R. v. Hassan, 2021 ONCJ 126

WARNING

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

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

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY —(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

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

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

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

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

(3) FAILURE TO COMPLY WITH ORDER — Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Hassan, 2021 ONCJ 126

DATE: 2021 01 13

COURT FILE No.: Hamilton 19-4816

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SAMATAR HASSAN, ALIEU JENG, and DANIEL WISE

Before Justice J.P.P. Fiorucci

Heard on October 19, 20, 22, 27, 28, November 2, 3, 5, December 2 and 3, 2020

Ruling on Committal released on January 13, 2021

B. Adsett and C. Hopkins................................................................. counsel for the Crown

M. Mattis.................................................................................... counsel for Samatar Hassan

H. Gonzalez......................................................................................... counsel for Alieu Jeng

T. Smith.............................................................................................. counsel for Daniel Wise

FIORUCCI J.:

Introduction

[1] On May 18, 2019, at 3:00 a.m., three men entered the front door of an after-hours club in Hamilton. Mr. Carel Douse, whose nickname was Blacks, was the doorman who permitted them to enter. Mr. Douse was immediately stabbed by one of the men and a struggle ensued. Mr. Douse was able to run out the front door of the club. The three men, one with knife in hand, chased Mr. Douse down the street. Witnesses to the initial attack in the club trailed behind. Within about two to three minutes of the initial attack at the club, Mr. Douse was discovered on the porch of a home with nineteen sharp force injuries across almost all areas of his body. Mr. Douse died.

[2] The three men, Samatar Hassan, Alieu Jeng, and Daniel Wise were charged with first degree murder. A preliminary inquiry was conducted. At the conclusion of the preliminary inquiry, the Crown asked that I commit all three accused to stand trial for first degree murder. The Crown advances dual routes to first degree murder: (i) planning and deliberation, and (ii) constructive first degree murder under s. 231(5)(e), alleging that the death was caused while committing or attempting to commit unlawful confinement.

[3] Each of the accused contest committal for first degree murder. Mr. Jeng concedes that he should be committed to stand trial for second degree murder. Mr. Wise submits that he should be committed to stand trial either for second degree murder or manslaughter. Mr. Hassan’s position is that he ought to be discharged outright at the preliminary inquiry. These are my reasons on the issue of committal to stand trial.

Overview

[4] The deceased and Mr. Wise were known to each other. They would both regularly frequent Modrn Nightclub in Hamilton. The deceased’s group of friends would hang out with Mr. Wise’s group at Modrn. In the months leading up to the fatal attack, the friendship between the deceased and Mr. Wise had soured. The two men stopped sharing the same booth at Modrn.

[5] On May 3, 2019, tensions erupted at Modrn between the deceased’s group of friends and Mr. Wise’s group, which included Mr. Jeng. A physical altercation ensued. The altercation continued outside Modrn where the deceased and Mr. Jeng had a fist fight. The deceased won the fight. Mr. Jeng vowed to renew hostilities, stating “don’t worry, I’m coming back. I got something for you” and “this is not done”. Two weeks later Mr. Douse was dead. The evidence points to Mr. Jeng being the stabber at the after-hours club and the male with a knife in his hand as the three men chased the deceased down the street.

The Change in the Relationship between the Deceased and Mr. Wise

[6] Jennifer Clark was in a relationship with the deceased for ten years. She testified that the deceased’s group of friends would attend Modrn almost every Friday night. Ms. Clark knew Mr. Wise to also be a Friday night regular at Modrn.[^1] According to Ms. Clark, the deceased’s group of friends and Mr. Wise’s group hung out together at Modrn and elsewhere. If the deceased and Mr. Wise were at Modrn at the same time, they would be together.

[7] However, a couple of months before the beginning of May 2019 this changed. Ms. Clark noticed that the deceased’s group of friends and Mr. Wise’s group would come in separately and be in separate booths instead of getting a booth together. The deceased’s group stopped hanging out with Mr. Wise or letting him come around.

[8] Janai Douse is the deceased’s cousin. The deceased told Ms. Douse that he had heard certain things about Mr. Wise and did not want to be around him. Ms. Douse thinks things changed in the relationship maybe “weeks” before the May 3rd incident at Modrn.

Sheila’s Place, Ellis Kitchen and More Than A Haircut

[9] Sheila’s Place and Ellis Kitchen were located right beside each other on King Street East in Hamilton. Although they had separate front entrances, they were essentially one establishment, connected inside by a doorway. Sheila’s Place was a bar and Ellis Kitchen was a restaurant.

[10] Across the street from Sheila’s Place and Ellis Kitchen was More Than A Haircut. It was a barbershop by day and an after-hours club when the bars closed, mostly on Friday and Saturday nights. More Than A Haircut was on the south side of King Street East, at the intersection of King Street East and East Avenue North.

May 3, 2019: Mr. Jeng and the Deceased Fight at Modrn

Jennifer Clark:

[11] On May 3, 2019, Ms. Clark met Mr. Jeng for the first time at Modrn.[^2] The deceased’s group of friends was in a booth. Mr. Wise’s group, which included Mr. Jeng, was in the booth directly across from the deceased’s booth.

[12] A physical altercation broke out between the two groups at the end of the night. The deceased tried to break it up by pushing the two groups apart. Mr. Jeng punched the deceased in the chest and made a derogatory comment. The insult made the deceased angry. He punched Mr. Jeng in the face. Security escorted Mr. Jeng out of Modrn.

[13] The deceased and Mr. Jeng met up outside the club. They fought. Ms. Clark thinks the deceased had Mr. Jeng on the ground at one point. According to Ms. Clark, no one was physically injured or bleeding. They just ended up disbursing and Mr. Jeng took off. Ms. Clark thinks the deceased won the fight because Mr. Jeng “cowered and walked off” and he (Mr. Jeng) looked embarrassed.

[14] Ms. Clark noticed Janai Douse at the scene of the fight trying to calm both men down. Ms. Clark saw Ms. Douse talking to Mr. Jeng.

Janai Douse:

[15] On May 3rd, Ms. Douse was at Sheila’s Place. She met Mr. Jeng (who she called “Braids”) there for the first time that night. Mr. Jeng told Ms. Douse that he was a friend of Mr. Wise. Mr. Jeng wanted Ms. Douse to go to Modrn with him. Ms. Douse told him that she would meet him there because she was not done “chilling” at Sheila’s Place.

[16] Mr. Jeng left Sheila’s Place before Ms. Douse. Ms. Douse took a taxi alone to Modrn but she did not make it inside the club. She saw the deceased arguing with Mr. Jeng as they were walking down Hess Street towards King Street West. Ms. Douse saw the deceased and Mr. Jeng start punching each other in the middle of King Street West. According to Ms. Douse, the fight did not last long. The deceased punched Mr. Jeng twice and the second punch made Mr. Jeng’s lip bleed. Mr. Jeng fell to the ground. Ms. Douse saw his whole mouth bleeding.

[17] At the end of the fight, Ms. Douse started talking to Mr. Jeng, asking him why he was fighting her cousin, and “giving him a little speech”. Mr. Jeng was mad. Ms. Douse testified that Mr. Jeng said things like: “don’t worry, I got something for you”; “this is not done”; “don’t worry, I’m coming back for you”. According to Ms. Douse, when Mr. Jeng said these things, he said them loud so that the deceased could hear him.

Mr. Wise heard the Deceased was calling him a “Snitch”

[18] Elizabeth Shea was in a relationship with Tim Miller. Tim Miller operated More Than A Haircut. Ms. Shea was friends with the deceased. She also knew Mr. Wise.

[19] One day, in the week leading up to the killing, Ms. Shea was playing dominos in the barbershop. Mr. Wise came in and sat down with her to have a game. At some point, Ms. Shea asked Mr. Wise what happened “the other night” with the deceased, referring to the May 3rd incident that she had heard about. Mr. Wise did not tell Ms. Shea what happened. As Ms. Shea put it, “he really didn’t even acknowledge it”.

[20] However, Mr. Wise did tell Ms. Shea “oh, I heard he [the deceased] said that he has paperwork on me”. The paperwork that Mr. Wise heard the deceased was claiming to have was “paperwork on [Mr. Wise] or something like [Mr. Wise] was a snitch”. In cross-examination, Ms. Shea clarified that Mr. Wise told her that he had heard the deceased had “paperwork with [Mr. Wise’s] name in it, being a snitch”.

[21] At some point, Mr. Wise’s tall friend, Braids, arrived and started playing dominos with them. There was no further conversation about the deceased when Braids arrived. Ms. Shea did not know Braids. This was the first and only time she saw him. Ms. Shea described Braids as a black male who was tall, had googly eyes and braids.

Mr. Wise asks Melissa Little for a Ride to Get the Person who Jumped his Friend

[22] Melissa Little worked security at Modrn. She developed a friendship with both the deceased and Mr. Wise.

[23] There were times that Ms. Little would drive Mr. Wise and others home from Modrn at the end of the night. There were also times that Mr. Wise would ask Ms. Little for a ride when she was not working.

[24] On May 17, 2019, Ms. Little was not working. She was in St. Catharines. According to Ms. Little, at about 5:30 or 6:00 p.m., Mr. Wise started communicating with her using Snapchat and they spoke on the phone once. Mr. Wise asked Ms. Little for a ride. When Ms. Little told him that she was not coming to Hamilton, he offered her money, weed and drinks. She said no.

[25] Ms. Little testified that, later that night, she started receiving Snapchat messages from Mr. Wise again. In these messages, Mr. Wise was telling Ms. Little that he needed to talk to her, wanted her to answer her phone, and needed a ride.

[26] Ms. Little and Mr. Wise did have a telephone conversation. Ms. Little believes the call took place at around 10:30 or 11:00 p.m.. Mr. Wise’s cell phone records show a call from Mr. Wise’s phone to Ms. Little’s phone starting at 9:56 p.m. (21:56:17) on May 17, 2019 and that the duration of the call was 2 minutes and 23 seconds.[^3]

[27] Ms. Little testified that, during this call, Mr. Wise was upset, angry, and very adamant that he needed a ride. Ms. Little felt that Mr. Wise was very drunk at that point. According to Ms. Little, Mr. Wise offered her whatever she wanted to encourage her to come, including to drink with them, smoke with them and money. Mr. Wise said, “I’ll give you $400 if you come up now, I really need you”.

[28] Ms. Little told Mr. Wise to shut up, go home, and sleep it off. Mr. Wise became more aggressive. He told Ms. Little that he needed her to pick him and his friends up to go take care of something. He told her that his friend (“family”) had been jumped, that they wanted to get the person who jumped his friend and that they knew where he was at that point. Mr. Wise said it couldn’t wait and he and his friends needed a ride to go there.

Mr. Wise asks Desiree Deveaux for a Favour

[29] On May 17, 2019, Desiree Deveaux had known Mr. Wise a couple of months. They had exchanged numbers. Ms. Deveaux mostly conversed with Mr. Wise by Snapchat. Ms. Deveaux lived behind Sheila’s Place, “pretty close by” the corner of East Avenue and King Street. Mr. Wise had been to her house once. That was about two months before May 17, 2019.

[30] On May 17, 2019, Ms. Deveaux was at home. Mr. Wise messaged her on Snapchat saying, “Can I ask you a favour?”. Ms. Deveaux replied, “Yeah, sure”. Mr. Wise messaged, “I’m going to call you”. At around 9:45 p.m., Mr. Wise called Ms. Deveaux.[^4] He said that he was close by and he asked if he could come over. According to Ms. Deveaux, Mr. Wise said “something was up, something was going on, something like that”, and he sounded “a little off, like, frantic or…uneasy”. Ms. Deveaux testified that it seemed like Mr. Wise wanted to come by her house, which was out of the ordinary. She felt that it was “out of the blue” because they didn’t really hang out much after she went to a club with him two months earlier. Ms. Deveaux told Mr. Wise that she was not home.

Mr. Wise and Mr. Jeng looking for the Deceased at Modrn at Closing Time

[31] In the early morning hours of May 18, 2019, Janai Douse was at Modrn nightclub with a friend. She stayed at Modrn until closing time. When Modrn closed, she went outside on the front patio to wait for her friend.

[32] While she was on the patio, Ms. Douse saw Mr. Wise and Mr. Jeng with a third male that she did not know or recognize. She had not seen them in Modrn that night. Ms. Douse overheard Mr. Jeng and Mr. Wise asking people if Mr. Douse was there.

[33] In cross-examination, Ms. Douse specified that Mr. Jeng asked a male named Warren if Mr. Douse was inside Modrn: “Do you know if Blacks is here?”. Warren responded, “he’s not here”. Mr. Wise then confirmed the information by asking, “So Blacks is not here?”.

[34] Mr. Jeng had a side bag on that was the shape of an iPad. Mr. Wise had a bag too. It was like a gym bag and was bigger than Mr. Jeng’s bag. Mr. Wise wore his bag like a side bag, with a long strap over his neck.

[35] When Mr. Wise and Mr. Jeng found out that the deceased was not at Modrn, they walked off with the other male. Ms. Douse remained outside Modrn looking for her friend for about twenty minutes. She then got in a cab to go to More Than A Haircut for the after-hours.

[36] Ms. Douse arrived in the area of East Avenue North and Wilson Street in the taxi. The taxi could not turn south onto East Avenue North from Wilson Street because East Avenue North was blocked off by police and ambulance. The taxi took the next street to travel south toward King Street East.

[37] When the taxi dropped Ms. Douse off in front of More Than A Haircut, the person that answered the door at the after-hours club told her that her cousin had been stabbed. Ms. Douse ran to the area where she had seen police and ambulance. The deceased was already on a stretcher and they were putting him into an ambulance.

The Deceased is Stabbed when the Accused Enter the After-Hours at 3:00 a.m.

Collea Dubinsky:

[38] Collea Dubinsky had known the deceased for at least ten years. She and the deceased were at Sheila’s Place in the early morning hours of May 18, 2019.[^5] The deceased left Sheila’s Place before Ms. Dubinsky but before he left he told her to come over to the after-hours for a drink.

[39] Ms. Dubinsky stayed at Sheila’s Place until about 2:30 or 2:40 a.m.. When Ms. Dubinsky and her friends walked across the street to the after-hours, the deceased opened the door for them. Ms. Dubinsky remained right beside the deceased at the front door of the after-hours. The deceased was opening the door for people. When More Than A Haircut operated as an after-hours club, the door remained locked to ensure that only those who were welcome would be admitted.

[40] Ms. Dubinsky testified that, for a ten-minute period, the deceased “continued to open the door to other people, but continuously closed it, and then at one point he opened the door and he got rushed by three gentlemen and started getting stabbed”. Ms. Dubinsky did not know the three males. She had never seen them before.

