WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

Section 110: Identity of offender not to be published

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

Section 111: Identity of victim or witness not to be published

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Section 129: No subsequent disclosure

No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

Section 138: Offences

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Date: June 15, 2020

Court File No.: Y278/19: Town of Oakville

Ontario Court of Justice

Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between

Her Majesty the Queen

— AND —

H.C. and I.S., young persons

Before: Justice Stephen D. Brown

Heard on: October 30, 31, November 1, 4, 5, 6, 2019 and February 7, 2020

Reasons for Judgment released on: June 15, 2020

Counsel:

• Monica Mackenzie — Counsel for the Crown
• Dean Paquette — Counsel for the accused H.C.
• Brendan Neil and Sarah Lawson — Counsel for the accused I.S.

BROWN, J.:

1.1 INTRODUCTION

[1] H.C. and I.S. are jointly charged as young persons within the meaning of the Youth Criminal Justice Act that on or about the 13th day of July, 2018, at the Town of Oakville, that they did cause the death of K.P. and thereby commit manslaughter, to wit: by criminal negligence with a firearm, contrary to Section 236(a) of the Criminal Code of Canada. Both youths pled not guilty to this charge.

[2] At the commencement of the trial, I.S. pled not guilty to the following criminal charges:

June 13, 2018

1. That he did possess a firearm, to wit: a sawed-off shotgun without being the holder of a licence under which he may possess it, contrary to section 91(1) of the Criminal Code of Canada;

2. That he did, without lawful excuse, use a firearm, to wit: a sawed-off shotgun in a careless manner, contrary to section 86(1) of the Criminal Code of Canada; and

3. That he did possess a prohibited firearm together with readily accessible ammunition capable of being discharged in the said firearm and was not the holder of an authorization or licence under which he may possess the said firearm in the place, contrary to section 95(b) of the Criminal Code of Canada.

July 13, 2018

1. That he did use a firearm to wit: a sawed-off shotgun in the commission of the offence of criminal negligence by discharging the said firearm at K.P. thereby causing the death of K.P., contrary to section 220(a) of the Criminal Code of Canada;

2. That he did, without lawful excuse, point a firearm, to wit: a sawed-off shotgun, at K.P., contrary to section 87 of the Criminal Code of Canada;

3. That he did, without lawful excuse, use a firearm, to wit: a sawed-off shotgun, in a careless manner, contrary to section 86(1) of the Criminal Code of Canada; and

4. That he did possess a firearm, to wit: a sawed-off shotgun, without being the holder of a licence under which he may possess it, contrary to section 91(1) of the Criminal Code of Canada.

[3] At the commencement of the trial, I.S. pled guilty to the following:

July 14, 2018

1. That he did willfully attempted to obstruct the course of justice by making a false statement, contrary to section 139(2) of the Criminal Code of Canada.

[4] In written submissions filed by Mr. Neil and Ms. Lawson, they concede that after reviewing the totality of the trial evidence, it is acknowledged that the Crown has proven the following two charges beyond a reasonable doubt against I.S.

June 13, 2018

1. That he did possess a firearm, to wit: a sawed-off shotgun, without being the holder of a licence under which he may possess it, contrary to section 91(1) of the Criminal Code of Canada; and

July 13, 2018

1. That he did possess a firearm, to wit: a sawed-off shotgun, without being the holder of a licence under which he may possess it, contrary to section 91(1) of the Criminal Code of Canada.

[5] H.C. pled guilty on March 25, 2019 and was sentenced on June 5, 2019 to several charges in relation to this occurrence before the case management judge, Justice LeDressay. He pled guilty to the following charges:

July 13, 2018

1. Possession of a prohibited firearm together with readily accessible ammunition capable of being discharged in the said firearm, and was not the holder of an authorization or licence to possess the said firearm in the place, contrary to Section 95(b) of the Criminal Code of Canada;

2. That he did willfully obstruct Mary Tinebra, a police officer for the Region of Halton, engaged in the execution of her duty investigating the death of K.P. by disposing of a firearm, contrary to s. 129(a) of the Criminal Code of Canada;

3. That he did without lawful excuse use a firearm, to wit, a sawed-off shotgun in a careless manner, contrary to s. 86(1) of the Criminal Code of Canada;

4. That he had in his possession a firearm while he was prohibited from doing so by reason of an order made pursuant to s. 51(1) of the Youth Criminal Justice Act at the Town of Milton on the 16th day of January 2018, contrary to s. 117.01(1) of the Criminal Code of Canada; and

5. That he did breach a recognizance entered into before Justice Cooper on the 6th day of July 2018, to wit: by being in possession of a cellphone or any mobile or electronic device contrary to s. 145(3) of the Criminal Code of Canada.

July 14, 2018

1. That he did willfully obstruct the course of justice by making a false statement, contrary to section 139(2) of the Criminal Code of Canada.

2. That he did commit public mischief in that, with intent to mislead, he caused Mary Tinebra, a police officer for the Region of Halton, to enter upon an investigation by making a false statement that accused an unknown person of having committed murder, contrary to Section 140(1)(a) of the Criminal Code of Canada.

[6] Both of these young men stand charged with manslaughter in the death of K.P. This tragedy occurred on July 13, 2018 in H.C.'s bedroom located in the basement of his grandmother's home in Oakville. K.P. was shot with a sawed-off 12-gauge shotgun that belonged to H.C.

[7] Present in the room at the time of the shooting was I.S., C.A. and the victim, K.P. The Crown's theory is that I.S. pointed the shotgun at the victim and pulled the trigger not knowing that the gun was loaded at the time. The Crown also urges me to find that it was H.C., who was not in the room when the shooting occurred, that loaded the gun earlier and did not tell anyone that he had done so.

[8] It is not really in contention at this trial that whoever it was that pointed the gun and pulled the trigger did not know at the time that the gun had been recently loaded.

[9] The Crown submits that it was H.C. who loaded the gun, but, on the evidence before me, the test is whether I can find beyond a reasonable doubt that he did so. I cannot.

[10] The Crown also submits that it was I.S. who pointed the shotgun and pulled the trigger that night, not knowing that it was loaded. Although I have a strong suspicion that this is what exactly happened, assessing the evidence as a whole as I must and assessing and weighing the evidence of C.A. as being the only other witness in the room when the gun was fired, I find that his evidence may very well be suspect and, therefore, I am unable to conclude beyond a reasonable doubt that it was I.S. who pointed and fired the gun that night. I will explain why in the following reasons.

[11] It goes without saying that this case is a tragedy for all of the people involved. Young men who made bad choices ended up with one of their friends suffering a needless and senseless death. Their families continue to feel the pain and the horror of the senseless death of K.P. because all of the group had an attraction and affinity to the "gangster" lifestyle. On several occasions in the previous four to six weeks preceding the shooting, all of them held and pointed the sawed-off shotgun at others and pulled the trigger. They photographed and videoed themselves doing that and posted the photos and videos on social media for their friends to see. They would do it after having consumed marihuana, Xanax and alcohol to the point of intoxication. Any of them could have been the victim at one point or another, and any of them could have been the accused.

[12] The lack of any adult supervision or awareness of these activities also struck a chord with me. It appears that there was no awareness of these activities by people who should have known and cared. All of these young men appear to have been living a carefree and irresponsible lifestyle. H.C. would have his friends over on a regular basis. None seemed to have employment or other responsibilities. Most had been in trouble with the law.

[13] H.C. somehow managed to pay about $1,500.00 in cash for the gun that killed the victim. He purchased it from C.A. or his associate without having a job or any other apparent source of income. They engaged almost daily in "chilling", hanging out together, with a seemingly endless supply of alcohol, Xanax and marihuana.

[14] H.C. had been released on a recognizance one week before this tragedy by Justice Cooper prohibiting him from possessing firearms and from associating with the victim, K.P. He was residing with his surety, his uncle, under the terms of the release, yet that evening he was breaching virtually every term of his bail.

[15] His uncle was at the house prior to the shooting, but later went out for a short while. He appeared to offer no supervision or control over H.C. despite the pledge that he made to the Court to do so. When the uncle came back home, he found K.P., who he knew as a friend of H.C., who was under a recognizance with a term prohibiting him from associating with K.P., dead at the end of his driveway. The uncle turned a blind eye to his responsibilities as a surety.

[16] The sawed-off shotgun that killed K.P. was kept under a couch or in a bag in H.C.'s basement room for four to six weeks before the incident occurred. Marihuana, alcohol and Xanax consumption was almost a daily ritual for these boys and there was no apparent supervision of them and the gangster lifestyle that they adored.

[17] Watching and reading the transcripts of H.C.'s and I.S.'s statements to the police concerned me. These were cowardly boys, coddled by their mothers during the police statements, who lied not only to their mothers but to the police in the interviews to deflect blame, point the finger at innocent individuals, and do everything that they could to deflect suspicion from themselves which ultimately proved to be partially successful. Their histrionics and the deceit employed to protect themselves knew no bounds. While professing to be devastated by the shooting of their friend, I find that they lied, attempted amateurishly to clean up after the shooting and, in H.C.'s case, changed clothes, shoes and hid bedsheets before or shortly after calling 911 while their friend lay dying or dead. Their actions speak loudly to the fact that they were only interested in protecting their own self-interests and shielding themselves from liability.

[18] Despite the sadness that this case engenders in me, my role is to decide the case fairly and impartially based on the trial record before me, the evidence that I accept and the law as I must apply it. I will do that to the best of my ability.

[19] At the outset I must say that I owe a great deal of gratitude to all counsel in this trial. Many Agreed Statements of Fact were made exhibits. This made the calling of many witnesses unnecessary and shortened this trial considerably. As well, all counsel have been professional and respectful to each other, and have made cogent, intelligent and helpful submissions to me, in writing and orally. It is truly a blessing in a difficult case such as this to have counsel of such high calibre, intelligence and professionalism assist the Court while ably representing their clients.

2.0 ISSUES BEFORE THE COURT

[20] The credibility and reliability of C.A. is a crucial issue in this case. His evidence regarding who shot the victim and who loaded the gun plays a central role in the Crown's obligation to prove the elements of these offences beyond a reasonable doubt.

[21] A second issue in this case is whether the Crown has proven beyond a reasonable doubt the elements of criminal negligence. With respect to H.C., has the Crown proven beyond a reasonable doubt the underlying unlawful act and whether there is a causal connection between the unlawful act or acts and the death of the victim, or has there been an intervening act that breaks the causal connection?

[22] Another issue with H.C. is that his counsel argues that many of the avenues to my finding that the criminal negligence has been made out are precluded by previous pleas entered by H.C. that he has been sentenced on that relate to many of the offences related to this incident. Does the doctrine of Res Judicata prohibit or hinder me from using evidence such as careless storage of firearm or unlawful possession of a prohibited weapon for which he has pleaded guilty before another Court, found guilty, sentenced and served his sentence?

[23] Finally, what is the effect of the post-offence conduct of H.C., I.S. and C.A.?

3.0 EVIDENCE AT TRIAL

OVERVIEW

[24] H.C., I.S., C.A., and K.P. were friends of each other. C.A. had only met I.S. on one prior occasion before this shooting but considered him to be a friend because he was a friend of the rest in the group. C.A. was the oldest of the group and was an adult at the time.

[25] I.S. and K.P. would socialize with H.C. usually several times a week at the residence where H.C. resided with his grandmother and his surety, J.C., on a residential street in Oakville.

[26] On July 13, 2018 H.C. was on a recognizance that included conditions of house arrest, non-association with K.P., not to possess weapons or ammunition, and not to possess any cellphone or mobile device. That recognizance was entered into on July 6, 2018, just one week prior to the shooting.

[27] Around the beginning of June 2018 H.C. had acquired a sawed-off shotgun, admitted to be a prohibited weapon, and ammunition, a purchase which was, at the very least, facilitated by C.A.

[28] Their pattern of playing with the shotgun to take videos and photos became the norm for all of these young men whenever they were together.

[29] On one occasion prior to the fatal shooting, the sawed-off shotgun was taken to the house of H.C.'s girlfriend. Drugs and alcohol were consumed on that occasion as well. C.A. was present with H.C. C.A. was dancing with the shotgun inside of his pants when, to his surprise, it fired and blew a hole in his pants and in the floor. He was uninjured. C.A. did not know how the gun got loaded. He was not aware if he had loaded it and forgot because of his intoxicated condition or if someone else had loaded it. That incident became common knowledge among the group, even among those who were not present when the gun went off.

[30] Despite this incident, the group continued to play and pose with the gun and treat it like a toy frequently while intoxicated or under the influence of drugs and alcohol.

[31] On July 13, 2018 the group got together again. It was H.C., I.S., K.P., and C.A.

[32] Again, they all indulged in drugs and alcohol to the point of intoxication. They had planned to go to a festival in downtown Oakville later that evening called Midnight Madness. Because H.C. and I.S. had been getting threatening messages on their cell phones throughout the night, the group agreed to take the shotgun to the festival. It was C.A.'s opinion that if they were going to take the gun, it would be loaded. They had been in H.C.'s room in the basement of the residence playing with the gun and pulling the trigger numerous times without consequence.

[33] H.C. indicated to the police that although he was initially going to go to the festival with all the boys, he then changed his mind and decided to stay home with C.A. because he was on a recognizance with a term of house arrest at the time. He stated that only I.S. and K.P. would go to the festival. They wanted to try to find some girls.

[34] Just prior to the shooting, H.C. went upstairs to get a drink. At that point he "thought" I.S. was holding the gun. While upstairs he heard a loud noise that he thought initially was a firecracker. He ran downstairs to find that K.P. had been shot. H.C. indicated that he saw C.A. holding the gun before he left to go to the window in the room across from his to exit. He ran back upstairs almost immediately. C.A. instantly gathered up his belongings and fled the residence by climbing out the window of a room across from H.C.'s room. He called a cab to take him to the GO station so he could take the train back to Mimico. He then purchased some marihuana from one of his contacts and went home.

[35] The next morning C.A. heard news reports saying that the killing of K.P. was a "targeted shooting" and that the police were searching for two suspects. He made no attempt to contact the police and did not give a statement until August 14, 2018 when the police executed a search warrant at his house and arrested him for manslaughter.

[36] After C.A. had fled out of the basement window, H.C. and I.S. carried K.P.'s body up the stairs and out the front door where they left his body at the end of the driveway. Attempts were made by H.C. to clean up the scene. He changed his clothes and shoes and tried to hide the bloody sheets that were on the bed either before or shortly after calling 911 to advise of the shooting and the location. He advised police that K.P. was outside of the residence. I.S. gave an initial statement to the police alleging that K.P. was shot outside of the house as well.

[37] When the police arrived, H.C. and I.S. both provided them with patently false information. H.C. advised police that he was out of the room when two unknown males shot K.P. He also gave the police the name of a young man who was thought to be a suspect, as did I.S.

[38] I.S.'s initial statement to the police was misleading as well. It described the victim as having been shot by two unknown suspects.

[39] The misleading information given to the police by H.C. and I.S. resulted in the police undertaking steps to locate these two unknown suspects by issuing two media releases describing the incident as a targeted shooting. These are the media releases that C.A. became aware of the following day.

[40] This false information almost led to the arrest and execution of a search warrant against a "suspect" whose name was provided to the police at the outset by both accused. The police were in the process of obtaining a search warrant and arresting the named suspect when they received information from another witness that it was one of the occupants of the house who had shot K.P.

[41] The investigation then shifted its focus on the two accused and ultimately lead to the charges facing them in this trial.

EVIDENCE OF FACT WITNESSES

3.1 Evidence of N.T.

[42] N.T. testified as a Crown witness. He testified that the first time he saw the sawed-off shotgun was in a video. The video showed C.A. with the gun. He thinks the video was on H.C.'s phone and that C.A. had sent the video to H.C.

[43] N.T. further testified that when he was in custody with H.C., H.C. mentioned that he wanted to buy a gun.

[44] N.T. said that he had personally seen the gun probably more than a dozen times. He had seen it at H.C.'s residence and at A.A.'s (H.C.'s girlfriend) house.

[45] N.T. stated that whenever they were all hanging out, the gun was always out. He said the gun was kept in a duffle bag or sometimes under the couch in H.C.'s basement room.

[46] N.T. testified that he only ever saw C.A. and H.C. load the gun, and both demonstrated how to load it. N.T. further testified that he, K.P. and I.S. would be there when it was loaded. He stated it would usually be unloaded right away, but on one occasion it was left loaded by C.A. for about 20 minutes and then was unloaded. He also testified that H.C. usually unloaded it right away.

[47] N.T. testified that when the shotgun was out, he, H.C., I.S. and K.P. would all hold the gun at various times. They would "flash" the gun and point it at the camera.

[48] N.T. provided evidence at trial with respect to the effect that Xanax had on him when he consumed it with alcohol or marihuana. He testified that it would make you intoxicated, cause you to fall everywhere, and also causes blackouts where you wake up the next morning and cannot remember what you did.

[49] He has a criminal record consisting of some sixteen entries for offences of dishonesty, breach of court orders, and a weapons offence.

[50] Notwithstanding this, he generally seemed to be attempting to answer questions in a direct and straightforward manner and I found him to be a credible witness. He did not minimize his own involvement in criminal conduct with the gun or other matters, did not seem to have an agenda against any of the involved parties and did not exhibit any bias against anyone.

[51] Although I do not accept all of his evidence as reliable, he for the most part attempted to answer questions when giving evidence to the best of his ability. Some of his evidence was incorrect, such as his description of the exit window being in H.C.'s room when the evidence clearly shows it was in the room across the hall from that room, but any unreliable evidence seemed to me to be on minor matters or details.

3.2 Evidence of C.A.

[52] C.A. testified before me as the principal Crown witness.

[53] Although initially cooperative with the police and Crown, C.A. failed to attend court to testify on the first day of trial as required by his subpoena and a material witness warrant was issued for his arrest. He had left his job and was staying in a motel to avoid complying with his court obligations until he was located by the ROPE squad, apprehended and kept in custody pending the completion of his evidence.

[54] When he testified at trial on November 4th and 5th, 2019, he was almost 21 years of age, being born in December of 1998. He had worked in a produce warehouse for about 9 months prior to his giving evidence in court. He was the oldest member of the group of friends involved in this event.

[55] He had a youth court record which is found in sealed Exhibit 22. He has an adult record as follows:

• 2017-10-12 Milton: Theft under $5000 — 90 days intermittent – Restitution $1000 and Probation 2 years
• 2017-10-12: Break Enter and Commit — 60 days intermittent (conc) probation 2 years
• 2018-09-24: Break Enter & Theft (1) Fail to Comply with probation — (1) 60 days intermittent & probation 12 months (2) 60 days intermittent (conc)

[56] C.A. has a lengthy youth and adult criminal record consisting of 11 findings of guilt or convictions, including offences of dishonesty, break and enter, theft, and failing to comply with court orders, including undertakings, recognizances and probation orders.

[57] He met H.C. through his girlfriend who was friends with H.C.'s girlfriend at the time.

[58] During the time leading up to the night of the shooting, C.A. would socialize with H.C. at H.C.'s girlfriend's residence about once a week. During this period of time K.P. and I.S. would be over at H.C.'s residence more often, usually every other day. N.T. was present on some occasions. C.A. had only socialized with I.S. one time before the shooting.

[59] C.A. lived in Mimico and would take the GO train to get to H.C.'s residence in Oakville. He would take a cab from the train station to the Oakville residence.

[60] Once there he would "hang out and chill", drink alcohol that he sometimes brought (he was the oldest of the group and could legally purchase it) and take Xanax and marihuana that he would also bring with him from time to time.

[61] C.A. at least facilitated the sale of the shotgun to H.C. through an individual named "W.". This transaction occurred at around the start of June. He testified that he was present when "W." arrived with him with the shotgun in a black duffle bag and he thought that two shells were a part of the sale (although N.T. testified that he had a times seen a box of shells with the shotgun). He said that W. had sold the gun and ammunition for between $1,000.00 to $2,000.00, but he thought that H.C. had paid $1,500.00 for it in cash.

[62] C.A. testified about a prior occurrence with the gun when it discharged in his pants. He indicated in cross-examination that he was intoxicated and had the gun down his pants. He did not know it was loaded when he pulled the trigger. When the gun discharged, it put a hole in the floor, luckily not causing injury to himself or anyone else. With respect to this incident, while C.A. initially testified that he was not aware the gun was loaded at the time or how it came to be loaded, in cross-examination he admitted that he may have actually loaded the gun himself and then later forgotten or not realized it was loaded due to his consumption of alcohol and Xanax.

[63] C.A. had been consuming Xanax and alcohol that night. He indicated in cross-examination that it impacted his judgment and affected his memory. Specifically, he said if you consume too much Xanax, especially when mixing it with alcohol, you can black out and forget things.

[64] This evidence from C.A. is important because on the night of June 13, 2018, he indicated that all four males were consuming Xanax, alcohol and marihuana, the exact same substances that he was consuming on the earlier occasion when he accidentally discharged (and may have loaded) the same firearm in his pants. Although no expert toxicological evidence was called at the trial, he and N.T. both testified about the effects on them of mixing this drug with alcohol and marihuana.

[65] His evidence demonstrates his prior knowledge of and experience with the gun. He knew how to load it, he did load it, and he also taught the others how to load it.

[66] On the evening of the shooting, C.A. testified that he had consumed the following alcohol and drugs:

a. One Xanax pill;

b. Either a quarter or a half of a "two-six" of hard liquor (vodka), meaning somewhere in the range of 6 to 13 ounces of vodka; and

c. Marihuana in an unknown quantity.

[67] He testified that consuming Xanax and alcohol would make him feel drowsy, sometimes it would make him black out, and it would cause lapses in memory where he would not be able to remember significant parts of the night, if anything at all. He further confirmed that Xanax has an effect on his memory. He testified that he personally has experienced black-outs on multiple times from consuming it.

[68] With respect to the night of July 13, 2018, C.A. testified that by approximately 10:00 p.m. he was "pretty wavy", which he described as being intoxicated, and feeling the effects of the alcohol, pills and marihuana. He further testified that as the night was progressing, he was feeling more intoxicated, and the rest of the parties present were also intoxicated.

[69] An example of C.A.'s questionable reliability and difficulty recalling events pertaining to July 13, 2018 is his multiple versions of events pertaining to the parties attending Midnight Madness:

a. In examination in-Chief, C.A. testified that all four parties were going to attend Midnight Madness, but first they were going to pre-drink, pop pills and chill at H.C.'s residence;

b. Later in his examination in-Chief, he testified that, in fact, "nothing was set in stone", they were just "going with the flow", but it was his recollection that all four parties were going to go;

c. In cross-examination, however, he testified that, in fact, the plan might have been for him and H.C. to stay back at H.C.'s residence while I.S. and K.P. went down to Midnight Madness; and

d. Finally, in re-examination, C.A. testified again that he really could not remember what the plan was, but it was very much possible that he and H.C. were not going to attend Midnight Madness.

[70] Further, C.A. agreed that he may have forgotten about H.C. being on house arrest on July 13, 2018 due to the combination of alcohol and Xanax he consumed that night.

[71] It is clear from C.A.'s own testimony that his memory and ability to recall events, both on July 13, 2018 and on other occasions, was impacted by the consumption of drugs and alcohol.

[72] It was submitted by defence counsel that his memory and ability to recall and recount the events of July 13, 2018 should be seriously questioned. I agree with counsel on this submission.

[73] Although C.A. professes to have a good memory of the events of that night and, although some of his evidence such as times of arriving and leaving Oakville are corroborated by GO station videos, on the crucial issues that his testimony impacts on I cannot discount that his evidence may be unreliable or fabricated.

The Sale of the Gun to H.C.

[74] With respect to H.C. purchasing the firearm that was used in the shooting of K.P., C.A. testified that H.C. asked him if he knew where to get a firearm. C.A. provided H.C. with the name of a seller (W.) and connected them. Despite the fact that prior to the sale he sent a video of himself holding the gun and waving it around, he testified that it was not his gun, he was not involved in the arrangements for the sale of the firearm, and that H.C. dealt with the seller directly.

[75] He further testified that he was present for the sale of the gun, which took place at A.A.'s residence. He stated that W. brought the gun in a duffle bag with one or two bullets, and sold the gun to H.C.

The Events of July 13, 2018

[76] On July 13, 2018, H.C., K.P., C.A. and I.S. were all hanging out in the in the backyard of H.C.'s residence, then moved to the basement. While they were outside, C.A. testified that J.C., H.C.'s uncle and one of the sureties on his bail, came out to check on H.C. and to see who he had over. This evidence was not corroborated insofar as J.C. did not testify at this trial.

[77] One of the terms of H.C.'s bail was that he was not to have contact with K.P. As K.P. was present when C.A. arrived at the house, this would have been a clear breach of a condition of the bail that J.C. was a surety on. He either knowingly allowed this breach to occur or he never checked on the friends that H.C. had at the house that day.

[78] The shotgun that belonged to H.C. was out and being handled by all four of the males. All four parties were playing with the gun, which included pulling the trigger of the unloaded firearm. Photos and videos were being taken of themselves with the gun.

[79] C.A. testified that when they would hang out at H.C.'s residence, the gun would usually be just out and about within everyone's reach, and they played with the gun as if it was a toy.

[80] He further indicated that when they played with the gun, they would pose with it and take photos and videos, and they would also pull the trigger, but only if everyone knew the gun was not loaded.

[81] C.A. testified that while the gun was out on July 13, 2018, he did not see any ammunition that entire night, and it was his belief throughout the entire night that the gun was unloaded.

[82] He testified that the parties had been playing with the gun the entire evening and knew it was unloaded because they had pulled the trigger many times throughout the night. He stated that they pulled the trigger because they all knew it was unloaded and therefore there was no downfall or risk to their behaviour.

[83] He indicated that if anyone had known the gun was loaded, they would not have been playing with it in the manner that they did and they all would have acted differently. Specifically, if I.S. had known the gun was loaded, it would not have been pointed at K.P.

[84] With respect to the way the parties handled the firearm, C.A. testified that there is a difference between how they handled a gun, and a gun that had ammunition beside it. He indicated that if the gun was present without ammunition, they felt safe to pull the trigger as there was no risk. If there was ammunition present, they would handle the gun more carefully because they may not necessarily know if it was loaded or not.

[85] He then confirmed again that on July 13, 2018, it was his belief that the gun was "unloaded the whole time", he never saw anyone load it and he has no idea how it came to be loaded.

[86] C.A. testified that while he believed they intended to bring the firearm to Midnight Madness, there was no discussion between the parties about loading the firearm. C.A. admitted that he simply assumed the gun would be loaded if they were bringing it out. He further testified that when they talked about taking the gun downtown, the group was split as to whether they should actually take the firearm, and he cannot remember who was on what side of that disagreement or what they eventually decided.

The Shooting of K.P.

[87] At the time of the shooting, C.A. indicated that each of the parties were in the following locations:

a. H.C. was not present in the room as he had gone upstairs;

b. K.P. was in the general vicinity of H.C.'s bed, either sitting or standing;

c. C.A. was "probably" standing close to the window smoking marihuana from a bong; and

d. I.S. was right next to C.A., in front of the coffee table, and he believed I.S. was also standing.

[88] Out of the corner of [his] eye", C.A. saw I.S. pick up the firearm and shoot K.P. After K.P. was shot, the first thing he did was put the bong down and run to the victim, who was now sitting on the bed. He could see that K.P. was wounded.

[89] After the shooting, I.S. stood there in shock for about 15 or 20 seconds with the firearm in his hands.

[90] After K.P. was shot, C.A.'s first instinct was to flee the scene. He did not stay to help; he did not call 911. He admits that in that moment, he was only worried about himself.

[91] He gathered up all of his belongings, including his money, cell phone, phone charger, headphones, cigarettes and then left through the window in the basement. When he got outside, he realized he had lost his phone and circled back to locate it, then fled the scene.

[92] It was only when shown photos of the scene at trial that C.A. realized that he actually forgot his cell phone charger and headphones there because they were in photos taken by police.

[93] C.A. took the GO train home. He still did not call 911 while he was at the GO station waiting for the train because he continued to be only worried about self-preservation, his own wellbeing, and what would happen to him if he did call. As he testified: "Everyone would've been worried about their own wellbeing".

[94] After exiting the window he took a cab to the Oakville GO train station and then subsequently took a train to Mimico. The GO station surveillance video confirms him being there. He also appears to have a brief conversation with at least one other young man who he testified was someone that he knew named Z. and two other people and that he told them what happened. He stated in direct examination:

Q. Okay, so you get back to the, I take it the Oakville GO station?

A. Yes, ma'am.

Q. Okay, and do you have to wait for a train, do you recall?

A. Yeah, I have to wait a little bit. I believe I was catching the last train at 12:28 p.m.

Q. Okay, and what do you remember about being at the GO train station?

A. I was so scared and I was in shock, then I seen friends of K.P. and I told them what happened. I told them how I was in shock, how, how I was so scared.

Q. Okay, and how many – you said friends of K.P. How many people was there?

A. I knew one, but I believe it was a group of three.

Q. Okay, and which one did you know?

A. His name was Z. The last name I'm not a hundred per cent on.

Q. Okay, and he was with two other people?

A. Yes, ma'am, but I didn't know the other people.

Q. And were they males?

A. Yes, they were males.

Q. All around your age?

A. Yeah.

Q. And how did you know that they were friends – or, first of all, do you know whether they were all friends of K.P.'s or not?

A. No, I just knew Z.

Q. Okay.

A. I just knew Z.

Q. And what do you recall telling him about what happened?

A. How they just – I just said, "Something bad just happened." He asked me what, I told him and then we sat and watched the news inside the GO train station.

[95] There were no witnesses who testified at the trial to confirm this, although the GO surveillance corroborates the time and that he may have had brief conversation with one male shortly after entering the station. I am unaware of whether the police made any efforts to determine who "Z." was or to interview him in an attempt to corroborate C.A.'s evidence on this point.

[96] On his way home, C.A. stopped to purchase marihuana from a friend.

[97] When he woke up the next morning, C.A. heard on the news that the incident was a targeted shooting and the police were looking for two suspects. He believed he was a suspect and I.S. was the other suspect. He believed this because there were only two people who were in the room when K.P. was shot, and therefore only he or I.S. could have been the shooter. He thought that H.C. must have told police that this was a targeted shooting and had given the name of himself and I.S. for fear he was going to be "thrown under the bus".

