyTrain Station’s cameras. Glasgow ran toward an entrance on the east side of the station. He pushed through one of the gates without paying – that is, he did not swipe a fare card. He then turned right and went up an escalator. At the top of the escalator, he can be seen starting to remove a blue hoodie that he was wearing. He walked by a couple of people who were waiting for the eastbound train, and moved out of camera range. He sat on a single metal seat among others waiting for the train. By then, he was carrying the blue hoodie.

[24]      The two transit officers drove to the east entrance as well, following Glasgow. Constable Elvidge saw the accused push through the fare gate. They got out of their vehicle and pursued Glasgow inside. They entered the station about 15 seconds after the accused. Constable Elvidge went to his right and went up the escalator. Constable Harms went to his left and went up the stairs leading to the platform.

[25]      Constable Elvidge got on the escalator just after Glasgow had reached the top and had gone to the eastbound platform, which was to the left. When he reached the top of the escalator, Constable Elvidge went to the right. Constable Harms had also turned to the westbound platform area after he had reached the top of the stairs. Neither of them had seen where Glasgow had gone and began to search for him.

[26]      A westbound train had just departed the station and the waiting platform was basically empty. There were more than a dozen people waiting for the eastbound train. Constable Elvidge continued walking west along the westbound platform. Constable Harms walked in the same direction along the wall or barrier which borders the escalator. He then turned to his left at the end of the wall and walked by the top of the escalator. He then turned to his right, walking towards the area where Glasgow had gone.

[27]      He saw Glasgow sitting on the metal chair. He said that the accused was either trying to place the hoodie under the seat, or was trying to sit on the hoodie. Constable Harms said that as he walked towards the accused, he extended his arm, pointing towards Glasgow, saying something like “hey, police”. They were 10 to 15 feet apart. Harms saw the accused quickly stand up, take a handgun from his waist area and shoot him. The officer said that Glasgow was pointing the gun at his centre of mass. Two bullets struck the officer - one in his right arm and one in his left hand.

[28]      The video does not show any of Glasgow’s actions. He is out of camera range. The camera is pointed towards Constable Harms. The officer can be seen grabbing his right arm with his left hand. He then turns around, crouches, and retreats from Glasgow. (Constable Harms explained that he had to seek cover from any further gunshots). He ran past the exit of the escalator, along the wall which runs parallel the escalator, to get behind the rear wall which is perpendicular to that wall.

[29]      Meanwhile, Glasgow can be seen on camera running in the same direction as Harms, holding the gun directly in front of him, pointed at Harms. However, he did not pursue Constable Harms. Instead, he ran down the “up” escalator and then out through the same gate through which he had entered a minute before. He can be seen running in a southerly direction from the station, through the small parking lot that is adjacent to it, and out of sight.

[30]      The whole transaction took place very quickly. Only one minute passed between the time that Glasgow arrived at the eastern gate and the time that he left the same gate. Less than three seconds passed between the time that Constable Harms would have been visible to the accused, and the time that the accused shot him.

[31]       Despite the injuries to his hand and arm, Constable Harms was able to get his firearm out. He leaned over the small barrier or wall, to which he had retreated, and fired several shots at the retreating Glasgow, who by then was at the bottom. He missed. (He explained this action by stating that he believed Glasgow represented a danger to kill or harm other persons, and that he needed to be immobilized.) There were no persons ascending the escalator when Harms fired the shots at the accused.

[32]      The shooting was both sudden and unexpected. Although there were other peace officers on the platform when the shooting occurred, they were caught up in the confusion of the moment and were more concerned with attending to Constable Harm’s injuries. It seems that Constable Harms was the only one who knew that Glasgow had fled by running down the "up" escalator. The accused was well away from the station in less than a minute.

[33]      Examination of the scene later, showed that Glasgow fired three shots on the platform and two near the bottom of the escalator. There were no other persons who were injured, but there were several persons within close range when Glasgow discharged the firearm on the platform. There was no one in the vicinity when Glasgow fired the shots at the bottom of the escalator.

[34]      RCMP investigators were able to determine Glasgow’s identity through examination of his image on the videos, and by identifying his DNA on the blue hoodie, which he had been carrying (He discarded the hoodie on a path in a wooded area near the station.). On February 4, 2019, the police obtained a search warrant for a house in Burnaby on Boundary Road. The accused was found in the house, along with the 9mm handgun that he had used to shoot Constable Harms, as well as some ammunition. They also found a pair of shoes, and a white sweater which matched the clothing he was wearing when he shot the officer.

[35]      Constable Harms had surgery to remove a bullet from his right arm. His left hand suffered significant but not catastrophic damage. He has been able to return to work.