[41] Ms. Dubinsky was two or three feet away from the deceased when he was stabbed, “like, arm’s reach away”. Crown counsel asked Ms. Dubinsky what she observed:

Q. And what can you tell me about what you notice about who’s stabbing him or how he’s being stabbed?

A. Three gentlemen, they’re all black, a dark-skinned gentleman was the first one, and then I just remember looking down because they were, like, bent over, kind of physically fighting and I was looking and I seen that there was, like, a big knife, you could see, like, the silver shiny knife of it and it was like a dagger, kind of like a hunting knife, I would say. It wasn’t a normal cutting knife or a butter knife, absolutely not; it was a big dagger knife that had a design on the handle, as I recall.

[42] Ms. Dubinsky testified that it was a big knife, “maybe 10 inches”. She later described it as “like a machete or a hunting knife, something of that sort”. It had a design on the handle. She expanded on this by saying, “it was like a dagger with, like, hooks on it or a dragon head or a snake head, something of some sort of design….like a bigger knife”. It was “one of those designed big knives”.

[43] The man who came in first had the knife. She described this man as dark-skinned, with “buggy” and some different colour eyes.[^6] The man with the knife was taller than the two guys behind him.

[44] According to Ms. Dubinsky, there was absolutely no conversation before the stabbing started:

Q. Is there any conversation that takes place, when this taller man with the big knife comes in, is there any conversation that takes place either with him or Blakz or anyone before the stabbing starts?[^7]

A. Absolutely not. It was milliseconds. They bum-rushed the door and just started doing what they were doing.

[45] Ms. Dubinsky estimated that the deceased was stabbed “roughly maybe three times, but …it was so quick”. She then said, “it could have been more, to be honest with you”. Crown counsel asked if the taller man with the knife was the only person that stabbed the deceased. Ms. Dubinsky responded, “to my knowledge, inside there, yes”.

[46] Ms. Dubinsky was asked about the involvement of the other two men:

Q. How – the other two men that were there, what if anything can you tell me about the other two men?

A. Well, they absolutely weren’t standing back and watching; they were rushing in ‘cause at one point Blakz, when I guess he realized that he knew these people on the other side of the door, he tried to put his foot up against the door to stop them. So, hence, it took all three of them to obviously push the door open. So, it’s not like they were standing on the sidewalk watching; they pushed in the door as well.

[47] In cross-examination, Ms. Dubinsky was asked about the deceased’s attempt to close the door before the men came in:

Q. I understand that. But initially the door didn’t open fully right away. Is that how I understand your evidence to be?

A. Yes. He opened it to look who it was and that’s when he put the foot up against the door. But people came in prior to that and that wasn’t his reaction. He just widely opened the door. He looked, would open the door for other people. It wasn’t the same when he seen whatever he seen on the other side of that door.

Q. Okay, I understand that. So, when these three individuals were at the door, Blakz opened it a little bit and tried to put his foot to stop it, fair?

A. Correct.

Q. All right. Then the three individuals rushed the door and they forced it open?

A. Correct.

[48] Ms. Dubinsky testified that the deceased was not saying anything. He was trying to fight back. She described how the deceased and the stabber “were scuffling, fighting, they were both somewhat bent over”. At some point, the deceased “kind of shimmied to the right and then backed out the door that way and started running out the door”. He ran across King Street, all the way down East Avenue. Ms. Dubinsky testified that the deceased was chased by “the three gentlemen that just rushed the door and stabbed him”.

Corrie Ritchie:

[49] Corrie Ritchie was a bartender/manager at Sheila’s Place. Ms. Ritchie knew the deceased. He was at Sheila’s Place every weekend and sometimes during the week. Ms. Ritchie also knew Mr. Wise who was known as Fat Al and Berta. She spent a lot of time with Mr. Wise at Sheila’s Place before he was banned from attending there in the year leading up to May 18, 2019. After he was banned from Sheila’s Place, Ms. Ritchie would see Mr. Wise around the barbershop and clothing store across the street. Ms. Ritchie estimated that she would have seen Mr. Wise over one hundred times. She knew him to carry a side bag a lot.

[50] Ms. Ritchie attended a birthday party for Mr. Wise in December of 2018. At that party, she met someone she referred to as “Fresh”, who was a black man with braids, and was tall, and skinny. It is not in dispute that “Fresh” is Mr. Jeng.

[51] After that party, Ms. Ritchie saw Mr. Jeng four times between December 2018 and May 2019, either at Sheila’s Place or across the street. Ms. Ritchie knew that Mr. Jeng was friends with Mr. Wise because she would see them together and because Mr. Jeng was at the birthday party she attended.

[52] Ms. Ritchie worked at Sheila’s Place until closing on May 18, 2019. After closing time at 2:00 a.m., she was required to stay to clean and count her till. Everyone but Ms. Ritchie and one of the DJ’s, known as Little Richie, left for the night. Little Richie is Richard Harris.

[53] Ms. Ritchie and Mr. Harris were standing at the front door of Sheila’s Place. As she was standing at the front door, Ms. Ritchie saw Mr. Wise, Mr. Jeng and another guy walk towards the after-hours club. She watched them walk in. Then, Ms. Ritchie saw the deceased run out the front door and Mr. Jeng, Mr. Wise and the other guy run after the deceased, in that order. Mr. Wise was holding a bag at his side, across his chest. Ms. Ritchie did not see anything in Mr. Wise’s hands.

[54] Ms. Ritchie ran out the front door of Sheila’s Place.[^8] Ms. Ritchie ran to the corner of King Street East and East Avenue North. Mr. Harris came out of Sheila’s Place after her and walked to the corner.

Surveillance Video:

[55] Surveillance video shows that the front door of the after-hours closed after the three accused entered at 3:00 a.m..[^9] About ten seconds later, the door opened again. The deceased ran out onto King Street East. He crossed King Street East and ran north on East Avenue North. Mr. Jeng, Mr. Hassan, and Mr. Wise chased the deceased north on East Avenue North.

Forensic Evidence:

[56] The Centre of Forensic Sciences biology report confirms the presence of the deceased’s blood on the interior north wall of More Than A Haircut and on the floor at the entrance.

The Chase and the Deceased is Found on the Porch of 64 East Avenue North

Surveillance Video:

[57] The surveillance video from Sheila’s Place patio shows that the suspect closest to the deceased at that point in the chase, Mr. Jeng, had a dark coloured fanny pack slung across his chest. The suspect that was last in the chase at that point, Mr. Wise, had a satchel bag over his shoulder and slung down to his right hip. Mr. Wise is the heaviest of the three men.

Collea Dubinsky:

[58] Ms. Dubinsky was wearing stilettos that night. She was not able to chase after the deceased and the three men after they ran out of the after-hours club. When she was in the middle of the street or at the corner of King Street and East Avenue, she saw a male that she knew and said to him, “Go help, that’s Blackz, go help him, go help him”. That male was a DJ in Hamilton that Ms. Dubinsky believes goes by the name “Little Richie”. According to Ms. Dubinsky, the DJ did not hesitate. He ran down the street.

[59] Ms. Dubinsky asked a girl, “Kat” for a ride. Kat’s friend drove Ms. Dubinsky, and others, north on East Avenue North in the direction of the chase. They “floored it down the whole street”.

[60] According to Ms. Dubinsky, the high beams of the car were on. She testified that when they were approaching:

“I seen the three guys responsible for this running across the street to the left and there was a park there, but I also seen the same gentleman that I asked for help still standing there”.

[61] Ms. Dubinsky went on to say:

Because you could clearly see those three gentlemen running across the street, so that’s where – how I knew where to stop because I could see them in the headlights plain as day in front of me running across the street now. So, I knew to stop the car and know what area something was happening, or I could ask somebody, “Where’s Blakz? What’s going on?” you know what I mean? I seen….

[62] According to Ms. Dubinsky, these three men ran across the street into the park, “coming from the same house where Blackz was lying”. The three guys ran “from the right-hand side to the left, down into that park”. The three guys ran across the street right in front of their car. They continued to run through that park. Ms. Dubinsky was certain that the men she saw run in front of their car were the same three guys from the stabbing at the after-hours club:

I seen them 30 seconds ago stabbing my friend. I one hundred percent know 30 seconds later it’s the same people running across the street. It’s undisputable.

[63] Ms. Dubinsky was asked about the DJ:

Q. The DJ that you told us about, do you see him again?

A. I absolutely seen him. He was stopped dead in the middle of the street. After they ran, he was still standing there. And then that’s when I got out, obviously looked to my left, common sense is to see where these guys were for my own safety as well, and then I spoke to him and I was like, “Where’s Blakz, where’s Blakz?” in a hystanic [sic] type of mindset, and then he said, “He’s over there.” And, so, I glance and it was a dark driveway and then there was a porch and I could hear him moaning. So, he was on the ground and that’s when I just attended to him.

[64] In cross-examination, the following exchange occurred:

Q. Headlights were on, so you could see Little Richie….

A. The lights were on, you could clear as day see the three people responsible running across the street, as well as Little Richie standing there; you see everything.

[65] According to Ms. Dubinsky, Little Richie (Mr. Harris) was closer to the sidewalk where the deceased was, “but he was still somewhat on the road”. She was clear that Little Richie (Mr. Harris) was “on the side where Blackz was rather than the other side”.

[66] Ms. Dubinsky acknowledged that Little Richie (Mr. Harris) was the first one on scene, but she said that he was not the first one to tend to the deceased. According to Ms. Dubinsky, she asked Little Richie (Mr. Harris) where the deceased was and he showed her by pointing over to the porch area, and/or saying “Blackz is over there, Blackz is over there”.

[67] Ms. Dubinsky ran to the porch area. She says that she was the first person to get up on the porch. When Ms. Dubinsky arrived at the porch area, she saw the deceased lying down on the porch with blood all over his face. He was moaning. His head was close to the door. He could not move. Ms. Dubinsky elevated the deceased’s head and put her leg underneath his head because he was gurgling. She also tried to apply pressure to the wounds she could see. The deceased said several times that he could not feel his legs.

[68] Ms. Dubinsky described the porch as follows:

Well, I wasn’t looking that way, but there was – it was a fence, a black iron fence around the porch, so nobody was really on the porch with me. It was just me and Blakz. Everybody else was in the driveway, the grass, whatever was out there. They weren’t surpassing the black iron gate.

[69] Ms. Dubinsky was pounding on the door of the house behind her. When people came to the door, she asked for towels. They brought her a whole bunch of towels and she used them to continue putting pressure on the wounds. Ms. Dubinsky was telling the other people there to call 911.

Richard Harris:

[70] Richard Harris was disc jockey at Sheila’s Place. Mr. Harris knew the deceased for over five years. Mr. Harris would see “Big Al” (Mr. Wise) at Ellis Kitchen and at the barbershop across the street.

[71] On May 17, 2019, Mr. Harris went to Sheila’s Place to have a few drinks with friends. He was not working as the DJ that night. Mr. Harris stayed at Sheila’s Place past closing time after everyone had cleared out. He was having a conversation with Corrie, the bartender. Mr. Harris and Corrie were alone inside the bar at that point, close to the front doors. Mr. Harris heard a voice say, “they’re chasing after Blackz”.

[72] Then Corrie “bolt through the door”. Mr. Harris came out behind her. He was wearing a white top and black hat. The surveillance video from Sheila’s Place shows Mr. Harris walking to the corner of King Street East and East Avenue North as Corrie Ritchie returns to Sheila’s Place.

[73] When Mr. Harris got to the corner, he asked a group of people standing there “what was going on?”. They told him three guys were running after the deceased. Mr. Harris then took off down East Avenue North because he wanted to see what was going on. When he looked north, he did not see the deceased running or the three men who were chasing him.

[74] When Mr. Harris was heading north on East Avenue North, he saw “Cat” (Tim Miller), a fellow DJ. Crown counsel asked Mr. Harris when he first saw Cat. He replied, “it’s just about-before I crossed over to King Williams”.

[75] When Crown counsel asked Mr. Harris whether he crossed over King William with Cat, Mr. Harris said, “no, he stopped”. Crown counsel then showed Mr. Harris surveillance video from 38 East Avenue North. Mr. Harris identified himself in the video. He was on the sidewalk and Cat (Mr. Miller) was on the road. They were both heading north on East Avenue North. Mr. Harris then testified that both he and Cat crossed King William.

[76] Mr. Harris confirmed that after King William, the next cross street for East Avenue North is Wilson Street. Between King William and Wilson, there is a park on the left-hand side as you go north on East Avenue North.

[77] As Mr. Harris was going down the sidewalk on East Avenue North, between King William and Wilson, he saw three guys running west across the street going into the park. Mr. Harris said, “they were coming from the right side of me, which is east, heading towards the park, which is going west”. When Mr. Harris first saw them, they were just crossing over the sidewalk into the road.

[78] The first guy crossing the road looked in Mr. Harris’ direction. Mr. Harris saw his face. It was Big Al (Mr. Wise). Mr. Wise had a hoodie on with the hood up halfway. Mr. Wise was at the head of the group at that point. According to Mr. Harris, “the other two was behind following, which was a slimmer build, tall, and a smaller guy”. Mr. Harris did not see the faces of the other two. The three men continued going across into the park. They were running.

[79] It took Mr. Harris approximately five to six seconds to get to the point where the three men had run across the sidewalk and street into the park. When he got to this area, Mr. Harris did not see where the three men went. They disappeared into the park. Mr. Harris testified that he did not see the deceased at any time while he was on East Avenue North, nor did he look for the deceased.

[80] Mr. Harris continued to go down East Avenue North onto Wilson Street, “and go around the block”. When Crown counsel asked Mr. Harris what Cat (Mr. Miller) did, Mr. Harris said “he stopped”. In cross-examination, Defence counsel asked Mr. Harris whether he had any concern to look around the area for the deceased to see if something had happened to him. Mr. Harris replied, “no, ‘cause Cat was behind me. So, I was just proceedin’ to continue”.

Tim Miller:

[81] Tim Miller is a barber and a DJ. His nickname is Cat. Mr. Miller ran the barbershop More Than A Haircut. He knew Fat Al (Mr. Wise) from seeing him at Sheila’s Place and at the barbershop. He cut Mr. Wise’s hair once or twice. Mr. Miller was also good friends with the deceased and had been for a long time.

[82] Mr. Miller testified that after the barbershop would close, especially on Friday and Saturday nights, there would be dominos, music and drinks at More Than A Haircut. May 18, 2019 was about the third time that Mr. Miller did this after-hours event.

[83] The after-hours was not something advertised to the public. It was for close personal friends, not random people. They kept the door locked when More Than A Haircut was operating as an after-hours club in order to control who came in. There was no pre-set door person to open the door and let people in. As Mr. Miller put it, “we knew each other”.

[84] Mr. Miller testified that when someone would knock on the front door, there were two huge glass windows on either side of the door that the person inside could look through to see who was at the door. The person would open the door if it was “somebody identifiable, somebody we know”.

[85] On May 17, 2019, Mr. Miller worked in the barbershop. After he closed the barbershop, he went home for dinner and to shower and get changed. He then went to Sheila’s Place for a drink. Mr. Miller saw the deceased at Sheila’s Place. The deceased told Mr. Miller that he wanted to hear a particular artist later on at the after-hours. Mr. Miller said “sure, no problem”.

