WARNING

The court hearing this matter directs that the following notice 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:

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.

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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

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:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Ontario Court of Justice

Date: 2020-12-14

Court File No.: Region of Waterloo [at Kitchener] 20Y164(00)

Between:

Her Majesty the Queen

— and —

M.B., a young person (or "young persons")

Before: Justice C.A. Parry

Heard on: July 13, 14, 15, 16, 17, 21, 22, 23, 24, and September 2, 2020

Reasons for Judgment released on: December 14, 2020

Counsel:

• A. McMaster, counsel for the Crown
• S. Jeethan, counsel for the accused M.B.

PARRY J.:

I. INTRODUCTION

[1] Four men emptied out of a blue Mazda SUV and fired about 35 shots into a Subway restaurant in the plaza at 255 King Street North in the City of Waterloo. The shooting occurred at about 2:04 a.m. on April 19, 2019. The restaurant is located about a block away from Wilfred Laurier University and in close proximity to various bars frequented by students and young people. Unsurprisingly, the Subway restaurant was filled with young patrons. The shooting provoked mayhem inside the restaurant. Astonishingly, only one patron was hurt. That patron received a bullet wound in each of his forearms.

[2] The Crown alleges that M.B. is one of the shooters. As a result, he stands charged with the following Criminal Code and YCJA offences:

(1) Discharge firearm with intent to endanger life, contrary to CCC s. 244(1);

(2) Aggravated assault [wounding] of Shahin Nourouzi, contrary to CCC s. 268;

(3) Possess firearm contrary to s. 51 order, contrary to CCC s. 117.01(1);

(4) Breach probation [by possessing a weapon], contrary to YCJA s. 137;

(5) Discharge firearm at or into a place knowing or being reckless as to whether any person is in that place, contrary to CCC s. 244.2(1)(a); and

(6) Discharge firearm while being reckless as to life or safety of another, contrary to CCC s. 244.2(1)(b).

[3] M.B. concedes that the alleged criminal acts occurred; however, he contends that the Crown has failed to prove beyond a reasonable doubt that he was one of the shooters.

[4] M.B. also stands charged with another series of related offences under the Criminal Code, the YCJA, and the Cannabis Act. The offences occurred in the City of Kitchener on May 16, 2019. The charges are as follows:

(1) Possess prohibited firearm, a Glock 26, without having a licence, contrary to CCC, s. 91(1);

(2) Occupant of motor vehicle [BMW] that he knew had a firearm [Glock 26], contrary to CCC s. 94;

(3) Posses a loaded prohibited firearm without a licence, contrary to CCC, s. 95(1);

(4) Possess firearm with serial number removed, contrary to CCC, s. 108(1)(b);

(5) Dangerous driving, contrary to CCC, s. 320.13(1);

(6) Fail to stop for police, contrary to CCC, s. 320.17;

(7) Breach Probation [weapons], contrary to YCJA, s. 137;

(8) Possess cannabis for purpose of distributing, contrary to Cannabis Act, s. 9(2);

(9) Possess more than 5 grams of cannabis, Cannabis Act, s. 8(1)(c); and

(10) Breach of a YCJA s. 51 order by possessing firearm, contrary to CCC, s. 117.01(1).

The commission of these offences arose from or were discovered as a consequence of a suspect's flight from a routine Highway Traffic Act investigation. The Crown alleges that M.B. was the suspect in question. While these subsequent offences occurred nearly a month after the Subway shooting, involved the alleged possession of a different firearm than the ones used in the Subway shooting, and took place in a different city than the Subway shooting, the evidence obtained during the investigation of these offences provides what the Crown argues is compelling circumstantial evidence of the accused's guilt for the Subway shooting charges. It is in that sense that the May 16th charges are related to the April 19th charges.