[36]      Mr. Glasgow testified. He is 37 years old. He said that he was on parole and required to live at a halfway house. But, he left that residence without permission and moved in with his girlfriend. He believed therefore, that he was unlawfully at large. He also said that he had recently been told by an acquaintance that several men, with whom he had served time at Kent penitentiary, were being killed. He said that the reason for their being killed was that they had associated with certain prisoners at Kent. This acquaintance gave him the handgun and ammunition so that Glasgow could protect himself.

[37]      Mr. Glasgow said that on January 30, 2019, he had travelled from his girlfriend’s residence to Surrey to purchase some marijuana. He was carrying the loaded handgun for protection from the danger he had been warned about. On the way home, he went to the Home Depot near the Scott Road SkyTrain Station. He was hoping to buy a particular tool for his girlfriend. He found that the tool only came within a larger set, which he could not afford. So, he left the Home Depot and was walking in the south parking lot when he saw the officers.

[38]      He said that when he saw the vehicle and the two occupants, he knew they were police officers. He knew that if they talked to him, they would discover that he was unlawfully at large, and that he was illegally carrying a loaded handgun. This would mean an immediate return to prison. He panicked. He headed quickly towards the SkyTrain Station. He said that he intended to evade the officers by quickly exiting the station through the other exit. Once he reached the platform however, he realized that there were two Transit Police stationed nearby. If he tried to run by them, he would certainly attract their interest.

[39]      He decided to escape by catching a SkyTrain. He removed the blue hoodie that he was wearing, hoping that any officer pursuing him would be looking for a man wearing a blue hoodie. He went to a seat on the platform and sat down, hoping that the change of colour of his outer clothing and the presence of other people around him, what effectively hide him.

[40]      He said that he was shocked to see Constable Harms suddenly walking toward him. He said that he believed that he had escaped police attention. He panicked again. He stood up, removing his gun from his waistband, and shot in the officer’s direction. He said that he had no intention of killing the officer. He said that it was as if he was on “automatic pilot”. His only thought was to escape from the police. He said that when he reached the bottom of the escalator, he fired a couple of rounds behind him, without even looking, to deter anyone who might be chasing him.

[41]      Mr. Glasgow admitted that he had a relatively lengthy criminal record including convictions for some serious crimes. His first adult conviction was in 2004. He has been in continual conflict with the law since then. He was convicted of various offences in 2006 and 2008, receiving prison sentences of varying lengths. In 2011 he was convicted of manslaughter by using a firearm and sentenced to 8.5 years in prison. He was on parole for that conviction when he was arrested on the charges that he now faces.

[42]      There are some inferences which clearly arise from the evidence. First, Glasgow panicked as soon as he recognized that Harms and Elvidge were police officers. Second, he was desperate to escape any contact with them. Third, his motivation during this whole transaction was to get away from the police, or to at least avoid having any interaction with them. Fourth, Glasgow was startled to see Constable Harms approaching him on the platform. His decision to shoot at the officer was virtually instantaneous with first seeing him.

[43]      As well, Glasgow knew that Constable Harms was within close range – 10 to 15 feet. He intended to shoot at Constable Harms. After all, Harms was one of the very persons he was so desperate to avoid.

[44]      Although Glasgow was clearly in a panic, all of his actions after seeing the officers were purposeful, as opposed to confused and irrational. That is, he thought about what to do. Thus, he ran to the SkyTrain Station, which could give him a means of escape. When he saw that there were two other police officers on the platform, he quickly took another course of action. He tried to obscure himself among the commuters on the platform, and to alter his outward appearance by taking his blue hoodie off.

[45]      Glasgow’s immediate purpose in firing the shots at Constable Harms was to get away from the police. This alone does not preclude a conclusion that he intended to kill Constable Harms, because causing the officer’s death would clearly remove the officer as a threat to Glasgow being arrested and taken back to prison. As well, even though Glasgow’s decision to shoot at Constable Harms was truly a “split-second” decision, that does not preclude a conclusion that he intended to kill Constable Harms either. An intention to kill the officer could be formed simultaneously with the decision to shoot.

[46]      If Glasgow was aiming at the officers “centre of mass”, he missed. Wounds to the hand and arm are not strong evidence of an intention to kill. Examination of the video which depicts the officer being shot, does not show the officer making any movement which would cause the bullets to hit him in the hand, rather than the chest. However, depending on the circumstances, the fact that someone did not shoot the victim in a vital body part, or missed entirely, does not preclude an inference that the shooter intended to kill his victim. It all depends upon what other evidence exists.

[47]      Although Glasgow pointed the handgun at Constable Harms as he fled towards the escalator, he did not fire any more shots at the officer. That is, he had an opportunity to kill him, if that was his intention, but he did not use that opportunity. This evidence tends to support the conclusion that Glasgow's actions were focused on making an escape. That is, he used the gun at that point, as a means of intimidation. This does not, however, preclude a conclusion that, at the moment he fired the bullets, he intended to kill the officer.