[86] Mr. Harris then went across the street to the barbershop. He started preparing for the evening guests by getting out the domino table and loading the fridge with beer. Mr. Miller believes his partner, Elizabeth Shea, was there with him at this point. People would have started coming over to the after-hours closer to the end of the night at Sheila’s Place.

[87] The deceased arrived at the after-hours. Mr. Miller thinks it may have been the first time that the deceased attended an after-hours event at the barbershop. The deceased asked Mr. Miller for a drink. Mr. Miller made the drink and brought it to the deceased at the front. Mr. Miller recalled the deceased being close to the “entrance of the door, the first barber chair as you enter the barbershop”. Mr. Miller was at the very back of the barbershop where the fridge, the alcohol and the controls for the music were located.

[88] Mr. Miller heard rustling, like shuffling. According to him “it was…a noise that was out of place for the environment that was going on”. Mr. Miller looked out of the partition door at the back of the barbershop. He saw the deceased run out. He was able to identify the deceased because he was the only person with a blue shirt. Mr. Miller then saw three people run out the front door behind the deceased.

[89] Mr. Miller ran out behind them through the same door. The first person that Mr. Miller remembers seeing is Little Richie on the corner. According to Mr. Miller, the group of men that had just run out of the after-hours were still in sight. The men were running down East Avenue North. The deceased was moving fast, and the three guys that were chasing him were running fast behind him.

[90] Mr. Miller saw that one had a big knife in his left hand. The man with the knife was the tallest of the three. Mr. Miller observed the big knife when the three men were running down East Avenue North towards King William. Mr. Miller thinks that he was making this observation from the intersection of King Street East and East Avenue North, or from just at the side of Sheila’s Place. In cross-examination, Mr. Miller said that he was pretty sure it was a knife in the person’s hand but agreed that what appeared to him to be a knife could have been another object because he was “at a distance”.

[91] Mr. Miller saw no other weapons. He testified that the second tallest person in the group of three had a side bag. They all seemed to be wearing tracksuits and hoodies.

[92] Mr. Miller yelled to Little Richie, “they’re chasing Blacks, they’re chasing Blacks”. Mr. Miller yelled to his girlfriend, Elizabeth Shea, and her friend, “bring the car, bring the car, follow me with the car”. Ms. Shea was either just outside the barbershop or in the intersection when Mr. Miller yelled this to her.

[93] Then Mr. Miller continued following in the direction he had seen everybody run. Mr. Miller was running in the centre of the street. He was with Little Richie at that point.

[94] Mr. Miller saw the people who were chasing the deceased running in the middle of the road and then veer to the right-hand side of the street. At this point, Mr. Miller was not able to see the deceased. Mr. Miller veered to the right as well and was now on the sidewalk. As he continued on the sidewalk, Mr. Miller was looking for the deceased between cars and on the lawns but did not see him.

[95] Mr. Miller then saw the three people he was chasing run back across the street, jump over the fence and run across the park. They came off the sidewalk from between cars that were parked on the right-hand side, and then crossed the centre of the road to go over the fence to get to the park. In cross-examination, Mr. Miller agreed that it was a matter of seconds between the men going to the right and then seeing them come back to the left across the street and hop the fence.

[96] In cross-examination, Mr. Harris also acknowledged that he assumed the three people that he saw run to the park were the same three people he saw running up East Avenue North. He agreed with Defence counsel’s suggestion that the people running to the park could have been white, female, or a mix of male and female.

[97] Mr. Miller continued looking for the deceased and eventually found him laying down on the porch of a house, “faced into the corner”. Mr. Miller rolled the deceased over onto his back. No one else was there at the time.

[98] Mr. Miller asked the deceased if he was able to get up, if he was okay, and what happened. The deceased was struggling and was not able to get up. Mr. Miller could see “a small scar, small gash on his face”. Mr. Miller did not notice any other injuries at that point.

[99] According to Mr. Miller, a bunch of people came after him, including Ms. Shea and her friend, and Collea who “fastened herself underneath Blackz”, trying to comfort him. Mr. Miller estimated that he was alone for less than five minutes before other people arrived. He never left the deceased’s side until the ambulance took him. Mr. Miller remembered Collea trying to lift the deceased up and he (Mr. Miller) told her quite abruptly not to move him.

Kristen Martin:

[100] Kristen Martin had attended Sheila’s Place that night. She went there with her twin sister Karly Martin, and a friend, Kat. After Sheila’s Place closed, Kristen was standing outside her car on the west side of East Avenue North in the parking lot of a Chinese restaurant. Kristen was with Karly, Kat and another friend. Kristen was smoking a cigarette when she saw a guy running and then a few seconds later three guys were running after him. According to Kristen, “it kind of looked like he was, like, running for his life”.

[101] Kristen heard a girl yelling that they were going to stab Blacks. That same female ran over to Kristen and asked her for a drive. Kristen got into her car, a black Honda Civic, and drove this female, her sister Karly, Kat, and possibly the other friend north on East Avenue North. Kristen said she “flew out of the parking lot”.

[102] When Kristen passed King William Street, the girl that asked her to drive told her (Kristen) to stop the car. Kristen parked to the left-hand side of the road but “pretty close” to the middle. The girl got out of the car. Kristen testified that one person walked in front of her car wearing a white shirt. When she looked towards the park, she saw two males walking through the park. In cross-examination, Kristen agreed that she could not say whether the person she saw crossing the street had any involvement.

[103] Kristen then walked to where everyone else was and saw a male laying on the porch of a house who was very pale and sweating. Kristen called for an ambulance. The girl who asked her for a ride was trying to talk to him. The male was trying to say something but “you couldn’t hear anything” and his eyes were rolling back. Kristen observed that “he was stabbed everywhere”.

[104] Kristen said that they were knocking on the door of the house asking the occupants to turn on the porch light, but the people were scared and would not come out.

[105] Kristen believes that maybe two minutes elapsed between the time she saw the people running and the time she arrived at the porch. Kristen also believes that her group was the first to find the deceased on the porch.

Kathleen McMaster:

[106] Kathleen McMaster was at Sheila’s Place until closing time with Kristen and Karly Martin. She was with them in the parking lot of the Chinese restaurant smoking a cigarette when she saw a guy being chased by three black males. She could not see who was being chased even though she knew the deceased. Two of the three chasers were calling the male they were chasing a “pussy”.

[107] A white girl that Ms. McMaster knew came running over from the direction of the after-hours club and told her that it was the deceased and that they were going to stab him.[^10] They all got into Kristen’s car. Kristen drove.

[108] Kristen drove north on East Avenue North. Ms. McMaster estimated that it was a two-minute drive up the street. Ms. McMaster saw three men casually walk across the street and go into the park. She did not see anyone else on the roadway before seeing those three men. She cannot say that the three men she saw walking into the park were the men who chased the deceased.

[109] They all got out of the car and went to the deceased. According to Ms. McMaster, the white girl got to the deceased first, she got there next, and then the Martin twins. The deceased was laying on the porch with his face to the house. When they found him, Ms. McMaster and the white girl turned him over. Ms. McMaster helped with trying to put pressure on the wounds.

Karly Martin:

[110] Karly Martin also testified about seeing the chase and the discovery of the deceased on the porch. Karly was sitting in the passenger seat of her sister’s car in the parking lot of the Chinese food restaurant when she saw a guy run past and three people running after him. When she saw them, she “just figured something bad was going to happen”, because the guy looked like he was running for his life. They were running north on the street on East Avenue North. She heard some yelling but could not make out what was being said.

[111] A white female ran over to the car and said that they were going to get him. She asked for a drive to make sure he was okay. They got in the car and Kristen drove down the street. Karly did not see anybody running at that point. Kristen had to stop the car because the guy Karly thought was wearing white was standing in the road. He was wearing a white shirt, dark pants and had a dark complexion. According to Karly, Kristen stopped the car because he was standing in the middle of the road.

[112] Then there were two other guys walking quickly into the park. They were already past the little gate entrance to the park. The male with the white t-shirt ended up going into the park and joined the other two people. In cross-examination, Karly admitted that she could not say for sure that the male she saw standing in the street was part of the group involved in the chase or that the two people walking in the park were part of the group chasing the man.

[113] Karly testified that the white female jumped out of the car first. This white female said “they got him” or something to that effect. Karly got out of the car and went up to the porch. She observed the deceased laying right in front of, or very close to the door, like slumped over. He was on his side when she first saw him.

[114] The white girl flipped him over. Karly turned her phone light on and saw that his face was cut and there was blood. He was conscious and saying that he was hurt. Karly asked him where he was hurt and he said, “my leg”. The white girl asked him who did this to him. He answered, but Karly could not make anything out. The male quickly went from being responsive to his eyes rolling.

[115] According to Karly, the people in the house said that they were too scared to open the door. Karly saw blood on the door of the house, at eye level. She estimated that one minute elapsed from the time she saw the group running to the time she got to the porch. In cross-examination, she said a minute or quite a bit less elapsed between the white girl approaching them and Kristen stopping the vehicle.

Elizabeth Shea:

[116] Elizabeth Shea testified that when More Than A Haircut operated as the after-hours the door was always kept locked, “because we don’t want people to come in that we don’t want to come in”, including the police. The understanding was that everyone would make sure that whoever tried to come into the after-hours is a familiar face. If they weren’t, they couldn’t come in. To know who’s knocking, the person on the inside would open the curtain on the windows beside the door.

[117] Ms. Shea testified that she saw the deceased at the after-hours on May 18, 2019. He was there “altogether, maybe 20 minutes”, “it couldn’t be longer than half an hour”. The deceased was standing at the front door “being a doorman”. She saw the deceased look out the window a couple of times that night. He had not been the doorman before that night.

[118] Ms. Shea was standing at the back of the after-hours making a drink when she heard a scuffle or commotion. When she looked, Tim Miller was going out the door. In front of Mr. Miller was the deceased and three or four other people. She described it this way in cross-examination:

And then he (Tim) just started speed-walking to the front door. And so that’s what really caught my attention, where is he going, what is he doing, you know? So, as I’m now coming out and walking to the front of the door, I see Blakz run out the door, I see whoever the hell was behind him run out the door and then I see Tim, like, speed-walking behind them.

[119] Ms. Shea went outside onto King Street East and East Avenue North looking for Mr. Miller. From across the street near the Sheila’s patio Mr. Miller said, “Tell Kitty to get the car, get the car,” and something like, “it’s Blakz, it’s Blakz”. After he said that, Mr. Miller was gone, running.

[120] Ms. Shea testified that:

There was about four, four or five people running, a couple tall people, a couple short people, and they were just running. And Blakz was, like – Blakz was just, like, running in a zigzag pattern.

[121] In cross-examination, Ms. Shea said the following in an exchange with Defence counsel:

A. So, when I seen Blakz, like, running in the road is when I was at the corner. But I didn’t know it was Blakz.

Q. No, I understand that.

A. I just seen somebody running in zigzags down the street.

Q. Zigzags.

A. And then there was a few people running behind him.

Q. And that’s when you were outside in front of the barber shop.

A. And that’s when I was standing outside the shop...

[122] Ms. Shea went back to the after-hours to get Kathleen McKinnon (Kitty). They went to the St. Patrick’s Church parking lot to get Kitty’s car. Kitty drove down East Avenue North with Ms. Shea in the passenger seat. As they were driving north on East Avenue North, the people who were running turned off to the right and they went out of sight. Ms. Shea described what happened next in the following exchange with Crown counsel:

A. …And then, I don’t know, within, like, 10 seconds, I don’t even know, I don’t know, within a few seconds everybody came back out this way and people just started to run.

Q. Okay. So, just to recapture that, so you’re making observations as you drive down East Avenue that everybody that was running seemed to go to the right?

A. Turned off to the right.

Q. And then….

A. And then within the same few moments – I don’t know, it was, like, four or five people, three or – I don’t know, people just started scattering this way, that way, that way. People just started running.

[123] Ms. Shea believes she saw Mr. Miller chasing somebody across the park. The car came to a stop and Ms. Shea got out. Ms. Shea stood in the middle of the street yelling at Mr. Miller:

“What are you doing? Where the fuck are you going?” da-da-da. And then I’m like, “Blakz.” Turned around then went to look for Blakz and….

[124] Ms. Shea saw Mr. Miller “just cut off to the left”. Once she saw that Mr. Miller was running and was okay, she looked for the deceased. Ms. Shea saw the deceased within seconds. He was lying on the porch in “Collie’s” lap. Ms. Shea could see stab wounds on his face and body, including his chest, but she couldn’t see blood. She remembers wondering why no blood was coming out of the stab wounds.

[125] According to Ms. Shea, Mr. Miller came back to where the deceased was “pretty quick” after she got there. She said: “It felt like about a minute. About a minute or two, maybe”.

P.C. Michael Eves:

[126] P.C. Michael Eves, a scenes of crime officer, testified that he observed a trail of blood starting on the porch of 64 East Avenue North. He and his partner followed the trail southbound along the east side sidewalk towards King Street East. The blood stains were “pretty pronounced”. They were every few metres and then became a bit more sparse. Ultimately, the blood stains led to 454 King Street East, More Than A Haircut.

An Ngo Hears Banging on the Front Door of 64 East Avenue North

[127] On May 18, 2019, Mr. An Ngo was living at 64 East Avenue North. He was playing video games on his computer on the second floor of the home. He heard some banging at the front door. The banging was loud enough to catch his attention and for him to hear it through the headphones he was wearing but “it wasn’t too loud”.

[128] Mr. Ngo could tell that the banging was on the front door. He looked out his front bedroom window on the second floor to see if there were any vehicles in front of the house. There weren’t any. Mr. Ngo was unable to see down to the front porch from his bedroom window.

[129] Mr. Ngo then closed his curtains and started making his way downstairs to see what was happening. He argued with his aunt and cousin who told him not to open the door. Mr. Ngo estimated that five to six minutes passed from the time he heard the banging to when he opened the front door. By then, there were a bunch of people around the house and a man laying on the porch with somebody holding him. He saw some blood on the victim’s stomach area.

[130] Mr. Ngo estimated that 14 or 15 people were in the area. He thinks there were one or two cars that stopped, and people got out and “checked it out”. Mr. Ngo kept the door open maybe three minutes.

[131] The next day, Mr. Ngo noticed blood on the porch and just under the doorknob on the front door.

Three Accused at Big Bear Convenience at 3:04 a.m.

[132] At 3:04 a.m., surveillance cameras recorded Mr. Hassan, Mr. Jeng and Mr. Wise at the Big Bear convenience store located at 82 Wellington Street North which is a short distance from 64 East Avenue North.

P.C. Lucas Lubin Arrives at 64 East Avenue North at 3:07 a.m.

[133] P.C. Lucas Lubin of the Hamilton Police Service was dispatched to the stabbing call at 3:04 a.m.. He arrived at 64 East Avenue North at 3:07 a.m.. P.C. Lubin arrived before any other emergency personnel, police or paramedics. When he arrived, P.C. Lubin noticed numerous vehicles stopped right in front of 64 East Avenue North. There were at least two vehicles stopped in front of him so he had to sound his horn multiple times and “vocally ask people to move so that the ambulance could come through when it did arrive”.

[134] One of the vehicles was a black Honda Civic four-door, parked in the middle of the road. The Honda Civic and the other vehicle moved northbound when P.C. Lubin activated his horn. In cross-examination, P.C. Lubin testified that there were actually two vehicles parked in front of the Civic when he arrived, and that all three vehicles moved northbound a couple of car lengths when he sounded his horn.

[135] P.C. Lubin went to the dispatch address of 64 East Avenue North. He observed the deceased laying on the porch, his head pointing to the south. There were two females on either side of him. One identified herself as Kathleen McMaster. The other woman, who did not identify herself, was a white female who was between the victim and the brick wall, holding his head as he was laying there. Ms. McMaster appeared to be applying pressure to some sort of wound on the deceased’s left side.

[136] P.C. Lubin noticed that the deceased had multiple cuts to his face, there was some blood on his right leg, a slice on his left shoulder. The victim’s eyelids were drooping and closing. He was conscious at the time and breathing, but his breathing was very shallow and slow.

[137] P.C. Lubin attempted to speak with him numerous times, but based on his observations, the officer believed that he was going to die. P.C. Lubin asked the victim numerous times if he knew who did this to him, but the victim did not say anything.

[138] The officer noted that there was not a lot of blood leaving his body. P.C. Lubin went over the air to dispatch to request that “medical step it up” because he believed that the victim’s death was imminent.

Paramedics Arrive at 3:09 a.m. and 3:10 a.m.

[139] Craig McCleary, District Supervisor of Paramedics received a dispatch call at 3:06 a.m. to attend a possible stabbing at 64 East Avenue North. He arrived there at 3:09 a.m.. He testified that he arrived pretty much at the same time as the other first responders. He estimated that there were more than five people in the area of the porch, sidewalk and front lawn when he arrived and found his patient. Mr. McCleary was the first paramedic to attend to the deceased.

[140] The deceased was on the front porch, lying on his back. Mr. McCleary’s initial observations were that he had slashing-type wounds to his head, he was not breathing, and he had no spontaneous movement. The patient was gasping for air and his pulse was very weak. He was unconscious. Mr. McCleary did not notice a large amount of blood.

[141] It was a chaotic scene with lots of people around. Mr. McCleary described it as a tense environment, making it a little difficult to manoeuvre through the crowd to transfer the patient from the porch to the ambulance. The ambulance departed the scene at 3:15 a.m., and arrived at the hospital at 3:16 a.m..

[142] Roger Elm was a paramedic who received a call at 3:05 a.m. to attend the scene. He arrived at 3:10 a.m.. Mr. Elm recalls a bunch of emergency vehicles all arriving at the same time. He too described it as a pretty chaotic and very busy scene, with a lot of people walking around. Mr. Elm estimated that there were “probably in excess of 30, 40 people”.

[143] Mr. Elm and his partner grabbed the stretcher and followed their supervisor, Mr. McCleary, up to where the patient was located. Mr. Elm quickly identified it as a “load-and-go” situation, meaning the patient was critical and they needed to get him to the hospital as soon as possible.

[144] When they got the deceased to the ambulance, Mr. Elm observed that he had laboured breathing, and stab wounds to the face and into the chest. The deceased had several stab wounds and was unconscious. Mr. Elm was surprised that there was very little blood coming from the stab wounds.

Accused Remain Together after the Killing

[145] At approximately 3:09 a.m., a male caller telephoned Hamilton Cab requesting a taxi to 177 Wilson Street. Guljar Singh, a driver for Hamilton Cab picked up three men at 177 Wilson Street East at approximately 3:13 a.m..[^11] The men got into the cab and said they wanted to go to a convenience/variety store at Queen and Main.

[146] Mr. Singh testified that he had driven only about 50 or 100 feet when he saw the flashing lights of a police car behind his taxi. He stopped the taxi. The police officer came to his vehicle. For the purpose of the preliminary inquiry, each of the accused admit that they were the three men that Mr. Singh picked up in Hamilton Cab #61.

[147] P.C. Michael Zezella of the Hamilton Police Service was dispatched to the stabbing at 64 East Avenue North. He received information from dispatch about the suspects. P.C. Zezella testified about the traffic stop he conducted of Hamilton Cab #61 at approximately 3:16 a.m. For the purpose of the preliminary inquiry, the parties admit that the surveillance video inside the taxi depicts Mr. Jeng seated in the front passenger seat, Mr. Hassan seated behind him in the rear passenger seat, and Mr. Wise seated in the rear driver’s side seat. P.C. Zezella noted that the front seat passenger had a satchel across his chest.

[148] P.C. Zezella told the passengers that there had been a stabbing around the corner and told everyone to flip their hands over to make sure nobody was injured. Mr. Hassan had a small cut to the inside of his left index finger. P.C. Zezella stated that the cut was not actively bleeding, meaning that it did not have to be wrapped in gauze to prevent blood loss. P.C. Zezella described it as a small cut that looked somewhat fresh. The officer did not note any blood on the white pants that Mr. Hassan was wearing, nor did he note any blood on the hands or clothing of the other two passengers in the taxi.

[149] The officer asked dispatch for a description of the suspects in the stabbing. The description he received did not match the individuals in the taxi. P.C. Zezella concluded the traffic stop.

[150] Mr. Singh dropped Mr. Hassan, Mr. Jeng and Mr. Wise off at the plaza on Queen and Main. Surveillance video captured the three accused arriving together at Select Convenience at 54 Queen Street South at 3:23 a.m.. At 3:44 a.m. a call was made to Hamilton Cab for a cell phone left in Hamilton Cab #61.

[151] Mr. Singh testified that he returned to the plaza at Queen and Main to drop off the phone and that it was the male sitting behind him (Mr. Wise) who was wearing a track suit that had left his phone in the taxi. Surveillance video shows that, at 3:53 a.m., the cab arrived at Select Convenience. Mr. Wise retrieved the phone from Mr. Singh. Mr. Hassan went into the convenience store at 3:56 a.m. wearing different clothing and purchased what appears to be a firework and another item.

Mr. Wise Tells Melissa Little Why It Happened

[152] When Ms. Little awoke on May 18, 2019, she saw Instagram and Facebook messages saying, “Rest in Peace Blacks”. On May 22, 2019, Mr. Wise reached out to Ms. Little. Ms. Little and Mr. Wise talked on the phone and had a lot of Snapchat conversations that day.

[153] In the telephone call on May 22nd, Ms. Little was upset with Mr. Wise for having called her for a ride the night of the killing. Mr. Wise told Ms. Little that there were two sides to every story. He then told her his side of the story, claiming that he walked into the after-hours party, heard a commotion, turned around and saw the deceased stabbed in the face and laying on the ground. His friends, including “Braids” (Mr. Jeng), were running off, so he just ran off with them. Mr. Wise told Ms. Little that he did not do anything. He told her that they just went to confront the deceased and that he (Mr. Wise) did not know that the deceased would be at the after-hours club.

[154] Mr. Wise also told Ms. Little that this happened because there was an altercation at Modrn weeks prior to the incident between “Braids” (Mr. Jeng) and the deceased.

The Injuries and the Cause of Death (Post-Mortem Examination)

[155] Dr. Jay Maxwell, a forensic pathologist, gave expert evidence regarding the injuries and the cause of death of the deceased. Dr. Maxwell’s Amended Report of Post-Mortem Examination was made Exhibit 13 in the preliminary inquiry.

[156] Dr. Maxwell conducted the autopsy on May 19th, 2019. He testified that the deceased had nineteen sharp force (“cutting”) injuries, eight of which were stab wounds and eleven were incised wounds. Generally, a stab wound is deeper into the tissues compared to the length of the defect in the skin. An incised wound is longer on the surface of the skin than the wound is deep through the tissues.

[157] Mr. Douse’s cause of death was multiple sharp force injuries. The mechanism of death was rapid blood loss and cardiovascular collapse.

[158] According to Dr. Maxwell, three of the sharp force injuries involved structures in the body that are potentially vital to life. Those injuries included #8 (Chest) #10 and #11 (Abdomen).

[159] Injury #8 was a stab wound to the left anteriolateral chest, which resulted in air entry into the chest cavity as well as bleeding into the chest cavity. This injury resulted in a defect in the chest wall cavity, prevented adequate respiration, and resulted in a marked degree of hemorrhage with additional injury to the lung tissue itself. According to Dr. Maxwell, injury #8 was a major injury and would have been a major contributing factor to the cause of death. A significant amount of blood (1390 ml) was collected in the collection box attached to the left-sided chest tube in the pleural cavity, associated with injury #8. An average man has five to six litres of circulating blood volume, so approximately 1.4 litres is a large percentage of blood loss.

[160] Injuries #10 was a stab wound to the left upper quadrant of the abdomen. The pathway of the injury included skin, subcutaneous tissue, the rectus abdominus muscles which are the muscles on the anterior abdominal wall, the peritoneal (abdominal) cavity, the root of the mesentery, and the retroperitoneal space. This injury was major and resulted in a significant amount of hemorrhage.

[161] Injury #11 was a stab wound to the right lower quadrant of the abdomen. The structures that were injured along the pathway of this sharp force injury included skin, subcutaneous tissue, the rectus abdominis muscles of the anterior abdominal wall, the peritoneal or abdominal cavity, the retroperitoneal space where the head of the pancreas lies, as well as the abdominal aorta, or the major blood vessel in the abdomen that takes blood away from the heart.

[162] There was 900 ml of blood in the abdominal cavity that was attributable to injuries #10 and #11. The exact contribution of blood from each injury could not be ascertained. This is a total amount of blood loss attributable to both injuries.

[163] The other sharp force injuries included:

Head:

#1: an incised wound to the head on the right parietal scalp;

#2: an incised wound to the right anterolateral face (cheek);

#3: an incised wound to the left lateral face (cheek);

#4: an incised wound to the left face (cheek);

#5: an incised wound to the right upper lip;

#19: an incised wound to the right face (cheek);

Chest:

#9: a stab wound to the right anterior chest. It penetrated the skin, the subcutaneous tissue, and pectoralis major muscle. There was 1430 ml of blood in the collection box attached to the chest tubes in the right pleural cavity;

Pelvis/Gluteal Region:

#15: a stab wound to right posterior gluteal area or buttock;

#16: a stab wound to the right posterior gluteal area;

#17: a stab wound to the right posterior lateral pelvis;

Left Arm:

#6: an incised wound to the left anterior (front) shoulder;

#12: an incised wound to the posterior left forearm;

Right Arm:

#7: an incised wound to the right anterior shoulder;

#13: an incised wound to the right anterior thumb;

Right Leg:

#14: an incised wound to the top aspect of the right foot;

Left Leg:

#18: a stab wound to the left posterior thigh.

[164] The sharp force injuries were caused by a sharp force implement but Dr. Maxwell is unable to opine on a specific type of sharp force implement or object that caused the injuries. Based on the appearance of the injuries, Dr. Maxwell cannot tell whether the injuries were caused by one or more than one weapon or object. Dr. Maxwell cannot speculate on the amount of time it would have taken to inflict the injuries.

[165] Dr. Maxwell agreed that it is possible that all nineteen injuries were sustained in the barbershop and the deceased was able to make it to where he was ultimately found, but he cannot conclusively say whether that happened on this occasion. Dr. Maxwell also agreed that it was possible that some of the wounds were occasioned within the barbershop and some were occasioned along the path to where the deceased was ultimately found.

[166] In addition, Dr. Maxwell noted several other blunt force injuries to the deceased’s head that he opined were recent or close to the time of death. In cross-examination, Dr. Maxwell agreed that by recent the best he is able to say is that these injuries happened within minutes or hours of Mr. Douse’s death.

[167] These were injuries due to impact or blunt force trauma. They included some red linear abrasions (or skin scrapes) on the skin over the right upper and lower eyelids, brow, and cheek, and two red abrasions on the right superior forehead. There was also a recent red abrasion on the right lateral neck which was a blunt force injury. There were recent blunt force injuries on the right arm: a red abrasion on the right medial elbow and two red abrasions on medial aspect of the right upper arm.

The Test for Committal

[168] I must determine whether there is sufficient evidence to put each accused on trial for the offence of first degree murder, or any other indictable offence in respect of the same transaction.[^12] The task of a preliminary inquiry judge is to “decide whether a properly instructed jury, acting reasonably, could convict on the evidence adduced at the preliminary inquiry”.[^13] The test is the same whether the evidence is direct or circumstantial.[^14]

[169] However, where the Crown relies either partly or entirely on circumstantial evidence, the preliminary inquiry judge must engage in a limited weighing of the whole of the evidence to determine whether the elements of the offence may be reasonably inferred from the circumstantial evidence.[^15] In R. v. Arcuri, the Supreme Court of Canada stated that this task of limited weighing is “an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence”.[^16] The judge does not determine whether the accused is guilty, nor does the judge draw factual inferences or assess credibility.[^17]

[170] If there are competing inferences that may be drawn from the circumstantial evidence, the preliminary inquiry judge is not to choose among these competing inferences, and commits jurisdictional error if he or she prefers “an inference favourable to an accused to an inference, also available on the evidence, favourable to the Crown”.[^18] It is for the jury to determine what inferences should be drawn from the facts.[^19]

[171] The preliminary inquiry judge is required to consider the cumulative effect of the evidence. Especially in a case in which circumstantial evidence plays a central role, “it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence”.[^20]

[172] In R. v. Jackson, Doherty J.A. explained the task as follows:

If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.[^21]

[173] In R. v. Kamermans, the Ontario Court of Appeal stated the following with respect to inferences:

Whether an inference is easy, hard or difficult to draw is of no moment to a decision on committal. Provided the inferences advanced by the Crown are within the field of available inferences and provide evidence of each essential element of the offence, committal follows.[^22]

[174] Doherty J.A. offered the following instructive examples in R. v. Jackson:

12 The distinction between evidence that cannot reasonably support the inferences necessary to establish the Crown's case and evidence that can support competing inferences including an inference of guilt can be hopefully made clear with two examples using facts similar to this case. In the first case, assume that the Crown's evidence consists of testimony that "A" and "B" were in the room with the deceased immediately before he was killed. No one else was in the room, and there was no evidence of any joint enterprise between "A" and "B". On this evidence nothing points to "A" as opposed to "B" as the killer. It would be unreasonable for a jury to infer from "A's" presence in the room (the primary fact) the further fact that he was the killer. "A" must be discharged at the preliminary inquiry.

13 In the second example, assume again that "A" and "B" were the only people in the room with the deceased immediately before he was killed and that there is no evidence of joint enterprise. There was evidence that as the police arrived moments later, "A" was seen leaving the room with the weapon used to kill "X" secreted upon his person. There was also evidence that "B" had been involved in a loud verbal altercation with "X" immediately before the killing.

14 On this evidence, one could reasonably infer from "A's" presence in the room and his departure from the room immediately after with the weapon used to kill "X" in his possession, that "A" had killed "X". One might also infer based on "B's" presence in the room and the prior altercation with "X", that "B" had killed "X". On the evidence described in the second scenario the evidence supports two reasonable conclusions, one of which is that "A" killed "X". A preliminary inquiry judge would be required to commit "A" for trial.[^23]

[175] In two decisions released within months of each other, R. v. Munoz[^24] and R. v. Alexander,[^25] Ducharme J. engages in a comprehensive and helpful discussion about the process involved in drawing inferences from accepted facts.

[176] Any inferences relied upon by the preliminary inquiry judge to commit an accused to stand trial must be based on the evidence heard at the preliminary inquiry and must be reasonable.[^26] As Ducharme J. stated in R. v. Alexander, “[s]uch inferences cannot be based on speculation, no matter how seemingly reasonable”.[^27] The accused must be discharged if the committal “depends on an inference or inferences that cannot be reasonably drawn from the evidence” since there “would be an absence of evidence on an essential element”.[^28]

[177] The following points emerge from Ducharme J.’s discussion about the process of drawing inferences. They offer guidance to a judge tasked with determining whether the evidence at the preliminary inquiry reasonably supports the inferences of guilt advanced by the Crown:

(1) The process of inference drawing involves inductive reasoning, which derives conclusions based on the uniformity of prior human experience;[^29]

(2) The conclusion is not inherent in the offered evidence, or premises, but flows from an interpretation of that evidence derived from experience;[^30]

(3) An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances. If the premises, or the primary facts, are accepted, the inductive conclusion follows with some degree of probability, but not of necessity;[^31]

(4) The boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a very difficult one to locate;[^32]

(5) Inferences must be capable of being reasonably and logically drawn from a fact or group of facts established by the evidence.[^33] As Doherty J.A. stated in R. v. Morrissey, “[a]n inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation”;[^34]

(6) Where the primary facts that are said to provide the basis for the inference are not established by the evidence, then any inferences purportedly drawn from them will be the product of impermissible speculation;[^35]

(7) Inference drawing can also become impermissible speculation where the proposed inference cannot be reasonably and logically drawn from the established primary facts. One can overreach and draw an inference that should not properly be drawn from the primary facts;[^36]

(8) The process of drawing inferences from evidence is not the same as speculating, even where the circumstances permit an educated guess.[^37] Where an inferential gap exists, it can only be properly overcome by evidence;[^38]

(9) The line between a reasonable inference that may permissibly be drawn from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncracies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the trier of fact is given the opportunity to draw a conclusion because there is a reasonable probability that that conclusion flows from the proven facts;[^39]

(10) The requirement of “logical probability” or “reasonable probability” does not mean that the only “reasonable” inferences that can be drawn are the most obvious or the most easily drawn. This is especially true at a preliminary inquiry where the judge need only determine whether there is sufficient evidence to permit the trier of fact to draw the inference necessary to convict. Difficult inferences can be both reasonable and logical;[^40]

(11) It is not enough simply to create a hypothetical narrative that, however speculative, could possibly link the primary fact or facts to the inference or inferences sought to be drawn.[^41] As Fairgrieve J. noted in R. v. Ruiz, “[s]imply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence”.[^42]

The Crown’s Theory

[178] The Crown’s theory is that this was a “hit”. Mr. Wise and Mr. Jeng formulated a plan to murder the deceased as retaliation, and they recruited Mr. Hassan to participate in the plan. The Crown says that the manner in which the attack occurred – immediate, swift, efficient and silent – and the speed with which the fatal injuries were inflicted demonstrate that the accused acted in concert in a planned and deliberate murder, either as co-principals, or as aiders or abettors.

[179] The Crown proposes an alternative theory of liability for first degree murder for each of the accused, namely that the deceased was killed during an unlawful confinement or attempted unlawful confinement. The Crown submits that the attempted unlawful confinement started in the after-hours club and continued when all three men chased the deceased after they knew he had been stabbed in the club. Furthermore, the Crown says that the evidence supports a reasonable and logical inference that the three accused chased the deceased to the confined area of the porch, where they killed him.

Murder – Essential Elements

[180] Section 229 of the Criminal Code reads:

[180]

229. Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not ...

[181] The essential elements of the offence of murder that the Crown must prove beyond a reasonable doubt are:

i. That the accused caused the victim’s death;

ii. That the accused caused the victim’s death unlawfully; and

iii. That the accused had the mens rea required for murder under s. 229(a) (i) or (ii).

[182] With respect to the mens rea element, Doherty J.A. stated that “[s]ection 229(a)(ii) modestly expands the "pure" definition of murder set out in s. 229(a)(i)”.[^43] There is a “close proximity between the states of mind described in the two subsections”.[^44] In R. v. Cooper, Cory J. explained that “[t]he essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim”.[^45] Cory J. described the aspect of recklessness as “an afterthought”, since “[o]ne who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur”.[^46] Therefore, “he must, of necessity, be reckless whether death ensues or not”.[^47]

[183] It is not sufficient that the accused foresee simply a danger of death. The accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning the victim.[^48]

Planned and Deliberate First Degree Murder – Essential Elements

[184] The essential elements of a planned and deliberate first degree murder that the Crown must prove beyond a reasonable doubt are:

(1) That the accused caused the victim’s death;

(2) That the accused caused the victim’s death unlawfully;

(3) That the accused had the mens rea required for murder under s. 229(a) (i) or (ii); and

(4) That the accused’s murder of the victim was both planned and deliberate.

[185] Planning and deliberation are distinct. “Planned” means that the scheme was conceived and carefully thought out before it was carried out.[^49] The nature and consequences of the scheme have been considered and weighed. The plan need not be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate. The important element is the time involved in developing the plan, not the time between the development of the plan and the doing of the act.[^50]

[186] "Deliberate" means considered, not impulsive, slow in deciding, cautious, implying that the accused must take time to weigh the advantages and disadvantages of his intended action.[^51]

[187] As Durno J. stated in R. v. Papadopoulos, “[a] conviction for first degree murder can be based upon the s. 229(a)(ii) intent, provided the requisite intention was planned and deliberated upon before the offence”.[^52] A person can plan and deliberate to cause terrible bodily harm that he knows is likely to result in death.[^53] Cory J. in R. v. Nygaard stated:

Nothing is added to the aspect of planning and deliberation by the requirement that the fatal assault be carried out in a reckless manner, that is to say by heedlessly proceeding with the deadly assault in the face of the knowledge of the obvious risks. The planning and deliberation to cause the bodily harm which is likely to be fatal must of necessity include the planning and deliberating to continue and to persist in that conduct despite the knowledge of the risk. The element of recklessness does not exist in a vacuum as a sole mens rea requirement, but rather it must act in conjunction with the intentional infliction of terrible bodily harm…[^54]

Party Liability Under the Criminal Code

[188] Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. Section 21(1) of the Criminal Code makes perpetrators, aiders, and abettors equally liable:

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

(a) actually commits it;

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

(c) abets any person in committing it.[^55]

[189] Section 21 of the Criminal Code codifies “two forms of liability for Criminal Code offences, primary or principal liability (actually or personally committing the offence), and secondary liability (also known as party liability)”.[^56] Section 21 is designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant.[^57] The Crown need not specify in an indictment the nature of an accused's participation in an offence.[^58]

[190] The Crown may theorize that the evidence led in a case supports a finding that the accused committed all of the elements of the offence, making him/her guilty as a principal (s. 21(1)(a)). The Crown may say that, alternatively, the evidence supports a finding that, even if he/she did not commit all elements of the offence, he/she provided aid or encouragement, with the requisite mens rea, to another person who did commit the offence, and is therefore criminally responsible for the offence as a party (s. 21(1)(b) and (c)).[^59] If there is some evidence which, if believed, points to the accused having personally committed the offence, and some evidence which, if believed, points to the alternative theory that the accused was an aider or abettor, a trial judge should not preclude the jury from considering each of the alternatives.[^60]

[191] As the majority of the Court put it in R. v. Thatcher, “if there is evidence before a jury that points to an accused either committing a crime personally or, alternatively, aiding and abetting another to commit the offence, provided the jury is satisfied beyond a reasonable doubt that the accused did one or the other, it is "a matter of indifference" which alternative actually occurred”.[^61]

[192] In relation to murder, “the distinction in the Criminal Code between actually committing the offence under s. 229, and committing the offence as an aider and abettor under s. 21 relates in part to the fact that there can be a difference between factual and legal causation of death”.[^62] Factual causation “is concerned with 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”.[^63] Legal causation “is concerned with the question of whether the accused person should be held responsible in law for the death that occurred”.[^64] As LeBel J. stated in R. v. Pickton, “party liability as codified in s. 21 of the Criminal Code often bridges the gap which might otherwise exist between factual and legal causation”.[^65]

[193] In R. v. Suzack, the extent of the individual participation of the two perpetrators was unclear.[^66] Mr. Suzack and another man attacked and beat a police officer who had conducted a traffic stop of their vehicle. One of them fired the fatal shots. Each testified that the other had been the shooter. On appeal, Mr. Suzack submitted that the trial judge misdirected the jury as to his potential liability for murder as a party to a common design with the other man.

[194] Doherty J.A. made the following comments regarding the trial judge’s instructions:

152 It is beyond question that where two persons, each with the requisite intent, act in concert in the commission of a crime, they are both guilty of that crime. Their liability may fall under one or more of the provisions of s. 21(1) of the Criminal Code: R. v. Sparrow (1979), 1979 CanLII 2988 (ON CA), 51 C.C.C. (2d) 443 at 457-58 (Ont. C.A.). Trainor J. told the jury that if Suzack and Pennett jointly participated in the murder with the necessary intent, they were "liable as principals." This is potentially a mischaracterization of their liability. They may have been principals or they may have been aiders or abettors depending on what each did in the course of the common design: R. v. Simpson (1988), 1988 CanLII 89 (SCC), 38 C.C.C. (3d) 481 at 488-91 (S.C.C.). As Griffiths J.A. said in R. v. Wood (1989), 1989 CanLII 7193 (ON CA), 51 C.C.C. (3d) 201 at 220:

... Where evidence of concerted action in the commission of the offence exists, as in the present case, then it is open to a jury to convict all of the accused either as principals, under s. 229(a), or as aiders or abettors pursuant to s. 21 of the Code, even though the extent of the individual participation in the violence is unclear. ...

153 I do not, however, regard Trainor J.'s error in terminology as having any significance. The crucial issue is not whether he properly labelled the nature of the appellants' liability, but whether he properly instructed the jury as to the essential elements which the Crown had to prove to establish joint liability for murder where the jury could not determine which of the two had fired the fatal shots [Emphasis added].[^67]

[195] In R. v. Pickton, LeBel J. explained the decision in Suzack:

In Suzack, both principal liability and aiding and abetting were properly before the jury. It was for this reason that if one or the other modes of liability was made out that it was "unnecessary to label the nature of his participation" (para. 155). In addition, both of these modes of liability, taken together, described "Suzack's potential liability for murder as a participant in a common scheme ... to commit murder" (para. 157). The decision in Suzack, however, also makes it clear that the phrases such as "concerted action", "acted in concert", "common design", "participation in a common scheme", and "joint participation" are phrases which properly capture the entire gamut of principal liability, co-principal liability and liability as an aider or abettor. They cover the entire range of party liability set out in s. 21(1) and are not limited to s. 21(1)(a).[^68]

[196] Although the law does not distinguish between the principal offender and parties to an offence in determining criminal liability, “[t]he actus reus and mens rea for aiding or abetting are distinct from those of the principal offence”.[^69] As the Ontario Court of Appeal recently stated, “[d]rawing a clear distinction between the legal basis for the perpetrator's liability and the bases for liability of the helper is important because the facts which the Crown must prove beyond a reasonable doubt are different depending upon whether liability flows as a perpetrator or as an aider”.[^70]

[197] The actus reus of aiding or abetting was described in R. v. Briscoe:

The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, "[t]o aid under s. 21(1)(b) means to assist or help the actor... . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed": R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, at para. 26.

[198] Durno J. explained the actus reus of a party in R. v. Papadopoulos:

As regards the actus reus of a party, the mere presence at the scene of a crime is not sufficient to ground culpability. Something more is required, such as encouragement of the principal offender, an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, an act which tends to prevent or hinder interference with committing the criminal act, such as preventing the intended victim from escaping, or being prepared to assist the prime culprit: Dunlop and Sylvester v. The Queen (1979), 1979 CanLII 20 (SCC), 47 C.C.C. (2d) 93 (S.C.C.). A failure to act by one present at the scene will not amount to aiding, absent a duty to act and an intention to aid the perpetrator: R. v. Davey (2000), 2000 CanLII 16859 (ON CA), 137 O.A.C. 53. (C.A.).[^71]

[199] The aider or abettor must also have the requisite mens rea. LeBel J. explained the mens rea component in R. v. Pickton:

The main focus of s. 21(1)(b) and (c) is on the intention with which the aid or encouragement has been provided. The act or omission relied upon must in fact aid or abet, and it must also have been done with the particular intention to facilitate or encourage the principal's commission of the offence, with knowledge that the principal intends to commit the crime: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 14 and 16-18. To be found liable for first degree murder as an aider and abettor of a planned and deliberate murder, an accused must have knowledge that the murder was planned and deliberate: Briscoe, at para. 17. Wilful blindness will satisfy the knowledge component of s. 21(1)(b) or (c): Briscoe, at para. 21.[^72]

[200] The intent component in s. 21(1)(b) requires the Crown to prove that the accused intended to assist the principal in the commission of the offence.[^73] It is not required that the accused desired that the offence be successfully committed.[^74] In respect of murder, there is no requirement “that an aider or abettor subjectively approve of or desire the victim’s death”.[^75]

[201] With respect to the knowledge component, “a person who is alleged to have aided in a murder must be shown to have known that the perpetrator had the intent required for murder under s. 229(a)”.[^76] Doherty J.A. explained that the same analysis applies where the allegation involves aiding in a planned and deliberate murder:

The same analysis applies where it is alleged that the accused aided a perpetrator in the commission of a first degree murder that was planned and deliberate. The accused is liable as an aider only if the accused did something to assist the perpetrator in the planned and deliberate murder and if, when the aider rendered the assistance, he did so for the purpose of aiding the perpetrator in the commission of a planned and deliberate murder. Before the aider could be said to have the requisite purpose, the Crown must prove that the aider knew the murder was planned and deliberate. Whether the aider acquired that knowledge through actual involvement in the planning and deliberation or through some other means, is irrelevant to his or her culpability under s. 21(1).[^77]

Constructive First Degree Murder pursuant to [s. 231(5)](https://laws-lois.justice.gc.ca/eng/acts/c-46/) (e) [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/c-46/)

[202] The case of R. v. Harbottle sets out the five essential elements the Crown is required to prove beyond a reasonable doubt to establish first degree murder under s. 231(5)(e):

[202]

i. that the accused unlawfully confined or attempted to unlawfully confine the victim or another person (“predicate offence”);

ii. that the accused murdered the victim (“murder”);

iii. that the accused participated in the murder of the victim in such a way that the accused was a substantial cause of the victim's death (“substantial cause”);

iv. that no intervening act of somebody else resulted in the accused no longer being substantially connected to the victim's death (“no intervening act”); and

v. that the crimes of unlawful confinement, whether completed or attempted, and murder were part of the same transaction, in that the victim's death was caused while the accused was confining or attempting to unlawfully confine the victim or another as part of the same series of events (“same transaction”).[^78]

Predicate Offence:

[203] The predicate offence requirement under s. 231(5)(e) involves the offence of unlawful confinement or the preliminary crime of attempted unlawful confinement.[^79] Unlawful confinement requires the use of physical restraint, contrary to the wishes of the person restrained, but to which that person submits unwillingly, thereby depriving that person of his or her liberty to move from one place to another.[^80]

[204] The authorities establish that if for any significant period of time, the victim was coercively restrained or directed contrary to his or her wishes, so that he or she could not move about according to his or her own inclination and desire, the victim has been unlawfully confined.[^81]

[205] In R. v. Pritchard, the Supreme Court of Canada used the phrase "any significant period of time" in connection with the description of the unlawful confinement component of s. 231(5)(e). However, as the Ontario Court of Appeal explained in R. v. Parris, when read together with the other portions of Pritchard, “it seems clear that ‘significant’ is used synonymously with ‘confinement not limited to what was integral to the particular act of killing’”.[^82] Jury instructions under s. 231(5)(e) do not require the inclusion of “significant” or its functional equivalent. As Watt J.A. stated, “[i]ndeed, to some it may seem anomalous to include such wording when the predicate offence requirement can be satisfied by the preliminary crime of attempted unlawful confinement where no actual confinement would occur”.[^83]

[206] Unlawful confinement is a continuing offence, but one that is complete when the victim is restrained against his or her will.[^84] As the Ontario Court of Appeal explained, “if in the course of a continuous sequence of events an accused commits the crime of unlawful confinement and chooses to exploit the position of dominance over the victim resulting from that confinement to murder the victim, then the accused has committed first degree murder as defined in s. 231(5)(e)”.[^85] The purpose of the confinement is not relevant.[^86]

[207] Crown counsel referred to R. v. Gervais,[^87] a decision of the Alberta Court of Appeal. In Gervais, the Court cites R. v. Magoon,[^88] a recent decision of the Supreme Court of Canada, wherein Abella and Moldaver J.J. (writing for the Court) reviewed what the Crown must establish under s. 279(2) of the Criminal Code. In addition to referring to Pritchard, the Supreme Court of Canada cited R. v. Bottineau,[^89] R. v. Gratton,[^90] and R. v. Kematch.[^91]

[208] The principles that emerge from these cases include:

a) In ordinary usage, "confinement" means the state or condition of being confined, restriction or limitation. To confine another person is to keep that person in a place, within or to limits, or a defined area, to restrict or secure that person. In other words, confinement generally consists of restraining another person's liberty, though not necessarily the other person's ability to escape;[^92]

b) Under s. 279(2) of the Criminal Code, an unlawful confinement also consists of restricting the victim's liberty, but not his or her ability to escape. The restriction need not be to a particular place or involve total physical restraint;[^93]

c) At its core, then, unlawful confinement involves a deprivation of another person's liberty;[^94]

d) Confinement does require an element of physical restraint, but not necessarily effected by physical means;[^95]

e) Restraint of the victim through physical acts of violence is sufficient but not necessary to establish unlawful confinement;[^96] and

f) Actual physical restraint or coercive restraint, as referred to by Binnie J. in Pritchard, is required, but depending on the circumstances it can be effected by fear, intimidation and psychological and other means.[^97]

Substantial Cause:

[209] The "substantial cause" requirement in s. 231(5)(e) requires the Crown to prove that the accused played a very active role – usually a physical role – in the killing.[^98] The accused's actions must form an essential, substantial, and integral part of the killing of the victim.[^99] This requirement might be better described as reflecting an enhanced or more demanding degree of participation in the killing than a requirement of causation.[^100]

[210] In R. v. Nette, Arbour J. described it as follows:

The "something more" is not that the accused caused more the death of the victim. What is required is that his participation in the killing be sufficiently immediate, direct and substantial to warrant the greater stigma and sentence attached to first degree murder.[^101]

[211] The "substantial cause" requirement may be met where the conduct of an individual accused does not constitute the factual cause of the victim’s death, provided that what the accused does is an essential, substantial and integral part of the killing.[^102]

[212] In R. v. Tomlinson, Watt J.A. confirmed that a secondary party can be convicted of first degree murder pursuant to s. 231(5):

The enhanced participation requirement imposed in constructive first degree murder in Harbottle does not bar conviction of secondary parties: R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at para. 68. A secondary party, such as an aider, may be convicted of constructive first degree murder provided his or her conduct satisfies the enhanced participation standard imposed by Harbottle: Ferrari, at para. 85; Harbottle, at p. 316.[^103]

[213] The examples provided in R. v. Harbottle remain illustrative:

…there will be instances where an accused could well be the substantial cause of the death without physically causing it. For example, if one accused with intent to kill locked the victim in a cupboard while the other set fire to that cupboard, then the accused who confined the victim might be found to have caused the death of the victim pursuant to the provisions of s. 214(5) [now s. 231(5)]. Similarly an accused who fought off rescuers in order to allow his accomplice to complete the strangulation of the victim might also be found to have been a substantial cause of the death.[^104]

Same Transaction:

[214] The “same transaction” requirement relates to the relationship between the predicate offence and the killing of the deceased that amounts to murder.[^105] For s. 231(5) to raise murder from second degree to first degree the Crown must prove that the killing occurred as part of a continuing series of events constituting a single transaction that establishes not only the killing but also the distinct offence of unlawful confinement.[^106]

[215] A confinement which satisfies s. 279(2) will not trigger s. 231(5)(e) if it is consumed in the very act of killing. In order to trigger s. 231(5)(e), the confinement and the murder must constitute distinct criminal acts.[^107] The act of confinement and the act of killing must not be one and the same.[^108]

[216] The "same transaction" requirement does not demand that the killing (murder) and predicate offence occur simultaneously, only that they be part of one continuous sequence of events forming a single transaction.[^109] The phrase "while committing or attempting to commit" in s. 231(5) requires that the killing be closely connected, temporally and causally, with the enumerated offence (unlawful confinement).[^110] The temporal-causal connection is established where the unlawful confinement creates a "continuing illegal domination of the victim" that provides the accused with a position of power which he or she chooses to exploit to murder the victim.[^111]

AnaIysis: Constructive First Degree Murder under [s. 231(5)](https://laws-lois.justice.gc.ca/eng/acts/c-46/) (e) [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/c-46/)

[217] Portions of my analysis regarding the s. 231(5)(e) route to first degree murder will apply to my reasons on planning and deliberation. I have, therefore, chosen to begin here. I find that a properly instructed jury, acting reasonably, could convict Mr. Hassan, Mr. Jeng and Mr. Wise of first degree murder under s. 231(5)(e).

[218] Mr. Hassan, Mr. Jeng, and Mr. Wise arrived at the after-hours club together. Collea Dubinsky testified that the deceased “opened the door and he got rushed by three gentlemen and started getting stabbed”. She described how the attackers “bum-rushed the door and just started doing what they were doing” with no conversation.

[219] One of the three men stabbed the deceased “roughly maybe three times…it could have been more”. The stabber used a big dagger knife that was maybe ten inches. It would be open to the jury to find that Mr. Jeng was the man who stabbed the deceased when Ms. Dubinsky’s description of the stabber is considered in the context of the other evidence led at the preliminary inquiry.

[220] However, the other two men were not standing back and watching. According to Ms. Dubinsky, after the deceased made it out the door, he was chased by “the three gentlemen that just rushed the door and stabbed him”. Surveillance video shows that the door closed behind the accused when they entered the club and opened approximately ten seconds later when the deceased ran out. By that point, the deceased had been stabbed “roughly maybe three times” or more.

[221] Based on Ms. Dubinsky’s description of the attack, the jury could find that the three men participated in a concerted attack on the deceased inside the after-hours club, and that those same three men, Mr. Hassan, Mr. Jeng, and Mr. Wise chased the deceased out of the after-hours. It would also be open to the jury to find that each of the participants in this concerted attack, which involved stabbing an unarmed man with a large knife, had the requisite intent for murder (either as a principal under s. 229 (a)(i) or (ii), or as a party under s. 21(b) or (c)).

[222] Since they were in close proximity to each other in the club, it is a reasonable inference that each of the accused knew that the deceased had been stabbed in the after-hours club. After the deceased was stabbed in the club, was bleeding, and remained unarmed, each of the three accused chased him down the street while, as witnesses described it, he was “running for his life”. During the chase, one of them had what appeared to Tim Miller to be a large knife in his left hand. Based on Mr. Miller’s description of this man, and other evidence led at the preliminary inquiry, it would be open to the jury to find that Mr. Jeng was the pursuer with a large knife in his hand.

[223] The essence of an attempt is the intention to commit the completed offence.[^112] The accused must engage in some conduct going beyond mere preparation that constitutes an attempt to commit the offence.[^113] In R. v. White, the Ontario Court of Appeal stated that, “[i]n the case of attempted unlawful confinement, the necessary mens rea consists of the accused's intention to physically restrain or direct the victim contrary to the victim's wishes, thereby depriving the victim of his ability to move from one place to another based on his or her own inclination and desire”.[^114]

[224] There is some evidence upon which the jury could find that Mr. Hassan, Mr. Jeng and Mr. Wise were attempting to restrict the deceased’s liberty when they were chasing him. Immediately before the three-on-one chase of the deceased, Mr. Hassan, Mr. Jeng, and Mr. Wise participated in a concerted attack upon him, resulting in him being stabbed. It is a reasonable and logical inference that when they chased him, they intended to capture and restrain him. Although their purpose in doing so is irrelevant,[^115] the jury could find that the purpose was to continue the concerted attack on the deceased, and to cause his death or inflict bodily harm that they knew was likely to cause his death.

[225] Furthermore, as I will discuss below, there is some evidence from which a reasonable and logical inference could be drawn that Mr. Hassan, Mr. Jeng and Mr. Wise captured and confined the deceased, which supports the inference that the chase was an attempted unlawful confinement.

[226] The case of R. v. White involved a chase in a catwalk, fenced on both sides, and the eventual capture of the deceased after he ran out of the catwalk. In my view, R. v. White does not hold that the chase was an attempted unlawful confinement merely because it occurred in the confined “physical layout of the catwalk”. That was one factor that the Court considered in concluding that the elements of an attempted unlawful confinement were made out. The authorities referred to above make it clear that unlawful confinement consists of restricting the victim’s liberty. The restriction need not be to a particular place or involve total physical restraint.[^116]

[227] I pause here for a moment to address an argument made by counsel for Mr. Wise. Counsel submits that perhaps all the wounds were inflicted in the after-hours club. He says the Crown can point to no evidence that a secondary assault occurred after the deceased left the after-hours club.

[228] The jury could conclude that not all of the sharp force injuries were inflicted in the after-hours club based on the following evidence: (a) the direct evidence of Ms. Dubinsky that, in the club, the deceased was stabbed “roughly maybe three times…it could have been more”; (b) the short duration of the attack in the club (approximately ten seconds); (c) the fact that the deceased was able to run down the street after he was stabbed in the club; (d) the number and nature of the wounds the deceased sustained (nineteen sharp force injuries); and (e) the grave condition of the deceased when he was found on the porch.

[229] The Crown advances the theory that Mr. Hassan, Mr. Jeng and Mr. Wise chased the deceased to the porch of 64 East Avenue North where they confined him and took advantage of their illegal domination of the deceased to murder him.

[230] Defence counsel argue that the Crown’s theory that the deceased was cornered or confined on the porch is speculative and that there is absolutely no evidence to support the Crown’s position. Furthermore, Defence counsel submit that even if all of the stab wounds could not have been inflicted in the after-hours club because of the short time frame, there is no evidence that the remainder of the stab wounds were inflicted on the porch as opposed to elsewhere, such as the sidewalk or street.

[231] I find that there is sufficient evidence upon which a properly instructed jury, acting reasonably, could find that Mr. Hassan, Mr. Jeng and Mr. Wise unlawfully confined the deceased on the porch of the home, where they exploited their position of power to murder him.

[232] Witnesses followed the men who were chasing the deceased. They gave evidence about what they observed as they approached the area where the deceased was ultimately found.

[233] Ms. Dubinsky testified that she saw the same three men who attacked the deceased at the after-hours run across the street into the park. They were “coming from the same house where [the deceased] was lying”. According to Ms. Dubinsky, she knew where they had to stop the car because she could clearly see the same three men that she had seen “30 seconds ago stabbing [her] friend” running across the street. She knew that was the area where “something was happening”, and where she had to look for the deceased because she saw these same three men.

[234] Richard Harris gave evidence that he saw three guys running west across the street into the park. The first one he recognized as “Big Al” (Mr. Wise), followed by a slimmer build tall male, and a smaller guy. After seeing the men cross, it took Mr. Harris approximately five to six seconds to get to the point where they had run across the sidewalk and street into the park.

[235] Tim Miller said he saw the three people chasing the deceased veer to the right-hand side of the street. At that point, he could not see the deceased. Mr. Miller veered to the right as well and was now on the sidewalk. He was looking for the deceased between cars and on lawns. Mr. Miller then saw three people, he believed to be the same people he was chasing, run back across the street and jump over the fence and run across the park.

[236] Both Ms. Dubinsky and Mr. Miller testified that, after making these observations of the three men going into the park, they located the deceased laying on the porch of home.

[237] Ms. Dubinsky and Mr. Miller each claimed to have been the first person to locate the deceased. Mr. Miller testified that he found the deceased laying down on the porch of a house “faced into the corner”. He rolled the deceased over onto his back. No one else was there at the time. Ms. Dubinsky claims that it was Mr. Harris who showed her or told her that the deceased was on the porch, and that she was the first person to attend to the deceased on the porch. However, Mr. Harris testified that he did not look for the deceased because Mr. Miller was behind him. The conflicting evidence regarding who first located or attended to the deceased is a matter for the jury to consider and resolve.

[238] From the evidence of these witnesses who were following the chase, the following reasonable and logical inferences could be drawn: (a) Mr. Hassan, Mr. Jeng, and Mr. Wise continued to chase the deceased north on East Avenue North; (b) Mr. Hassan, Mr. Jeng and Mr. Wise came from the area of the porch where the deceased was located; (c) Mr. Hassan, Mr. Jeng and Mr. Wise were in close proximity to each other when they came from the area of the porch; (d) the deceased was found laying on the porch “faced into the corner” shortly after Mr. Hassan, Mr. Jeng and Mr. Wise came from the area of the porch in close proximity to each other.

[239] Photographs of the porch at 64 East Avenue North were filed on the preliminary inquiry. The porch has an iron railing across the front and an iron railing enclosing the north side of the porch. The railing across the front has an opening leading to the front door of the home. The railing along the front continues south to essentially the south corner of the porch. However, the south side of the porch is not enclosed by a railing. On the south side of the porch, “there [was] an area of suspected blood staining”.[^117] The pictures depict what appear to be pools of blood on the south side of the porch. The pictures also depict what appear to be blood droplets on the porch in the area of the front door of the home.

[240] The home at 64 East Avenue North has an outer glass door with a beige frame. The outer door swings open towards the north. The photographs depict what appear to be blood droplets on the south frame of the outer door and a swath of suspected blood on the inside of the outer door on the beige frame. There is also suspected blood on the inner door and the aluminum threshold.

[241] Mr. An Ngo testified that he heard some banging at the front door of 64 East Avenue North while he was in his second floor bedroom. When he looked out his front window to see if there were any vehicles in front of the house, there weren’t any.

[242] Mr. Ngo could not see the front porch of the home from this second-floor window. Mr. Ngo started making his way downstairs to see what was happening but was intercepted by family members who urged him not to open the door. He estimated that he opened the front door five to six minutes after hearing the banging. By then, there were a bunch of people around the house and a man laying on the porch, with somebody holding him. Mr. Ngo estimated that fourteen or fifteen people were in the area. He thinks there were one or two cars that stopped, and people got out and “checked it out”. The next day, Mr. Ngo noticed blood on the porch and just under the doorknob on the front door.

[243] Kristen Martin drove witnesses, including Ms. Dubinsky, to the location where the deceased was found. Ms. Martin parked on the left-hand side of the street, but “pretty close” to the middle, before getting out of her car.

[244] The evidence set out above could lead the jury to draw the following reasonable and logical inferences: (a) the suspected blood droplets on the porch at the front door and on the south frame of the door was the deceased’s blood; (b) the swath of blood on the inside of the outer door was the deceased’s blood; (c) the deceased’s blood was on the inside of the outer door and on the inner door because he opened the outer door; (d) the deceased opened the outer door and was banging on the inner door, which is what Mr. Ngo heard when he was in his second floor bedroom; (e) the deceased was banging on the inner door for assistance, attempting to escape his attackers; (f) because the deceased was banging on the inner door of the home, he had not yet been incapacitated from the wounds he had sustained to that point; (g) when he received no response to his banging, the deceased went to the south side of the porch because the opening in the front railing was blocked by Mr. Hassan, Mr. Jeng and Mr. Wise, who had now caught up to him; (h) the deceased went to the south side of the porch attempting to escape because there was no railing enclosing the south side of the porch; (i) the deceased was attacked on the south side of the porch and incurred additional sharp force injuries in this attack; (j) the deceased was unable to move after the attack that occurred on the porch and was found laying “faced in the corner” with nineteen sharp force injuries. It is clear from the evidence of each of the witnesses who either located or tended to the deceased that he was unable to move without assistance.

[245] There is no direct evidence about what happened on the porch. However, if the jury were to find that Mr. Hassan, Mr. Jeng and Mr. Wise participated in a concerted attack on the deceased at the after-hours club, and that each knew that he had been stabbed there, the jury could logically and reasonably infer that, once they succeeded in preventing the deceased’s escape and had unlawfully confined him to the porch, all three of them continued their concerted attack upon him there. It would be open to the jury to find that each of the participants in this concerted attack, which involved inflicting additional sharp force injuries, had the requisite intent for murder (either as a principal under s. 229 (a)(i) or (ii), or as a party under s. 21(b) or (c)). These are not the only inferences that could be drawn, but they are available inference on the evidence.

[246] There is evidence from which competing inferences could be drawn. For instance, Kristen Martin testified that when she and others were tending to the deceased on the porch, they were knocking on the front door asking that someone turn the porch light on. Ms. Dubinsky testified that she was pounding on the door of the house. Perhaps the banging that Mr. Ngo heard that morning was Ms. Martin or Ms. Dubinsky. However, it is for the jury to decide what inferences should be drawn from the facts.

[247] As outlined above, there is some evidence upon which the jury could find that additional violence was perpetrated on the deceased after he left the after-hours club. On a view of the evidence most favourable to Crown, the deceased sustained sixteen additional sharp force injuries on the porch. The extent of the individual participation of Mr. Hassan, Mr. Jeng, and Mr. Wise in the further violence that occurred after leaving the club is unclear. However, there is some evidence of concerted action on the part of Mr. Hassan, Mr. Jeng and Mr. Wise in the commission of the offences of unlawful confinement and murder. It is, therefore, open to the jury to convict Mr. Hassan, Mr. Jeng, and Mr. Wise as principals, or as aiders or abettors although the extent of their individual participation in the violence is unknown.

[248] I have found that there is some evidence upon which a jury could find that Mr. Hassan, Mr. Jeng and Mr. Wise unlawfully confined the deceased on the porch where they murdered him. On that basis, committal of each of the accused for first degree murder under s. 231(5)(e) follows.

[249] However, for the sake of completeness of my analysis, I will address the Defence submission that there is no evidence that the additional stab wounds, if any, were inflicted on the porch as opposed to elsewhere, such as the sidewalk or street. As I stated above, on the basis of the evidence, it would be open to the jury to find that, if additional stab wounds were inflicted before the accused had succeeded in unlawfully confining the deceased, those additional stab wounds were inflicted while each of the accused in concert were attempting to unlawfully confine the deceased. A properly instructed jury, acting reasonably, could convict each of the accused on that basis under s. 231(5)(e).

[250] Defence counsel submit that the Crown has failed to lead evidence that each of the accused participated in the murder of the deceased in such a way that each of the accused was a substantial cause of the victim’s death. The argument was presented as follows: Ask yourself how someone who doesn’t have a knife and there is no evidence that he actually had any contact with the deceased can ever be said to have played an essential, substantial and integral part in the killing?

[251] If the jury were to draw the available inferences I have outlined above, the jury could find that each of the three accused played an active physical role in the killing. The jury may conclude that based on the evidence: (a) there was one stabber; (b) the two non-stabbers acted in concert with the stabber in the attack on the deceased at the club; (c) the stabber and non-stabbers acted in concert when they chased the deceased who was already injured, and running for his life, attempting to unlawfully confine him; (d) the stabber and non-stabbers prevented the deceased’s escape by unlawfully confining him to the porch; (e) by assisting in preventing the deceased’s escape and in his unlawful confinement to the porch area, the non-stabbers assisted the stabber to inflict the additional wounds that incapacitated the deceased and ultimately caused his death, knowing that the stabber intended to kill the deceased or inflict wounds that he knew were likely to cause death.

[252] If the jury were to draw these reasonable and logical inferences from the available evidence, all three of the accused “caused” the deceased’s death because they each participated in the murder in such a way that each of them was a substantial cause of the death.

[253] Defence counsel also argued that the Crown failed to adduce some evidence that there was an offence of unlawful confinement that was distinct from the murder. They submit that the act of confinement and the act of killing in this case were one and the same.

[254] The deceased was stabbed in the club. He tried to escape. Mr. Hassan, Mr. Jeng and Mr. Wise chased an unarmed man who had been stabbed and was running for his life. The jury may find that they were successful in confining him to the porch and taking advantage of their illegal act of domination to kill him, and that but for that act of domination the deceased may have escaped.

[255] If the jury were to so find, the high degree of moral blameworthiness that attaches to a murder committed by someone already abusing his power by illegally dominating another would be warranted and would result in a conviction for first degree murder for each of the accused.

[256] Pursuant to s. 548(1)(a) of the Criminal Code, I order Mr. Hassan, Mr. Jeng and Mr. Wise to stand trial for first degree murder under s. 231(5)(e) of the Criminal Code.

Analysis: First Degree Murder based on Planning and Deliberation

[257] I turn now to the issue of whether there is an evidentiary basis upon which each of the three accused can be committed to stand trial for the planned and deliberate murder of the deceased. In relation to each individual accused, I must determine whether there is some evidence upon which a properly instructed jury could find that he either committed a planned and deliberate murder, or was an aider or abettor in the commission of a planned and deliberate murder with the requisite intent and knowledge.

[258] I must consider the cumulative effect of the evidence. However, as I will explain, there are certain pieces of evidence that are admissible against one of the accused, but inadmissible against the others.

[259] I have found that there is a body of evidence which is admissible against each of the three accused that, when considered cumulatively, in and of itself requires me to commit all three accused to stand trial for a planned and deliberate murder. I will begin by setting out that evidence.

[260] I will then discuss the additional evidence that is admissible against Mr. Wise that the jury could consider on the issue of planning and deliberation. Lastly, I will set out the additional evidence that is admissible against Mr. Jeng that the jury could consider on the issue of planning and deliberation.

All Accused:

[261] I have concluded that a properly instructed jury, acting reasonably, could convict Mr. Hassan, Mr. Jeng, and Mr. Wise of a planned and deliberate first degree murder for the following reasons.

[262] Mr. Hassan, Mr. Jeng, and Mr. Wise arrived at the after-hours club together at 3:00 a.m.. They waited outside together. One of them had a large knife. After each of the accused had entered the club, the door closed behind them.

[263] Ms. Dubinsky testified that the deceased “opened the door and he got rushed by three gentlemen and started getting stabbed”. She described how they “bum-rushed the door and just started doing what they were doing” with no conversation.

[264] One of the three men stabbed the deceased “roughly maybe three times…it could have been more”. The stabber used a big dagger knife that was maybe ten inches. It would be open to the jury to find that Mr. Jeng was the man who stabbed the deceased when Ms. Dubinsky’s description of the stabber is considered in the context of the other evidence led at the preliminary inquiry.

[265] However, the other two men were not standing back and watching. According to Ms. Dubinsky, after the deceased made it out the door, he was chased by “the three gentlemen that just rushed the door and stabbed him”. Surveillance video shows that the door opened approximately ten seconds after it had closed behind the three accused. The deceased ran out. By that point, the deceased had been stabbed “roughly maybe three times” or more.

[266] Based on Ms. Dubinsky’s description of the attack, the jury could find that the three men participated in a concerted attack on the deceased inside the after-hours club, and that those same three men, Mr. Hassan, Mr. Jeng, and Mr. Wise chased the deceased out of the after-hours.

[267] It would also be open to the jury to find that each of the participants in this concerted attack, which involved stabbing an unarmed man with a large knife, had the requisite intent for murder (either as a principal under s. 229 (a)(i) or (ii), or as a party under s. 21(b) or (c)).

[268] In the span of approximately ten seconds, therefore, the three men jointly attacked the deceased, without any precipitating dispute occurring in the club. It would be open to the jury to find that the immediate concerted attack perpetrated by the three accused, without any conversation or precipitating dispute in the club, had been planned and deliberated upon in advance of the entry to the after-hours. The nature of the attack in this case is a relevant factor that the jury could consider in determining whether the participants in the concerted attack had the requisite intent for murder and whether that is what they planned to do.[^118] The speed with which the attack took place supports a reasonable and logical inference that each of the participants knew about the plan to commit murder and assisted in the execution of that plan.

[269] Since they were in close proximity to each other in the club, it is a reasonable and logical inference that each of the accused knew that the deceased had been stabbed in the after-hours club. What happened after that provides further evidence upon which the jury may infer that Mr. Hassan, Mr. Jeng, and Mr. Wise were participants in a common scheme to commit murder.

[270] After the deceased was stabbed in the after-hours, was bleeding, and remained unarmed, each of the three accused immediately chased him out of the club and down the street while, as witnesses described it, he was “running for his life”.

[271] A reasonable and logical inference could be drawn that Mr. Hassan, Mr. Jeng, and Mr. Wise immediately chased the deceased after he ran from the after-hours club to prevent his escape and to complete the task that they had planned and deliberated upon, which was to cause the deceased’s death or inflict bodily harm that they knew was likely to cause his death. Even if any one of the accused had not participated in the planning and deliberation, the immediate attack and ensuing chase is some evidence upon which the jury could find that an aider or abettor was assisting or abetting the stabber in a planned and deliberate murder, and knew that the murder was planned and deliberate.

[272] In paragraphs 217 to 256 of this judgment, I set out the evidence upon which a properly instructed jury, acting reasonably, could find that Mr. Hassan, Mr. Jeng, Mr. Wise unlawfully confined the deceased on the porch of 64 East Avenue North and participated in a concerted attack upon him there, inflicting the additional sharp force injuries. I adopt those paragraphs of my judgment here in my analysis on planning and deliberation.

[273] The deceased suffered nineteen sharp force injuries in the attack. Eight were stab wounds, eleven were incised wounds. These sharp force injuries were located on his head, including his scalp and face, his chest, his abdomen, his pelvis/gluteal region, both arms and both legs. The mechanism of death was rapid blood loss and cardiovascular collapse. The deceased received the fatal wounds in an attack that spanned approximately two to three minutes between the time he was immediately set upon in the after-hours club to the time he was found on the porch.[^119]

[274] It is open to the jury to find that Mr. Hassan, Mr. Jeng and Mr. Wise committed a planned and deliberate murder from the evidence that: (a) the three accused immediately attacked the deceased in the after-hours club, without any discussion or precipitating dispute, resulting in him being stabbed within approximately ten seconds of their arrival; (b) the three accused immediately chased the deceased when he left the after-hours club, injured from being stabbed, with one of them having what appeared to be a large knife in his hand; (c) the three accused unlawfully confined the deceased on the porch where they inflicted the additional sharp force injuries; (d) the deceased suffered nineteen sharp force injuries within approximately two to three minutes of the three accused entering the after-hours club and participating in the first concerted attack upon him.

[275] There is evidence that Mr. Hassan, Mr. Jeng and Mr. Wise acted in concert during the attack on the deceased with the requisite intent for murder, and it is open to the jury to find from the evidence outlined above that each of them participated in a planned and deliberate murder. The jury may find them all guilty as principals or aiders or abettors even though the extent of their individual participation in the fatal violence is unclear.

[276] I wish to make it clear that, in arriving at my conclusion that a properly instructed jury, acting reasonably, could convict each of the three accused of a planned and deliberate murder, I have not considered evidence that Mr. Hassan, Mr. Jeng and Mr. Wise remained in each other’s company for quite some time after the killing, that none of them appeared to be shocked or surprised by what had just happened, or that there did not appear to be any tension or animosity within the group. Crown counsel’s submissions suggested that this evidence is relevant to, and should be considered on, the issue of planning and deliberation. I find that it would be unwise at this stage of the proceedings to rely on this evidence as post-offence conduct relevant to the issue of planning and deliberation, and I have not done so.