[5] M.B.'s counsel has effectively conceded that the alleged unlawful acts on May 16, 2019 in fact occurred. As with the April 19th incident, identity was really the only live issue in relation to the May 16th incident. However, by the time of submissions, M.B.'s counsel all but conceded that the evidence marshalled against him was capable of establishing M.B.'s guilt for the May 16th offences. Given the resounding and unbroken chain of circumstantial evidence, counsel's near-complete concession was entirely appropriate. Accordingly, and for the reasons articulated below, I will find M.B. guilty of the May 16th offences.

[6] Despite effectively conceding the appropriateness of guilty verdicts for the May 16th charges, counsel for M.B. nevertheless maintains her contention that Crown has failed to prove beyond a reasonable doubt that M.B. was one of the Subway shooters and thus guilty of the charges stemming from that shooting. For the reasons discussed below, I have concluded beyond any doubt that the web of circumstantial evidence woven by the Crown inexorably establishes that M.B. was in fact one of the Subway shooters and is thus guilty of the charges stemming from that shooting.

II. THE OVERWHELMING EVIDENCE REGARDING THE MAY 16TH INCIDENT

[7] Constable Decker was performing cellphone and seatbelt enforcement duties on May 16th, 2019. He was situated at the corner of Fairway Road and Old King St. in the City of Kitchener. At 10:53 a.m., he was on foot when he saw a man stopped at the intersection who was apparently using his cell-phone. He approached the car and spoke to the driver. While speaking to the driver, he saw a small quantity of marijuana on the passenger seat and seized it. Without complying with the request to produce his driver's licence, the driver took off and drove down old King St. at a high rate of speed. Given the speed, Constable Decker decided against getting into his cruiser and pursuing the suspect. However, he was able to make note of the driver's appearance, the make of the car, and the car's licence plate. He described the car as a four door 2005 BMW 530i, which was blue and had the licence plate marker "CHRN 696." He described the male driver as follows: male, black, wearing an olive-green track suit (top and bottom), with medium-long wavy hair.

[8] Minutes later, dispatch advised Constable Decker that the BMW that fled from him had hit a traffic light pole at the intersection of old King St. and River Road – about 1 km from the earlier traffic stop.

[9] At the time of the collision, Aimee Ranni was stopped at the intersection of River and King, waiting to make a right turn, when she saw the BMW blow through the intersection and collide with the traffic pole to her left. She described the BMW as "flying." The driver of this BMW drove in a manner that endangered the public and in a manner that constituted a marked and substantial departure from the standard of care of an ordinary prudent driver.

[10] Civilian witnesses observed the traffic accident and saw the lone male driver abandon the car and flee up the hill towards the nearby Woodview Crescent. Aimee Ranni exited her vehicle and spoke to the driver briefly before the driver ran away on foot. She described the driver as being black, not particularly tall, and wearing a dark green track suit with dark shoes. Joseph Doak, who was working on the opposite street corner ran after the driver and followed him on Woodview Crescent until the man ran into the nearby forest. He noted that the man took off with a duffle bag.

[11] Constable Decker arrived on scene and found the car that had previously eluded him. He also found a parking ticket under the windshield wiper of the car. That ticket was issued to that car and indicated that the address of the infraction was at 41 Columbia Street West in the City of Waterloo.

[12] Inside the car, Constable Decker found a cell phone that the defence has conceded belonged to M.B. – which was the only reasonable available response to the overwhelming evidence. A search of that cell phone ultimately revealed a text to M.B. from M.B.'s probation officer. The probation officer testified that the accused had provided her the cell phone number used for the text message. The cell phone also contained numerous pictures of M.B. and his associates. Moreover, a police fingerprint expert opined that a fingerprint on the cell phone came from M.B.'s left thumb.

[13] A K-9 unit attended on scene and followed a scent into the forest in which the suspect fled. [1] During the tracking, the police found a black jacket with a distinctive red strip on the inside of the left lapel and a round Moncler emblem on the upper left shoulder. Inside that jacket, the police found a loaded Glock hand-gun with a prohibited magazine. The serial number on this Glock had been removed. Police also found a pair of black running shoes stuck in the mud.

[14] A short time after the accident, City Cabs received a call to pick up a fair from a condominium complex at 15 Hofstetter Ave., which is about 100-200 metres away from the scene of the accident. A cab picked up a young man who was wearing royal blue shorts, a white t-shirt, and a gold necklace. The cab contained a dash-cam which recorded high quality video of the fare. Counsel for M.B. has conceded that the man depicted in the dashcam video is M.B. This concession is entirely appropriate. The video unquestionably captures M.B. Upon entering the cab, M.B. initially asked that the cab take him to 8 Hickory Street. He then changed his mind and had the cab drive him to Columbia Street West in the City of Waterloo. M.B. disembarked in the vicinity of 41 Columbia St. West.

[15] Video footage from 41 Columbia St. West shows a man that is unquestionably M.B. leaving an apartment in that building at 10:34 a.m. on May 16th. M.B. then exits the building and gets into a 4 door BMW sedan in the parking lot of the apartment building. This BMW had what appeared to be a traffic ticket stuck under its windshield wiper. In all respects, the BMW was consistent with the one that ultimately crashed into the traffic pole at River Road and King St shortly before 11 a.m. This video footage affords no other reasonable conclusion than that M.B. drove this car when he encountered Cst. Decker, when he fled from Cst. Decker, and when he crashed that car into a traffic pole. When he initially departed from 41 Columbia Street West, M.B. was wearing an olive-green track suit and black shoes, consistent with the outfit described by Detective Constable Decker and Aimee Ranni. He is also wearing a back jacket with a red stripe on the inner lapel and a round emblem on the upper left arm, a jacket strikingly similar to the one found abandoned in the forest in the area in which the man from the accident scene was last seen heading. The black shoes depicted in the Columbia Street video also bear a close resemblance to the shoes found stuck in the mud in the forest near the accident scene. Later, at a time consistent with the end of M.B.'s cab fare from Hofstetter Ave., M.B. is clearly depicted re-entering 41 Columbia Street West. This time, however, he no longer wearing the green track suit; he is also no longer wearing any shoes; nor is he wearing a black jacket. This loss of clothing affords no other reasonable conclusion than that M.B. was the person who abandoned his coat and shoes in the forest near the scene of his abandoned car. That abandoned coat contained the loaded firearm. I infer beyond any doubt that M.B. knew that such a bulky item was inside of his coat pocket.

[16] Hansel and Gretel could not have left a better trail. The circumstantial evidence indisputably establishes beyond a reasonable doubt that M.B. fled Detective Cst. Decker's traffic-stop; that he drove dangerously during his flight from police; that he wore the jacket later found abandoned in forest near the scene of the accident; and that he thereby knowingly possessed the firearm and prohibited magazine found in the pocket of that jacket. Given the admission that M.B. was bound by a probation order containing a weapons prohibition and was also bound by a s. 51 YCJA order, the circumstantial evidence also indisputably establishes his violation of those orders.

[17] Detective Cst. Decker ultimately searched the trunk of this BMW and found a large quantity of marijuana stored in a number of large bags. Identification officers located latent fingerprint impressions on the drug packaging. On consent, the Crown tendered a Friction Ridge Analysis Report, wherein Detective Constable Scott Davidson opined that one of the prints on the packaging "originated from the same source as the known impression of the left thumb of M.B." In other words, the officer opined that M.B. left a fingerprint on a large bag of drugs found in the trunk of the car he abandoned after a high-speed flight from police. When viewed in the context of the entirety of the circumstantial evidence, this fingerprint establishes beyond a reasonable doubt that M.B. possessed the marijuana in the trunk of the car he was driving. Given the large quantity of the drug being transported, given the flight from police, given M.B.'s possession of a loaded firearm with a prohibited magazine during the transport of this large quantity of drugs, the evidence establishes beyond a reasonable doubt that M.B. possessed the marijuana for the purpose of distributing it.

III. THE PRIMARY AND SUFFICIENT THREADS IN THE CROWN'S CIRCUMSTANTIAL WEB OF EVIDENCE PERTAINING TO THE SUBWAY SHOOTING

[18] The Crown produced daunting and interconnected strands of evidence against M.B. Even if I were to disregard numerous strands of evidence, a smaller subset of circumstantial strands of evidence inexorably compels the inference of M.B.'s guilt on the counts stemming from the Subway shooting. I intend to highlight these primary strands of circumstantial evidence and explain how these strands, irrespective of the various other strands woven-in by the Crown, leave no room for reasonable doubt. I will begin with the evidence from April 19th.

A. Key Evidence from April 19th, 2019

[19] The Subway restaurant's video surveillance footage did not provide any view of the actual shooters or otherwise assist in establishing the identity of the shooters. However, the neighbouring Freshii restaurant video surveillance established that there were at least four distinct shooters. While this Freshii video did not clearly reveal the faces of the shooters, it captured the clothing worn by the shooters. The clothing combinations worn by three of the shooters bore a striking resemblance to the clothing combinations of three men captured on video minutes before the shooting at a small condominium building across the street from the strip-mall that housed the Freshii and Subway restaurants. That condominium was located at 8 Hickory Street.

[20] The connection between the Freshii video and the Hickory Street video is important, because the Hickory Street video provides a fairly good view of the faces of the men captured on the video, one of which bears an extremely strong resemblance to M.B. It also reveals a group of young men wearing clothing combinations that strikingly resemble the clothing combinations worn by some of the shooting suspects. The striking similarity of these clothing combinations, coupled with the close temporal and geographic proximity between the Freshii video and the Hickory Street video, defies chance coincidence. Only one reasonable inference flows from this similarity: at least three – and in all likelihood four – of the men in the 8 Hickory Street Video are the shooters disclosed in the Freshii video.

[21] Before delving further into the Hickory Street video, I will explore in more detail what is disclosed in the Freshii video and a video from a Bank of Montreal branch in the same plaza and located at the corner of King St. and Hickory St.

[22] The Freshii video shows the four shooters getting out of a blue Mazda SUV, one that appears to be a Mazda CX-9. After the shooting, the SUV departs in the direction of the parking lot exit that faces Hickory Street and the condominium at 8 Hickory across the road. The video also shows the outfits of the four shooters. One of is wearing a black outfit with a broad white stripe down the sleeves, a white emblem on the chest, black shoes with a thick white sole, and white gloves. Another male is wearing a dark hooded coat, light blue-grey tapered track pants with a thick black stripe down the legs, and black high-top sneakers with a pull-tab on the heal. A third male is wearing a dark bulky jacket, with light-blue coloured jeans/pants, and dark shoes with white markings on the soles and heals. A fourth male is wearing a black hooded track suit and white sneakers.

[23] The Bank of Montreal video shows the Mazda SUV driving from the vicinity of the Subway and Freshii restaurants, immediately after the shooting, and exiting out through the Hickory Street exit. This video discloses something distinctive about the SUV: it appears to have a spare tire on the front passenger side.

[24] I turn now to the video from 8 Hickory Street, particularly how it discloses men wearing clothing combinations that bear a striking resemblance to those worn by the shooters. This video shows a group of men entering the foyer of the building at about 12:31 a.m. In general, they appear conscious of the video-cameras and appear to avoid being within the line of sight of any cameras, going so far as to wait down the hallway whilst waiting for the elevator to arrive. The group ultimately goes up the elevator. Later, the group spills back into the lobby and exits out the side door at about 1:55 a.m., about 9 minutes before the shooting. The video captures a total of 11 young men. Their gait, clothing, facial appearances, and slender builds betray their youthfulness.

[25] Three of the males from the 8 Hickory Street video wear clothing combinations that are a virtual match to those worn by three of the shooters. A fourth male is wearing a similar outfit to one of the shooters but for the presence of an easily removed puffy vest.

[26] One male at 8 Hickory Street is depicted wearing a black track suit, with a broad white stripe down the sleeves, a white emblem on the left breast, thin white gloves, and black shoes with a thick white sole. Detective Constable Harry Jugpal of the Toronto Police Service recognized this individual from past dealings. He identified this man as L.A.. This recognition evidence is corroborated by evidence of the seizure of a blue Mazda CX-9 by York Regional Police. That seized Mazda contained a bullet casing that, according to forensic expert evidence tendered at the trial, is consistent with some of bullet casings left at the scene of the Subway shooting. Moreover, the Mazda was seized incident to the arrest of L.A.'s brother. In addition, L.A.'s cell phone was at some juncture linked via Bluetooth to this seized Mazda. Moreover, cellphone subscriber records established that Mr. L.A.'s cell phone was present in Waterloo Region and communicated with cell towers close to the scene of the shooting during the timeframe of the shooting. This was the only time records disclosed his presence in the region. This combination of circumstantial evidence overwhelmingly establishes that Mr. L.A. was one of the shooters. This fact makes it more likely that some of his companions formed the remainder of the group of shooters.

[27] Another male depicted in the 8 Hickory video is wearing light blue-grey Puma track pants, black high-top sneakers with a pull-tab at the heal, and a black hooded coat, whose hood sits back on the head of its wearer. Again, this clothing combination is indistinguishable from that worn by one of the shooters in the Freshii video. This male's face and head can be seen on the video, particularly as he approaches the elevator. While the video is somewhat grainy, due to the young man's distance from the camera, the young man bears a striking resemblance to that of M.B. In forming this conclusion, I have regard to the man's skin tone; his prominent forehead; the relative placement of the eyes, nose, mouth, chin, and forehead; his full lips; his tendency to breath through his mouth; his posture; and his mannerisms. All of these features were observable on the video and observable when I looked at M.B. in court. Despite the graininess of the video, I might have concluded beyond a reasonable doubt, on the basis of the video standing in isolation, that M.B. is the young man depicted in the video. However, as I will discuss shortly, there is other evidence which convinces me to a certainty that the man in the Puma track pants is M.B.

[28] A third male in the 8 Hickory Street video is wearing a dark bulky winter hooded bomber jacket with light blue jeans and black shoes with white markings on the soles and heals. This clothing combination is again quite similar to the clothing combination worn by one of the shooters.

[29] A fourth male in the 8 Hickory Street video is wearing black sweatpants, a black hooded sweatshirt, white shoes, and a bright blue hooded outer vest. None of the shooters is wearing a bright blue hooded vest, but one is wearing a black hooded sweat shirt with black track pants and white shoes. An outfit consisting of a black sweat suit with white sneakers may not, in isolation be particularly distinctive, but its juxtaposition with three other distinctive outfits gives rise to a significant probability that this person in the 8 Hickory Street video is the fourth shooter.

[30] Again, it is the similarity of the clothing combinations of the four individuals [that is, what each of them is wearing and the fact that each is in the company of the other] in the 8 Hickory Street video, coupled with the proximity in both time and place of the men in that video to the men captured in the Freshii video that leads me to conclude that the Subway shooters are depicted moments before at 8 Hickory Street. I am satisfied beyond any doubt at all that the first three men I described were in fact three of the Subway shooters. On the basis of the video evidence form 8 Hickory, and on the basis of other evidence which I am about to discuss, I am able to conclude that one of these three men – the man in the light blue-grey [2] Puma track suit – is M.B. With regard to the fourth man described above, I consider it extremely likely that this man removed his puffy vest and is the fourth shooter.

B. Key Circumstantial Evidence from the May 16th Incident

[31] As noted, M.B. left behind his phone when he fled the accident scene on May 16th. That phone contained numerous photos of M.B. A number of those photos, taken 5 days after the shooting, depicted M.B. wearing the exact same light blue Puma track suit as the one worn by the shooter seen on video at 8 Hickory Street – the one whom I concluded bears a striking resemblance to M.B. In those cellphone photos, M.B. is depicted with another man, who is wearing a red-white-and-blue Puma track suit, with a gold necklace, and a red and white scarf resembling a keffiyeh. By happenstance, the police photographed M.B. and a companion when conducting surveillance at 82 Columbia Street West on the afternoon of April 17, 2019. This address is just a short distance down the road from 41 Columbia West, an address I have concluded M.B. attended in May 2019. In my view, the photographs from 82 Columbia indisputably depict M.B. As it happens, M.B. is wearing the identical light blue Puma track suit as the one depicted in the photos on his cell phone, and as the one depicted on the shooter seen at 8 Hickory and outside the Subway restaurant. M.B. is also wearing black running shoes with a pull-tab at the top of the heal that bears an extremely strong resemblance to the shoes worn at 8 Hickory. In the 82 Columbia photos, M.B. is also accompanied by the same companion, wearing the same red-white-and-blue Puma tracksuit with the same keffiyeh as was worn by the companion in the photos on M.B.'s phone. In short, less than 35 hours before the shooting, M.B. is wearing the identical tracksuit, with apparently identical shoes, and with his hair braided in the identical style as a man from the 8 Hickory Street video, whom I have concluded is one of the subway shooters and whom I have concluded bears a striking resemblance to M.B. If I were not completely certain that M.B. was the shooter with the light blue Puma track suit solely on the basis of the 8 Hickory video, the photos in M.B.'s cellphone, coupled with the surveillance footage from April 17th, provide me with complete certainty.

[32] M.B.'s cellphone provides the Crown with additional corroborating evidence.

[33] First of all, GPS location data from M.B.'s phone reveals that his phone was situated at 8 Hickory at 12:26:41 a.m. on April 19, 2019. Video footage from 8 Hickory shows the man in the light blue Puma track suit entering 8 Hickory moments later at 12:33 a.m. This GPS location data therefore further cements the inescapable conclusion that M.B. was the man in the light blue Puma track suit.

[34] Secondly, analysis of M.B.'s cellphone subscriber records establish that his phone was in the general vicinity of the shooting at around the time of the shooting. M.B.'s cellphone revealed that 3 different telephone numbers and thus 3 different SIM cards were associated with his iPhone. Subscriber records show that using one of those SIM cards [for phone # [phone number 1], an account ascribed to "Jack Matthews"], M.B.'s iPhone entered Waterloo Region from the Toronto Region and pinged off cell cites near the scene of the shooting and around the time the shooting. Specifically, records show the phone entered Waterloo Region by 11:31:39 p.m. on April 18, 2019 and departed Waterloo Region by 3:01:04 a.m. on April 19, 2019. These subscriber records are consistent with the GPS location data from M.B.'s phone. Similarly, an analysis of subscriber records showed that M.B.'s phone, when using the "Jake Matthews" SIM card, came to the Waterloo Region and utilized cell-sites in proximity to 82 Columbia Street West at around the time M.B. was captured on camera at 82 Columbia Street West on April 17th. The relative proximity of M.B.'s phone to the scene of his surveillance on April 17th and to the general vicinity of the shooting on April 19th further cement my conclusion that M.B. is shooter in the Puma track suit seen in the video from 8 Hickory Street.

[35] Thirdly, cellphone subscriber records show that the proximity of M.B.'s phone to the scene of the shooting cannot be discounted as being the product his frequent attendance in the area, and thus the product of innocent coincidence. On the contrary, subscriber records show that M.B.'s cellphone – and thus, I infer, M.B. – rarely entered Waterloo Region. Indeed, the phone was only in the region on four occasions within a one month time span: (1) from April 16, 2019 at 2:28 p.m. to April 17, 2019 at 7:52 p.m. [the occasion he is seen at 82 Columbia Street West; (2) from April 18, 2019 at 11:31 p.m. to April 19, 2019 at 12:33 p.m. [the evening of the shooting… the phone went inactive a short time before the shooting and remained inactive until after the shooting, when the phone was no longer in the region]; (3) from April 24, 2019 at 1:42 p.m. to April 25 at 1:31 p.m.; and (4) from May 15, 2019, at 9:58 p.m. to May 16, 2019 (the date the police seized M.B.'s cellphone).

[36] Through the photographs contained on M.B.'s cellphone, through the GPS location data, and through the subscriber records, M.B.'s abandoned cellphone assists to establish beyond any doubt that M.B., wearing a light blue Puma track suit, attended with a group of men at 8 Hickory Street shortly before the shooting and then departed that building about 9 minutes before the shooting.

IV. THE CUMULATIVE EFFECT OF THE KEY EVIDENCE FROM APRIL 19TH AND MAY 16TH, 2019

[37] The combined effect of the above summarized evidence from April 19th and May 16th establishes beyond any reasonable doubt that M.B. was the man in the light blue Puma track suit leaving the building at 8 Hickory Street about 9 minutes before the shooting. The evidence further establishes beyond any reasonable doubt that M.B. and some of those men seen on video at 8 Hickory Street then attended at the nearby Subway restaurant and fired a flurry of bullets into the busy restaurant. The evidence permits no other reasonable inference. Indeed, it overwhelmingly and beyond doubt establishes M.B.'s participation in the shooting.

V. CONCLUSION

[38] When all was said and done, this trial boiled down to one live issue: identity.

[39] Having reviewed the evidence, I have no doubt whatsoever M.B. was the man involved in the May 16, 2019 incident. In particular, I have no doubt that M.B. fled a traffic stop at Fairway Road and King Street on May 16, 2019. I have no doubt he drove dangerously when fleeing the police and crashing his car. I have no doubt that he possessed the marijuana contained in his car. I also have no doubt that he possessed and then abandoned the coat and shoes found inside the forest to which M.B. fled. I also have no doubt that M.B. knew what was inside of his own coat, namely a Glock firearm with a prohibited and loaded magazine. I also have no doubt that M.B. possessed the cell phone and marijuana found abandoned in his car. I also have no doubt that at the time M.B. possessed the firearm and prohibited ammunition, he was bound by a youth probation order and an order made pursuant to s. 51 of the Y.C.J.A.

[40] Having reviewed the evidence, I have no doubt that at least three of a group of 11 men seen on video at 8 Hickory Street on April 19, 2020 were involved in the shooting at the Subway restaurant 9 minutes after the departure of this group of men from 8 Hickory Street. The evidence permits no other reasonable conclusion. The evidence also inexorably convinces me beyond any doubt that M.B. was one of the group of shooters seen on video at 8 Hickory Street and then subsequently firing a handgun outside the Subway restaurant 9 minutes later. He was the shooter in the light blue Puma track suit. The defence concedes that the Crown has established all other essential elements of the charges laid in relation to this Subway shooting.

[41] Therefore, being satisfied beyond a reasonable doubt that the Crown has established that M.B. is the person who committed both the April 19th and May 16th offences, I find M.B. guilty on all counts before the court.

Released: December 14, 2020

Signed: Justice C.A. Parry

Footnotes

[1] I should note here that I consider it unnecessary to consider the opinion evidence of the K-9 handler when considering the import of the discovery of the coat and shoes in the forest in the general vicinity of the area in which the suspect was last seen fleeing. When one considers the overwhelming body of circumstantial evidence, the opinion evidence is rendered superfluous.

[2] For ease of reference, I will refer to it as light blue from this point onwards.