[98] C.A. contacted H.C. and advised him that it was I.S. who done it and that it was an accident. He recalled this after refreshing his memory from his police statement of August 14, 2018.

[99] It was not until August 14, 2018 that the police executed a search warrant on the residence of C.A. He was arrested, taken to the police station in Oakville, and he provided a statement to the police. At the time he gave this statement, he was under arrest in relation to the homicide of K.P., and he believed that he was about to be blamed for what happened and spend a long time in jail.

[100] Despite the police finding a quarter pound of marihuana in C.A.'s residence and despite him admitting involvement in numerous criminal offences, he was not charged with any criminal offences arising out of his arrest or the events of July 13, 2018 and was released unconditionally.

3.3 Police Statements and Agreed Statement of Fact of I.S.

[101] I.S. did not testify at trial, but he did provide statements to the police on July 14, 2018 and August 23, 2018. As well, his counsel made certain admissions in his Agreed Statement of Fact.

[102] The Crown submits that I.S. is not credible due to his post-offence conduct of giving a false statement to the police on July 14, 2018. The Crown further submits that the reason for I.S. providing the false statement was clearly an attempt to cover up his involvement in the shooting of K.P.

[103] I.S., however, in his statement of August 23, 2018, provided an alternative explanation as to why he lied to the police in his initial statement. He stated that the reason he gave the false statement to police was because C.A. was the killer and he was on the run and that made I.S. fearful. He indicated that he was afraid that C.A. was at large, and that if he provided a statement against him to the police, C.A. would come find him.

[104] He further indicated that he was scared of C.A., it was not safe to be around him and he was fearful because C.A. had fled the scene and had not been caught by police.

[105] When police attended, H.C. and I.S. advised police that the responsible parties were unknown males all dressed in black wearing ski masks who had come from the west. They also advised police that I.S. was receiving messages from unknown parties threatening to shoot him. They avoided answering further questions by police about what had happened.

[106] I.S. provided the name of another youth to police, as did H.C., as a suspect.

[107] At the time of the shooting, I.S. said that he did not recall the events. He stated that he was high from the alcohol and drugs that he had been using and that affected his memory.

[108] The Crown submits that this is incredible and unlikely. The Crown points to portions of his second statement to the police where he states that it was "possible" that he could have shot the victim. In response, his counsel points out that he was simply acknowledging that anything was possible because he does not recall the events at the time of the shooting. I do not accept that this is a clearly inculpable statement.

[109] At the police station during his statement given on July 14, 2018, I.S. continued to mislead the police as did H.C.

[110] This statement was obviously proven false through police investigation.

[111] I.S. said in his second statement that he believed in his mind that there is no possible way that he could have shot K.P., that he does not remember holding the gun himself, but does remember C.A. holding the gun. He also acknowledged that he really does not know how K.P. was shot. He testified that he does not remember everything that happened that evening.

[112] When asked by the officer if it was possible that he was holding the gun when it went off, he fairly acknowledged that it is possible because he does not remember the events fully.

[113] He stated that he did not see H.C. or C.A. shoot K.P., and that H.C. was not present in the room when the victim was shot.

[114] Neither I.S. nor H.C. mentioned that C.A. was present that evening in their first statements to the police.

[115] It is appropriate at this point to reproduce the Agreed Statement of Fact filed on behalf of I.S. It is Exhibit 2 in these proceedings.

On Friday 13th July 2018, the accused H.C. had three friends over to his residence: K.P., the accused I.S., and C.A. Eventually, all four were hanging out in the basement of the accused's, at Oakville. The accused H.C. was living with his uncle and grandmother and staying in the basement where he had a bedroom that also contained a sitting area and television. During the evening, the four smoked marihuana and drank alcohol. K.P., C.A. and H.C. also took Xanax.

The accused H.C. had purchased a sawed off single barrelled 12 gauge shotgun and some cartridges some months prior. This gun meets the definition of a prohibited firearm. None of the parties were licenced to possess a firearm. On the evening of July 13th, the shotgun was out and was being handled by all four of the males. The four were posing with the gun, and pulling the trigger of the unloaded firearm. Photos and videos were being taken. One of the cartridges had been fired (as determined by forensics) and was in a red backpack.

Around 11:00 pm, there was talk of going to Midnight Madness in downtown Oakville. K.P., C.A. and H.C. planned to go to Midnight Madness.

At some point, the gun was loaded. H.C. went upstairs to the main floor of the residence to get something before they went out. The other three boys were in his bedroom. H.C. heard a bang which was the gun going off. He rushed downstairs. When he got to the bedroom, K.P. was laying on the bed and had been shot at close range in the left side of his chest.

The three boys panicked. C.A. fled. H.C. and I.S. took steps to make it appear as though K.P. had been shot by unknown intruders. Over the next few minutes, H.C. and I.S. carried K.P. upstairs and outside to the sidewalk at the end of the driveway. H.C. called 911 from the home phone on the main level at 11:16:50 and said "someone's been shot". He advised the dispatcher of the address and said that the person (who had been shot) was outside.

H.C. hid the bedspread which was soaked in blood in a closet and he changed his clothes and shoes. He also disposed of the gun in the nearby bushes on a neighbour's property, where it was later located by police. It had been taken apart into 3 pieces. I.S. admits these facts but denies knowledge.

J.C., C.H.'s uncle, arrived home and found K.P. laying at the end of the driveway, and I.S. with him. J.C. called 911 and told them that someone had overdosed. He was told that EMS had already been called to that address for a shooting. He opened K.P's shirt and saw the wound and realized that K.P. had been shot. At 11:21 pm, just as he was about to start CPR, police arrived and commenced CPR. Police couldn't find a pulse on K.P. EMS arrived and at 11:35 pm K.P. was pronounced deceased at the scene.

When police arrived, they were told that the responsible parties were several males all wearing all black and wearing ski masks on foot, who came from the west.

Both H.C. and I.S. provided statements. Both accuseds advised that K.P. had been receiving threatening messages that evening. Both ultimately provided a name of a young male of similar age residing in Oakville.

Based on the information provided by H.C. and I.S., police investigation initially centred on locating and identifying the fleeing males and investigating the male named by both parties. Police set up a perimeter search of the area looking for suspects in the shooting. They continued to investigate and ultimately were preparing to attend the male's house, arrest him and execute a search warrant of his residence. Just prior to police going to execute the search warrant, a witness who had heard that it was actually one of the males in the house with the victim who had shot him, attended the police station. Police then held off on executing the warrant and further investigated the new information.

3.4 Police Statements and Agreed Statement of Fact of H.C.

[116] Like I.S., H.C. did not testify at the trial but did give three statements to police over the course of their investigation. He also entered an Agreed Statement of Facts at the commencement of the trial.

[117] As with I.S., I acknowledge that the police statements and Agreed Statement of Facts are only to be used as evidence for or against their makers, not against their co-accused. Their statements cannot be used for or against each other.

[118] As his counsel concedes in his written submissions, H.C. was clearly untruthful with police in his statements.

[119] It would be helpful at this point to reproduce Exhibit 1 which is the Agreed Statement of Fact for H.C. that was filed in these proceedings:

On Friday 13th July 2018, the accused H.C. had three friends over to his residence: K.P., the accused I.S. and C.A. Eventually, all found were hanging out in the basement of the accused's residence at Oakville. The accused H.C. was living with his uncle and grandmother and staying in the basement where he had a bedroom that also contained a sitting area and television. During the evening, the four smoked marihuana and drank alcohol. C.A., K.P., and I.S. took Xanax.

There was a sawed off single barrelled 12 gauge shotgun and two cartridges in the basement that was being handled by all four of the males. This gun meets the definition of a prohibited firearm. The four were posing with the gun, making gang signs and pointing it, and using it in a careless manner. Photos and videos were being taken. The males had used the gun in this manner on previous occasions. A cartridge that had been fired previously (as determined by forensics) was in a red backpack. Another cartridge that had never been fired was on the coffee table in the accused's room.

Around 11:00 pm, K.P. and I.S. were preparing to go to Midnight Madness in downtown Oakville. At some point, the gun was loaded. H.C. went upstairs to the main floor of the residence to get something before they went out. The other three boys were in his bedroom. When H.C. went upstairs, I.S. was holding the gun. H.C. heard a bang which was the gun going off. He rushed downstairs. When he got to the bedroom, K.P. was laying on the bed and had been shot at close range in the left side of his chest.

The three boys panicked. C.A. fled. H.C. and I.S. took steps to make it appear as though K.P. had been shot by unknown intruders. Over the next few minutes, H.C. and I.S. dragged K.P. upstairs and outside to the sidewalk at the end of the driveway. H.C. called 911 from his home phone on the main level at 11:16:50 and said "someone's been shot". He advised the dispatcher of the address and said that the person (who had been shot) was outside. H.C. hid the bedspread which was soaked in blood in a closet and he changed his clothes and shoes. He also took the gun apart into 3 pieces and disposed of it in the nearby bushes on a neighbour's property, where it was later located by police.

J.C., C.H.'s uncle, arrived home and found K.P. laying at the end of the driveway, and I.S. with him. J.C. called 911 and told them that someone had overdosed. He was told that EMS had already been called to that address for a shooting. He opened K.P.'s shirt and saw the wound and realized that K.P. had been shot. At 11:21 pm. just as he was about to start CPR, police arrived (four minutes after the 911 call) and commenced CPR. Police couldn't find a pulse on K.P. EMS arrived and at 11:36 pm K.P. was pronounced deceased at the scene.

When police arrived, they were told that the responsible parties were several males all wearing all black and wearing ski masks on foot, who came from the west.

The accused was transported to 20 Division, Oakville for an interview. Investigation revealed that before arriving at 20 Division the accused communicated with his mother, A.C., via text using a cell phone.

The accused was interviewed by Officer Mary Tinebra on 14th July 2018. The accused advised that he had K.P. and I.S. over that night. He said that K.P. had been receiving messages that evening from a male threatening death. He said the messages indicated that the person knew that K.P. was at the residence. H.C. provided the name of a male who is of similar age and lives in the Oakville area. This male had been sending messages to K.P. indicating he was going to "slap the fuck outta [him]" and that he knew K.P. was at the residence, but H.C. provided this information and embellished it to divert suspicion from what really occurred.

The accused stated that he was upstairs in the kitchen of the residence when he heard a loud bang which sounded like fireworks. He could hear one of the males screaming and so he ran back downstairs into the basement where he saw this male crying hysterically. He saw that K.P. had been shot. The accused stated that I.S. told him two people came into the house through the window. He couldn't see their faces but described one as being tall and one as being chunky. H.C. said that he had heard a car which sounded like a diesel SUV speeding off in a northerly direction. H.C. never mentioned C.A. to police or indicated that C.A. was at his house when this happened.

I.S. was also interviewed by police. He indicated to police that he had heard gunshots, looked out the window and saw that K.P. had been shot. He said he exited through the window and ran to K.P. He also provided information about someone having issues and threatening K.P. and ultimately provided the same name provided by H.C.

A post-mortem was conducted at Hamilton General Hospital on July 14th and the preliminary cause of death was determined to be a penetrating gunshot wound of the torso.

H.C received a snapchat message from I.S. on July 14th. It said something to the effect of "Bros for life. I lost K.P. as a friend and I can't lose you too". He also received a snapchat message from C.A. It said "I.S. did it, I.S. did it, on my mom's life, and I didn't want to get twined up in it".

Based on the information provided by H.C. and I.S., police investigation initially centred on locating and identifying the fleeing males and investigating the male named by both parties. Police set up a perimeter search of the area looking for suspects in the shooting. They continued to investigate and ultimately were preparing to attend the male's house, arrest him and execute a search warrant of his residence. Just prior to police going to execute the search warrant, a witness who had heard that it was actually one of the males in the house with the victim who had shot him, attended the police station. Police then held off on executing the warrant and further investigated the new information.

[120] Various other aspects of his evidence will be discussed in the Analysis section of this judgment.

4.0 LAW & ANALYSIS

[121] A central issue in this case is credibility. To arrive at my decision, I have analyzed the evidence presented in this case with the following principles in mind.

[122] Firstly, the accused is presumed innocent unless and until proven guilty beyond a reasonable doubt. The burden of proof remains on the prosecution throughout the trial. The accused has no burden to disprove any elements of the charges. The standard of proof that the Crown is required to meet in any criminal trial is a very high one indeed. This is a heavy burden and it never shifts. Both defendants have no obligation whatsoever to establish their innocence.

[123] Secondly, the Crown is required to prove the guilt of the defendants beyond a reasonable doubt. Reasonable doubt is not an imaginary far-fetched or frivolous doubt, nor a doubt based on sympathy for, or prejudice against, any person involved in this trial. A "reasonable doubt" is a doubt that arises logically from the evidence, or the absence of evidence.

[124] It is nearly impossible to prove anything to an absolute certainty, and the Crown is not required to meet that standard of proof. However, it is not enough for the Crown to demonstrate that the defendants are "probably" guilty or "likely" guilty of an offence – this falls short of proving guilt beyond a reasonable doubt.

[125] For the Court to find that the Crown has proven beyond a reasonable doubt that the accused are guilty of the offences charged, the Court must be sure that they committed the offences. If, following careful consideration of all the evidence, there remains in the Court's mind a reasonable doubt as to whether they committed the offences, then the Court must find them not guilty.

[126] The standard more closely approaches absolute certainty than the standard of proof on a balance of probabilities. In R. v. Starr, Mr. Justice Iacobucci stated:

In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177:

If standards of proof were marked on a measure, proof "beyond reasonable doubt" would lie much closer to "absolute certainty" than to "a balance of probabilities". Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of no significance, but the idea itself must be conveyed.

[127] In this case, the defendants have not testified but have provided Agreed Statements of Fact and gave interviews and statements to the police that the Crown put in as evidence. I am mindful of the dictates of the Supreme Court of Canada in R. v. W.(D.). There, Justice Cory for the majority indicated that in a case where credibility is important, the trial judge is required to instruct the jury or himself, if it is a judge alone matter, that the defendant must be acquitted if the defendant's evidence is believed.

[128] In this case both accused did not testify, as was their right. However, both gave statements to the police. H.C. gave three statement and I.S. gave two. Accordingly, it will be necessary to use the contents of those statements in the context of a W.D analysis as the Crown led those statements as part of its case.

[129] Each defendant is entitled to an acquittal even if the trier of fact disbelieves his evidence, but his evidence raises a reasonable doubt with respect to his guilt.

[130] Even if the trier of fact is left in no doubt by the evidence of the accused, the trier of fact must, nevertheless, ask himself on the basis of the evidence which he does accept, if he is convinced beyond a reasonable doubt by that evidence of the guilt of that defendant.

4.1 Credibility and Reliability of Witnesses

[131] Witnesses are not presumed to tell the truth. The evidence of each witness must be assessed in the light of the totality of the evidence without any presumptions, except the general and overriding presumption of innocence.

[132] A witness whose evidence on an issue is not credible, cannot give reliable evidence on the same point. However, a credible witness may give unreliable evidence.

[133] In assessing a witness' credibility and reliability, I must consider the witness' perception, memory and sincerity. I must consider the witness' ability to observe, store, recall and report evidence accurately, reliably and truthfully. I must consider the witness' interest or bias, if any, including animosity. In assessing the evidence of a witness, I try to listen carefully to their testimony and make observations of them while they are on the stand.

[134] I have to take into account that appearing and testifying in court can be a very stressful occasion for many persons and that witnesses can exhibit this in many different ways.

[135] As a result, I do not place as much weight on a witness' appearance or demeanour on the stand than the analysis of their evidence.

[136] I prefer to apply a three-fold test to the testimony of the witness as follows:

• Firstly, I look to see if the testimony is internally consistent. That is, does the evidence fit together and is one piece of their evidence consistent with another?

• Secondly, I look to see if the testimony of a witness is externally consistent. That is, does it fit with other known or accepted facts? Does it fit in with other evidence or testimony that is accepted or believed?

• Thirdly, I look to see if the testimony has a ring of truth to it. Does it stand the test of common sense?

[137] In short, the real test when determining if the evidence of the various witnesses is credible, the question is: Is it in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place and in those conditions?

[138] I can accept some, all, or none of a witness' evidence and I am required to weigh all of the evidence. This is not a credibility contest where I have to pick the version of one witness and, by doing so, reject that of another.

[139] Though I may not aver to every witness who testified in this trial or to every exhibit filed or every submission made by the parties, it does not mean that I have not considered that evidence in arriving at my judgment.

4.2 VETROVEC WARNING

[140] It is dangerous to rest a criminal conviction on the testimony of a single witness or on a single piece of evidence. This concern arises because witnesses can lie deliberately or mislead inadvertently, documents can be forged, and other items of evidence can be tampered with or planted.

[141] The evidence of a single witness is sufficient to support a conviction for most offences in Canada, but where the guilt of the accused is made to rest exclusively or substantially on the testimony of a single witness of doubtful credibility or veracity, the danger of a wrongful conviction is particularly acute.

[142] An unsavoury witness is any witness who, because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth – even when they have expressly undertaken by oath or affirmation to do so. Unsavoury witnesses can be convincing liars and can effectively conceal their true motives for testifying as they have.

[143] A trial judge should be alert to the inherent danger of relying on evidence given by witnesses who have received, or hope to receive, lenient sentences for themselves, or some other personal advantage.

[144] Where the evidence of an unsavoury witness is important in a trial, and guilt or innocence of an accused might, and probably will, turn on the acceptance or rejection, belief or disbelief of the evidence of one or more witnesses, the finder of fact should prepare a direction or warning of the need for prudent scrutiny of the testimony of that witness. This "clear and sharp warning" should attract the attention of the finder of fact to the risks of adopting, without more, the evidence of the unsavoury witness. All of this applies to any disreputable witness of demonstrated moral lack.

[145] There is no particular language required in a clear and sharp warning, but at a minimum, the caution must:

a. focus specifically on the inherently unreliable evidence;

b. refer to the characteristics of the witness that bring the credibility of his or her evidence into serious question; and

c. plainly emphasize the dangers inherent in convicting an accused on the basis of such evidence unless confirmed by independent evidence.

[146] The following process should be used when assessing the credibility of a witness:

a. The trial judge must objectively determine whether there is a reason to suspect the credibility of a witness by reviewing the evidence to determine whether there are factors which would lead the Court to be wary of accepting the witness' evidence and approach the witness' story with caution. These factors include:

1. The witness's past or current involvement in criminal activity;
2. Whether the witness is facing criminal charges;
3. Whether the witness acknowledges participation in the crime;
4. Whether the witness has a motive to lie by reason of connection to the crime or to the authorities;
5. Whether there is some reason why the witness would seek to blame someone else or minimize his own participation;
6. Whether the witness has anything to gain or lose by testifying;
7. Whether the witness is testifying to deflect blame onto another;
8. Whether the witness is protecting another;
9. Whether there is an unexplained delay in the witness coming forward with the story;
10. Whether the witness provided different accounts on other occasions;
11. Whether the witness has told lies under oath; and
12. Other similar considerations.

b. The trial judge must assess the importance of the witness to the Crown's case. If the witness plays a relatively minor role in the proof of guilt, then it is probably unnecessary for a special caution and review of the confirmatory evidence. However, the more important the witness, the greater the duty on the Court to give the caution. Where a witness plays a central role in the proof of guilt, the warning is mandatory.

[147] Before the Court relies upon the evidence of a witness whose testimony occupies a central position in the purported demonstration of guilt and yet may be suspect by reason of the witness being an accomplice, complainant, potential alternative suspect or of disreputable character, as a matter of common sense something in the nature of confirmatory evidence should be found.

[148] The absence or presence of confirmatory evidence plays a key role in determining whether it is safe to rely on the testimony of an impugned witness.

[149] The Court should not lightly accept unsupported assertions by a disreputable or unsavoury witness where nothing but the word of that witness implicates the accused in the commission of the crime charged. The danger of founding convictions on such assertions alone is the very reason for requiring the clear and sharp warning mandated in these circumstances by Vetrovec.

[150] The Court should look for confirmation from some other source that the suspect witness is telling the truth in some part which goes to show that the accused committed the offence with which he is charged.

[151] The question that must be kept in mind is: Does this supporting evidence strengthen the belief that the tainted witness is telling the truth?

[152] Confirmatory evidence must be capable of restoring the Court's faith in relevant aspects of the unsavoury witness' account.

[153] Where a particular risk attaches to one critical element of the evidence of an unsavoury witness, or the only issue in dispute is whether the accused committed the offence, the Court must be satisfied that the potentially unreliable evidence of the witness can be relied upon as truthful in that regard before convicting on the strength of that witness' testimony.

[154] The hallmark of independent confirmatory evidence is that it is untainted by connection to the Vetrovec witness.

[155] Having considered the totality of the evidence, the Court is entitled to believe the evidence of the disreputable witness – even on disputed facts that are not otherwise confirmed – if the trier is satisfied that the witness, despite his or her frailties or shortcomings, is truthful. At the end of the day, the credibility of a witness is a matter for a trial judge alone to determine.

[156] The central issue regarding I.S. is whether it was he or C.A. who pulled the trigger and fatally wounded K.P.

4.3 Post-Offence Conduct

[157] Post-offence conduct, including lies to the police or flight from the scene of a crime, is circumstantial evidence. Under certain circumstances, the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused's culpability for that crime.

[158] There is no hard and fast rule about when, or in relation to what, evidence of post-offence conduct can have probative value.

[159] If the Court is asked to draw an inference from post-offence conduct, that inference is only permissible if, based on human experience and common sense, the inference is a reasonable one. The inferences to be drawn from post-offence conduct will depend on the nature of the conduct, the fact that is sought to be inferred from the conduct, the position of the parties and the totality of the evidence.

[160] If post-offence conduct cannot reasonably assist in fixing the accused's level of culpability, then that evidence has no probative value.

[161] Where there is more than one reasonable inference available from circumstantial evidence such as post-offence conduct, the rest of the evidence in the trial will become important in determining which of those inferences should be drawn.

[162] Where the inference argued for by the Crown does not reasonably flow from the circumstantial evidence in issue, the existence of other evidence implicating the accused cannot make that inference reasonable.

[163] When evidence of post-offence conduct is introduced to support an inference of consciousness of guilt, it is highly ambiguous and susceptible to jury error. A jury may fail to consider alternative explanations for the accused's behaviour and may mistakenly leap from such evidence to a conclusion of guilt.

[164] In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason such as panic, embarrassment or fear of false accusation. A jury may also determine that the conduct of the accused arose from a feeling of guilt but might fail to consider whether that guilt relates specifically to the crime at issue.

[165] As a general rule, it will be for the Court to decide, on the basis of the evidence as a whole, whether the post-offence conduct is related to the crime before it rather than to some other culpable act, as well as how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence.

[166] It is for the Court to choose among reasonable inferences available from the evidence, but the Court cannot draw speculative or unreasonable inferences.

[167] Both accused told multiple lies to the police from the outset, moved the victim's body outside of the residence and, in the case of H.C., changed his clothes and shoes and concealed the weapon outside of the home.

[168] Further, both boys implicated others in the shooting of K.P., including the fictitious masked individuals who they both asserted had shot the victim. They both named another individual who was sending menacing texts that evening and became a suspect who the police almost arrested.

[169] I.S. in his second and final statement to the police indicated that he saw the gun in the hands of C.A. prior to the shooting.

[170] These acts and statements, when I analyze them in light of the whole of the evidence in the case that I accept, could allow me to draw a reasonable inference that these acts are probative to the issue of their liability for the charges that they face and the theory of the Crown that it was H.C. who loaded the weapon or left the weapon out with ammunition for it to be loaded and that it was I.S. who shot the victim not knowing that the gun was loaded.

[171] However, there is also a reasonable inference to be drawn in my mind that they could point to other reasonable inferences such as panic over the fact that one of the four people present that night must have loaded the gun and not told the others, resulting in the death of their very close friend. They knew that they faced serious liability for several serious offences, such as possession of the prohibited weapon, careless use of it and, in the case of H.C., careless storage of the weapon or ammunition.

[172] Their attempts at cover-up and implicating others may have been a result of panic and fear of liability for several offences that night. It could be out of a sense of guilt that they were all involved in careless activities with the gun that resulted in the death of their friend.

[173] But because of the difficulty in determining on the factual record in this case who did exactly what, I feel that I must give their reprehensible and deceitful conduct little weight and it should not be determinative of their culpability.

4.4 Manslaughter and Criminal Negligence Causing Death

[174] Section 222(1) of the Criminal Code of Canada provides that a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

[175] Culpable homicide, which includes manslaughter, as it pertains to this case, is described in s. 222(5) of the Criminal Code of Canada and states that a person commits culpable homicide when he causes the death of a human being … (b) by criminal negligence.

[176] Section 219(1) of the Criminal Code of Canada states that every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty (imposed by law) to do, shows wanton or reckless disregard for the lives or safety of other persons.

4.5 The Test for Manslaughter by Criminal Negligence

[177] Manslaughter based on criminal negligence is indistinguishable from criminal negligence causing death. Therefore, the same test applies to both charges. If an accused is found guilty of one charge, he or she can also be found guilty of the second charge based on the same circumstances.

4.6 The Test for Criminal Negligence Causing Death

[178] The actus reus of criminal negligence causing death requires that the accused undertook an act or omitted to do anything that it was his legal duty to do, and that act or omission caused someone's death. The actus reus has three elements:

[1] An underlying unlawful act;

[2] The objective dangerousness of that act; and

[3] A causal connection between the act and the death.

[179] The mens rea, or fault element, of criminal negligence causing death requires that the accused's act or omission shows wanton or reckless disregard for the lives or safety of others.

[180] Criminal negligence causing death imposes a modified objective standard of fault: The "reasonable person" standard.

[181] The fault element is assessed by measuring the degree to which the accused's conduct departed from that of a reasonable person in the circumstances. It is an elevated standard which requires that the accused's conduct constitute both a marked and substantial departure from the conduct of a reasonable person in the accused's circumstances.

[182] The modified objective standard is that of the reasonable person in all of the circumstances of the case. It is a uniform and constant standard for all persons, regardless of their background, education or psychological disposition.

[183] While the reasonable person standard is not determined by the accused's personal characteristics, it is informed by the activity. Greater care may be expected of a reasonable person depending on the nature and circumstances of the activity in which they are participating; for example, if that activity requires special attention or skill.

[184] The use of a firearm, in the absence of proper precautions, may readily endanger the lives or safety of others. Anyone carrying such a dangerous weapon as a firearm is under the duty to take such precaution in its use, as, in the circumstances, would be observed by a reasonably careful man. If he fails in that duty and his behaviour is of such character as to show or display a wanton or reckless disregard for the lives or safety of other persons, then his conduct amounts to criminal negligence. It is the legal duty of everyone who does any act, which without ordinary precautions is or may be dangerous to human life, to employ those precautions in doing it.

[185] Any behaviour that is reasonable is not wanton. A person handling a gun in a reasonable way with a reasonable belief that a gun is not loaded or cannot go off, cannot be said to be wanton and reckless.

[186] There are both reasonable and unreasonable accidents that occur with firearms in various contexts. All of these accidents are tragic, but not all them attract criminal liability. For example, in the case of R. v. Olav, the accused was a young person who had a reasonable belief that the gun was unloaded, and the court therefore held that the subsequent death by gunfire that ensued did not amount to criminal negligence.

4.7 Section 86(1) – Careless Use of a Firearm

[187] Section 86(1) of the Criminal Code states that every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.

[188] The mens rea or fault element of the offence of careless use of a firearm consists of conduct that is a marked departure from the standard of care of a reasonable person in the circumstances.

[189] The question is not what was in the accused's mind, but the absence of the mental state of care, which is inferred from the conduct of the accused. If the accused's conduct displays a want of care judged by the standard of the reasonable person in similar circumstances, the fault is established.

[190] All of the relevant circumstances must be considered, including any personal characteristics of the accused that deprive him of the capacity necessary to have the mental state of care required in the circumstances.

[191] If after assessing all of the evidence, a reasonable doubt exists that either the conduct in question did not constitute a marked departure from that standard of care or that reasonable precautions were taken in the circumstances, a verdict of acquittal must follow.

[192] There is no reverse onus on the accused to establish on a balance of probabilities that he exercised due diligence in order to negate a finding of fault.

[193] All people owning or using firearms owe a specific and rigorous duty of care. Certain kinds of activity, such as using firearms, have the inherent potential to do serious damage to life and limb such that the law is justified in paying special attention to the individuals in control. If a person voluntarily assumes control of that type of activity, failing to act in a way which indicates respect for the inherent potential for harm of that activity is legitimately regarded as criminal.

[194] In a situation where an accused points an unloaded firearm at a person in circumstances where everyone present knows the gun to be unloaded, the Crown cannot establish beyond a reasonable doubt that the handling was careless.

[195] Carelessness infers an element of negligence or recklessness. It describes a state of conscious indifference or oblivion to the potential consequences of an act or course of action. Pointing a firearm is necessarily foolish, but it is not in every case careless as defined in a criminal context.

[196] That said, in the context of this case, everyone knew that ammunition was present or accessible for this firearm. Everyone knew how to load it.

[197] It is one thing to pull the trigger of a firearm immediately after someone else has and knowing that the firearm has not discharged. It is another thing to pick up a firearm and pull the trigger thinking that it may be unloaded, but uncertain that it is, and not checking to see that it is.

4.8 Section 87 – Pointing a Firearm Regarding I.S.

[198] Section 87(1) of the Criminal Code states that every person commits an offence who, without lawful excuse, points a firearm at another person, whether the firearm is loaded or unloaded.

[199] The actus reus of the offence is the actual pointing of the firearm at another person, and the mens rea is the intention to do so. This is a moot point because, based on the evidence of C.A., I cannot find beyond a reasonable doubt that it was I.S. who pointed the firearm at K.P. as there exists the real possibility in my mind that it could have been C.A. who did.

4.9 Section 91(1) – Unauthorized Possession of Firearm

[200] Section 91(1) of the Criminal Code of Canada provides that every person commits an offence who possesses a prohibited firearm, a restricted firearm, or a non-restricted firearm without being the holder of (a) a licence under which the person may possess it and (b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

4.10 Section 95(b) – Possession of Prohibited Firearm with Ammunition

[201] Section 95 of the Criminal Code of Canada states that every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of (a) an authorization or a licence under which the person may possess the firearm in that place; and (b) the registration certificate for the firearm.

4.11 The Kienapple Principle

[202] Because the charges of criminal negligence manslaughter and criminal negligence causing death are indistinguishable and arise out of the same circumstances, the rule against multiple convictions in R. v. Kienapple states that the Crown is entitled to have a conviction registered only on the most serious offence, determined by the maximum punishment. Only I.S. is charged with both offences.

[203] Criminal negligence causing death and manslaughter by criminal negligence are offences of equal gravity. They both carry maximum sentences of life imprisonment and they both have a mandatory minimum of 4 years jail for an adult if the offence involves the use of a firearm.

[204] It is, however, noted that criminal negligence causing death and manslaughter by criminal negligence are treated differently under the Youth Criminal Justice Act for sentencing purposes. Section 42(2)(o) allows for a maximum custodial sentence of 3 years for manslaughter by criminal negligence, but only a maximum of 2 years for the offence of criminal negligence causing death. Therefore, if I were to find I.S. guilty of both offences, he would be entitled to a Kienapple stay on the criminal negligence causing death count.

[205] Central to the Crown's case against these defendants is the witness C.A.

[206] If I find him to be a credible and reliable witness, then it is an easier path to a finding of guilt towards I.S. and also supports a finding of guilt against H.C. in many ways.

[207] The essence of C.A.'s evidence is that I.S. pointed the shotgun at K.P. and then shot him. Also important is C.A.'s evidence that he did not load the gun that evening and did not know that it was loaded.

[208] Although I do accept his evidence on some points, on the crucial points I cannot accept it to the degree required that would leave me with no reasonable doubt about the guilt of the defendant I.S. I will explain as best I can my path towards this reasoning.

[209] At best, C.A.'s evidence leads me to conclude that it was probably I.S. who shot the victim and H.C. who loaded the weapon before going upstairs and was not in the room when the shooting occurred.

[210] C.A. meets virtually all of the criteria of Vetrovec. There is no independent corroborative evidence to support his assertion that it was I.S. who shot the victim.

[211] Gunshot residue testing was inconclusive as to who was the shooter. Although some gunshot residue was found on the clothing worn by I.S. and H.C., it is clear that after the shooting they both moved the victim from the basement room where he was shot to the end of the driveway. This would have resulted in gunshot residue transfer to their clothes but is not determinative as to who fired the weapon.

[212] Also, the clothing worn by C.A. that evening was not seized until a search warrant was executed by police at his house on August 14, 2018 and he admitted that it was likely that he had washed his clothes during that period. So there is an absence of corroborative independent forensic evidence to support C.A.'s version of the events that it was I.S. who fired the weapon.

[213] The inculpatory statement that the Crown suggests is an admission by I.S. that he shot the victim is equivocal at best. Combining that with his admission that he did not see H.C. or C.A. shoot the victim could be used as suggested by the Crown to eliminate anyone but I.S. as the shooter, but that would require a parsing of his statement to a degree that would force me to ignore his overall theme that he did not shoot K.P.

[214] Although I find I.S. not to be a credible witness because of his numerous lies to the police, the family of K.P. and to anyone who came within his orbit, I am still left with a reasonable doubt as to whether there is some truth in what he says and the position that he maintains that he did not shoot the victim.

[215] Seeing his police statements and reviewing the transcript suggest to me that his overall theme was that he was quite intoxicated that evening, that he did not see who shot K.P. and conceding the possibility that it may have been him is far from a clear admission that it was.

[216] The analysis and assessment of C.A. is particularly difficult because in direct examination he initially appeared credible and reliable. Cross-examination exposed weaknesses and omissions in his evidence in-Chief that hurt his credibility.

[217] As well, the Vetrovec caution that I have followed has not assisted him and has left me with some grave doubts about whether he is a credible witness.

[218] I find that C.A. is an unsavoury witness and his evidence on many points is suspect. I adopt for the most part most of defence counsel's submissions on this issue and I have borrowed heavily from it in arriving at my assessment as I find that they are correct in fact and in law.

[219] C.A. is not as credible as he wishes me to believe.

[220] Given the inherent danger of finding an accused guilty on the basis of the evidence of an unsavoury witness alone, I will now, as described in R. v. Vetrovec:

(a) Identify the characteristics of C.A. that bring the credibility of his evidence into question; and

(b) Look to see if there is independent supporting evidence, untainted by connection to C.A., which can confirm the testimony of C.A. and support that he is telling the truth.

4.12 Characteristics of C.A. that Relate to Credibility and Reliability

[221] There are a significant number of characteristics of C.A. that bring the credibility of his evidence into serious question:

[222] Past involvement in criminal activity: C.A. has a lengthy youth and adult criminal record consisting of 11 findings of guilt or convictions, including offences of dishonesty, break and enter, theft, and failing to comply with court orders including undertakings, recognizances and probation orders.

[223] Pending criminal charges: On July 13, 2018, C.A. was facing outstanding break and enter charges, was bound by conditions of a recognizance of bail and a probation order, and was admittedly violating those conditions.

[224] Acknowledgement of participation in criminal activity: C.A. has admitted to involvement in various criminal activity including:

(a) Possession and handling of illegal firearms: He handled and possessed firearms on multiple occasions, including discharging the gun of H.C. inside a residence, and having possession of and playing with a 40-calibre handgun;

(b) Participation in the sale of firearms: He knew multiple people that had firearms for sale and put people together for the purchase of a firearm; he either sold the firearm to H.C. or facilitated the sale; he contacted N.T. to ask if he wanted to buy an AK-47 gun;

(c) Drug trafficking: He trafficked Xanax to underage individuals, and when he was arrested by police on August 14, 2018 he was making a living by trafficking marihuana;

(d) Providing alcohol to underage individuals: He would often purchase alcohol for the youth he was hanging out with because he was of legal drinking age and had identification; and

(e) Robbery with a firearm: He used the firearm of H.C. to commit a robbery against an individual named M.C.

[225] Gang affiliation and activity: He was a member of the "Crip" gang, admitted to participation in gang activity, and testified that he was proud to call himself a Crip as it gave him status and he considered himself to be a gangster, and the "most hardened criminal there was".

[226] Previous history of telling lies: C.A. has a long history of telling lies, including the following:

(a) He repeatedly used an alias and fake name when stopped by police to avoid them learning his true identity or his criminal record;

(b) He agreed he was a common criminal, a thief, a dishonest person, and that he "lied multiple times" and has a history of lying to the police;

(c) In his statement provided to the police on August 14, 2018, C.A. testified that his goal was "to tell the truth" and be as forthright as possible, however, he both overtly lied to the police about numerous things and further lied by omission about a number of other issues, including the following:

(i) He lied to the police about his involvement in gang activity and about the nature of his Crip tattoo;

(ii) He lied when he told the police that it was his belief on July 13, 2018 that H.C.'s firearm could not be fired, because he had previously discharged it himself during the incident at A.A.'s residence;

(iii) He misled the police when they asked him about his involvement with M.C., and omitted to tell them that he had previously robbed that individual with a firearm, or been involved at all with a robbery with a firearm; and

(iv) He misled the police by failing to tell them of his prior involvement with the firearm, including that he had fired the gun before.

(d) He further lied or misled during these trial proceedings about various things, including:

(i) He initially testified that the incident on July 13, 2018 was a turning point in his life, and after that incident he changed his life around and ceased all involvement in criminal activity. However, he later admitted that after July 13, 2018 he continued to be involved in the sale of guns and he offered to sell N.T. an AK-47, and he continued to traffick marihuana for a living. Upon his arrest on August 14, 2018 the police located a quarter pound of marihuana in his residence.

(ii) In examination in-Chief when the Crown asked C.A. if he ever used H.C.'s firearm to participate in a robbery, he testified that he did not participate in the robbery with the firearm and was not at the scene while it occurred. However, upon further questioning he admitted that he actually did commit a robbery with the firearm and, in fact, during the robbery was holding the firearm.

(iii) C.A. was subpoenaed to attend trial and he refused to attend court in answer to the subpoena, such that a material witness warrant had to be issued. On the first day of trial, in the course of communicating with the officer prior to obtaining the material witness warrant, he was untruthful to the officer and misled both the officer and the Crown about his intention to come to trial. After the issuance of the material witness warrant, C.A. stopped attending his place of employment and left his residence, to further evade detection and arrest by police. He ultimately was located by police in a motel and brought to court.

[227] Acknowledgement of participation in the criminal activity of July 13, 2018, and personal benefit or advantage to C.A. by testifying or providing a statement to the police: On August 14, 2018, C.A. was arrested by Halton police and a search warrant was executed on his residence. At the time he provided a statement to the police, he was under arrest for criminal negligence causing the death of K.P.

During his police statement, he admitted to committing numerous offences on the night of July 13, 2018. In addition, when the police executed the search warrant on C.A.'s residence, they seized a quarter pound of marihuana and found ample evidence of drug trafficking. At the end of the night on August 14, 2018 after giving a statement to the police, he was released unconditionally from the police station without any criminal charges whatsoever.

By providing his statement to the police, C.A. is a witness who received a personal advantage in that the police chose not to proceed with criminal charges against him, most of the criminal charges that both accused in this matter, I.S. and H.C., did face based on the evidence.

[228] Post-offence conduct, including fleeing from the scene: After K.P. was shot, C.A. immediately fled the scene. He testified that when he fled, he "knew" that H.C. was calling 911 and the police would come, so his first instinct was to flee. He acknowledged at trial that one reason that people run from a scene is because they are guilty and do not want to get caught by the police. It is acknowledged that guilt is only one inference that can be made from C.A.'s decision to flee the scene, however, it is one reasonable inference that I could make.

[229] Unexplained delay in coming forward with his story: After K.P. was shot and C.A. fled the scene, C.A. never turned himself in and did not speak to the police voluntarily. After July 13, 2018, he was living in fear of being arrested and knew it was only a matter of time before police came for him, yet he still did not turn himself in voluntarily to speak to the police. It was only after his arrest on August 14, 2018, over one month later, while he was under arrest for a homicide charge, that he decided to give a statement to the police. C.A. had over one month to get his version of events straight before providing a statement to the police.

[230] Motive to lie by reason of connection to the crime and reason to blame someone else or deflect blame: He testified that he believed he was a suspect in the shooting with I.S. being the other suspect. He testified that he did not go to the police because he was afraid of being implicated, afraid of spending his life in jail, and afraid of being thrown under the bus. He testified that he knew it was going to be his word against somebody else's as to what had happened, and he feared he was going to be blamed.

[231] He admitted at trial that there are only two people who could have shot K.P.: himself or I.S. C.A., as the only other person in the room when K.P. was shot, and is therefore the only other possible suspect or person who could have shot K.P. He is intimately connected to the alleged offence before the court, and therefore has every motive to lie about what happened and every reason to blame someone else or deflect blame.

[232] I find that C.A. is not an uninterested, neutral or unbiased witness in these proceedings. He has a long history of lying to the police and has demonstrated that his actions with respect to this matter have been about his own self-interest, self-preservation, and with the purpose of looking out for himself and himself only.

[233] There are also serious issues with respect to the reliability of C.A.'s testimony, including his ability to accurately observe, recall and recount the events in issue of July 13, 2018.

[234] The most significant factor impacting on the reliability of C.A.'s evidence is his self-admitted alcohol and drug consumption on July 13, 2018. C.A. testified that on the evening of July 13, 2018, he had voluntarily consumed the following alcohol and drugs:

(a) One Xanax pill;

(b) Either a quarter or a half of a "two-six" of hard liquor (vodka), meaning somewhere in the range of 6 to 13 ounces of vodka; and

(c) Marihuana in an unknown quantity.

[235] C.A. testified that consuming Xanax and alcohol would make him feel drowsy, sometimes it would make him black out, and it would cause lapses in memory where he wouldn't be able to remember significant parts of the night, if anything at all. He further confirmed that Xanax has an effect on his memory, and testified that personally he has experienced black outs out multiple times from consuming it.

[236] With respect to the night of July 13, 2018, C.A. testified that by approximately 10 p.m. he was "pretty wavy", which he described as being intoxicated, and feeling the effects of the alcohol, pills and marihuana. He further testified that as the evening was progressing, he was feeling more intoxicated and the rest of the parties present were also intoxicated.

[237] An example of C.A.'s questionable reliability and difficulty recalling events pertaining to July 13, 2018 is his multiple versions of events pertaining to the parties attending Midnight Madness:

(a) In examination in-Chief, he testified that all four parties were going to attend Midnight Madness, but first they were going to pre-drink, pop pills and chill at H.C.'s residence;

(b) Later in direct, he testified that in fact, "nothing was set in stone", they were just "going with the flow", but it was his recollection that all four parties were going to go;

(c) In cross-examination, however, he testified that in fact the plan that might have been for him and H.C. to stay back at H.C.'s residence while I.S. and K.P. went down to Midnight Madness; and

(d) Finally, in redirect, C.A. testified again that he really couldn't remember what the plan was, but it was very much possible that he and H.C. were not going to attend Midnight Madness.

[238] The following are two further examples of C.A.'s inability to recall events or details after consuming drugs and alcohol:

(a) C.A. testified about an incident that occurred while he was in an intoxicated state at A.A.'s residence, during which he had H.C.'s firearm down his pants, and while playing around with the gun, which was loaded, it discharged. With respect to this incident, while C.A. initially testified that he was not aware the gun was loaded at the time or how it came to be loaded, in cross-examination he admitted that he may have actually loaded the gun himself and then later forgotten or not realized it was loaded due to his consumption of alcohol and Xanax.

(b) Further, C.A. agreed that he may have forgotten about H.C. being on house arrest on July 13, 2018 due to the combination of alcohol and Xanax he consumed that night.

[239] It is clear from C.A.'s own testimony that his memory and ability to recall events, both on July 13, 2018 and on other occasions, was impacted by the consumption of drugs and alcohol and, therefore, his memory and ability to recall and recount the events of that evening should be questioned to a large degree.

4.13 Confirmatory Evidence of C.A.'s Testimony?

[240] On many important issues, C.A.'s evidence was the only evidence called at trial and there is no evidence whatsoever to confirm it.

[241] On the points where there is other evidence, however, it is noted that C.A.'s evidence on some key points is not confirmed, but rather is contradicted, by the evidence of other witnesses in this matter, and as such cannot be regarded as credible.

Evidence of N.T.

[242] N.T. provided evidence to the Court about his knowledge of the firearm that ultimately came to be used in the shooting of K.P. N.T.'s evidence pertaining to the sale of the firearm to H.C. directly contradicts the evidence of C.A.

[243] C.A. testified that the gun was sold to H.C. by a person named W., who brought the gun to the residence of A.A. to conduct the sale. N.T., however, testified that he was at H.C.'s residence when the sale of the gun took place. He stated that C.A. brought the gun to H.C.'s residence to sell it to him, and C.A. was alone and not with anyone else when he brought the gun. N.T. testified that C.A. brought the gun to H.C.'s house in a backpack and left the gun with H.C. after the transaction was complete.

[244] A.A. did not testify at this trial. If the gun was brought to her residence, presumably she would have been there and her evidence could have been used to determine whether the weapon was exchanged at her home or not.

[245] This would have been some corroboration of C.A.'s evidence. Yet, without that evidence I am left with a clear contradiction between the evidence of C.A. and N.T. as to whether it was C.A. who sold the gun alone to H.C. at his residence or, as C.A. asserts, it was "W" who was involved in the sale and C.A. was just a "facilitator" for the purpose of introduction of the two.

[246] This brings me to another concern that I have concerning C.A.'s credibility. He struck me as giving self-serving evidence when it came to downplaying his role in the sale of this gun and of other weapons.

[247] The following excerpt of the cross-examination by Mr. Neil illustrates this:

Q. And we saw the video...

A. Yes, sir.

Q. ...of you, of you holding that shotgun?

A. Yes, sir.

Q. And that was before it was purchased by H.C. ?

A. Yes, sir.

Q. And that's a video that you sent to H.C. ?

A. Yes, sir.

Q. And I'm going to suggest that you sent that video to H.C. because you wanted to show him the gun that you were arranging the sale for?

A. I can't, I can't say exactly. I posted on my story. He could've just seen it on my story and so it's not that I directly pointed out him, "Hey, here, here's this", dah, dah, dah, no, he could've just seen it on my story and conversations could've went from there, but then again I'm not too sure.

Q. And, and what I'm getting at, sir, and it's, it's – you sell guns.

A. No, sir, I do not.

Q. Well, you tried to broker a deal for an AK-47 with N.T.

A. Well, there was actually conversation between me and N.T. N.T. had also tried to sell me a hand pistol, so no one's – it's, it was just a, it was a mutual conversation, so – and it's, it's not the fact that I am selling guns. If I know people with stuff and that's what they want – he's a grown man. If – you can't make our own decision. I can't make decisions for you. If that's what you want and someone needs it – just as weed. If you want me to – and I know someone with weed, I send you to them, that's between y'all, that's not between me.

Q. You're just the middleman?

A. Just the middleman. I wouldn't even consider myself a middleman, sir.

Q. Well, if somebody wants to buy a gun and they say, "Hey, C.A., I'm looking to buy a gun. Can you help me out?" and you help them out, you're assisting them in the purchase of that gun, right?

A. No, sir, I wouldn't say so because he's a grown man and he can make the own decisions. If he wants a gun, I give him – I said, "Hey, this guy may have one. If – that's between y'all. If you actually want one or you don't want one, that's between you guys." He had mentioned it and I had mentioned it back, that's it. Nothing was set in stone.

Q. So you agreed when my friend asked you questions that you talked to N.T. about selling him an AK-47?

A. I can't recall the exact statement. I can't recall me saying that exact thing, but I knew within the previous years that I have been around an AK-47 before, yes, sir, but I knew that the clip, the spring in the clip was broken and also the firing pin was not in the gun.

Q. So you're saying that you knew that gun wasn't – this AK-47 wasn't functional?

A. Yeah, the owner had told me it wasn't functional.

[248] I noted that it was a form of deflection that C.A., when asked about offering to sell the AK-47 to N.T., then immediately said that N.T. had tried to sell him a handgun during a conversation.

[249] N.T. was never questioned about this by the Crown or defence counsel, albeit I recognize that C.A. testified and made that allegation after N.T. gave his evidence.

[250] It strikes me as particularly significant that C.A. testified at this trial that after the shooting he tried to distance himself from his criminal and gang lifestyle, yet this attempted sale of the AK-47 assault rifle to N.T. occurred after this fatal shooting. This is evident from the following extract of cross-examination by Mr. Paquette of N.T.:

Q. Did you think it odd, perhaps even more than odd, that after K.P.'s death Y.C. messaged you about buying a gun?

A. I thought it was odd, yeah.

Q. What did he say to you?

A. He said he had an AK-style, like, assault rifle that he wanted to get rid of for cheap and I just said no because, like, after all that happening I just don't want part of that.

Q. Likely not.

A. Exactly, yeah.

[251] I accept the evidence of N.T. on this point over that of C.A. Because N.T. found it odd that C.A. was messaging him about buying an AK-47 after the shooting, it is most unlikely that he would have offered to sell C.A. a handgun after the shooting.

[252] As well, when he was arrested for this charge on August 14, 2018, a quarter of a pound of marihuana was found during the search and he admitted that he was making a living selling drugs.

[253] It appears obvious to me that despite attempting to establish himself as being greatly affected by the shooting and thereafter changing his life to avoid going to jail or worse, C.A. did nothing of the sort. He continued to attempt to sell firearms and did traffick in drugs. His actions leading up to his arrest belie his statements at trial and, to me, it appears that he continued along the same path that he had been on before.

[254] I found that C.A. would always try to cast himself in the best light possible and I found him to be an evasive witness except when confronted with evidence to the contrary or when having to admit what was obviously provable by independent means.

[255] For all of the above reasons, I cannot agree with the Crown that C.A. was a credible and reliable witness.

[256] Although I am content to rely on some of his evidence on the less important points, on the crucial points where there is no independent corroboration, I feel that it would be dangerous to accept his evidence as credible or reliable.

[257] Despite the overwhelming credibility issues that I.S. and H.C. face, this makes the path to conviction for I.S. on the manslaughter and criminal negligence causing death charges unattainable.

[258] Had there been forensic gunshot residue on I.S. indicative of him firing the weapon rather than handling the victim's body, it would not be so.

[259] Had I.S. made a clear admission that he pointed the gun at K.P. and shot him, there would have existed a path to conviction for him if I were satisfied that he met the other elements of those charges. That does not exist.

[260] Although I am satisfied, after reviewing all of the evidence, that it was probably I.S. who pointed the gun and shot the victim not knowing the weapon was loaded, I cannot find this to be the case beyond a reasonable doubt given the grave concerns that I have about C.A.

[261] How can I be certain beyond a reasonable doubt when C.A. had engaged in similar conduct a few weeks before when he fired the same weapon that was down his pants that he could not have again committed a similar error, fueled as he was by drugs and alcohol? He certainly would have had every reason to lie about that and to point the finger at the only other possible person who could have done so, I.S.

[262] The one and only statement that he gave to the police was given when he knew that he was facing a serious criminal charge that would have certainly led to a lengthy term of imprisonment as an adult.

[263] When one examines the post-offence conduct of C.A., it is quite possible that he ran because he was frightened that he would be "thrown under the bus" and that he did not come forward to tell the truth because of his gang affiliations.

[264] It is also possible as well that he did it because he was indeed the one who shot the victim, granted not knowing that the gun was loaded.

[265] This is, in effect, a neutral analysis in my decision. I do not find his flight from the scene and failure to come forward as indicative of guilt, yet it could be. Due to the other possible explanations for this behaviour, I cannot be satisfied that it is consciousness of guilt and becomes neutral in my analysis. However, I can and do find that C.A. is on many essential points not a credible or reliable witness.

[266] Being unable to make a definitive factual finding on whether it was I.S. or C.A. who shot the victim, the path to conviction is barred regarding I.S. and he is entitled to be found not guilty of the charges of manslaughter by criminal negligence and of criminal negligence causing death.

H.C.'s Liability Re: Manslaughter by Criminal Negligence

[267] I will now move my analysis on the liability of H.C. to the single charge that he faces which is causing the death of K.P. and thereby committing manslaughter by criminal negligence with a firearm contrary to s. 236(a) of the Criminal Code of Canada.

[268] I find as a fact that H.C. had acquired this prohibited firearm and ammunition approximately six weeks prior to this fatal shooting. I find that it was solely owned by him and that he paid for the weapon in cash. It was kept at his house, and although he and his friends would frequently handle the gun, point it at others and pull the trigger while taking photographs or videos of doing this to post on social media or to keep for their own personal satisfaction, he was the owner of the prohibited weapon and thus was under a duty of care to store it and the ammunition properly. He failed to do so on a continuous basis up to and including the night of the fatal shooting.

[269] I find as a fact that during the course of his ownership of this weapon it was always stored carelessly, as was the ammunition. There is no evidence of any gun safe or trigger locks found during the police search and I accept that none existed. I accept the evidence of N.T. when he said he recalled H.C. keeping the gun in a duffle bag or sometimes under the couch in his basement room. Sometimes it was in three pieces when it was in the duffle bag, with a towel over it. When it was kept under the couch, it would be the full gun.

[270] I also accept that the usual course of conduct when H.C. had his friends over is that they would play with the gun after having consumed drugs and alcohol, frequently to the point of intoxication.

[271] I find that H.C., I.S., K.P., C.A. and N.T. all had knowledge of how to load the firearm with ammunition and certainly that H.C. and C.A. had done so on some occasions while in the presence of the others.

[272] Despite my concerns with the evidence of C.A., I do accept that H.C. was present at his girlfriend's home when C.A. accidentally discharged the firearm while dancing with it down his pants in a state of intoxication. This became common knowledge between these friends.

[273] Although what H.C. says in his three statements to the police is replete with lies, deceptions and omissions, and very little weight can be put on his evidence of whether all four boys were going to attend the Midnight Madness or whether the plan had changed to having and C.A. stay behind because of increased presence of police at the festival and that he had just been released on a recognizance that would have led to a breach charge if he were found in the company of K.P., H.C. in his agreed statement of facts acknowledged at the very least that I.S. and K.P. were going to attend.

[274] The threatening messages that they were receiving that evening were one reason that they decided to take the weapon to Midnight Madness. Although the weapon would have had some deterrent value if it was unloaded, it would have been a much greater defence against their real or perceived enemies if it had been loaded.

[275] I do recognize that there was an increased police presence at Midnight Madness and, thus, a greater risk of detection for breaching court orders which would have inevitably led to the detection of the weapon by the police.

[276] I also recognize that H.C., C.A. and I.S. had no respect for court orders. General deterrence and fear of apprehension had little impact on these young men who seem to have aspired to living out the fantasy of a gangster lifestyle. As well, logical, rational and reasoned thinking was lacking with these group of young people, in part caused by their consumption of drugs and alcohol.

[277] Setting against these factual findings, I particularly focus on the elements of the offence of manslaughter through criminal negligence as it applies to H.C.

[278] Manslaughter through criminal negligence (or criminal negligence causing death), is made out if it is shown that the accused

a. in doing anything, or in omitting to do anything that it is his legal duty to do,

b. showed wanton or reckless disregard for the lives or safety of others, and

c. that it caused the death of another.

[279] The actus reus for manslaughter through criminal negligence requires that the accused undertook an act – or omitted to do anything that was his or her legal duty to do – and that the act or omission caused someone's death.

[280] Firearms are inherently dangerous. As Justice Cory stated in R. v. Felawaka:

A firearm is expressly designed to kill or wound. It operates with deadly efficiency in carrying out the object of its design. It follows that such a deadly weapon can, of course, be used for purposes of threatening and intimidating. Indeed, it is hard to imagine anything more intimidating or dangerous than a brandished firearm. A person waving a gun and calling "hands up" can be reasonably certain that the suggestion will be obeyed. A firearm is quite different from an object such as a carving knife or an ice pick which will normally be used for legitimate purposes.

[281] Parliament has intended that where people take care or control of inherently dangerous materials, they are put on notice that society has placed on them a specific duty of care. An owner or handler of a firearm has a duty in law to handle the firearm in a manner that is not careless. Firearms are subject to regulations that define their safe storage and handling.

[282] A legal duty found is found in statute regarding a duty of care for firearms. Section 86(1) of the Criminal Code of Canada makes it an offence to use, carry, handle, ship, transport or store a firearm in a careless manner or without taking reasonable precautions for the safety of others.

[283] The common law, and in certain instances, statute law imposes a legal duty to preserve life. This duty requires that proper precautions be taken in the use of dangerous weapons such as firearms.

[284] Misuse of firearms is both dangerous, and, in certain situations, unlawful. As stated by Gonthier J. in R. v. Morrisey:

Extra vigilance is necessary with guns, and while society would expect people to take precautions on their own, people do not always do so. Parliament has sent an extra message to such people: failure to be careful will attract severe criminal penalties. The sentence represents society's denunciation, having regard to the gravity of the crime; it provides retributive justice to the family of the victim and the community in general; and it serves a general deterrent function to prevent others from acting so recklessly in the future.

[285] The fault element is that the accused's act or omission shows wanton or reckless disregard for the lives or safety of other persons.

[286] The conduct of the accused must be a marked and substantial departure from that of the reasonable person in the circumstances.

[287] Proof of intention of actual foresight of a prohibited consequence is not required. Rather, criminal negligence requires a marked and substantial departure from the conduct of a reasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk or, alternatively, gave no thought to that risk.

[288] Regarding the modified objective test and the reasonable person standard, intoxication or impairment through drug use which occurs as a result of voluntary consumption cannot serve to vitiate liability for the risks created by the negligent conduct of an accused.

[289] In applying the "reasonable person" standard, the court must apply the modified objective standard of "the reasonable person in all the circumstances of the case".

[290] The offence of criminal negligence causing death imposes a modified objective standard of fault – the objective "reasonable person" standard. This also applies to the offence of manslaughter by way of criminal negligence.

[291] The reasonable person standard is used to maintain "a uniform standard for all persons… regardless of their background, education or psychological disposition". As McLachlin, J. expressed in Creighton, "without a constant minimum standard, the duty imposed by the law would be eroded and the criminal sanction trivialized". In Creighton, McLachlin, J. concluded that the accused's habitual drug use was not to be considered in setting the "reasonable person" standard.

[292] Youth, immaturity and drug use are not factors that I can use or take into account to lower the standard of a reasonable person in these circumstances.

[293] In this case, I find that H.C. was not present in the room when the gun was fired. Three of his friends were. He knew that each of these friends had engaged in reckless behaviour in the past and that evening by pointing the firearm at others while pulling the trigger while assuming that the firearm was unloaded. Yet each of them knew that C.A. had almost suffered a serious injury while playing with the gun on an earlier date thinking that it was unloaded.

[294] Each of them knew how to load the gun and were present when it was loaded then unloaded in the past.

[295] As H.C. admits in his ASF, there was a live shot shell on the coffee table in the room. Each of them no doubt would not have paid full attention to the gun 100% of the time that it was out. They were all intoxicated to a degree from their night long consumption of alcohol and drugs.

[296] In I.S.'s second statement he told the police that he was "really drunk and really high and his head was going back". He said that he was closing his eyes and then he heard a bang, and when he opened his eyes C.A. was gone and H.C. was in the room telling him that they needed to get K.P. help.

[297] Whether or not I accept any truthfulness to that statement (and I have found I.S. not to be a reliable or credible witness, and being mindful that I cannot used a co-accused's statement against H.C.) I do accept that he and the others were drunk and high and that this would have been apparent to each of them. They were all drinking together and taking drugs and had been doing so for that entire evening, as was their custom.

[298] H.C. maintained in his statements that the gun was not loaded when he went upstairs to get a drink just before the gun was fired. He states that he would have been gone for a minute or so before it was fired and that it was not loaded before he went upstairs.

[299] I do not accept H.C. as being credible or reliable. I find that he constantly lied to the police. I can only accept portions of his statements that would incriminate him, not exonerate him because he showed a pattern of deceit and lies from the first words that he spoke to the police until the last, all in an attempt to divert responsibility from himself to others.

[300] I think that H.C. probably loaded the shell into the weapon before he went upstairs and that he did not tell the others that he did, however I cannot be certain of this to the requisite degree.

[301] The admission that he left the live shell on the table does not preclude one of the other three boys from loading the weapon and not telling the others or not being noticed to have done so by the others. His estimate that he was upstairs for a minute or so may have been a shorter estimate than he actually was.

[302] H.C.'s evidence could not ever be described as precise or accurate or for the most part truthful.

[303] Be that as it may, had H.C. taken any steps to secure the gun or even put the shell in his pocket and taken it with him upstairs it would have prevented this death. On his own admission, he did not do so, but instead left it readily accessible to be loaded into a carelessly stored shotgun, that he had a legal duty to ensure was safely stored. But for him not taking the live shell upstairs or safely storing the weapon, K.P. would not have been shot.

[304] I cannot find on the record before me who loaded the shotgun, although I suspect it was H.C. It could, however, have been C.A. as he had done so in the past. It could have been any of the other boys. I am satisfied that whoever fired the gun did not know that it was loaded. I am certain that this is not an intentional homicide and that someone other than the shooter loaded the weapon at some earlier time and did not tell the others or forgot that they loaded it because of their intoxication.

[305] H.C. left to go upstairs just before the shooting knowing that at least two of the boys (if not all of them) were going to go to Midnight Madness and to take the shotgun with them for protection. As the time crept closer to departure, the likelihood of someone loading the shotgun increased. Even if H.C. did not load the gun himself, he knew that it was likely to be loaded when taken to the festival.

[306] I find that H.C., as the owner of the gun and ammunition, had a legal duty to ensure that it and the ammunition was safely stored and that he failed in that duty choosing at best to leave the weapon and ammunition (according to his ASF) on a table readily accessible to three of his friends who were all under the influence of alcohol and drugs, all who knew how to load the weapon, and regularly used it in a careless and irresponsible manner. I find that to be a wanton and reckless disregard for the lives or safety of the boys remaining in the room, and I find his conduct to be a marked and substantial departure from that of a reasonable person in all these circumstances.

[307] The remaining question is: Did the acts or omissions on his part cause the death of K.P. and was the chain of causation broken by an intervening act? Is it open to me to find that one or more intervening acts severed the causal connection between H.C.'s acts or omissions thereby absolving him of legal responsibility or do I find that his actions or inactions remained a significant contributing cause of death despite the intervening act or acts?

[308] The Supreme Court in Smithers pronounced the test for causation in manslaughter as "a contributing cause of death, outside the de minimis range". The Supreme Court in Nette affirmed this test and emphasized that the causation in homicide cases involves two aspects: factual and legal causation.

Causation and Intervening Act

[309] An intervening act by another person may sever the chain of causation so that the accused may be absolved of legal responsibility for the resulting death. H.C.'s position is that the chain between his actions and the death of K.P. was severed by the act of the shooter.

[310] As stated by the Supreme Court of Canada in Maybin:

Factual causation is "an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result" (Nette, at para. 44). The trier of fact usually asks: "But for" the action(s) of the accused, would the death have occurred? Factual causation is therefore inclusive in scope.

Legal causation, however, is a narrowing concept which funnels a wider range of factual causes into those which are sufficiently connected to a harm to warrant legal responsibility. Arbour J. noted that legal causation is "based on concepts of moral responsibility and is not a mechanical or mathematical exercise" (Nette, at para. 83). She stated, at para. 45:

Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished.

[311] An intervening act becomes part of assessing legal causation. The Court in Maybin held that "the general nature of the intervening acts and the accompanying risk of harm need to be reasonably foreseeable".

[312] Legal causation does not require that the accused must objectively foresee the precise future consequences of their conduct. Nor does it assist in addressing moral culpability to require merely that the risk of some non-trivial bodily harm is reasonably foreseeable. Rather, the intervening acts and the ensuing non-trivial harm must be reasonably foreseeable in the sense that the acts and the harm that actually transpired flowed reasonably from the conduct of the appellants. If so, then the accused's actions may remain a significant contributing cause of death.

[313] In considering whether an intervening act is independent, the Court in Maybin suggests the following question: "Did the act of the accused merely set the scene, allowing other circumstances to (coincidentally) intervene, or did the act of the accused trigger or provoke the action of the intervening party?"

[314] Mr. Paquette points out in paragraph 61 of his written submissions that the Crown's theory with respect to H.C. is that he loaded the gun and thereby caused the death of K.P. However, there is little to no evidence that H.C. loaded the gun. In fact, there is little to no evidence about anyone loading the gun. I disagree. Someone loaded the gun, otherwise it could not have discharged.

[315] What is problematic in this case is determining who loaded it and when. It could have been H.C. at some time before he left to go upstairs. It could have been C.A. or I.S. or K.P. I accept that all of them knew how to load the gun and had access to the shell that was out on the coffee table.

[316] Mr. Paquette submits that H.C. in his third statement to the police said that he did not load the gun and he did not pull the trigger. Although I am satisfied that H.C. did not pull the trigger as he was out of the room when the gun discharged, I cannot accept his exculpatory statement that he did not load the gun. Through three police statements that H.C. provided to the police, he lied extensively to protect himself and to point the blame at others. His credibility was destroyed by the countless series of lies that he gave to the police, only to adapt and change his story when presented with evidence that the police uncovered that exposed those lies. Not only did H.C. and I.S. take steps to cover up what had happened by moving the victim's body outside on the driveway, H.C. also changed his clothes, the bloody sheets, and disposed of the shotgun by hiding it in the bushes before the police arrived. Once the police arrived, he immediately started lying about the events of the evening, and those lies continued until and including his last statement to the police. These series of lies and untruths are exhaustively set out in Ms. Mackenzie's factum on the evidence and, although I cannot agree with all the inferences that she invites me to take from them, and with her position that I should find beyond a reasonable doubt that he was the one that loaded the gun, they show how I can put very little weight on anything H.C. has said in any of his statements to the police.

[317] Mr. Paquette submits further that H.C. was not going to Midnight Madness and there would be no reason for him to load the gun. H.C. told police that he did not want to go because he knew police would be around and did not want to be seen with K.P. C.A. admitted in cross-examination that the plan could have very well changed. I again must disagree.

[318] H.C. has shown by his conduct throughout that he has very little common sense and, although it may have been foolish for him to go to Midnight Madness while on a bail condition not to associate with K.P., and with the increased police presence, he is one young man who does not make rational, logical, or reasonable decisions.

[319] I.S. says in his Agreed Statement of Facts that all four boys were going to go to Midnight Madness. Although I cannot and I do not use the admission of a co-accused against H.C., he acknowledged in his Agreed Statement of Facts that I.S. and K.P. were going to go. As such, he knew that there was a strong likelihood that the loaded gun would be taken with them. Knowing that, even if he did not load the gun, he knew that one of the other three boys were likely to do so. He omitted to ensure the gun and ammunition were securely stored with this knowledge.

[320] Mr. Paquette then submits that the Crown in written submissions argues that only one of the four friends knew the shotgun was loaded because that person loaded it and that the gun could not have been loaded by anyone who was in the basement when the shotgun was fired because if they had, they would not have been playing with it.

[321] I do agree with his analysis that these conclusions are flawed for several reasons. Firstly, they completely ignore the fact that all four friends had been consuming alcohol and drugs that night. C.A. admitted that on a previous occasion he may have loaded that same gun and, due to the effect of alcohol and drugs, forgot he had loaded it and was dancing around with the gun in his pants which resulted in the gun discharging.

[322] The effect of alcohol and drugs that night means that any of the four friends could have loaded the gun and may not have been in a state to appreciate or remember that it was loaded when it was ultimately picked up and the trigger was pulled.

[323] Secondly, the timing of how quickly the gun was picked up and discharged is not clear. This means that even if one of the three friends downstairs (I.S., C.A., or K.P.) loaded the gun and knew it was loaded, they may not have had time to intervene between the time the gun was picked up and the time it was discharged.

[324] Thirdly, C.A.'s evidence that had they knew the gun was loaded they would not have played with it is also not a factual conclusion I can make. It is, rather, an opinion provided by him. Clearly, four friends playing around with a sawed-off shotgun is extremely irresponsible. While I do conclude that if one knew it was loaded, that person would not pick it up, point it at K.P. and pull the trigger. However, on these facts, this I cannot conclude that the gun would not have been picked up again after it was loaded. Certainly, with a plan to bring the loaded gun out, one or more of the four friends would have had to handle the gun after it was loaded.

[325] Mr. Paquette also argues that H.C. and I.S. were aware that C.A. had previously discharged the firearm not realizing it was loaded and nearly shot himself. The Crown submits that H.C. and I.S. would have been keenly aware of the need for precaution and safe handling. By the Crown's own argument, it would be very unlikely that H.C. would have loaded the gun without anyone's knowledge and gone upstairs without telling everyone or taking it out of the room. I must disagree. Again, H.C. was an irresponsible young man under the influence of alcohol and drugs who had displayed an egregious lack of insight and adherence to the safe handling of his weapon in the past.

[326] I do agree with Mr. Paquette that there was a possibility that the weapon was in C.A.'s hands when it was discharged, although my sense is that it was probably in I.S.'s hands. Because of that uncertainty, I have been unable to find as a fact beyond a reasonable doubt that it was I.S. who shot the victim.

[327] Mr. Paquette submits that even if I found as a fact that H.C. loaded the gun, causation would not be made out because the intervening act of I.S. or C.A. picking up the gun, pointing it at the victim and possibly pulling the trigger is an intervening act sufficient to break the chain of causation.

[328] He argues that reasonable foreseeability is the test for the Court to apply when considering an intervening act. If H.C. loaded the gun, it was for the four friends to bring it with them to Midnight Madness. It would not be reasonable for H.C. to foresee (if he loaded the gun) that one friend would shoot another friend. This is specifically so if the other friends knew the gun was loaded. However, even if they did not, his action of loading the gun is still too remote to establish causation. It cannot be said to have "triggered" or "provoked" the action taken by the intervening party, as discussed in Maybin. I disagree. To have loaded the gun or even leaving the gun and ammunition so that it could be readily loaded by one of the three remaining boys in the room, who were all impaired by drugs and alcohol, does more than just set the stage for the events that followed. It was foreseeable to everyone that gun could and did in the past discharge accidentally under similar circumstances involving C.A.

[329] Mr. Paquette then goes on commencing at paras. 77-84 of his written submissions to argue that H.C.'s possession of the gun is not sufficient to warrant a finding of guilt on the charge that he is facing.

[330] He states correctly that the Crown submits that even if I do not find that H.C. loaded the gun, he is guilty of manslaughter through criminal negligence by failing in his duty to ensure that the firearm was handled and stored safely and to take precautions for the safety of others in relation to the firearm.

[331] He submits that causation cannot be established by allowing the gun to be out when the four friends were together. He admits that H.C.'s possession of the gun has been established through the evidence, but that is not sufficient to establish that the unlawful act of possession of the gun was what caused K.P.'s death.

[332] He correctly states that the evidence of both N.T. and C.A. established that the gun had been out several times before July 13, 2018 and that all four friends (K.P., H.C., C.A., and I.S.) had handled the gun on previous occasions.

[333] He then goes on to argue that, although there is evidence that the gun was kept at H.C.'s house on July 13, 2018, the gun would be better described as jointly possessed by all four friends. All four of them voluntarily handled the gun, pointed it at cameras and played with it. Furthermore, none of the four friends were seeing or handling the gun for the first time on July 13, 2018. Respectfully, I disagree with that assertion. Although the gun was temporarily in the possession of all boys at one time or another, it was with the leave and consent of H.C. who could have withdrawn that at any time. He purchased and paid for the gun. It was always stored (carelessly, I might add) at his home. None of the boys were free to just take the weapon and keep it at their home without his consent, and none ever did on the evidence before me. Yes, they were in joint possession of the weapon when they were in the room and passing it around, but that does not detract from the fact that H.C. was the owner of the gun and was under a legal duty to store it and the ammunition in a safe manner, which he did not do.

[334] Mr. Paquette submits that if I cannot find that H.C. loaded the gun, causation becomes even more remote. There is a further intervening act of the gun being loaded. Even if H.C.'s actions in having the gun and ammunition accessible to his friends was a marked and substantial departure from a reasonable gun owner (which I do find), the question remains whether it was reasonably foreseeable that one of the four friends would load the gun, point it at another friend, and possibly pull the trigger.

[335] In light of my finding that all four boys were under the influence of drugs and alcohol to varying degrees of intoxication and that it was their normal pattern when the weapon was out to point it at others and pull the trigger, that ammunition was or had been present in close proximity to the gun and that they were all aware that the weapon was capable of firing when loaded and had accidentally discharged in C.A.'s pants on an earlier occasion, I am of the view that it was reasonably foreseeable that one of the friends may point the weapon at another and pull the trigger, not knowing or forgetting that the weapon had been loaded. Each of the boys knew how to load the weapon. The constellation of these factors makes it reasonably foreseeable that the intervening acts that occurred would more likely occur, not less so as the defendant argues.

[336] I do not agree with Mr. Paquette's submissions that H.C. merely "set the scene" for the tragedy that occurred. Had H.C. not omitted to safely store the weapon and ammunition, this could not have occurred. If he did not load it, as he asserts, had he only taken the live shell with him when he went upstairs and/or put a trigger lock on the gun, the shooting could not have occurred.

[337] On his evidence, after he went upstairs, he was going to meet the boys outside to see them before they left for Midnight Madness. If only I.S. and K.P. were going to go, while C.A. stayed behind with him, he could have then given them the shell if they had wished to take the loaded weapon with them to the festival. I need not enter into an analysis as to whether if at the festival the gun discharged and killed someone either accidentally or intentionally there would have been a causal connection to the death attributable to H.C. as these are not the facts and would be pure speculation.

[338] In Maybin, supra, the Supreme Court defines "significant contributing cause" outside the de minimis range as the proper test for legal causation (in that case, legal causation of death) and notes that when determining whether or not an intervening act by some other person broke the chain of causation (there, and here, of death), various other inquiries may be helpful in determining legal causation but do not supplant the "significant contributing cause" test. The two tests used by the judges in the British Columbia Court of Appeal in Maybin, were (a) whether the intervening act was reasonably foreseeable; and, (b) whether the intervening event "is an independent factor that severs the impact of the accused's actions, making the intervening act, in law the sole cause of the victim's death"(at paragraph 27).

[339] On the facts before me, there is no doubt that H.C.'s failure to safely store the weapon and ammunition was a significant contributing cause of the death of K.P., outside the de minimis range. In using the two interpretative aids considered by the Supreme Court in Maybin, supra, I note that the possibility of one of the boys pointing and pulling the trigger on the firearm was reasonably foreseeable, for the same reasons I recite above.

[340] As for the second interpretative aid, it would be entirely artificial to break the chain of events to absolve H.C. of responsibility because one of the boys may have loaded the weapon at some time without the knowledge of the others. That sort of analysis would hardly conform to the second interpretative aid set out by the British Columbia Court of Appeal and accepted by the Supreme Court of Canada in Maybin.

[341] Indeed, to find a severance in causation on these facts would do violence to the words of that second test in my opinion. Someone loaded the gun in preparation to go to Midnight Madness. They either forgot they loaded it or failed to tell the others present that they had. I cannot find that someone intentionally loaded the gun for the purpose of shooting K.P. and then proceeded to do so. Even still, although this was a tragic accident fueled by drugs, alcohol and recklessness, it was entirely foreseeable and preventable.

[342] I note also that the risk of "punishing a moral innocent" arising out of this analysis is nil. Even though it was I.S. or C.A. who pulled the trigger, H.C.'s moral culpability is as great as the individual who pulled the trigger.

The Issue of Res Judicata

[343] Another issue arises if the Crown seeks to establish that H.C. is guilty of manslaughter by criminal negligence even if the Court does not find that he loaded the gun.

[344] If H.C. did not load the gun, the Crown submits that his guilt arises from failing to safely store the firearm, allowing a live shell to be accessible, and allowing his friends to play with the gun, specifically, allowing them to do so while they were drinking alcohol and doing drugs.

[345] Mr. Paquette said in the written submissions:

Another issue arises if the Crown seeks to establish that H.C. is guilty of manslaughter by criminal negligence even if the court does not find that he loaded the gun.

If H.C. did not load the gun, the Crown submits that his guilt arises from failing to safely store the firearm, allowing a live shell to be accessible, and allowing his friends to play with the gun, specifically, allowing them to do so while they were drinking alcohol and doing drugs.

These "failures" are captured in the offences of careless storage of a firearm and possessing a prohibited weapon with readily accessible ammunition – two offences for which H.C. has already pleaded guilty and been found guilty and served a sentence.

[346] This is not correct. This matter was pre-tried by Justice LeDressay. During the course of numerous pre-trials and case management conferences, it was agreed that H.C. would plead guilty to most of the other offences that he was charged with arising out of these events. He did plead guilty to the offences set out in paragraph 5 of my judgment and was subsequently sentenced on those offences.

[347] Although he was originally charged with careless storage of a firearm and pled to that charge, the information from that date indicates that there was an amendment to that charge to "careless use of a firearm" which was made at the request of his counsel. He was rearraigned on the careless use charge and was found guilty of that charge. There was never a finding of guilt on the charge of careless storage of a firearm. In fact, his counsel suggested the amendment because:

MR. PAQUETTE: Just one more comment if I could, Ms. Mackenzie, before the presentation of facts. On the fifth count, that information alleged is careless "storage", but in the synopsis the presentation was careless "use". The facts contained in the synopsis support careless "use" not "storage". Does the Crown wish to see that count amended to alleged careless "use"?

MS. MACKENZIE: At this point I will. It may be arguable whether it supports both, but I'm satisfied that -- ask for the amendment and seek the guilty plea and a conviction on the careless use.

[348] Mr. Paquette submits that H.C. cannot now be convicted of manslaughter by virtue of possessing the gun and carelessly storing it as this would raise the issue of res judicata. I disagree.

[349] When I saw the discrepancy between H.C's counsel's written submissions and the information on the plea, I had my judicial assistant contact counsel and invite further submissions. I received further written submissions from Mr. Paquette on March 24, 2020 and from Ms. Mackenzie shortly thereafter including a transcript of the proceedings before Justice LeDressay.

[350] After having reviewed the written and supplementary submissions of both counsel and after reviewing the case law on this matter, I accept the submissions of Ms. Mackenzie and adopt those into my reasons.

[351] She states, and I agree, that the fact that H.C. pled guilty to careless use instead of careless storage further strengthens the Crown's argument on the res judicata issue.

[352] I agree with her submission that an accused can be convicted of a new offence if an additional ingredient is established beyond what was required to establish the first count.

[353] In that case, Hutchinson J. stated:

62 In the Krug case, Justice La Forest said at p. 200:

To convict an accused under the new offence (s. 83), an additional ingredient had to be established beyond what was required to prove robbery as defined by s. 302(d). (emphasis added)

63 Justice La Forest went on to quote from Court of Appeal Justice Martin in the R v. Langevin, supra, at p. 145 (p. 201 in Krug):

Notwithstanding that in most cases of "armed robbery" the offender will have used the weapon, none the less, s. 83(1), by making the use of a firearm an essential element of the offence created by the subsection, unlike s. 122 which required only that the offender have a firearm on his person, imports a further element in addition to those which suffice to constitute theft while armed with a firearm. (emphasis added)

And at p. 202 in Krug, Justice La Forest said:

In sum, as in McGuigan, there were in the present case factual elements of use in addition to mere possession, specifically the loading and the pointing of the firearm. The Kienapple principle has, therefore, no application here in relation to the offences under ss. 83 and 302(d). (emphasis added)

[354] Ms. Mackenzie states in her supplementary submissions, and I agree, that the focus must not be on the presence or absence of a common element, but on the presence or absence of additional elements.

[355] Ms. Mackenzie states that in this case there are two additional distinguishing ingredients or elements - criminal negligence through careless storage and causation of death as a result. There is an additional element for manslaughter that is the requirement of factual and legal causation of the death of the victim. This was not admitted to on the guilty plea. I agree with that submission.

[356] I also agree with her submission that the Crown's alternate theory of guilt was that the accused caused the death of the victim by carelessly storing the firearm. H.C. did not admit to carelessly storing the firearm on his guilty plea. He only admitted to carelessly using the firearm.

[357] She states that the Crown's "alternate theory" of guilt based on manslaughter through criminal negligence is that H.C., as a firearm owner and firearm handler, had a duty to ensure that the firearm was handled and stored safely and to take precautions for the safety of others in relation to the firearm. I agree with that.

[358] In my view, a person who possesses an illegal firearm and uses it carelessly could still store it safely. For instance, a person who himself uses the weapon carelessly and allow others to do so as well could then secure the firearm safely with a proper trigger lock, in a locked storage cabinet. That person would be guilty of careless use of a firearm and possession of a prohibited firearm, together with readily accessible ammunition capable of being discharged in the said firearm, and was not the holder of an authorization or licence to possess the said firearm in the place contrary to Section 95(b) of the Criminal Code, as H.C. pled to and was sentenced for, yet still have taken steps to safely secure and store that firearm, especially before he left the room.

[359] Ms. MacKenzie submitted in her supplemental factum, that the facts supporting this theory were proven mainly by the evidence of N.T. and C.A. Although I have previously voiced my significant concerns with the evidence of C.A., on this point, I do accept his evidence especially because it is corroborated in substance by the evidence of N.T., who I found to be a credible witness.

[360] Although there are conflicts in the details between the two accounts, the substance is that H.C. had voiced his desire to obtain a firearm to N.T. while both were in youth custody.

[361] I accept C.A.'s evidence that, at the very least, he facilitated the sale of the gun to H.C. and was present when the exchange took place for cash. N.T.'s evidence corroborates this, although not on the more minor points of the location where the transaction took place or the presence or absence of "W".

[362] There is no doubt in my mind that H.C. was the owner of the firearm, that he bought and paid for it using C.A. as, at the very least, the facilitator of the sale and that he was the continuous owner of the firearm since the purchase of it by him.

[363] These were not admitted facts on the guilty plea or facts sought to be proven at that stage by the Crown. It was only admitted that H.C. carelessly used the firearm by playing with it.

[364] Therefore, the same "factual nexus" did not exist at the time of the guilty plea in this matter. I agree with the Crown that an "additional ingredient", and indeed an additional offence (careless storage) was established at the trial.

[365] I would add that an offence not charged against H.C. but that potentially could have been would be careless storage of ammunition pursuant to s. 86(1) of the Criminal Code.

[366] Leaving aside the careless storage of a firearm which is the heart of H.C.'s res judicata argument, he admits in his Agreed Statement of Fact that the shotgun shell was out on the coffee table. This as well would constitute an offence. If the shell was on the table when he left to go upstairs, this is a crucial nexus in the chain of events. Leaving the gun carelessly stored with access to the three others who knew how to load the firearm was in itself a vehicle towards finding criminal negligence that resulted in K.P.'s death.

[367] For all of the above reasons, I reject Mr. Paquette's submissions on res judicata and 11(h) of the Charter and adopt and accept Ms. Mackenzie's submissions. H.C.'s plea to the careless use of a firearm does not bar me from the findings that I have made in these reasons.

5.0 CONCLUSION

[368] For the above reasons and after a review of all the evidence and the law, I find that I do not believe the evidence of H.C. Even though I do not believe his evidence, it as well does not raise a reasonable doubt in my mind concerning any or all issues.

[369] After a review of all the evidence at trial and applying the legal principles that I have, I have come to the inescapable conclusion that the Crown has proven all the essential elements of the charge of manslaughter by criminal negligence contrary to s. 236(a) of the Criminal Code beyond a reasonable doubt. There will be a conviction registered for that offence as against H.C. which is count 1 on the information.

[370] Regarding I.S., I am unable to be satisfied beyond a reasonable doubt that he was the individual who pointed the gun and shot the victim. Although I am of the view that he probably did so, I cannot be satisfied beyond a reasonable doubt of this as I cannot discount the possibility that it was C.A. who did so.

[371] Accordingly, I am unable to find him guilty beyond a reasonable doubt of both manslaughter charges that he is facing, namely the July 13, 2018 offence of using a firearm in the commission of the offence of criminal negligence by discharging the firearm thereby causing the death of K.P., contrary to s. 220(a) of the Criminal Code, or the offence of committing manslaughter by criminal negligence with a firearm, contrary to s. 236(a) of the Criminal Code. He will be found not guilty of counts 1 and 2 on the information.

[372] I.S. pled guilty at the commencement of the trial to attempt to obstruct the course of justice by making a false statement contrary to s. 139(2) of the Criminal Code. The facts amply support that plea and he will be found guilty on count 3 on the information.

[373] Pursuant to the concessions in the written submissions filed by his counsel and after reviewing the applicable law and assessing the entirety of the evidence of this trial, I am satisfied that the Crown has proven the necessary elements of the following offences beyond a reasonable doubt and I.S. will be found guilty of the June 13, 2018 charge that he did possess a firearm, to wit: a sawed off shotgun without being the holder of a licence under which he may possess it, contrary to s. 91(1) of the Criminal Code of Canada, and that on July 13, 2018 he did possess a firearm, to wit: a sawed-off shotgun without being the holder of a licence under which he may possess it, contrary to s. 91(1) of the Criminal Code of Canada.

[374] Regarding I.S.'s above charge of June 13, 2018, counsel for I.S. admits that the photographic evidence showing him holding the shotgun is dated June 13, but that may be the date that it was captured or saved or forwarded. We cannot know because the Crown did not call A.A. who was present in the video. Counsel for I.S. fairly concede in their written submissions that the Crown was not obligated to prove the alleged date beyond a reasonable doubt. I agree. Accordingly, I.S. will be found not guilty of both of those charges with offence dates of June 13, 2018.

[375] Regarding I.S's offences of June 13, 2018 of careless use of a firearm and possession of a prohibited firearm with readily accessible ammunition, the Crown fairly invited me to acquit on those offences as the Crown was not in a position to call any evidence particularly with respect to that date outside of the photographs or videos that they relied on. I agree. Accordingly, I.S. will be found not guilty of both of those charges with offence dates of June 13, 2018. They are counts 5 and 6 on the information.

[376] Regarding the charge of careless use of a firearm by I.S. on July 13, 2018 I am of the view that the Crown has proven the essential elements of this charge beyond a reasonable doubt as well. The evidence establishes to my satisfaction that throughout the night all of the boys were playing with the gun as if it were a toy and pulling the trigger. I find that I.S. was pulling the trigger of the gun at various times throughout the night. The reasoning for my decision on this count lies in the decision of R. v. Copp. In that case the Court held that the accused who pointed a firearm at three people and shot two of them and who was found guilty of aggravated assault on one person and guilty of the included offence of pointing a firearm at his girlfriend. He was convicted at trial of the "included" offence of careless use of a firearm. The New Brunswick Court of Appeal held that the offence of careless use of a firearm was not an included and lesser offence to that of pointing a firearm and quashed the careless use charge. It gave examples of when careless use may not be made out just by pointing a firearm at another.

[377] Although I agree with the principles in that case and recognize the examples given there, I find that throughout this evening, all boys were "consciously indifferent" or "oblivious" with respect to the handling of the firearm and their obligations.

[378] Counsel for I.S. points out that there is no evidence that I.S. did not check the weapon to see if it was loaded on earlier occasions throughout the night. I find as a fact that he did not. He was impaired by alcohol and drugs to the degree that he was unaware of who shot K.P. I acknowledge that it is the Crown's onus to prove that he did not check to see that the firearm was unloaded, but I think that common sense dictates that he did not. There is no evidence of I.S. or for that matter of any of the other boys ever checking to see if the gun was unloaded at any time that night or on any previous occasion. I find that it was a pattern of I.S. and the other boys that they cared less about whether the weapon was loaded and cared more about putting photographs and videos on social media of them posing with the weapon and pulling the trigger. This satisfies me that I.S. was consciously indifferent and oblivious to his handling of the firearm.

[379] There is no evidence from I.S. that the shell for the weapon was on the table all night and that he was constantly paying attention to its location and constantly checking the gun to see that it was absent a shell. In his state of intoxication, he could not have had his attention focused on the weapon and the location of the live shell the entire night.

[380] There will be a finding of guilt regarding careless use of a firearm against I.S. for the July 13, 2018 charge which is count 4 on the information.

[381] Regarding the charge of careless use of a firearm on June 13, 2018, there will be a finding of not guilty entered to that charge which is count 5 on the information.

[382] Regarding the charge of June 13, 2018 alleging that he possessed a prohibited firearm together with readily accessible ammunition and was not the holder of an authorization under which he could do so, it is admitted by his counsel that he did possess a prohibited firearm on that date without a licence, but absent a live witness, there is insufficient evidence to find that there was readily accessible ammunition on that date. The videos of that date show that when the trigger was pulled, the gun did not discharge. There is no ammunition visible on the videos or in the photographs, nor any live evidence to support that ammunition was readily available that date. He, therefore, will be found not guilty of that charge which is count 6 on the information.

[383] There is evidence to prove beyond a reasonable doubt that on July 13, 2018 he is guilty of possession of a firearm without being the holder of a licence that would allow him to do so contrary to s. 91(1) of the Criminal Code of Canada, both by way of video and photographic evidence and his own admission in his statements to the police. He will be found guilty of that charge which is count which is count 7 on the information.

[384] Regarding the charge of possession of a firearm without being the holder of a licence to do so on June 13, 2018, the Crown suffers from the date problem of when the photos and videos were taken and did not call a live witness to establish this. However, counsel for I.S. conceded that the Crown was not obligated to prove the alleged date beyond a reasonable doubt. I agree, so there will be a finding of guilt on that charge which is count 8 on the information.

[385] Finally, the Crown has failed to convince me beyond a reasonable doubt that I.S. pointed the firearm at K.P. that evening contrary to s. 87 of the Criminal Code of Canada. The only direct and clear evidence that I have on that point comes from C.A. For the reasons given earlier, I do not feel safe in accepting his evidence on that point. Therefore, there will be a finding of not guilty on that charge which is count 9 on the information.

[386] That concludes my judgment on these matters.

Released: June 15, 2020

Justice Stephen D. Brown