[48]      The only direct evidence about Glasgow’s intention at that time is his testimony that he did not intend to cause the death of Constable Harms. The accused did not contradict any of the evidence given by Constable Harms, or as it is depicted in the video recordings.

[49]      I must take Mr. Glasgow’s criminal record into account in assessing his credibility. He has been involved in illegal activity of one sort or another since 2004. He has been convicted of crimes serious enough to attract significant prison sentences. I should be sceptical of his testimony.

[50]      For example, his explanation for possessing a loaded firearm is at least somewhat suspicious. Although it must be acknowledged that someone who has served a federal prison sentence may well have enemies who, once freed from prison, may want to harm him. However, is it believable that he just decided to carry a loaded firearm wherever he went, even on innocent shopping trips? In other words, it may well be that he had that loaded firearm on his person for more sinister purpose than he was willing to admit.

[51]      However, his testimony also lacked some of the hallmarks of a questionable witness. He was invariably polite in his answers on cross-examination. He answered questions directly and without elaboration. He was not argumentative. He did not try to deflect responsibility for his actions on anyone else. He made no spurious claims about police conduct before they encountered him. He did not try to blame his actions on intoxication from alcohol or other drugs. He did not try to minimize the gravity of his actions, except for denying that he intended to kill the officer.

[52]      Of course, cross-examination of Mr. Glasgow was a particularly difficult task because the only source of conflict with the Crown’s case was his denial of the intention to kill. There was no contradictory evidence upon which he could be cross-examined, including such things as statements made to the police; statements or exclamations made at the time of the shooting.

[53]      I take into account that Mr. Glasgow faces a very serious charge – attempted murder, which is punishable by life imprisonment. One might ask, what does he have to lose by taking the witness stand and denying that he intended to cause the officer’s death? But, that misses the real question, which is: what is there in his testimony that should cause me not to believe it?

[54]      Mr. Glasgow’s testimony is consistent with the evidence led by the Crown. When he recognized that Harms and Elvidge were police officers, he betrayed his state of panic by the way he looked at them, and by the way he ran away from them. Once he got to the platform of the SkyTrain Station, he made some attempt to lose himself from further notice by the police by removing his blue hoodie and sitting among passengers waiting for the train. These actions support his testimony that he was focused on avoiding the police.

[55]      Constable Harms appeared suddenly in the area where Mr. Glasgow was sitting. He reacted to seeing the officer instantaneously. He took his pistol out and shot the officer, and then ran away. This provides some support for Mr. Glasgow’s testimony that his reaction in shooting the officer occurred almost automatically.

[56]      The fact that the two bullets struck Constable Harms in the arm and in the hand, are consistent with Glasgow’s testimony that he did not aim at any specific part of the officer’s body.

[57]      In the circumstances, I need not decide whether I believe the accused. It is sufficient to indicate that I find that his testimony was believable. His sudden act in producing a pistol and shooting at Constable Harms occurred within a second or two. The act of shooting the officer is not inconsistent with Glasgow intending to kill the officer. It is however, also not inconsistent with Glasgow taking the gun out in a panic, and shooting recklessly at the officer without caring what happened to him.

[58]      If Constable Harms had been killed, the issue of whether Glasgow’s state of mind fit either of those two categories, as set out in the preceding paragraph, would be irrelevant. In a charge of attempted murder however, an act committed with the state of mind described in the latter category does not constitute attempted murder.

[59]      The Crown always bears the burden of proof in a criminal case. The burden of proving a charge of attempted murder is particularly onerous. In the case at bar, the crucial time in which the intent to kill, as alleged by the Crown, would have to arise within one or perhaps two seconds. The shots never struck the officer in a vital part of his body. There was no background of animosity between the officers and Glasgow.

[60]      That is, the context that is often present in other cases of attempted murder is not present in this case. I refer to such factors as: motive to kill based on rival gangs wanting to get revenge; or anger, or jealousy involving a former intimate partner; an angry argument between parties which escalated into violence. There is often evidence of an accused making angry or threatening statements before committing a violent act, which amounts to attempted murder.

[61]      None of these factors are required to be part of the prosecution’s case in a charge of attempted murder. I refer to them only to illustrate that the sudden violent occurrence in the case at bar has a limited context in which to assess whether the only reasonable conclusion, based on that limited evidence, is that the accused intended to kill the officer.

[62]      For these reasons, I find that the Crown has failed to prove, to the standard of beyond a reasonable doubt that the accused intended to cause the death of Constable Harms when he shot him. I therefore find him not guilty on Count 1, but pursuant to s. 662(1)(a) of the Criminal Code, I find him guilty of the included offfence of aggravated assault contrary to s. 268(2) of the Criminal Code.

[63]      The accused does not dispute that the Crown has proven his guilt to the standard of beyond a reasonable doubt on counts two, three and four. I therefore find him guilty on all the remaining counts: