WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2017-05-02

Central East Region: Oshawa

Court File No.: 2811-998-16-25116

Parties

Between:

Her Majesty the Queen

— and —

Nathaniel Findley, Andrew Mitchell, and Rayanne Mehdi

Before: Justice Peter C. West

Heard on: February 13, 14, 15, 21, 22, 23 and 24, 2017; March 20, 21, 22, 23 and 24; April 3, 2017

Reasons for Judgment released on: May 2, 2017

Counsel

Mr. Ny On Young, Ms. Deana Bronowicki — counsel for the Crown

Ms. H. Dudding — counsel for the defendant Nathaniel Findley

Mr. F. Davoudi, Mr. M. Pierce — counsel for the defendant Andrew Mitchell

Mr. P. Affleck — counsel for the defendant Rayanne Mehdi

WEST J.:

Introduction

[1] Nathaniel Findley and Alexander Mitchell are charged with second degree murder in the death of Dionecio "DeShane" Nelson on July 2, 2015. Mr. Alexander is also facing two assault with a weapon charges from the same date, involving Gavin Hodges and Tchello Whyte. Ms. Rayanne Medhi is charged with accessory after the fact.

[2] A preliminary inquiry was commenced and these are my reasons respecting committal. During the course of the preliminary inquiry a voir dire was held respecting statements made by each of the accused to the police. At the conclusion of the voir dire Ms. Dudding and Mr. Affleck conceded, for the purpose of the preliminary inquiry only, the voluntariness of their clients' statements.

Position of the Parties

[3] Mr. Affleck on behalf of Ms. Mehdi concedes committal of his client on the charge of accessory after the fact as well as charges of obstruct justice and obstruct police as requested by the Crown, pursuant to s. 548(1)(a) of the Criminal Code.

[4] Mr. Pierce, on behalf of Mr. Davoudi, advised on April 3, 2017, that Mr. Mitchell was conceding voluntariness in terms of his police statements for the purposes of the preliminary inquiry. Further, Mr. Pierce conceded committal of Mr. Mitchell on the charges of second degree murder and two counts of assault causing bodily harm.

[5] Ms. Dudding did not concede committal of Mr. Findley on the charge of second degree murder. She did concede Mr. Findley could be committed on a charge of assault in respect of his involvement respecting the incident with Mr. Nelson. Ms. Dudding also conceded the Crown had established the identity of Mr. Findley as being the driver of the Honda Civic (Acura Integra) and his being present during the interactions with Nelson.

[6] Respecting the committal on second degree murder it is Ms. Dudding's position there is an inferential gap in the evidence between the times Mr. Mitchell is chasing Mr. Hodges and Mr. Whyte with the knife and when Mr. Hodges observes the driver take a swing at Mr. Nelson. Ms. Dudding argues the Crown's submission that Mr. Findley had exclusive opportunity to cause injury to Mr. Nelson is without any factual basis. There is no evidence, as submitted by Ms. Dudding, that Mr. Findley is the only person with Mr. Findley during this time period and this inference is therefore not available.

[7] Ms. Dudding argues other persons from the party may have gotten involved in the altercation between the two persons from the car and Nelson, Whyte and Hodges. Others leaving the party may have become involved in causing injury to Nelson. She argues Mr. Whyte's evidence of Mitchell's involvement stabbing Nelson two to five times affects the Crown's position of Findley having exclusive opportunity to cause Nelson's injuries. She argues the scene is not a locked room with two persons and a deceased in the room. Ms. Dudding argues Findley is not seen by anyone after Hodges sees him swing at Nelson. It is Mitchell who then becomes involved with Nelson and Nelson falls to the ground for the final time. She submits there is no evidence called by the Crown to support the actions of Findley and Mitchell towards Nelson are part of a joint enterprise.

[8] Ms. Dudding argues there was no evidence that Findley and Mitchell left together from the scene. She also argues there is no evidence Findley was even at the scene when Mitchell is stabbing Nelson once or two to five times.

[9] Mr. Young submits Mr. Findley could be committed on second degree murder as the principal because of his exclusive opportunity to stab and injure Mr. Nelson while Mitchell is running after Hodges and Whyte. The Crown argues there are a number of different theories available to the Crown respecting liability on Findley's part. The Crown is not limited to one theory. There is evidence of animus, the car stops, the driver and passenger get out. Heated words are exchanged as well as physical pushing and shoving. The Crown argued after the swing by Findley, Nelson fell to the ground. If the jury accepts Hodges' evidence the passenger (Mitchell) only strikes Nelson once in the back, the Crown argues this could lead to a reasonable inference that Findley caused the majority of the injuries to Nelson. Mr. Young also argued it is open to the jury to find it was Findley who did the fatal blow to the heart of Nelson.

[10] Mr. Young also argued the stabbing motion, described by Mr. Whyte, of the passenger (Mitchell) towards Nelson being 90 degrees, this would not cause the downward trajectory observed by the pathologist on autopsy in respect of the fatal stab wound which caused injury to the heart and liver of Nelson. Mitchell is only 5' 7" to 5' 9" and Nelson was 6' tall. The Crown argued this leads to a reasonable inference open to the jury that Findley caused the injury to Nelson's heart with his left swing towards Nelson as Nelson is trying to get away. The Crown argued there are reasonable inferences available that Findley either intended to cause Nelson's death or meant to cause Nelson bodily harm that he knew was likely to cause death and was reckless as to whether death ensued. It was Mr. Young's position that a person intends the natural consequences of their actions.

[11] The Crown also argued the evidence supports the inference Mr. Nelson was trying to get away from Mr. Findley, and Findley did not want Nelson to get away so he took the swing seen by Hodges, which caused Nelson to fall to the ground. The Crown argued as well if Hodges' evidence is accepted Nelson already has a substantial number of stab wounds caused by Findley before this swing observed by Hodges because of Findley's exclusive opportunity given he was left alone with Nelson when Mitchell chased Hodges and Whyte.

[12] I will not address the Crown's argument for committal respecting Mitchell because Mr. Davoudi conceded committal, except to say that Mitchell is closer to Findley and Nelson than Hodges. He has a knife in his hand and he observes Nelson trying to get away from Findley, who took a swing at Nelson causing Nelson to fall to the ground. Mitchell continued to run at Nelson after observing this and used his knife to stab Nelson one time (Hodges) or two to five times (Whyte). The result of Mitchell's stabbing action was for Nelson to drop to the roadway for the last time. The Crown argued this allows for the jury to draw the reasonable inference Findley and Mitchell are engaged in a common purpose or joint venture to kill Nelson or to cause injury to Nelson that they knew would likely cause his death and were reckless as to whether death would ensue.

The Test for Committal

[13] The law is well-settled at a preliminary inquiry, the justice is to determine whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty upon the charges against the accused. This legal standard applies on all preliminary inquiries, regardless of whether the case against the accused is based upon direct evidence, circumstantial evidence, or a combination of both kinds of evidence. Moreover, the preliminary inquiry justice must refrain from assessing the credibility of witnesses, weighing the testimony, considering the quality or reliability of the evidence, drawing factual inferences from the evidence, or making any determinations of fact. Those are all functions that are strictly reserved for the trier of fact -- in this case, the jury. See United States of America v. Shephard, [1977] 2 S.C.R. 1067, at pp. 1079-1080; R. v. Mezzo, [1986] 1 S.C.R. 802, at pp. 836-845; R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 160-161; R. v. Morabito, [1949] S.C.R. 172, at p. 174; R. v. Charemski, [1998] 1 S.C.R. 679, at paras. 2-4.

[14] In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, the Supreme Court of Canada confirmed that this same legal standard applies regardless of whether the evidence is direct or circumstantial, but noted that the task of the preliminary inquiry judge is somewhat more complicated in cases of circumstantial evidence as, in such cases, the judge must determine what potential inferences are reasonably open to the jury from the circumstantial evidence. More particularly, McLachlin C.J.C., delivering the judgment of the court, stated, at para. 23, that answering this question, about available inferences, "inevitably requires the judge to engage in a limited weighing of the evidence," in the sense of "assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw." In short, the judge asks only "whether the evidence, if believed, could reasonably support an inference of guilt." Further, and importantly, at paras. 25-32, the Supreme Court reaffirmed the "continuing validity" of the "traditional common law rule" articulated in United States of America v. Shephard. McLachlin C.J.C. stated, at para. 30:

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

[15] In addition, as the Supreme Court of Canada confirmed in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at paras. 18 and 25 (2), this limited weighing process does not involve choosing amongst competing reasonable inferences, which is the sole jurisdiction of the trier of fact, but rather involves determining only the field of potential factual inferences that could reasonably be drawn in the circumstances. See also R. v. Dubois, [1986] 1 S.C.R. 366, at p. 380; R. v. Campbell (1999), 140 C.C.C. (3d) 164, at paras. 6-9; R. v. Montour, [2002] O.J. No. 141 (C.A.), at paras. 3-4; R. v. Bogiatzis, [2002] O.J. No. 736 (S.C.J.), at para. 25. Indeed, any doubt as to the inferences to be drawn from the evidence must be resolved, at the preliminary inquiry stage, in the Crown's favour: R. v. Sazant; R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601; R. v. Magno, [2006] O.J. No. 2590, at para. 15; R. v. Foster, [2008] O.J. No. 827 (Ont. Sup. Ct. J.); and R. v. Coke, [1996] O.J. No. 808 (Sup. Ct. J.) cited in R. v. Ghazzi, [2006] O.J. No. 4052, at para. 2. Consequently, the weighing of the evidence for competing inferences, frailties or contradictions has no place in the Shephard test. Neither can a preliminary hearing judge assess the dubious nature of the Crown's case or the reliability of the evidence or concerns about its weight.

[16] Further, the inferences to be drawn from circumstantial evidence need not be "compelling" or even "easily drawn" in order to be reasonable. If an inference is a reasonable and logical one, the question of whether or not it should ultimately be drawn must be left for the trier of fact. If there are competing inferences, these are for the trier of fact to resolve and if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it. See R. v. G.W. (1996), 93 O.A.C. 1, at para. 62; R. v. Katwaru (2001), 153 C.C.C. (3d) 433, at paras. 37-41; R. v. Munoz (2006), 86 O.R. (3d) 134, at paras. 18-22.

[17] Accordingly, at the preliminary inquiry, the justice must proceed on the basis that all available reasonable inferences might be drawn in favour of the Crown by the trier of fact. As Doherty J.A. recently stated, in delivering the judgment of the Court of Appeal for Ontario in R. v. Jackson, 2016 ONCA 736, at para. 7:

In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied upon by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769 (Ont. S.C.), at para. 31; and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370, at paras. 13-14.

If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.

[18] In the case of R. v. Munoz (2006), 205 C.C.C. (3d) 70, Justice Ducharme sought to define what constitutes a "reasonable inference":

Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence – the accused must be discharged as there would be an absence of evidence on an essential element.

[19] At paragraph 25, Justice Ducharme went on to echo the comments made by Justice Doherty in R. v. Morrisey (1995), 97 C.C.C. (3d) 193, when discussing what types of inferences can be drawn:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.

[20] In a ruling on an application for certiorari, Justice D. McCombs of the Ontario Superior Court of Justice in R. v. C.T., [2005] O.J. No. 2772, described the function of the preliminary hearing judge in dealing with inferences to be drawn from circumstantial evidence in the following manner:

Accordingly, the preliminary inquiry judge must go beyond merely considering whether the circumstantial evidence presented by the Crown supports possible inferences that could establish the elements of the offence; the judge must also consider whether these inferences are reasonable. The inferences must therefore go beyond speculation or conjecture: R. v. Coke, [1996] O.J. No. 808 (Ont. S.C.) and R. v. Brissett, [2004] O.J. No. 5525 (O.C.J.).

[21] An inference is permissible so long as it is reasonable and logical. It need not be a strong inference or be capable of creating practical certainty or be easy to draw. As stated by the Court of Appeal in R. v. Katwaru, [2001] O.J. No. 209, at para. 40:

In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical.

[22] In a circumstantial case, as Durno J. noted in R. v. Papadopoulos, [2004] O.J. No. 2766 (Ont. S.C.), at para. 184, "…circumstantial evidence cannot be examined piecemeal. The cumulative effect of the evidence must be examined." Dambrot J. in R. v. Bryce, [2015] O.J. No. 5971 (Ont. S.C.), at para. 41, in dealing with the preliminary inquiry judge's responsibility to consider the whole or totality of the evidence in determining reasonable inferences held:

In my view, when a preliminary inquiry judge makes the error of analyzing and rejecting pieces of circumstantial evidence in isolation, without ever considering their potential force when viewed together and as a whole, such an error is an example of failing to consider the whole of the evidence and is jurisdictional.

He relied upon three judgments of the Ontario Court of Appeal: R. v. Boone, 2012 ONCA 539, (Simmons J.A., in dissent although joined by Hoy J.A. on this issue) at para. 32 and 102; R. v. Charles, 2008 ONCA 237, at para. 3, and R. v. Muir, 2008 ONCA 608, at para. 1.

Requisite Intent to Commit Murder

[23] Section 222(1) provides that a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Pursuant to s. 222(5)(a) a person commits culpable homicide when he causes the death of a human being by means of an unlawful act.

[24] Section 229 provides culpable homicide is murder (a) where the person who causes the death of a human being, (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not.

[25] As Mr. Justice Bastarache has noted in Charemsky v. The Queen (1998), 123 C.C.C. (3d) 225, the crown must adduce:

…some evidence of culpability for every essential definitional element of the crime for which the crown has the evidential burden ... Thus, in a murder prosecution, the crown must adduce evidence on the issues of identity, causation, the death of the victim and the requisite mental state (at p. 230).

[26] The evidence that the crown produces can either be direct or circumstantial. Justice Watts in his text Watt's Manual of Criminal Evidence, states at para. 9.01:

…circumstantial evidence is "any item of evidence, testimonial or real, other than the testimony of an eye witness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue".

[27] The post mortem report of Dr. Rajagopalan, Forensic Pathologist concluded the cause of death of Dionecio Nelson was attributed to multiple stab wounds. On all of the evidence before the court it is unknown who delivered the fatal stab wound. I must therefore consider the party provisions of the Criminal Code. Section 21 states:

21(1) Every one is a party to an offence who

(a) Actually commits it;

(b) Does or omits to do anything for the purpose of aiding any person to commit it; or

(c) Abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and anyone of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[28] Watt J.A., in R. v. Smith, 2016 ONCA 25, [2016] O.J. No. 144, at para. 47, held:

A person may participate in and be found guilty of a crime in any of several ways. As a principal, whether alone or together with another or other principals. Joint or co-principals may be liable even though each has not done every act that makes up the actus reus of the offence: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63; R. v. Mena (1987), 34 C.C.C. (3d) 304, at pp. 314-15. As an aider or abettor of one or more principals. Or as a participant in a common unlawful purpose under s. 21(2).

[29] In R. v. Ball, 2011 BCCA 11, [2011] B.C.J. No. 39, Ryan J.A. held:

23 Two persons may both be actual committers for the purposes of s. 21(1)(a) (referred to in the case law variously as "co-principals", "joint-principals", "co-perpetrators" or "joint-perpetrators") even though each has not performed every act which makes up the actus reus of the offence. As Martin J.A. explained in R. v. Mena (1987), 34 C.C.C. (3d) 304: 57 C.R. (3d) 172 (O.C.A.) at page 309:

Unquestionably, more than one person may actually commit an offence. Perhaps the simplest example of joint perpetrators is where two accused attack the victim intending to kill him or her and the combined effect of the blows struck by the two accused is to kill the victim. In those circumstances, both the accused have murdered the deceased: see Smith and Hogan, Criminal Law, 5th ed. (1983), at p. 120.

25 Where two persons commit a crime as co-perpetrators it may be the case that they have agreed to do so before embarking on the endeavour. For purposes of liability under s. 21(1)(a) of the Code, however, agreement to carry out a common purpose is not necessary. The question is whether there is an indication of common participation, not a common purpose. (Emphasis added)

28 It follows that where co-perpetrators engage in a deadly assault, the Crown need not prove which of the attackers struck the fatal blow or blows. As aptly stated in E.G. Ewaschuk Criminal Pleadings & Practice in Canada, 2d ed. (Toronto: Canada Law Book 2010) at 15-81:

Where several persons act together toward a common criminal object, with the "requisite intent", and any of them jointly or severally achieve the common object, all who are present at the commission of the crime commit the crime as joint principal offenders. This principle has been pithily stated in concrete terms that "the blow of one is, in law, the blow of all of them." R. v. Macklin Murphy (1838), 2 Lewin 225; R. v. Chow Bew, [1956] S.C.R. 124 at pp. 126-7; R. v. Thatcher, [1987] 1 S.C.R. 652, at pp. 689-99.

See also: R. v. McMaster, [1996] 1 S.C.R. 740 (S.C.C.); R. v. Forknall (2003), 2003 BCCA 43, 172 C.C.C. (3d) 61 at para. 57.

[30] Where two or more individuals form a common unlawful purpose to assault another person and the accused knew the murder would be a probable cause of carrying out that assault, s. 21(2) is applicable to render the party guilty of second degree murder (See R. v. Rochon, [2003] O.J. No. 1155, at paras. 62-63 (C.A.) and R. v. Young, [2009] O.J. No. 2813, at paras. 10-12, 14(C.A.)).

After-the-Fact Conduct

[31] In Smith, supra, at paras. 76-78, Watt J.A. made the following observations concerning after-the-fact conduct or post offence conduct:

76 Evidence of after-the-fact conduct is a kind of circumstantial evidence that invokes a restrospectant chain of reasoning. The trier of fact is invited to infer from a subsequent act, state of mind, or state of affairs that a prior act was done or that a state of mind or of affairs existed at a material time in the past: R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at para. 33; R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 225.

77 The inferences drawn from evidence of after-the-fact conduct, as with any inference drawn from any item of circumstantial evidence, must be reasonable according to the measuring stick of human experience: Figueroa, at para. 33. The inferences drawn from evidence of after-the-fact conduct, once again as in all instances of circumstantial evidence, will depend on:

i. the nature of the conduct;

ii. the fact the proponent seeks to have inferred from that conduct;

iii. the positions of the parties; and

iv. the totality of the evidence.

Inference drawing is situation-specific, anathema to a set of prefabricated rules: Figueroa, at para. 33; Salah, at para. 226.

78 It is for the trier of fact to choose among reasonable inferences available from the evidence of after-the-fact conduct. Among the inferences that may be available is that an accused's conduct was culpable: Figueroa, at para. 35; Salah, at para. 227.

[32] The Crown during his submissions indicated he was relying upon the post offence conduct of Findley and Mitchell to establish identity and to demonstrate that both accused were involved in the culpable homicide of Mr. Nelson. Ms. Dudding's submission was this the full extent of the inferences that could be drawn from the post offence conduct of Mr. Findley. For the purposes of this preliminary inquiry, Mr. Young is not seeking any other inferences, specifically as they might relate to culpability or the mental element of each accused.

Evidence Called by the Crown at the Preliminary Hearing

[33] A brief summary of the evidence called by the Crown will be sufficient at this stage of my reasons. On July 1, 2015, a party was held at 934 Glenanna Road in Pickering. Gavin Hodges, Tchello Whyte and Dionecio Nelson attended the party arriving at around 12:30 am on July 2, 2015.

[34] The party was held in the basement of the house and approximately 50 to 80 persons attended. There were no incidents or altercations between any of the attendees at the party on the property of the party. The party ended around 2:15 to 2:30 am.

[35] Hodges drove his friends to the party and parked his car on the north side of Glenanna west of the party and west of Huntsmill Avenue, which is a T-intersection running into Glenanna, 4 houses west of 934 Glenanna.

[36] Nathaniel Findley and Alexander Mitchell were seen together at the party in the basement around 12 or 12:30 a.m. by Stephanie Dornellas and Naythan Sankar. They were also seen coming out of the party with each other around 2:15 or 2:20 a.m. as the party was ending and later walking together eastbound on Glenanna. They were seen together by Dornellas and Sankar on separate occasions. Dornellas and Sankar knew Findley and Mitchell from high school, Pine Ridge Secondary School. Sankar provided the cell phone numbers for Findley, who he knew as "Sonic" and for Mitchell, who he knew as "Poppi."

[37] Dornellas spoke to Mitchell as he was leaving through a side door when the party was ending and gave him a hug. Mitchell told her he was with Findley who was also at the party. Dornellas saw them both walking together eastbound on Glenanna around 2:15 a.m. She was standing across from the house where the party was by her car and asked Findley and Mitchell whether they were walking home as she knew they lived in the area. One of the two answered her saying, "No we have a car now." She marked an "X" on Exhibit 22 as to where they were standing when she called out to them. She saw a silver Honda Civic parked in front of a mail box further east on Glenanna. In cross Dornellas testified she was at her car for 10 minutes before she heard someone yell there was someone on the ground.

[38] Sankar had met Findley at the Boston Pizza parking lot earlier in the evening on July 1, 2015, and purchased a gram of weed from him. Sankar told Findley about the party on Glenanna Road, which Sankar had left to meet up with Findley. He saw Findley and Mitchell together in the basement at the party.

[39] Sankar saw both Findley and Mitchell in the garage as the party was ending and "dapped" (or fist pumped) each of them. He later saw them walking eastbound on Glenanna and he saw them get into a Honda car, Findley got in the driver side and Mitchell got in the passenger side. They were by themselves and no one else was in the car. He saw the car drive by westbound on Glenanna.

[40] Both Dornellas and Sankar saw a Durham Regional Police SUV drive by the party house around 2:20 a.m. This is confirmed by P.C. Butt who was driving eastbound on Glenanna and observed a party letting out of a house on the north side of the street. The DRP GPS video, Exhibit 19, shows P.C. Butt driving on Glenanna at 2:20 a.m. P.C. Butt was driving in this residential area because of a "loitering" call to police.

[41] P.C. Butt testified she cleared the "loitering" call with dispatch at 2:33 a.m. as she was driving westbound past the intersection of Huntsmill and Glenanna. There was nothing happening at the intersection when she drove by this intersection. P.C. Butt received a further dispatch at 2:36 a.m. that there had been a stabbing at the intersection of Huntsmill and Glenanna.

[42] Hodges, Whyte and Nelson left the party as it was ending. They had to wait for a short time as Nelson was smoking a cigarette in the garage. When they finally left the party walking westbound on the north sidewalk of Glenanna, Hodges and Whyte were walking together and Nelson was walking several feet behind them. When they came to the intersection of Huntsmill and Glenanna Hodges and Whyte were more than half way across Huntsmill and Nelson was just leaving the sidewalk and stepping onto Huntsmill to cross it.

[43] Both Hodges and White describe a Honda Civic 2002-2005 make a right turn onto Huntsmill northbound and almost hit Nelson who yelled out, "Yo, you almost hit me." The car stopped on Huntsmill as depicted in the Google Earth photograph, Exhibit 5, marked by Hodges. The back of the car was parallel with a tree depicted in the photograph, which was at the edge of a driveway (west side of Huntsmill), some distance from the stop sign on the northwest corner of Huntsmill and Glenanna.

[44] The driver and passenger both got out of the car and went to the rear of the car. When they came out of the car they were saying, "Yo, yo, what's up, what's up, you got a problem." Hodges and Nelson walked towards them. Angry words were spoken by all four, pushing and shoving, profanity was used by the two guys who got out of the car. They were described as using "gangster tone." Whyte was just behind Hodges and Nelson to the right. Whyte saw a pushing match between Hodges and the driver.

[45] Whyte saw the passenger pull out a knife and Whyte yelled "Knife, Knife" at least three times in a loud voice. He turned and started running onto Glenanna westbound. He looked over his shoulder and saw Hodges running and falling to ground in same direction as Whyte was running onto Glenanna westbound. Hodges testified he pushed the passenger and fell backwards and started running when he heard Whyte yell "Knife."

[46] Both Whyte and Hodges saw the passenger with a knife, the blade was 6"-8" in length. The passenger was closest to Hodges, calling out to them "Pussy, pussy." At some point passenger said "You can run eh" and he stopped running after them, turned around and ran back to the intersection.

[47] Hodges arrived at the house where Whyte had stopped and was catching his breath. They both realized Nelson was not with them so they started jogging back to intersection. Hodges saw the passenger running back to intersection ahead of them. Hodges saw Nelson trying to get away from the driver, they were on the grass boulevard, where an "O" is drawn. The driver took a swing with his left arm at Nelson and Nelson fell as he was walking away. Nelson then got up and was moving onto the roadway of Huntsmill coming towards Hodges and Whyte. The passenger was ahead of them and when he got to Nelson, Hodges saw him take a swing and connect with Nelson. Nelson fell again and did not get up. Hodges testified the passenger struck and connected with Nelson in the front of his body once. In cross he was directed to his police statement where he said the passenger stabbed Nelson in the back, which he testified refreshed his memory.

[48] Whyte observed Nelson fall to ground near the boulevard and then get back up and continue walking slowly towards Hodges and Whyte when the passenger got to him and stabbed him two to five times in the front. Nelson fell to ground and did not get back up again.

[49] Both Hodges and Whyte testified they saw the passenger with the knife in his hand as he was running towards Nelson. They both testified the passenger used the knife to connect (Hodges) with Nelson or to stab (Whyte) Nelson. They did not see the driver with a knife.

[50] Both Hodges and Whyte did not describe anyone else being in the vicinity of Nelson or the driver or the car. Hodges only describes the driver and passenger having anything to do with Nelson when he is running back to the intersection. Whyte only describes the passenger being involved with Nelson. Hodges and Whyte both testified the driver and passenger got back into the car after the passenger attacked Nelson and they took off.

[51] Kynan Dhanaw was at the party. He was outside on the driveway at the end of the party having a smoke. He had come to party with his brother, who was standing closer to the garage. He looked down the street and saw a group of people in an altercation. He believed it was a fight. At some point he saw one group go one way and another group go the other way. He saw two guys running down Glenanna. He then looked away and went to speak to his brother by the garage.

[52] When Dhanaw looked back (in the direction of Huntsmill) he saw two guys fighting one guy. This also looked like a regular fist fight. The two guys were punching the one guy and the one guy was punching back. The guy by himself fell in the same spot he was standing. Dhanaw did not see where the two guys who were fighting with the one guy went after the guy fell to ground.

[53] Dhanaw did see a Honda vehicle but did not know if it was part of the incident. In his second statement to the police he said he saw two guys jump out of the back of a Honda vehicle. After two guys jumped out the car drove off. He testified the fight was already going on between the two groups and these two guys joined in. Sometime after the fighting was going on two groups split off in different directions.

[54] Dhanaw described the two guys fighting the guy who fell and did not get up, one was shorter and the other was taller. One of the guys was wearing a grey hoody. He saw the one guy fall down and get back up and then he fell down again and did not get back up.

[55] In cross Dhanaw testified he did not know if the guy who fell down was involved in what he saw being the first fight where people were falling down and getting back up. He was not paying 100% attention. The two gentlemen who were fighting the guy who fell down and did not get back up, ran away. They ran in the direction of the red arrow (north on Huntsmill) on Exhibit 33.

[56] In re-examination Dhanaw testified he did not remember a Honda Civic when he was testifying.

[57] Dushawn Johnson-Powell testified he was at the party and around 2:20 a.m. he was in the driveway as everybody was leaving the party. While he was standing in the driveway he heard someone say a guy passed out down the street and when he looked he saw a guy lying in the intersection. He ran to the intersection. There were two guys standing by the curb and no one else was around. When he got to the guy on ground he realized the guy was bleeding. He testified one of the guys standing there said his friend had been stabbed. Johnson-Powell called 911. His call was made at 2:35:15 a.m.

[58] On the 911 call, Exhibit 35, Johnson-Powell tells the operator the police had arrived, which according to the 911 call time stamp was at one minute and 48 seconds after the 911 call started or just after 2:37 a.m. P.C. Butt testified she was the first DRP officer to arrive on scene and she was there at 2:37 a.m.

[59] Exhibit 32 is the MTO record for a silver 2004 Acura Integra. It was originally owned by Mr. Findley's father, Dennis Findley. In May the Acura was given by Dennis Findley to his son, Nathaniel. It was registered in Nathaniel Findley's mother's name, Charmaine Meeks on June 1, 2015. In July 2015, Nathaniel Findley returned the Acura to his father, Dennis Findley, who in July 2015, offered to sell it to Caswell Crooks but did not sell it to Caswell Crooks until August 6, 2015. The car was not picked up until August 20, 2015. The police seized the vehicle on September 17, 2015 pursuant to a search warrant.

[60] Exhibit 9 is a photograph provided by Hodges to police of a grey/silver Honda Civic, which he testified was similar to the car that almost hit Nelson and stopped on Huntsmill before its two occupants got out. Photographs of the Acura Integra seized by police are contained in Exhibit 3A (disc) and 3B (photographs), at Tab 7. It is the Crown's position the photograph provided by Hodges shows a Honda Civic which is very similar to the Acura Integra registered to Charmaine Meeks and driven by her son, Nathaniel Findley.

[61] At the scene police discovered drops of blood in the area where the driver took a swing at Nelson and close to the area where Nelson's body was found in the intersection. In addition, there was a blood trail from where Nelson's body finally fell and the area where the car had stopped, where the blood trail stopped or disappeared. Samples of this blood were seized by forensic identification police officers and submitted to the Centre of Forensic Sciences, Biology Section for DNA analysis. Five of the blood samples seized from the scene were tested by CFS and produced a DNA profile. A number of blood samples (11) obtained from the Acura Integra produced the same DNA profile as identified from the five blood samples taken from the scene. A DNA warrant was obtained by police for a sample of DNA to be seized from Nathaniel Findley. The DNA profile obtained by CFS was compared to the DNA profile obtained for the blood samples seized from the scene and the Acura Integra with the result Nathaniel Findley cannot be excluded as the source of those blood samples. The random match probability (RMP) is 1 in 6.9 quintillion. The CFS reports relating to the DNA testing are contained in Exhibit 1. In addition, an Agreed Statement of Facts relating to the DNA samples is Exhibit 12.

[62] The location of the blood samples seized by the police at the scene can be seen in the Agreed Statement of Facts, Exhibit 34. The location of the blood samples discovered and seized from the Integra are set out in the CFS report in Exhibit 1, Tab 3 and 4.

[63] Dr. Rajagopalan, Forensic Pathologist, concluded the cause of death of Dionecio Nelson was attributed to multiple stab wounds. He found 14 sharp force injuries to Mr. Nelson. The following are his findings contained in the Report of Post Mortem Examination, Exhibit 24, at Tab 2:

1. Stab wound to central chest with two wound tracks, and with injury to heart (right ventricle and pericardium) and liver. Direction both tracks: front to back, left to right and downwards. Size: 2.7 cm. This was a fatal wound.

2. Stab wound to upper lateral left chest. Size: 2.5 cm. Direction: Front to back, left to right.

3. Stab wound to lower left chest. Size: 2.6 cm with a 2.3 cm wound tail at the lateral margin. Direction: front to back, left to right.

4. Stab wound to upper left abdomen. Size: 1 cm. Direction: front to back, left to right.

5. Irregular/overlapping stab wound of the lower left abdomen with two wound tracks. Size 3 cm, L-shaped. Direction (both tracks) front to back, left to right. Injury from one of tracks superficial serosal surface of the stomach and the fat in the greater curvature.

6. Superficial incised/stab wound of the right thigh. Size: 2.5 cm. Direction: front to back.

7. Superficial incised wound, 0.5 cm, central chest. Only injured skin and soft tissue.

8. Superficial incised wound, 1.3 cm, lower left chest. Only injured skin and soft tissue.

9. Superficial incised wound, 1.5 cm, lower left chest. Only injured skin and soft tissue.

10. and 11. Two superficial punctate incised wounds, 0.1 cm each, central upper abdomen. Only injured skin and soft tissue.

12. Superficial incised wound of the anterior left wrist, 3.3 cm.

13. Superficial incised wound of the posterior left wrist, 6.5 cm.

14. Incised wound, 0.6 cm, dorsal left 4th finger.

[64] Dr. Rajagopalan testified the order of the injuries cannot be determined from the pathological evidence alone. The left arm/wrist and hand injuries could be interpreted as defensive injuries, although they are not in the most typical location. Further, he testified that during an assault or struggle an assailant may injure themselves with a sharp implement.

[65] In cross Dr. Rajagopalan testified he could not rule out the possibility of two knives being involved considering the size of the stab wounds, a number of stab wounds being 2.5-3.0 cm and a single stab wound of 1 cm in width. The pathologist gave the opinion that one potential explanation for stab wound #4 to the upper left abdomen of Mr. Nelson which had a 1 cm in diameter was that there were two knives involved in causing the injuries to Mr. Nelson. This evidence was led in cross-examination by Ms. Dudding.

[66] Both Findley and Mitchell provided statements to the police in the early stages of the investigation, within the first two weeks of Nelson's death. They were not considered suspects at the time their statements were obtained. Ms. Dudding conceded after the evidence of the voir dire that Mr. Findley's statement was voluntary and admissible. Mr. Davoudi took the position Mr. Mitchell's statement was not voluntary. As indicated above, Mr. Pearce, appearing for Mr. Davoudi, conceded the voluntariness of Mr. Mitchell's statements. It was my view the statements were voluntary and admissible.

[67] In their statements to the police both Findley and Mitchell gave explanations as to how they came to hear about the party and how they attended and who they were with. The evidence heard during the trial from their statements to police disclosed both Findley and Mitchell had lied to the police about these things.

[68] Mr. Findley told the police he rode his BMX bike to Kinsmen Park to see the fireworks and to see if any of his friends were present there. None of his friends were present and his bike was stolen. He walked from the Kinsmen Park, which is south of the 401, east of Brock Road, at the end of Sandy Beach Road by Lake Ontario. The distance between Kinsmen Park and 394 Glenanna Road is several kilometres. Findley told police he was walking through the public school property to go to a grocery store on Finch Avenue to buy juice before going home. He bumped into some girls at the school who were drunk. He did not know them but they told him about a party going on down Glenanna Road. He decided to go to the party despite not knowing anyone. He did not tell the police he was with Mr. Mitchell at the party. He did not tell the police he drove a silver/grey Acura Integra to the party and parked it on Glenanna Road. He did not tell the police he met Ms. Dornellas and Mr. Sankar at the party. He did not tell the police he found out about the party from Mr. Sankar when he sold marihuana to Mr. Sankar in the Boston Pizza parking lot.

[69] Mr. Findley also told the police the only vehicle he had access to was his mother's Venza. Mr. Findley did not tell the police his father had given him a grey/silver Acura Integra in May 2015, which he was driving up until shortly after Mr. Nelson's death when he returned it to his father. Further, he did not tell the police he had driven to the party at 934 Glenanna Road in this grey/silver Integra.

[70] Mr. Mitchell did not tell the police he was with Nathaniel Findley at the house party. He told the police he found out about the party from some girls he met at Boston Pizza and he then walked to 934 Glenanna Road to attend the party. He did not tell the police he left the party with Mr. Findley or that he met and spoke to Ms. Dornellas or Mr. Sankar at the party. Further, he did not tell the police he got into a grey/silver Acura Integra with Mr. Findley shortly before Mr. Nelson and his friends were involved in an altercation with two individuals who got out of a grey/silver Honda Civic that looks very similar to Mr. Findley's Integra.

[71] Mr. Mitchell also told police he left the party sometime around 1:30 a.m. and met his girlfriend, Ms. Mehdi at the Major Oaks Park, which is a considerable distance from 934 Glenanna, several kilometres. He also told police he and Ms. Mehdi were in this park talking until after 3 a.m. It is the Crown's position Mr. Mitchell's alibi is false and concocted. The Crown points to the evidence of Ms. Dornellas and Mr. Sankar who saw Mr. Mitchell in the company of Mr. Findley at 2:30 a.m., just minutes before the altercation that left Mr. Nelson dead. The Crown also points to the cell phone evidence as proving the Mr. Mitchell's alibi is false.

[72] The Crown called Danielle Fortier, who is employed with Rogers Communications and who testified respecting cell phone calls made by Mr. Mitchell during the early morning hours of July 2, 2015 and the cell towers used by his cell phone. Exhibit 36 are the cell phone records of Mr. Mitchell and if he had been at the Major Oaks Park as he described, the closest cell tower his phone would have utilized was located at Deckers Hill. The cell tower utilized by Mr. Mitchell's cell phone between 2:36 a.m. and 2:44 a.m. was located at Dixie & Finch, which the Crown argues is considerably further away from Major Oakes Park compared to the Deckers Hill cell tower. Further, the cell tower utilized by Mr. Mitchell's cell phone between 2:54 a.m. and 3:13 a.m. was located at Hwy 401 and Liverpool, which is greater distance away from Major Oaks Park. The evidence of Ms. Fortier was it would be very unlikely for a cell phone to bypass or jump a cell tower that is closer to the location of the cell phone. The Crown also points to fact Mr. Mitchell is calling Ms. Mehdi's phone number continuously, nine (9) times, between 2:37:57, which is two and a half minutes after the 911 call to police, and 3:13:01. The Crown poses the question that if Mr. Mitchell is supposed to be with Ms. Mehdi between those times why does he need to call her cell phone? (See Exhibit 26, Tab 4.)

[73] Finally, the Crown led evidence of a number of wiretapped communications, Exhibit 20 (disc) and Exhibit 21 (transcripts) between Mr. Mitchell and Ms. Mehdi. The Crown argues the Tab 15 communication, February 16, 2016, provides evidence of Mr. Mitchell and Ms. Mehdi going through his alibi to get their stories straight and trying to remember what each of them said to the police. In Tab 18 there is conversation between Mr. Mitchell and an unknown person where Mr. Mitchell says you should always have a weapon on you at all times. In Tab 22 there is a conversation, on March 28, 2016, between Mr. Mitchell and Ms. Mehdi where Ms. Mehdi says she should bring Mr. Mitchell's knife to court. When Mr. Mitchell is arrested the police find a folding knife with a two and a half inch blade on his person. The Crown submits all of these facts lead to a reasonable inference that Mr. Mitchell always has a knife at the ready, just as he did on July 2, 2015.

[74] It is the Crown's position that Tab 8 to Tab 13 of Exhibit 21 reflect a series of conversations, on February 16, 2016, between Mr. Mitchell and Ms. Mehdi where there is a reasonable inference for a jury to find that Mr. Mitchell admits his involvement in the death of Mr. Nelson where he talks about God giving him a second chance, asking for forgiveness but if someone is attacking him his only instinct is to attack back.

RM Trying to get you to look - help. I just don't want anything to happen to you. Every – prayer...

AM I do pray. You don't know how much I pray.

RM It won't...don't pray

AM –

RM Don't assume that. You don't believe in God.

AM Then what are you trying to tell me?

RM Just trying to get you, to understand that what happened – night shouldn't. That's what I want –

AM Actually I – every day. You know what I mean? You know, like – honestly I know whatever. You know? Everything goes the way it should. But I can't take anything back – can do is try and make things better in the future – better – better like God doesn't, doesn't need me to ask him for anything because he knows the heartache. He knows – so I – talk to him every day. Talk to God every day – but I don't feel like there's anything that – giving me – like doesn't – every day. If we breathe – then, we'll see another day. I believe every day that I see, I am blessed – I can't say I won't make any mistakes. I can't say that – so for me, asking for a second chance, it looks like, I feel like I'm, I'm fine – not saying I'm gonna make the same mistake I'm just saying, yeah, honestly I do try to make myself a better person but. What am I asking for a second chance for? 'Cause he already giving me a second chance.

RM Saying basically that – can't take back what happened but …

AM Guy's a bitch bro.

RM – put it behind you –

AM I have nothing…

RM …you're sorry – and that, it won't happen again unless like obviously it ha…obviously…

AM No, I can't say any of that. I can't say it won't happen again. Can't say that.

RM Why?

AM I can't, I can't say that um, I would even take it back.

RM Kay.

AM What if he was going do the same thing to me?

RM Well…

RM …that's a different situation.

AM What do you know about…what do you know about that situation?

RM That's the, if someone's trying to fuckin' kill –

AM Well what do you know about that situation is what I'm tryin' to ask you.

RM About what situation?

AM About what we're talking about right now.

AM What do you know ?

RM I don't really know about it.

AM Exactly. I'm not saying, I'm not, happy I did it. I'm not, proud of anything like that but. What happened happened and you have to leave it in the past, you have to move forward about it. You know what I mean? I can't be stuck on it asking for forgiveness every day and...

RM –

AM Every day I'm tryin' uh, every day I'm trying to go on without even thinking about it. Every day. So what am I, what am I doing worrying about it, you know? Sins, they're all sins. I wish it didn't happen. But if someone ___ if someone is, is attacking me, my only instinct is to attack them back. If someone is, is attacking me, my only instinct is to attack them back. I dunno where I get my instincts from but someone had to give them to me for a reason right? Not everything you do in this life is right. Of course, you don't know how many times I asked for forgiveness – how many times I – you don't. Yeah, okay, soon they'll come a bad person, whatever, you know what I mean? – I dunno. But at the end of the day I don't, I don't need anyone to judge me, I don't need anyone – look at me – like, I already talked to God about this. He already knows that my heart is in every single thing I do. I swear, uh God, he'll understand. He's no… – it's not, it's a sin, okay whatever. You're not supposed to do it, whatever, but he'll understand if I'm not and why I swore and – God damn it. Said his name in vain. You know what I mean? He knows where your heart is. (short pause) I talk to him every day. I dunno what you want me to do – what he'd want – you know?

No baby. Like don't be worried about me 'cause, like I told you. Whatever happens – God has my security plan. Whatever he wants for me to do – is, is what I'm gonna get. Whatever God wants for me. If I'm arrested and I'm in jail sitting, in jail, and he doesn't want me in jail, I'm not sitting in that jail no longer. I'm gonna find a way out.

RM did you pray for that

AM I pray every day.

RM No, like because, praying to, to help you get out.

AM I'd pray for him. If I'm, if my life's not, just to get outta jail. Because that's not, that's not what it's about. That's – being in a place – praying that they – you know, it's a mental state. It's – it's weird, that's what I pray for is, so my mind can be at peace. And you can't change anything. I can't just simply walk out of the jail. You know what I mean? You have to, your mind has to change about it. Everything has to change about it. And then you look and you're lookin' at your situation different. You know what I mean? You're not, you're not really clearly lookin' at the situation as, you were just locked up in jail – like there, you're serving a purpose. Jail's not a good thing but, can't take anything back – what happens in this life, is what's meant for us.

[75] In Tab 23 of Exhibit 21 there is a conversation, March 31, 2016, between Mr. Mitchell and Ms. Mehdi, Mr. Mitchell is in custody charged with murder, and they are talking about Mr. Mitchell's arrest by the police where he was a passenger in Ms. Mehdi's vehicle and how he had just given his phone to Ms. Mehdi to use. The gist of the conversation relates to how lucky it was that his phone was not in his possession when he was arrested because of what they would have found on it by way of pictures and texts. Ms. Mehdi says she deleted the pictures and cleared the whole phone. Mr. Mitchell tells her he would have been "done" if the police had seized his phone.

Analysis

[76] As I have indicated above, as a preliminary inquiry judge, I am to determine whether the inferences argued by the Crown are available to a reasonable jury, properly instructed, on the evidence called. I recognize reasonable inferences are those drawn from facts established by the evidence and must rise above mere speculation. I also recognize I am not to choose between competing inferences that are available and must take the Crown's evidence at its highest. Inferences to be drawn from circumstantial evidence need not be "compelling" or "easily drawn" in order to be reasonable. A preliminary inquiry judge is not to assess the credibility or reliability of the evidence or the weight to be given to a witness' evidence, the question of whether an inference should ultimately be drawn must be left to the jury. In determining if reasonable inferences are available on the evidence the preliminary inquiry judge must not consider the evidence in a piecemeal fashion but rather must consider the totality or the whole of the evidence.

[77] Against that backdrop it is my view a properly instructed reasonable jury could draw a reasonable inference from the evidence called by the Crown that Dionecio Nelson's death was caused by means of an unlawful act. His death, according to the pathologist, was caused by multiple stab wounds involving as many as two knives or sharp edged implements.

[78] The three individuals who provided evidence concerning the altercation involving two men who exited a Honda Civic and Hodges, Whyte and Dhanaw are unable to identify the two individuals who assaulted and interacted with Nelson. The identification of these two individuals depends therefore on circumstantial evidence from which I must determine if reasonable inferences arise respecting the identification of these two individuals.

[79] On the evidence as a whole, the timing of the incident involving the altercation between Nelson, Hodges and Whyte with the driver and passenger who exited this Honda (Acura) vehicle lasted at most three (3) minutes. This is established by the evidence of P.C. Butt, Exhibit 19, the DRPS GPS video, Mr. Whyte and the evidence of Ms. Dornellas and Mr. Sankar.

[80] There is a reasonable inference available that the driver and passenger of this Honda Civic (Acura Integra) were Mr. Findley and Mr. Mitchell. The evidence permitting such an inference includes:

(a) Stephanie Dornellas observing Findley and Mitchell together walking eastbound on Glenanna and when she asked if they were walking home, one of them said "No, we have a car now." Further, Dorellas observed a Honda Civic parked in front of a mailbox further east from her car on Glenanna;

(b) Both Dornellas and Sankar observed a police SUV going eastbound on Glenanna at approximately 2:20 a.m., just as the party was ending and people were coming out of the house;

(c) Naythan Sankar observed Findley and Mitchell walking eastbound on Glenanna on the sidewalk and observed them getting into a Honda vehicle parked on Glenanna further east of his vehicle;

(d) P.C. Butt drives by 934 Glenanna at 2:20 a.m. and observes a number people exiting the house indicating the end of a party;

(e) Findley owned a grey/silver 2004 Acura Integra from May 2015 to July 2, 2015, which is very similar to Ex. 9, which is a photo of a 2004-2005 grey/silver Honda Civic provided to police by Mr. Hodges;

(f) Findley lied to the police about what vehicles were available for him to drive at his mother's house, he told the police he only had access to her Toyota Venza;

(g) In July 2015, shortly after the stabbing of Nelson, Findley returned the grey/silver 2004 Acura Integra back his father and his father ultimately sold it in August 2015. Findley never told the police about his grey/silver Acura Integra;

(h) Both Findley and Mitchell lied to the police about how they found out about the party, about their being together at the party and about leaving the party together and getting into Findley's Acura Integra. There is a reasonable inference they were both trying to distance themselves from being together and being in the Acura Integra;

(i) Numerous drops of Findley's blood are found at the scene where Nelson was stabbed. Findley's blood (CFS reports in Exhibit 1 and Agreed Statement of Facts, Exhibit 12) was found at the scene, as shown in the photos in Exhibit 34, in an area by the curb where Findley was observed interacting with Nelson (Item 33); in an area not far from where Nelson fell for the last time on the street (Item 31), as well as a trail of blood (Items 36, 39 and 42), which ended where the Acura Integra was stopped. It is highly unlikely Mitchell was not at the scene if Findley's blood was found there given they were seen leaving the party minutes before in Findley's car;

(j) Mitchell concocted a false alibi with his girlfriend, Rayanne Mehdi, which placed him a significant distance, in Major Oakes Park, from the scene where Nelson was stabbed from at least 1:30 a.m. to after 3:00 a.m. (The evidence of Dornellas and Sankar put a lie to this alibi, as do a number of the wiretap conversations in February and March 2016 between Mitchell and Mehdi, in particular, the conversation where they are trying to get their stories straight and the conversation where Mitchell admits his involvement. Finally, the cell tower evidence also supports a reasonable inference Mitchell was not in Major Oakes Park);

(k) Both Hodges and Whyte say the driver was wearing a grey hoody or sweater, Dhanaw observed both of the two individuals who were fighting the one guy as wearing grey hoodies and Findley has a Roots grey sweater, which is seized by police and it has his blood on it as found by CFS DNA analysis.

[81] In my view, there is an over-abundance of evidence which supports a properly instructed, reasonable jury drawing a reasonable inference that Findley and Mitchell were the driver and passenger who were in the grey/silver Acura Integra that turned north from Glenanna onto Huntsmill and almost hit Mr. Nelson. A reasonable jury would be able to draw from the above evidence the reasonable inference Findley and Mitchell got out of the car and engaged in the altercation described by Hodges and Whyte and Kynan Dhanaw.

[82] It is my view the post-offence conduct of Findley and Mitchell in attempting to distance themselves from each other and from Findley's Acura Integra support the reasonable inference they were together throughout the evening of July 1, 2015 and the early morning hours of July 2, 2015 leading up to their involvement with Nelson, Hodges and Whyte. The concocted alibi by Mitchell further supports the inference Mitchell is trying to distance himself from his involvement with Hodges, Whyte and Nelson. In my view a reasonable jury, properly instructed could draw the inference the post-offence conduct of both accused supports their being the two individuals who were involved.

[83] According to Sankar, Findley was at Boston Pizza parking lot to sell weed to Sankar. It was Sankar who told Findley about the house party on Glenanna Road. Mitchell told the police he was at Boston Pizza plaza on the evening of July 1, 2015 and this is where he found out about the house party on Glenanna Road from some guys who were drunk. Sankar had come from the house party to buy the weed from Findley. Sankar knew both Findley and Mitchell and had their cell phone numbers with their nicknames in his cell phone's contacts. In my view it would be open to a jury draw a reasonable inference that Findley and Mitchell were together in the Boston Pizza parking lot on July 1, 2015, and went to the house party together.

[84] Findley and Mitchell were seen together at the party by Dornellas and Sankar and they are seen leaving the party together, at approximately the same time both Dornellas and Sankar observed the DRP SUV drive past 394 Glenanna Road at 2:20 a.m. Findley and Mitchell were walking past where Dornellas was standing by her car and when she asked if they were walking home, one of them responded, "No we have a car now." Finally, Findley and Mitchell were seen getting into what Sankar believed was a Honda Civic, with Findley driving and Mitchell in the front passenger seat (the evidence demonstrated Findley's car, a 2004 Acura Integra, looks very similar to a Honda Civic). It is my view based on all of this evidence there is a reasonable inference Findley and Mitchell were together.

[85] As I have already indicated there is a reasonable inference that Findley and Mitchell exited the Acura Integra to confront Nelson, Hodges and Whyte. The evidence supports Findley and Mitchell deciding to confront the three individuals who were calling out to them. Upon exiting the car there is a verbal confrontation started by Findley and Mitchell. This quickly escalates to profanity being used by Findley and Mitchell and according to Whyte, similar profane language being used by Hodges and Nelson. Findley and Mitchell move to the rear of the stopped Acura to confront the three persons. Hodges and Nelson move towards Findley and Mitchell and a physical confrontation commences. There is no doubt there is animus shown on the part of Findley and Mitchell towards the three men. Findley could have continued to drive north on Huntsmill, yet he stopped almost immediately after Nelson called out. There is a reasonable inference available from the evidence that Findley and Mitchell were angry and upset towards Nelson, Hodges and Whyte.

[86] The decision to confront the three men was made by both Findley and Mitchell. Both of them started a verbal confrontation involving heated and profane language. It is unclear who pushed who first but according to Whyte and Dhanaw it would be open to a jury to draw a reasonable inference that both groups were involved in a pushing/shoving match, which caused some of them to fall to the ground and get back up. In my view there is a reasonable inference available that Findley and Mitchell are engaged in a joint enterprise or common purpose to confront and assault the three men.

[87] Whyte was behind Hodges and Nelson and he described the pushing and falling down that occurred. He saw Mitchell pull out a knife with a 6"-8" blade and immediately yelled "Knife," 2 or 3 times. He yelled it loud enough for Hodges and Nelson to hear him. There is a reasonable inference both Findley and Mitchell heard him yell out "knife" as well. Both Whyte and Hodges testified they saw the passenger with a knife in his hand once the initial verbal exchange and pushing and shoving between the two groups had started. There is a reasonable inference Findley also saw the knife in Mitchell's hand. It is my view this would not be impermissible speculation on the part of the jury as asserted by Ms. Dudding. It is also my view the common purpose formed by Findley and Mitchell of becoming involved in a confrontation with these three individuals has been significantly escalated by Mitchell's introduction of a knife.

[88] Whyte testified when he yelled "knife" he started to run away from Mitchell and Findley because the confrontation had become much more serious. Hodges began to run after Whyte and Whyte saw Hodges stumble and fall causing him to run on all fours to get away from Mitchell. Mitchell continued to chase Hodges and Whyte down Glenanna Road in a westbound direction but he was unable to catch them. Mitchell was yelling at them, calling them "Pussies" from which there is, in my view, a reasonable inference he was challenging or taunting them to fight. A reasonable jury, properly instructed would be entitled to draw the inference it was Mitchell's intention if he caught up to Hodges and Whyte to use the knife in assaulting them.

[89] In my view, there is a reasonable inference when Mitchell chased after Whyte and Hodges that Findley was left alone with Nelson. I agree with the Crown, there is a reasonable inference of exclusive opportunity by Findley towards Nelson. Both Hodges and Whyte only describe the driver (Findley) and passenger (Mitchell) of the Honda (Acura) as being involved with their group after the car stopped. They do not describe anyone else from the party coming upon the altercation. When Hodges and Whyte return to Huntsmill neither of them described any other individuals being involved with Nelson. Hodges only described Findley as trying to get to Nelson and Nelson appeared to be hurt and trying to get away from Findley. In my view there is a reasonable inference that only Findley and Mitchell were involved in the altercation with Nelson, Hodges and Whyte. Further, there is a reasonable inference Findley was left alone with Nelson for the time period Mitchell was chasing Whyte and Hodges until Mitchell returned to Huntsmill.

[90] Ms. Dudding argued it would be speculation to say Findley had a knife and that he stabbed Nelson; however, it is my view this is not an accurate characterization of the totality of the evidence and the reasonable inferences available to be drawn as indicated above.

[91] Both Whyte and Hodges described Nelson being by himself on Huntsmill, lying on his stomach bleeding out when they got to him. When they got to him they described calling out for someone to call 911. They indicated others from the party began running to where Nelson was lying after they called for someone to help. Johnson-Powell described himself as being the first person to run up to Nelson when he was on the ground. No one else, other than the two individuals Johnson-Powell saw standing by the curb (Hodges and Whyte) were present. In my view it is pure speculation on the defence's part to suggest others might have been involved in causing Mr. Nelson's injuries. There is a reasonable inference from the totality of the evidence that the only persons involved in this altercation are Findley and Mitchell, as one group and Hodges, Whyte and Nelson, as the other group. From the evidence this is the only logical and common sense inference available.

[92] As I have indicated there is a reasonable inference Findley knew Mitchell had pulled out the knife from seeing it or hearing Whyte yell out "knife." There is no evidence Findley tried to call Mitchell back to stop the assault or to call Mitchell back so they could leave in the car. Findley remains with Nelson and when Nelson is first observed by Hodges he appears "hurt." As I have found, this leads to a reasonable inference Findley has been engaged in assaultive behaviour towards Nelson.

[93] In my view, based on the whole of the evidence, there is a reasonable inference Findley had a knife and was using it in his interaction with Nelson. There is also a reasonable inference available that Findley had a knife given the evidence of the pathologist concerning the potential of there being two knifes given the diameter of the stab wounds. Further, the fact Findley's blood is at the scene and in his Acura, in areas his hands would leave blood deposits, supports an inference he had a knife and was using it in his assault of Nelson and cut himself in the manner described by the pathologist. The injuries to Nelson's left hand also lead to a reasonable inference Nelson was cut during his interaction with Findley given Mitchell's involvement with Nelson was only when Mitchell returned to Huntsmill and involved Mitchell stabbing Nelson's front torso and/or back before Nelson fell to the ground. Further, the extent of Nelson's injuries and the stabbing Hodges and Whyte saw done by Mitchell towards Nelson support a reasonable inference that Findley caused a number of Nelson's injuries when he was alone with Nelson.

[94] Ms. Dudding placed reliance on the fact Hodges later in his evidence in chief and in cross-examination described Nelson, after the swing by Findley, walking slowly away from Findley and then falling. In was her position this supported her submission there was no evidence led by the Crown that Findley stabbed Nelson or even had a knife. In my view this evidence does not preclude the reasonable inferences referred to in the previous paragraphs, it only presents additional possible inferences. Of course, I must take the Crown's case at its highest.

[95] Hodges saw the passenger, Mitchell, stab Nelson once when he arrived back at the intersection. Initially Hodges testified Mitchell stabbed Hodges in the front part of his body but in cross-examination he was shown his statement and agreed he had told the police the passenger struck Nelson in the back with the knife.

[96] Whyte did not see Findley take a swing at Nelson but he did see Nelson fall to the ground. Whyte described Nelson as trying to get back on his feet but he was moving slowly and only got to his knees when the passenger reached him and stabbed him two to five times with the knife that Whyte saw was still in Mitchell's hand as he ran back to Huntsmill. The stabs were thrust 90 degrees from Mitchell's body into the front part of Nelson's body. Nelson fell a second time and did not get back up. Both Whyte and Hodges yell out, "No" and ran faster to Nelson who was lying on his stomach in the intersection.

[97] Both Findley and Mitchell ran to the car, got in and took off. This was observed by both Hodges and Whyte in their evidence. Ms. Dudding's argument that Findley vanished after the swing does not accord with the evidence as Findley and Mitchell are seen getting in Findley's car and leaving the scene by both Whyte and Hodges.

[98] In my view Mr. Dhanaw's evidence can be viewed as being consistent with the evidence of Mr. Whyte and Mr. Hodges. Dhanaw described an altercation between two groups of guys (he believed there were a total of seven but he was not paying 100% attention) where people were falling down and getting back up. This is similar to Whyte and Hodges' description of the verbal and physical altercation between their group of three and the driver and passenger. Dhanaw then described the two groups splitting up and one group running one way and the other group going in a different direction. This is similar to the passenger, Mitchell, chasing Whyte and Hodges west down Glenanna and Findley interacting with Nelson. Dhanaw then looked away and when he looked back he saw two guys, Mitchell and Findley, fighting one guy, Nelson. He also saw the one guy, Nelson fall down, get back up and then fall down a second time and not get back up. This is consistent with Hodges and Whyte and with the blood evidence relating to Findley's blood. In my view this evidence is consistent with certain aspects of Hodges' evidence and is consistent with certain aspects of Whyte's evidence. This evidence, together with the evidence of Hodges and Whyte and the blood evidence leads to a reasonable inference Findley and Mitchell were acting as co-perpetrators, acting together in their assault of Nelson.

[99] In my view there is a reasonable inference that both Findley and Whyte caused the injuries that ultimately caused Nelson's death. The pathologist, from his examination was unable to determine the order of the injuries. As indicated in R. v. Ball, supra, "where co-perpetrators engage in a deadly assault, the Crown need not prove which of the attackers struck the fatal blow or blows." There are reasonable inferences available to a jury that Findley and Mitchell's culpability is either as co-perpetrators under s. 21(1)(a); as one being the principal perpetrator with the other aiding the principal perpetrator depending on the inferences drawn by the jury or as two individuals who formed an intention in common to carry out an unlawful purpose under s. 21(2) to assault Nelson and they know death was a probable consequence of the assault (where there is the involvement of one or two knives). It is not necessary for co-perpetrators to agree to carry out the common purpose, the question is whether there is an indication of common participation, which in my view, in respect of Findley and Mitchell, exists on the evidence as described above.

[100] The use of knives (potentially two knives) in my view leads to the reasonable inference that a person intends the natural consequences of their actions. This applies either that a person intends to cause another person's death by using the knife or they know a knife can cause bodily harm which is likely to cause death and are reckless as to whether death ensues or not. Here Mitchell pulled out a knife just after the pushing between the two groups commenced. Whyte yelled out "knife" and there is a reasonable inference Findley heard this. Findley was in a position to observe Mitchell chase Hodges and Whyte down Glenanna with a knife in his hand. Findley was in a position to see Mitchell running back to Huntsmill followed by Hodges and then Whyte. Findley would be in a position to see Mitchell's knife was still in his hand. Findley had already been involved in an altercation with Nelson that left Nelson "hurt," apparently injured and vulnerable. Findley, knowing Mitchell, with a knife in his hand, was running back towards Nelson, took a swing at Nelson with or without a knife, which caused Nelson to fall. The Crown argued Findley could have caused the fatal stab wound when he took this swing. In my view this is one of the inferences available to a reasonable jury, properly instructed. There is also an inference available that Findley and Mitchell are in a joint enterprise, where they meant to cause Nelson's death or they meant to cause bodily harm they knew was likely to cause death and they were reckless as to whether death would ensue.

[101] Finally, Ms. Dudding conceded Findley could be committed on a charge of assaulting Nelson. In fact, both Findley and Mitchell had formed an intention in common to confront and assault Nelson because he had called them out and accused Findley, the driver, of almost hitting him. Findley stopped the car, both Findley and Mitchell got out and went to the rear of the car to confront Nelson and his friends. Even before they got out of the car they were challenging Nelson from inside the car calling out to Nelson and asking what the problem was. At the outset of the confrontation there was a verbal altercation, which was followed by pushing and shoving. Mitchell pulled out a knife and chased the two friend's away leaving Findley, the driver who Nelson accused of almost hitting him, alone with Nelson. Ms. Dudding conceded Findley assaulted Nelson at the back of car and when Findley took the swing with his left hand and Nelson fell to the ground. This swing occurs as Mitchell is running back towards where Nelson and Findley are interacting, and Mitchell has the knife still in his hand. It would be open to a reasonable jury to draw the inference Findley would have seen Mitchell returning with his knife still out. Even if the jury concluded Findley did not have a knife and only assaulted Nelson with his fists in furtherance of the intention in common with Mitchell to assault Nelson, Findley could be found guilty of murder if the jury found he knew that Nelson's death was a probable consequence of the assault by himself and Mitchell. The fact he knew Mitchell had pulled out a knife, chased Nelson's two friends and was now running back toward Findley and Nelson with the knife still in his hand would be circumstantial evidence from which a reasonable inference could be drawn that Findley knew Nelson's death was a probable consequence of their assault on Nelson.

[102] Consequently, in light of all of the reasonable inferences available on the totality of the evidence, Nathaniel Findley will be ordered to stand trial on a charge of 2nd Degree Murder.

Released: May 2, 2017

Signed: Justice Peter C. West