ONTARIO COURT OF JUSTICE
DATE: 2022 12 08 COURT FILE No.: Toronto 22-50003122
BETWEEN:
HIS MAJESTY THE KING
— AND —
KEVIN GEORGE
Before: Justice Peter N. Fraser
Heard on: September 7-9, 12-14, 2022; November 4, 2022 Reasons for Judgment released on: December 8, 2022
Counsel: P. Zambonini & A. Bradstreet ........................................................ counsel for the Crown C. Zeeh.................................................................... counsel for the accused Kevin George
1Kevin George stands charged with multiple criminal offences arising out of a shootout at his own one-year-old child’s birthday party. The central issues in this trial are the identity of the principal shooter and whether certain elements of the offences charged, including the requisite intent for attempted murder, have been proved beyond a reasonable doubt.
2On June 19, 2021, Kaiden Leitch celebrated his first birthday with a large outdoor party on Tandridge Crescent in Toronto. It was a grand event with balloons, banners, a display table and red carpets laid out on the walkways. There were three large bouncy castles for the children to play in. A large number of people attended, including a great many young children. The party had a baby shark theme, after the popular children’s song, with family members wearing T-shirts indicating their relationship to the birthday boy.
3Shortly before 8:00 pm, gunfire erupted in the midst of the birthday party. Four men discharged a total of twenty-two rounds of ammunition during a firefight that left one combatant and two children seriously injured and sent countless more running for their lives. The Crown alleges that Kevin George precipitated these events when he drew a handgun and fired on Demar Cadogan, another attendee of the party. According to the Crown, Mr. George is captured in video footage of the incident, wearing a red hat and other distinctive articles of clothing.
4Two more men, alleged to be accomplices of the accused, fired at Mr. Cadogan as well. Those two men remain at large. Mr. Cadogan was himself carrying a gun, and he fired back at the other three. Mr. Cadogan was shot in both legs during the exchange. He was found on scene when the police arrived and was charged separately for his involvement in the incident.
5The consequences of these acts were disastrous. Five-year-old Tianna Green was shot in the head and remained in a coma for several days. Eleven-year-old Keandre Bailey was shot in the buttocks. One-year-old Kaiden Leitch suffered a small graze to his forehead during the chaotic scene which may also have been caused by a stray bullet.
The Charges
6Kevin George stands charged with fourteen criminal offences arising out of the events of June 19, 2021:
- Count 1 – Discharge Firearm with Intent at Demar Cadogan [s. 244(1)]
- Count 2 – Discharge Firearm with Intent at Keandre Bailey [s. 244(1)]
- Count 3 – Discharge Firearm with Intent at Tianna Green [s. 244(1)]
- Count 4 – Discharge Firearm with Intent at Kaiden Leitch [s. 244(1)]
- Count 5 – Aggravated Assault on Demar Cadogan [s. 268(1)]
- Count 6 – Aggravated Assault on Keandre Bailey [s. 268(1)]
- Count 7 – Aggravated Assault on Tianna Green [s. 268(1)]
- Count 8 – Aggravated Assault on Kaiden Leitch [s. 268(1)]
- Count 9 – Possession of Loaded Prohibited Firearm [s. 95(1)]
- Count 10 – Unauthorized Possession of Firearm [s. 91(1)]
- Count 11 – Occupy Motor Vehicle with Firearm [s. 94(1)]
- Count 12 – Fail to Comply with Release Order [s. 145(5)]
- Count 13 – Breach of Firearms Prohibition Order [s. 117.01(1)]
- Count 14 – Attempted Murder of Demar Cadogan [s. 239(1)]
General Legal Principles
7Mr. George is presumed innocent in law. The Crown must prove the essential elements of the offences beyond a reasonable doubt. The burden of proof rests squarely on the Crown throughout the trial and does not shift to the defence at any point.
8A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320. Even if I believe the accused is probably guilty or likely guilty, that is not sufficient to ground a conviction.
9Although a great many people attended the birthday party, only five testified at this trial. And none of them assisted the Court in understanding how or why this incident happened. None of them identified any of the shooters. Consequently, the Crown relies on a mosaic of circumstantial evidence to advance its case against Kevin George. In order to reach a conviction in a circumstantial case, I must be satisfied beyond a reasonable doubt that the accused’s guilt is the only rational inference that can be drawn from the evidence: R. v. Griffin, 2009 SCC 28 at para. 33. The circumstantial evidence does not have to totally exclude other “conceivable inferences” and it remains fundamentally for the trier of fact to decide whether any proposed alternative way of looking at the case is reasonable enough to raise a doubt: R. v. Villaroman, 2016 SCC 33 at paras. 17-22; R. v. Chacon-Perez, 2022 ONCA 3 at para. 80.
Factual Findings
10Much of what happened on June 19, 2021 was captured on video and is not in dispute. Cameras stationed around Tandridge Crescent reveal the comings and goings of various people involved in the incident. There is large tree in the centre of the frame that shields some of the events from view, but the shooting itself is captured on video. Cameras from Lagerfeld Drive in Brampton show the location to which the shooters travelled after the incident.
11Twenty-two cartridge casings were found by police at the scene. The unchallenged forensic evidence in this trial establishes that these casings were discharged from four separate firearms.
12What follows is a summary of the events as they appear in the videos, together with certain findings of fact that arise from my analysis of the evidence as a whole.
13The man in the red hat, whom I also refer to as the first shooter, can be seen on video at the birthday party as early on as 5:00 pm. [1] At 5:10, this man approaches Kaiden’s mother, Joy Leitch, and she gives the child to him. The man walks off holding the child. At 5:12, he hands the child to someone else and receives some gift bags from guests, which he deposits by the display table in front of the Leitch residence at unit 919. At 5:14, he helps another guest carry a drivable toy car up to the display table. Over the next several minutes, he enters then exits the Leitch residence twice.
14Demar Cadogan arrives at the party at 5:19. He enters the Leitch residence, re-emerges a short time later, and then sits on a low railing separating the lawns of units 919 and 918. At 5:21, the man in the red hat walks past Mr. Cadogan without incident. This occurs again at 5:23.
15Mr. Cadogan remains seated on the low fence for the next twenty-five minutes and does not appear to interact with anyone. The whereabouts of the man in the red hat cannot be determined from the videos for most of this time period.
16At 5:57, the man in the red hat comes back into view. He passes near to Mr. Cadogan again without incident.
17At 6:00, Demar Cadogan walks out to a grey sedan and drives away. He appears to be absent from the party for the next 1 hour and 43 minutes. During this time, the man in the red hat remains, and appears to be involved in the functioning of the party.
18At 7:30, the second shooter arrives. He is wearing a dark hoodie with white stripes down the sleeves and dark shorts with white stripes on the sides. He arrives in the company of two other males. One is dressed all in black with a large pink logo on the front of his sweater. He is not a combatant in the gunfight, but he does get into a car and leave the scene with the three shooters afterward. The other male has a teal hoodie with pink sleeves. He is not a combatant either. He can be seen running for cover as soon as the shooting starts. It is not clear from the video whether any of these men have contact with the man in the red hat upon arrival. At 7:42, the man in the red hat is visible near the doorway of unit 919 and then passes out of view again.
19At 7:43, Demar Cadogan returns to the party and takes up his previous position on the railing separating units 919 and 918. At 7:50, the man in the red hat approaches him, accompanied by the male in the teal hoodie and pink sleeves. There appears to be a conversation between the man in the red hat and Mr. Cadogan. At 7:51, the man with the pink logo on his sweater and the man with the white stripes on his sleeves (the second shooter) walk over and stand beside the other men. To this point, the position of the third shooter is unknown.
20At 7:51:30, Kaiden’s aunt, Ashley Leitch, approaches the men and appears to be trying to diffuse the situation. She attempts to physically separate the man in the red hat and Demar Cadogan. At 7:51:45, the two men step over the low fence onto the lawn of unit 918. Kaiden's mother, Joy Leitch, arrives at about the same time and follows the two men out onto the lawn. She appears to be trying to separate them. The man in the white stripes (the second shooter) and the man with the pink logo follow the others onto the lawn of unit 918, while the man in the teal hoodie remains behind. The location of the third shooter is still unknown.
21At 7:51:47, the man in the red hat reaches to his waist and steps over another low fence onto the lawn of unit 917. At 7:51:52, he draws a handgun. Mr. Cadogan stops short and immediately starts to retreat, but draws his own gun in the process. The second shooter, with the white stripes on his hoodie, draws a gun too. The man with the pink logo backs up and the man in the teal hoodie runs away.
22It appears that the first shot is fired at 7:51:54, as at this point everyone starts running for cover. The man in the red hat has his arm extended and his firearm pointed at Demar Cadogan. He most likely fired the first shot at this time, but I cannot determine that conclusively on this record.
23At about the same time, at 7:51:54, the third shooter starts to become visible for the first time through the foliage of the large tree. He is dressed all in black. He moves to within a few metres of Demar Cadogan. At 7:51:56, Mr. Cadogan’s right leg twists violently at an unnatural angle and he falls heavily onto one of the low metal railings. I find he was shot in the leg at this time. From this point on he can be seen dragging himself across the lawn of unit 919. He is clearly wounded and unable to walk.
24At the moment Mr. Cadogan is shot, at 7:51:56, neither the first shooter (in the red hat) nor the second shooter (with the white stripes) is pointing his weapon at him. As a result, I find that the third shooter (dressed all in black) must have fired that shot. The third shooter runs down the path heading west toward Tandridge Crescent. His weapon is pointed back at Mr. Cadogan as he runs and at least one puff of smoke is visible coming from the barrel of his gun. Four cartridge casings were later found by police along that very route and a fifth was found on the lawn of unit 919, near to where Demar Cadogan was first shot in the leg. These cartridge casings were determined to have been fired from the same gun. I conclude the man in black fired five shots at Demar Cadogan.
25At about the same time, and beginning at 7:51:58, the first shooter (with the red hat) leans over the railing dividing unit 917 and 918 and points his firearm at Mr. Cadogan. He bounces on the balls of his feet with his gun extended for a few seconds, then flees westward toward Tandridge Crescent. A cluster of six cartridge casings were later found by police at the very spot where he stood and were determined to have been fired from the same gun. I conclude that the shooter in the red hat fired six shots from this location.
26At about the same time, and beginning at 7:51:59, the second shooter (with the white stripes) points his gun at Demar Cadogan and fires. Multiple puffs of smoke can be seen coming from his gun as he moves across the lawn toward the pathway. He trips over a railing and gets back up. He moves in and points the weapon again and then flees westward down the path toward Tandridge Crescent. Ten cartridge casings were found by police in locations that accord with this shooter’s positioning. I find he fired ten shots at Demar Cadogan.
27Mr. Cadogan was shot in both legs and remained at the scene until police arrived. One cartridge casing was found near his position. It was determined to have been fired from a different gun than the others. I find Mr. Cadogan fired one shot at his attackers during the exchange.
28As stated above, I conclude that the third shooter, (dressed all in black), must have shot Mr. Cadogan in the right leg. I am unable to determine which of the three men shot him in the other leg. I am unable to determine who shot Tianna Green in the head or Keandre Bailey in the buttocks. And if the injury to Kaiden Leitch was caused by a bullet, I cannot determine who fired it. I can safely rule out Demar Cadogan as having shot any of the children, as he was firing away from the crowd of partygoers.
29The number of people at the party cannot be accurately counted, given the obstruction created by the large tree. I would estimate conservatively that some fifty people were in the immediate vicinity when the shootout erupted. When the man in the red hat fires his weapon, a great many of these people are still behind Demar Cadogan and clearly within the line of fire.
30After the incident, the three shooters can be seen on video running west to Tandridge Crescent, then to the south end of the street near a forested area. Two of them pass briefly behind a set of dumpsters. The three regroup and are joined by the man with the pink logo on his sweater. At 7:53:10, the four men enter a black Toyota Corolla and leave the scene. The man in the red hat enters the rear driver’s side door.
31The Corolla was a rental car, which was later located by police. GPS evidence reveals that this vehicle’s ignition was turned on at 7:53:32. The car travelled to Lagerfeld Drive in Brampton where the ignition was turned off at 8:44:59.
32Video from Lagerfeld Drive shows the black Corolla arriving and four men getting out. The man in the red hat exits from the rear driver’s side door. While his T-shirt has been removed, his clothing is otherwise the same. I am satisfied, beyond a reasonable doubt, that this is the first shooter (in the red hat) who fired on Demar Cadogan at Tandridge Crescent.
The “Daddy Shark” Photograph
33The Crown alleges the man in the red hat was Kevin George. The videos were taken from a distance and the images of the shooter’s face are not clear enough in the footage to identify him. As a result, the Crown relies on various pieces of circumstantial evidence to complete the identification process.
34One important piece of evidence is a single photograph of the man in the red hat that was provided to police by a confidential source. This photo, filed as Exhibit 37, was taken at close range and provides a clearer view of the shooter’s face and clothing. The photo assists the Crown for three main reasons. First, it allows for a meaningful comparison between the face of the shooter and the face of the accused. Second, it allows for a better comparison of the shooter’s clothing to articles of clothing known to belong to the accused. Third, it reveals the words “daddy shark” on the front of the shooter’s T-shirt, which tend to implicate the accused in the context of this birthday party, where family members wore similar “baby shark” themed T-shirts indicating their relationship to the birthday boy.
35In most cases, a witness will authenticate a photograph by testifying that it fairly and accurately depicts its subject matter, either because they took it, or because they have seen the item depicted in person. In this case, the photo could not be authenticated that way. According to the law of informer privilege, the Crown could not disclose the name of the person who provided the photo, nor any of the circumstances under which it was given to the police. Not even the original copy of the photo was disclosed, nor whether it was a digital photo or a conventional film photo.
36In a separate ruling, I found the Crown had nonetheless authenticated the photograph through circumstantial evidence. That ruling dealt with the threshold question of admissibility. Issues as to the ultimate reliability, including the possibility of tampering, remain questions of weight that I must now address.
37In these unique circumstances, where the source of the photograph is not known, an extremely cautious approach is warranted. I take judicial notice of how easily photographs can be altered using widely available technology and how convincing forgeries can be made to appear.
38The Crown argues the photograph is reliable evidence, because the content of the image is consistent with the unchallenged video evidence tendered at trial. The Crown submits that everything about the subject’s appearance in the photo accords with the shooter’s appearance in the video footage, and the same can be said for his physical surroundings.
39I have compared the “daddy shark” photograph to the video footage from Tandridge Crescent, where the shooting occurred, and from Lagerfeld Drive, to which the shooters travelled afterward. I have also compared the background depicted in the photograph against the FIS photos of the scene and the police body-worn camera video. I have observed striking similarities.
40The man in the photograph has a red hat with white markings near the brim. He has dark skin and a tall, slim build. He is wearing a blue surgical mask down under his chin. He appears to be holding a cell phone in his right hand and a cigarette in his left. The shooter in the videos has a red hat with white markings in the same place. He has the same skin tone and body type as the man in the photo. He can be seen at various points in the video footage with his mask down under his chin. At times, he can be seen carrying what appears to be a cell phone in his right hand and smoking with his left.
41The man in the photograph is wearing light blue jeans with a red heart-shaped print on his left knee, a blue star on his right thigh, and a red strap hanging down from his waist. The shooter in the videos is wearing light blue jeans with the same distinctive features. While it is less defined in the video footage, there is clearly a red patch on the left knee, with the same shape and orientation. The blue star is clearly visible on the right thigh, particularly in the video from Lagerfeld Drive. A red strap is visible at several points in the videos, and it hangs from the same part of the waist as the one in the photograph.
42The background of the photograph is also consistent with the video and photographic evidence tendered at trial. The low brown bars in the photo are consistent with the fencing that separates the properties at Tandridge Crescent. The lawn, pathway and square cut hedges are all similar. In the photo, there is a clear plastic cup sitting on the curb with a blue liquid inside. This matches drinks that were served at the party. In the photo there is a black Mercedes toy car on the pathway. This matches the toy car that was given to Kaiden at his birthday party, right down to the blue bow on the hood.
43The man in the photograph is wearing a long white T-shirt with the image of a shark on the front, rendered in blue and pale yellow colours. The word “DADDY” is printed above it and the word “SHARK” is printed below. Both are in blue capital letters. Underneath are three short words printed in gold that cannot be discerned from the photo. There are also blue and gold stars printed around the collar of the shirt.
44The shooter in the video footage from Tandridge Crescent is also wearing a long white T-shirt. The words on the front cannot be clearly discerned, but their outline is consistent in shape with the words “DADDY SHARK.” The graphic in the middle cannot clearly be discerned in the videos, though it is consistent with the shark image from the photograph. In the video footage, there is clearly a blue semicircle that closely mirrors the top of the shark’s head from the photo.
45The Crown invites me to compare the photo to the accused, and to articles of clothing he has worn at other times, in order to establish that the photo is a reliable piece of evidence. I decline to engage in that analysis as part of the authentication process. If the photo is authentic, it may help the Crown prove that Kevin George was the shooter. I cannot use Kevin George’s likeness to the photo to find the photo is authentic, without assuming he was the shooter. That approach could give rise to circular reasoning and I have avoided it. Instead, I have evaluated the reliability of the photograph independent of any similarities it may have to Kevin George or articles of clothing known to belong to him.
46I have carefully studied the video footage and compared it to the “daddy shark” photograph. I have watched the moving frames and examined the images frame-by-frame. I have seen nothing in this material that is inconsistent with the contents of the “daddy shark” photograph. To the contrary, every discernible detail is the same.
47This analysis leads me to conclude that Exhibit 37 is exactly what it appears to be – a photograph of the man in the red hat. In my view, there is no reasonable possibility this photograph was fabricated. And there is no reasonable possibility it was altered in any material way. The elements of this photo which assist the Crown, namely the face, the clothing and the words “daddy shark” are all visible to some degree or other in the video evidence. I am satisfied the photograph is a fair and accurate depiction of the shooter and is reliable evidence.
Identity of the Shooter
48Bearing in mind my findings regarding the “daddy shark” photo, I turn to the question of whether the Crown has proven the identity of the shooter beyond a reasonable doubt.
49This trial proceeded before me in person over the course of several days. I have had ample opportunity to observe Mr. George and to compare his appearance to the man in the “daddy shark” photo as contemplated by the Supreme Court in R. v. Nikolovski, [1996] 3 S.C.R. 1197. I have also compared the face in the photo to other known images of Mr. George, contained in his passport photo and his music videos.
50There are clear similarities between the face in the “daddy shark” photo and the face of Kevin George. The skin tone and hair colour are similar. So are the shape of the eyebrows and the structure of the cheekbones. I am mindful, however, that the face in the photograph is partly obstructed. And while the image quality of the photograph is much better then in the video footage, it is still imperfect. On the basis of the photograph alone, I am not satisfied to the standard of proof beyond a reasonable doubt that Kevin George was the shooter in the red hat. Instead, I treat this as one piece of circumstantial evidence among many, that goes to the question of identity.
51Another important piece of evidence is the “daddy shark” T-shirt itself. The video evidence establishes that Kaiden’s family members wore baby shark themed T-shirts to the party, each indicating their relationship to the birthday boy. For example: his mother, Joy Leitch, wore a mommy shark T-shirt; his aunt, Ashley Leitch, wore an auntie shark T-shirt; his uncle, Anthony Leitch, wore an uncle shark T-shirt; and his grandmothers, Diane Leitch and Pearlyn George, wore grandma shark T-shirts.
52The only person one would expect to attend this birthday party wearing a daddy shark T-shirt would be Kaiden’s father, Kevin George.
53The Crown tendered two rap videos featuring Mr. George performing under the stage name NHS Kenzo. The videos were posted on the internet and there is no dispute that they depict the accused before the Court. In the first video, Mr. George is wearing a distinctive pair of jeans that are consistent with those worn by the shooter in the red hat. The jeans have a blue star on the upper right thigh, a red strap hanging down from the belt on the front left side; and a red heart-shaped print on the left knee. The jeans Mr. George is wearing in the video match the jeans in the “daddy shark” photo in every discernible detail.
54An Instagram account associated to Mr. George contains a photo of him wearing a red New York Yankees baseball cap with white lettering and a sticker on the brim. The hat is consistent with the hat worn by the shooter from Tandridge Crescent. The lettering in the videos cannot be discerned. And in the “daddy shark” photo, the hat is turned around. However, the shape, colour and position of the markings in the videos align precisely with the lettering and the sticker on Kevin George’s hat as depicted in the Instagram photo.
55The Instagram account also contains pictures of a distinctive pair of white sneakers, with what appear to be beads or jewels strung across them. The person wearing them is not identifiable, but he is wearing a medallion and chain that appear around Mr. George’s neck in other photos on the Instagram account. The shoes in the Instagram photos are consistent with the shoes worn by the shooter in the red hat.
56Counsel for Mr. George makes the point that there is no evidence as to how common or rare these various articles of clothing are. He cites R. v. Portillo, 2003 ONCA 5709, [2003] O.J. No. 3030 (C.A.), and cautions that reliance on the distinctive character of such items risks legal error. In that case, the Court of Appeal found that expert evidence comparing footwear impressions from a crime scene to shoes found near the accused’s residence should not have been admitted. The expert could not say how many shoes shared the tread pattern in question. However, that was not the crux of the legal error. The problem in Portillo was that the footwear evidence depended on circular reasoning: it could not be independently established that the shoes belonged to the accused or that the shoes had created the impressions at the scene. In the circumstances of that case, proof of either proposition depended upon the other being assumed.
57While Portillo serves as a helpful reminder that distinctive articles of clothing might well be commonplace, it does not prevent comparison of such items entirely. And in this case, it is the combined effect of a great many similarities which lends probative force to the identification evidence.
58Counsel for Mr. George argues that, even if the photo accurately depicts the accused, it could have been taken at another time entirely. I reject that possibility for the following reasons. First, the photo shows the black, toy Mercedes car that Kaiden received for his birthday, with the blue bow still on the hood. Second, the photo shows a blue drink in a plastic cup, which is consistent with drinks served at the party. It is not reasonably possible that these items could have been present at another time, and that the man in the red hat could be dressed exactly as he was on the day of the party.
59The man in the red hat travelled from Tandridge Crescent in Toronto to Lagerfeld Drive in Brampton. Kevin George was located and arrested inside unit 6 of 250 Lagerfeld Drive three days later. I consider this to be additional circumstantial evidence of identity.
60Two small photos were found in the room where Kevin George was arrested. They were in a Shoppers Drug Mart folio and were dated June 21, 2021 – two days after the shooting on Tandridge Crescent. The photos appear to be passport photos. The Crown argues that these photos represent post-offence conduct on the part of the accused that is consistent with his guilt: see R. v. Calnen, 2019 SCC 6; R. v. Ksytyk, 2014 ONCA 447; R. v. White, 2011 SCC 13; R. v. MacKinnon, 1999 ONCA 1723, [1999] O.J. No. 346 (C.A.); R. v. White, [1998] 2 S.C.R. 72; R. v. Arcangioli, [1994] 1 S.C.R. 129. While this piece of evidence may be capable of supporting the inference asserted by the Crown, I do not find it necessary to resolve this issue in order to decide the question of identity.
61I find that the cumulative force of the evidence, separate and apart from the passport photos, establishes beyond a reasonable doubt that Kevin George was the man in the red hat.
62Any alternative explanations for all these pieces of evidence would far exceed the boundaries of logic and common sense. I consider the possibility that the man in the red hat was someone other than Kevin George. If this was so, that person would have a set of facial features, hair colour and skin tone so similar to those of Mr. George as to be indistinguishable in the photographic and video evidence. The unknown person would also have the same distinctive jeans that Mr. George has worn before in his rap videos; with a red strap at the waist, a red heart-shaped print on the right knee and a blue star on the left thigh. This person would have the same jewel-covered white shoes that appear in Mr. George’s social media posts. He would have a red baseball cap with white symbols and lettering appearing in the very same places as those on Kevin George’s red and white New York Yankees hat. This person would have decided to wear all of these particular articles of clothing at the same time on June 19, 2021. He would have attended the birthday party of Kevin George’s son, held the birthday boy, welcomed guests, and received birthday presents. And though he was not the father of the birthday boy, he would have worn a “daddy shark” T-shirt, which clearly signalled to all present that he was the father. The unknown person would then, by coincidence, have left the scene of the shooting and attended a residence occupied by Donte Paula Jones, a known associate of Kevin George. By a further coincidence, Kevin George would then happen to be inside that very residence when police executed a search warrant three days later.
63Any one of these circumstances, standing alone, could be a coincidence. Taken together, and considered in the context of the evidence as a whole, they simply cannot be. I find that the Crown has proven beyond a reasonable doubt that the shooter in the red hat was Kevin George. There is no other rational inference available on all of the evidence before me.
64This finding does not end the matter, however, as identity is but one element of the offences charged.
Party Liability
65Before turning to the individual counts, I must consider the question of party liability. I must determine whether the foundation for Mr. George’s criminal liability should be based solely on his own actions or should extend to the actions of the other two shooters as well. The Crown argues the three men who fired on Demar Cadogan planned the attack and were acting in concert when they carried it out. In that scenario, each would be liable for the actions of the others. The defence submits the altercation may have happened spontaneously, and the other two shooters may have come to the aid of Mr. George on the sudden and of their own accord. In that scenario, Mr. George would not be liable for the actions of the other two men.
66There are features of the evidence that support the Crown’s position. All three men attended the party with firearms. And when the gunfight started, the second and third shooters opened fire within a matter of seconds. All three men were firing upon the same target: Demar Cadogan. And all three shooters left the scene together in the black Toyota Corolla (along with a fourth man who was not involved in the shooting).
67There are other points in the evidence that support the defence position that the shootout was a spontaneous event. Kevin George and Demar Cadogan were both at the party two hours before the shooting and there was no confrontation between them. The video shows the accused passing within a few metres of Mr. Cadogan on three occasions. The two men do not appear to even acknowledge each other’s presence. If there was some existing quarrel between them, there is no evidence of it in the video during this period of time.
68I also consider that when the accused did finally approach Mr. Cadogan, he was not accompanied by the other two shooters. Instead, he walked over with the male in the teal hoodie and pink sleeves, a person who ended up having no part in the gunfight.
69The fact that all three shooters attended the party with guns admits of more than one inference. They may have armed themselves in preparation for a planned attack. But they could also be people who habitually carry guns. The fact that all three shooters left together in a car also admits of more than one inference. It could suggest these men acted in concert and were fleeing together in furtherance of a plan. It could also be consistent with them acting independently and deciding to flee the scene together. I note that the man with the pink logo on his sweater went with them, and he had no role in the shooting.
70I am prepared to draw the inference that the three men knew each other. The two unknown shooters clearly had an allegiance to Kevin George as they were ready and willing to join a gunfight and fire upon his adversary. However, there are elements of this event that appear haphazard. There is no evidence that these three men communicated with each other during the party. I do not find the evidence compels the conclusion that they arranged the attack in advance or otherwise acted in concert. That is certainly one possibility, but it is not the only possibility that reasonably arises on the evidence. It could also be true that the two unknown shooters came to the aid of Mr. George, during an event that unfolded on the sudden.
71No matter which mode of participation I consider, the result is the same. Based on my findings of fact, it has not been proved that Mr. George aided or abetted the other shooters in a way that would be captured by s. 21(1)(b) or (c) of the Code. No common intention has been proved, such that s. 21(2) would be engaged.
72The Crown submits that party liability may be found on the basis that two or more people are co-principals: see, for example, R. v. Picton, 2010 SCC 32 and R. v. L.I.H., 2003 MBCA 97. The Crown asserts that a distinction can exist in some cases between this theory of liability and a theory based on aiding or abetting. In my view, no distinction can exist on the facts of this case. As I find the Crown has failed to prove that the three shooters planned the attack or otherwise acted in concert, the theory of co-principals cannot extend Mr. George’s liability to the acts of the other two men.
73In the further alternative, the Crown argues that Mr. George’s act of shooting at Demar Cadogan caused the other two shooters to fire, thereby making him a party to their actions. [2] The Crown relies on the Court of Appeal’s analysis in R. v. J.S.R., 2008 ONCA 544, restoring a committal for second-degree murder, and the related decision in R. v. J.S.R., 2012 ONCA 568, dismissing an appeal from the conviction that followed. In that case, the accused was found to be liable for the Boxing Day murder of Jane Creba, despite not having fired the shot that struck her. Instead, he was found to have fired a gun at a group of males to the south, one of whom fired back to the north and killed Jane Creba. The Court of Appeal found J.S.R.’s conduct contributed sufficiently to the chain of events as to properly ground a conviction for murder, noting that, “ But for the decision to engage in a gun fight on a crowded street and the resulting exchange of bullets, Ms. Creba would not have been killed.”
74In my view, J.S.R. does not assist the Crown. In that case, the accused and the northbound shooter engaged in a mutual gun fight. This was found to be analogous to a street racing scenario, where two people jointly participate in an inherently dangerous activity and are liable for the consequences of each other’s actions during the activity. In the instant case, I have already found there is insufficient evidence of a planned attack on Demar Cadogan. In these circumstances, it cannot be said that the three men agreed to, or jointly participated in, the activity such that they are all liable for each other’s conduct.
75It is also significant that in J.S.R., the accused knew the northbound shooter was armed with a gun. There was effectively a standoff between two groups of young men. The northbound shooter stated he had a “.357” and raised his sleeve to reveal the top of his gun. In the instant case, there is no evidence that Kevin George knew the other shooters were armed or that they would enter the gunfight when he started it. This line of authority has no application in the circumstances of this case.
76While it is entirely possible that Kevin George planned and carried out an attack on Demar Cadogan in concert with the two other shooters, that is not the only reasonable inference. The Crown bears the burden of proof. And in all the circumstances, I find the Crown has not established that Mr. George was a party to the actions of the two unknown shooters. As a result, his liability must be decided solely on the basis of his own conduct.
77That conduct, as I have found it, was that Kevin George discharged six shots from a handgun in rapid succession at Demar Cadogan, with a large number of partygoers (adults and children) behind him and within his field of fire. I am unable to determine whether any of the shots Mr. George fired struck any of the victims in this case. Bearing in mind these findings, I turn to an analysis of the counts on the information.
Count 1 – Discharge Firearm with Intent at Demar Cadogan [s. 244(1)]
78Section 244(1) of the Criminal Code creates the offence of discharging a firearm with intent. It provides as follows:
Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person — whether or not that person is the one at whom the firearm is discharged.
79There are distinct forms of intent through which this offence can be committed: the Crown has particularized the intent to endanger life. The defence concedes that, if the accused was the shooter in the red hat, a conviction must follow for this offence. I accept this concession as, with identity being established, the evidence on this count is overwhelming. Mr. George discharged six shots at Demar Cadogan in rapid succession. This conduct compels the inference that he intended to endanger the life of Mr. Cadogan.
80I find Kevin George guilty of count one.
Count 2 – Discharge Firearm with Intent at Keandre Bailey [s. 244(1)]
81There is no question that Mr. George endangered a great many people by his conduct on June 19, 2021. But the charges before me are pleaded in a manner that requires consideration of whether the firearm was discharged in the direction of certain named people. Count two particularizes Keandre Bailey.
82There is no evidence the accused intended to harm Keandre Bailey. However, that is not an element of the offence. According to the wording of s. 244(1) of the Code, the offence is made out if the firearm was discharged with the intent to endanger the life of “any person – whether or not that person is the one at whom the firearm is discharged.” I have already found that Mr. George intended to endanger the life of Demar Cadogan. The issue here is whether he discharged his firearm at Keandre Bailey in the process.
83The meaning of the word “at”, as it is used in this section, was considered in R. v Van Newkirk, 2006 BCPC 9 at para. 24. In that case, Dyer J. interpreted it to mean “near or toward.” There was no requirement that the accused actually aim at the person named in the count, nor that the discharge be “precisely and unerringly” in line with him.
84Keandre Bailey is not visible in the video footage of the shooting. However, body-worn camera footage from the trial shows police attending to him at the east end of 48 Tandridge. He was found around the corner from where the shooting took place and, in that position, he would not have been directly in the line of fire of any of the shooters. I infer that he travelled some distance after being shot and took cover around the corner of the building. I am unable to determine where he was when the shots were fired or who shot him. I cannot find that he was within the field of view or otherwise in the line of fire of the shots discharged by Kevin George.
85I am not satisfied beyond a reasonable doubt that Mr. George discharged a firearm at Keandre Bailey for the purposes of s. 244(1).
86I find him not guilty of count two.
Count 3 – Discharge Firearm with Intent at Tianna Green [s. 244(1)]
87As above, the determination of this count depends on whether Mr. George discharged his firearm at Tianna Green. Again, there is no suggestion that he intended to harm her.
88I cannot determine who shot Tianna. And I am unable to see her in the video footage of the incident. However, I am able to infer her position based on all of the evidence at the trial. Body-worn camera footage shows Tianna being treated by first responders on the front lawn of Unit 920 of 48 Tandridge Crescent. This is right next door to the Leitch residence. Given her grievous head injury, I am prepared to infer that she did not travel any significant distance after being shot. I find she was positioned to the east of Demar Cadogan on the lawn of the neighbouring townhouse residence. She was right in the line of fire of the bullets discharged by Mr. George.
89I am satisfied, beyond a reasonable doubt, that the accused discharged a firearm at Tianna Green for the purposes of s. 244(1) of the Code. I am satisfied that he had the requisite intent, in that he fired the gun with the intent to endanger the life of Demar Cadogan.
90I find Mr. George guilty of count three.
Count 4 – Discharge Firearm with Intent at Kaiden Leitch [s. 244(1)]
91Kaiden Leitch was perilously close to the gunfight when it broke out. He is visible in the video footage in the arms of Mr. George’s mother, Pearlyn George. I cannot determine conclusively whether the graze to Kaiden’s forehead was caused by a bullet. And if it was, I cannot determine who fired it.
92It is likely that Kevin George discharged the first shot at 7:51:54, when Kaiden was very much in the line of fire. But that finding cannot be made conclusively. The evidence is conclusive that Mr. George was firing his gun as of 7:51:58. By this point, however, Pearlyn George had retreated some distance from the shooters with Kaiden still in her arms.
93I am not persuaded to the standard of proof beyond a reasonable doubt that Kaiden was within the line of fire such that Kevin George discharged a firearm at him for the purposes of s. 244(1) of the Code.
94I find Mr. George not guilty of count four.
Count 5 – Aggravated Assault on Demar Cadogan [s. 268(1)]
95The defence concedes that if identity is established beyond a reasonable doubt, a conviction follows for this offence. For the reasons stated above in respect of count one, I accept this concession and find Kevin George guilty of count five.
Count 6 – Aggravated Assault on Keandre Bailey [s. 268(1)]
96The determination of this charge follows from my analysis in respect of count two. I find Mr. George not guilty of this offence.
Count 7 – Aggravated Assault on Tianna Green [s. 268(1)]
97The determination of this charge follows from my analysis in respect of count three. I find Mr. George guilty of this offence.
Count 8 – Aggravated Assault on Kaiden Leitch [s. 268(1)]
98The determination of this charge follows from my analysis in respect of count four. I find Mr. George not guilty of this offence.
Count 9 – Possession of Loaded Prohibited Firearm [s. 95(1)]
99I am satisfied that Kevin George possessed a loaded firearm on June 19, 2021. A charge under s. 95(1) of the Code requires proof that the weapon was a prohibited or restricted firearm. Possession of such a firearm, in the absence of the required licence or registration certificate, makes out the offence. In this case, count nine particularizes a prohibited firearm only. However, as Mr. George’s gun was not recovered, it has not been established that the weapon was prohibited.
100According to s. 84 of the Code, a handgun is by definition either a prohibited firearm or a restricted firearm. In cases where the precise character of the handgun is unknown, the s. 95(1) count is often pleaded so as to capture either alternative. The Crown moved to amend count nine in that manner at the end of the trial.
101Even if I allowed the amendment, however, there was no evidence lead to establish that Mr. George did not have an authorization or licence to possess the gun or a registration certificate. In these circumstances, I decline to amend the count and find the Crown has failed to prove the offence beyond a reasonable doubt.
102I find Mr. George not guilty of count nine.
Count 10 – Unauthorized Possession of Firearm [s. 91(1)]
103As already stated, Mr. George possessed a firearm on June 19, 2021. However, there was no evidence lead to establish that he did not have a licence or registration certificate. This essential element of the offence has not been proven.
104I find Mr. George not guilty of count ten.
Count 11 – Occupy Motor Vehicle with Firearm [s. 94(1)]
105Defence counsel argues that the three shooters may have discarded their firearms before getting into the car and fleeing the area. If that possibility reasonably exists, the Crown will have failed to prove that Mr. George occupied a motor vehicle with a firearm in it.
106As stated earlier, the burden of proof rests with the Crown. And in a circumstantial case such as this, I must be satisfied that the accused’s guilt is the only rational inference available on all of the evidence. In my view, it is reasonably possible that the firearms were discarded behind dumpsters or in the woods before the shooters entered the car. The Crown has not proved this count beyond a reasonable doubt.
107I find Mr. George not guilty of count eleven.
Count 12 – Fail to Comply with Release Order [s. 145(5)]
108The defence concedes that if identity is established, then Mr. George violated the terms of his release by possessing a weapon on June 19, 2021.
109I find him guilty of this offence.
Count 13 – Breach of Firearms Prohibition Order [s. 117.01(1)]
110At the request of the Crown, Mr. George was not arraigned on this count.
Count 14 – Attempted Murder of Demar Cadogan [s. 239(1)]
111I have found that Kevin George fired six shots from a handgun in rapid succession at Demar Cadogan. The final issue to be determined is whether his actions make out the offence of attempted murder. This is principally a question of intent.
112The crime of attempted murder requires proof beyond a reasonable doubt that the accused intended to kill, coupled with conduct by the accused done for the purpose of carrying out that intention: R. v. Boone, 2019 ONCA 652 at para. 49. In law, no lesser intent will suffice. The intention to inflict harm, even significant harm, combined with recklessness as to the consequences of inflicting that harm, does not establish the mens rea for attempted murder: R. v. Ancio, [1984] 1 S.C.R. 225.
113The Crown relies on the Court of Appeal’s decision in R. v. Bains, [1985] O.J. No. 41 (C.A.) at para. 27, for the proposition that a common sense inference of lethal intent flows from the use of a firearm. In my view, the availability of that inference depends very much on the specific facts of each case. In Bains, the accused shot one victim in the neck at close range in what the Court described as, “virtually an execution.” He shot another victim in the chest at close range while he was lying on the pavement. He next shot twice at the chest of a police officer at close range. The co-accused, Grewel, shot the officer in the back of the head. It was against this factual backdrop that the Court of Appeal made the observations on which the Crown relies:
If follows that when, at close range, a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim. No other reasonable conclusion can be reached: a deadly weapon was used in the very manner for which it was designed - to cause death. It is appropriate to conclude that in these circumstances the gun was fired in order that it might fulfil its design function and kill. An element of surprise arises only if death does not occur. [Emphasis added].
114There is no question that a firearm is a deadly weapon. But the analysis in Bains reveals the importance of what part of the body a firearm is aimed toward and what distance it is fired from.
115In this case, the question of range was not established with any precision in the evidence. Mr. George and Mr. Cadogan were separated by the lawn of unit 918 when the shots were fired. Based on the video and photographic evidence I would estimate the distance as being somewhere between 20 and 40 feet. At that range, the inference of lethal intent is somewhat weakened: R. v. Tyrell, 2021 ONCA 15.
116Based on the video evidence, I cannot determine what part of the body Mr. George was aiming for. The evidence does not establish that any of the bullets fired by the accused actually struck Mr. Cadogan. This does not in and of itself defeat the Crown's argument, as one can attempt to kill someone by shooting him and miss. However, this circumstance limits my ability to infer what part of the body was targeted, and it distinguishes the case from the facts in Bains.
117Based on the circumstances as they appear in the video, I have no doubt that Mr. George intended to shoot Demar Cadogan. I am not satisfied beyond a reasonable doubt that he formed the specific intent to kill him. I have already found it is a reasonable possibility that the shooting was a spontaneous event that unfolded on the sudden. There is a haphazard quality to the accused’s actions in the video. The use of a firearm, and the number of shots fired, are suggestive of an intent to kill. However, the distance, the speed at which the event transpired, and the absence of evidence showing that a vital part of the body was targeted, all undercut the inference of lethal intent.
118It may have been the accused’s intention to kill Demar Cadogan, but that is not the only rational inference available on the evidence: R. v. Griffin, supra. It is reasonably possible that he harboured a lesser intention than the specific intent to kill. I find the offence of attempted murder has not been established to the high standard of proof beyond a reasonable doubt.
119I find Kevin George not guilty of count fourteen.
Conclusion
120For greater clarity, the dispositions are as follows:
- Count 1 – Discharge Firearm with Intent at Demar Cadogan [s. 244(1)] – Guilty
- Count 2 – Discharge Firearm with Intent at Keandre Bailey [s.244(1)] – Not Guilty
- Count 3 – Discharge Firearm with Intent at Tianna Green [s. 244(1)] – Guilty
- Count 4 – Discharge Firearm with Intent at Kaiden Leitch [s. 244(1)] – Not Guilty
- Count 5 – Aggravated Assault on Demar Cadogan [s. 268(1)] – Guilty
- Count 6 – Aggravated Assault on Keandre Bailey [s. 268(1)] – Not Guilty
- Count 7 – Aggravated Assault on Tianna Green [s. 268(1)] – Guilty
- Count 8 – Aggravated Assault on Kaiden Leitch [s. 268(1)] – Not Guilty
- Count 9 – Possession of Loaded Prohibited Firearm [s. 95(1)] – Not Guilty
- Count 10 – Unauthorized Possession of Firearm [s. 91(1)] – Not Guilty
- Count 11 – Occupy Motor Vehicle with Firearm [s. 94(1)] – Not Guilty
- Count 12 – Fail to Comply with Release Order [s. 145(5)] – Guilty
- Count 13 – Breach of Firearms Prohibition Order [s. 117.01(1)] – Not Arraigned
- Count 14 – Attempted Murder of Demar Cadogan [s. 239(1)] – Not Guilty
Released: December 8, 2022 Signed: Justice Peter N. Fraser
1Hereinafter, all times referred to are in the afternoon.
2The Crown does not argue the accused is liable for the single shot fired by Demar Cadogan – as he was firing away from the crowd of partygoers and could not have injured any of the victims in this case.