[277] Portions of this evidence may become relevant at trial depending on the positions the respective parties take on certain issues. However, at this stage, my task is to determine the issue of committal based on the evidence that is admissible at the preliminary inquiry. Without engaging in a fulsome discussion of the issue, I note that the absence of evidence of shock or animosity in surveillance video depicting the three accused a minute or two, or more, after the attack may not assist the jury in determining whether the accused persons are guilty of second degree murder or first degree murder.

[278] In considering the issue of planning and deliberation, I have also declined Crown counsel’s invitation to consider video evidence from a convenience store depicting Mr. Hassan purchasing what appears to be a firework. Even if a jury could find that Mr. Hassan did in fact purchase a firework, I reject Crown counsel’s submission that a reasonable and logical inference to be drawn from that fact is that it was purchased to celebrate the successful completion of a planned and deliberate murder. I find that such an inference would be impermissible speculation.

[279] Defence counsel for each of the accused argue that there is evidence that belies planning and deliberation. For instance, none of the accused attempted to disguise their identities; the attack happened at the after-hours club where Mr. Wise, at least, was well-known. The Defence also points to the absence of evidence that the accused persons knew the deceased would be at the after-hours club, or that he would be the doorman. These are matters for the jury to weigh when it assesses the totality of the evidence to determine if the Crown can prove planning and deliberation beyond a reasonable doubt.

[280] The question on the preliminary inquiry is not whether the only reasonable inference on the evidence is that Mr. Hassan, Mr. Jeng and Mr. Wise committed a planned and deliberate murder, but whether a properly instructed jury, acting reasonably, could convict each of the accused of a planned and deliberate first degree murder. For the reasons set out above, I find that a properly instructed jury, acting reasonably, could do so. Therefore, pursuant to s. 548(1)(a) of the Criminal Code, I order Mr. Hassan, Mr. Jeng and Mr. Wise to stand trial for first degree murder based on planning and deliberation.

[281] Although I have found that the evidence outlined above is sufficient to commit each of the three accused to stand trial for a planned and deliberate first degree murder, there is additional evidence that bolsters my finding in relation to Mr. Wise and Mr. Jeng, which I will now review.

Daniel Wise:

[282] I find that the jury could rely upon the following additional pieces of evidence in determining whether the Crown can prove beyond a reasonable doubt that Mr. Wise is guilty of a planned and deliberate first degree murder.

[283] According to Jennifer Clark, Mr. Wise was at Modrn on May 3, 2019, the night that tensions erupted between Mr. Wise’s group of friends and the deceased’s group. There is a reasonable and logical inference to be drawn that Mr. Wise knew about the fight between the deceased and Mr. Jeng, especially when one considers what he said to Melissa Little on May 17th, 2019. A jury may infer that Mr. Wise had a motive to harm the deceased because he wanted to get the person who jumped his friend.[^120]

[284] Mr. Wise heard that the deceased had said he (the deceased) had paperwork with Mr. Wise’s name in it that showed that Mr. Wise was a “snitch”. This evidence, together with the evidence that there had been a change in the relationship between the deceased and Mr. Wise in the weeks leading up to the May 3rd incident, provides another possible motive for Mr. Wise to harm the deceased. It is a factor that the jury would be permitted to consider along with all the other circumstances.

[285] On May 17, 2019, in the hours leading up to the killing, Mr. Wise called Melissa Little. He was upset, angry and very adamant that he needed her to pick him and his friends up to go take care of something. According to Ms. Little, Mr. Wise told her that his friend (“family”) had been jumped, that they wanted to get the person who jumped his friend, and that they knew where he was at that point. Mr. Wise told Ms. Little that it could not wait and that he and his friends needed a ride to go there.

[286] Ms. Little thinks the call happened between 10:30 and 11:00 p.m.. Phone records suggest that the call may have been made at 9:56 p.m.. Defence counsel submits that I should consider the fact that the call happened many hours before the killing, which I have. I find that a properly instructed jury, acting reasonably, may infer from this evidence and the other evidence led at the preliminary inquiry that, at least five hours before the killing, Mr. Wise was planning an attack on the deceased with the mens rea required for murder under s. 229(a)(i) or (ii)), and that he was with friends who were going to participate in that attack.

[287] One may infer that at the time of the call with Ms. Little, Mr. Wise was tracking the whereabouts of the deceased and knew where the deceased was at that point. Hence, the urgency he expressed to Ms. Little for a ride to put his plan into effect.

[288] When evidence of the call with Ms. Little is considered in the context of the other evidence led at the preliminary inquiry, reasonable inferences that flow from it are that Mr. Wise is referring to Mr. Jeng when he speaks of the friend (“family”) who was jumped and that the attack Mr. Wise was planning and deliberating upon was an attack on the deceased as retribution for Mr. Jeng having been “jumped” at Modrn two weeks earlier.

[289] On May 17, 2019, Mr. Wise messaged Desiree Deveaux. He wanted to ask her for a favour. He asked if he could call her. Mr. Wise and Ms. Deveaux spoke on the telephone at 9:45 p.m.. Mr. Wise told Ms. Deveaux that he was close by. He asked her if he could come over to her place. Mr. Wise said words to the effect that “something was up, something was going on”.

[290] Defence counsel submits that, without Mr. Wise saying more about why he wanted to come by, this evidence invites speculation. Respectfully, I disagree. Mr. Wise had been to Ms. Deveaux’s home. He knew that she lived behind Sheila’s Place. Witnesses gave evidence that the deceased was at Sheila’s Place that night before he went to the after-hours across the street. Ms. Deveaux testified that it was out of the ordinary for Mr. Wise to want to come by her house because they didn’t really hang out much.

[291] When considering the cumulative effect of the evidence, one may infer that the “something that was going on” related to Mr. Wise planning an attack on the deceased with the mens rea required for murder under s. 229(a)(i) or (ii)). If, based on the phone records, the jury finds that the call between Mr. Wise and Ms. Little happened at 9:56 p.m., his call with Ms. Deveaux occurred approximately eleven minutes earlier. Mr. Wise told Ms. Little that he needed a ride because he knew where the person they wanted to get was at that point. An inference may be drawn by the jury that Mr. Wise’s wish to come by Ms. Deveaux’s place related to his desire to track the whereabouts of the deceased, and to ultimately put his plan into effect if the opportunity presented itself.

[292] In the early morning hours of May 18, 2019, Janai Douse was outside Modrn Nightclub at closing time when she saw Mr. Wise and Mr. Jeng with a third male that she had not seen before and did not recognize. Ms. Douse had not seen the men inside Modrn that night. While standing outside Modrn, Ms. Douse heard Mr. Wise and Mr. Jeng ask someone if the deceased was there. When they learned that the deceased was not there, the three men walked off. Ms. Douse remained outside Modrn for about twenty minutes. She then got in a cab with two friends to make her way to More Than A Haircut for the after-hours. By the time Ms. Douse arrived in the area of Wilson Street and East Avenue North, her taxi could not turn south onto East Avenue North because the street was blocked off by police and ambulance. The deceased had already been stabbed.

[293] As it relates to Mr. Wise, a reasonable and logical inference could be drawn that he was looking for the deceased at Modrn in order to put his aforementioned plan into effect. The fact that Mr. Wise was in the company of Mr. Jeng at Modrn looking for the deceased offers further evidence from which the jury may infer that the motive for the planned attack on the deceased was the earlier incident between the deceased and Mr. Jeng. The jury may also infer this from the evidence of the phone call between Mr. Wise and Ms. Little on May 22nd, a few days after the killing. In this call, Mr. Wise denied his involvement in the killing but told Ms. Little that it happened because there was an altercation between Braids and the deceased at Modrn weeks prior to the incident.

[294] With regard to the issue of planning and deliberation, it is important to note that Mr. Wise and Mr. Jeng are asking for the deceased at Modrn a short time before what could reasonably and logically be viewed as a concerted attack on the deceased by Mr. Wise, Mr. Jeng, and Mr. Hassan.

[295] Therefore, Mr. Wise’s committal to stand trial for a planned and deliberate first degree murder is bolstered by the additional evidence set out above.

Alieu Jeng:

[296] I find that the jury could rely upon the following additional pieces of evidence in determining whether the Crown can prove beyond a reasonable doubt that Mr. Jeng is guilty of a planned and deliberate first degree murder.

[297] On May 3, 2019, Mr. Wise’s group of friends had a physical altercation with the deceased’s group of friends at Modrn. Mr. Jeng was in Mr. Wise’s group. In fact, Mr. Jeng fought the deceased outside Modrn. Mr. Jeng lost the fight. He was embarrassed and mad and said, “this is not done”, “don’t worry I got something for you”, “I’m coming back for you”. A jury might reasonably and logically infer that Mr. Jeng had a motive to harm the deceased and expressed an intention to do so.

[298] I adopt here paragraph 292 of my judgment relating to the attendance of Mr. Jeng and Mr. Wise at Modrn on May 18th looking for the deceased. Again, with regard to the issue of planning and deliberation, it is important to note that Mr. Jeng and Mr. Wise are asking for the deceased at Modrn a short time before what could reasonably and logically be viewed as a concerted attack on the deceased by Mr. Hassan, Mr. Jeng and Mr. Wise. A jury may be asked to draw the reasonable and logical inferences that Mr. Jeng was looking for the deceased at Modrn because there was a plan to exact the revenge that he vowed he would after the fight on May 3rd, and that he was successful in exacting that revenge minutes later.

[299] Therefore, Mr. Jeng’s committal to stand trial for a planned and deliberate first degree murder is bolstered by the additional evidence set out above.

Conclusion

[300] Pursuant to s. 548(1)(a) of the Criminal Code, I order Mr. Hassan, Mr. Jeng and Mr. Wise to stand trial for first degree murder.

Released: January 13, 2021

Signed: Justice J.P.P. Fiorucci

[^1]: Ms. Clark knew Mr. Wise by the nicknames “Berta” and “John Wick”. She also knew that others called Mr. Wise “Fat Al”.

[^2]: Ms. Clark was told that Mr. Jeng’s name was “Fresh”.

[^3]: On May 17, 2019, in addition to the phone call from Mr. Wise’s phone to Ms. Little’s phone starting at 21:56:17, there was a text message from Ms. Little’s phone to Mr. Wise’s phone at 22:14:49. On May 18, 2019, there was a text message from Mr. Wise’s phone to Ms. Little’s phone at 01:26:43 a.m.. Mr. Wise’s cell phone records show no cell phone activity between 02:19:03 a.m. and 03:10:12 a.m. on May 18, 2019.

[^4]: Mr. Wise’s cell phone records show a seven second call from Mr. Wise’s phone to Ms. Deveaux’s phone starting at 21:45:54 and a 31 second call from Ms. Deveaux’s phone to Mr. Wise’s phone starting at 21:46:22.

[^5]: In her testimony, Ms. Dubinsky refers to Sheila’s Place as Ellis’.

[^6]: In cross-examination, Ms. Dubinsky denied saying anything in her examination-in-chief about the colour of his eyes.

[^7]: In the preliminary inquiry transcripts, the deceased’s nickname is spelled “Blakz”.

[^8]: The surveillance video from Sheila’s Place shows Ms. Ritchie coming out the front doors of Sheila’s Place at 03:00:14.

[^9]: Surveillance video depicts a fourth male entering the after-hours at 3:00 a.m. with the three accused.

[^10]: Ms. McMaster had seen this girl speaking with the deceased at Sheila’s Place at around 11:30 p.m. that night.

[^11]: Jovan Krasulja, Hamilton Police Service Crime Analyst, testified about the time of 3:13 a.m. that Hamilton Cab #61 picked up the three men, based on the timestamp in the surveillance video from the taxi.

[^12]: Section 548(1)(a) of the Criminal Code.

[^13]: R. v. Jackson, 2016 ONCA 736, at para. 6; R. v. Sazant (2004), 2004 SCC 77, 208 C.C.C. (3d) 225 (S.C.C.), at para. 16; United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080 (S.C.C.).

[^14]: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.), at paras. 31 and 36.

[^15]: Ibid, at paras. 29-30.

[^16]: Ibid, at para. 30.

[^17]: Ibid, at para. 23.

[^18]: R. v. Kamermans, 2016 ONCA 117, at para. 15; R. v. Sazant, supra, at para. 25; R. v. Coke, [1996] O.J. No. 808 (Ont. Gen. Div.), at paras. 10-11.

[^19]: R. v. Arcuri, supra, at para. 24.

[^20]: R. v. Coke, supra, at para. 9.

[^21]: R. v. Jackson, supra, at para. 8.

[^22]: R. v. Kamermans, supra, at para. 20.

[^23]: R. v. Jackson, supra, at paras. 12-14.

[^24]: R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 205 C.C.C. (3d) 70, [2006] O.J. No. 446 (Ont. S.C.J.).

[^25]: R. v. Alexander, [2006] O.J. No. 3173 (Ont. S.C.J.).

[^26]: Ibid, at para. 20.

[^27]: Ibid, at para. 20.

[^28]: Ibid, at para. 20.

[^29]: R. v. Alexander, supra, at para. 21; R. v. Munoz, supra, at para. 23.

[^30]: R. v. Alexander, supra, at para. 21; R. v. Munoz, supra, at para. 23.

[^31]: R. v. Alexander, supra, at para. 22, citing D. Watt, Watt’s Manual of Criminal Evidence (Toronto: Carswell, 2006) at 95. Ducharme J. points out that Justice Watt’s use of the phrase “deduction of fact” is not meant to suggest that the process involved is deductive reasoning, but rather is simply used in the sense of a “factual conclusion”; R. v. Munoz, supra, at para. 23-24.

[^32]: R. v. Alexander, supra, at para. 22, citing D. Watt, Watt’s Manual of Criminal Evidence (Toronto: Carswell, 2006) at 95; R. v. Munoz, supra, at para. 24.

[^33]: R. v. Alexander, supra, at para. 23.

[^34]: (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.).

[^35]: R. v. Alexander, supra, at para. 24.

[^36]: R. v. Alexander, supra, at para. 26; R. v. Munoz, supra, at para. 28.

[^37]: United States of America v. Huynh, 2005 CanLII 34563 (ON CA), [2005] O.J. No. 4074 (Ont. C.A.).

[^38]: R. v. Alexander, supra, at para. 27.

[^39]: R. v. Alexander, supra, at para. 28, citing Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879 at 895 (3rd Cir.), cert. denied, 454 U.S. 893 (1981).

[^40]: R. v. Alexander, supra, at para. 29; R. v. Munoz, supra, at para. 31, see footnote 13.

[^41]: R. v. Alexander, supra, at para. 29; R. v. Munoz, supra, at para. 31.

[^42]: [2000] O.J. No. 2713, at para. 3 (C.J.).

[^43]: R. v. Watkins (2003), 2003 CanLII 3874 (ON CA), 181 C.C.C. (3d) 78, [2003] O.J. No. 4375, at para. 58.

[^44]: Ibid, at para. 58.

[^45]: R. v. Cooper (1993),1993 CanLII 147 (SCC), 78 C.C.C. (3d) 289, [1993] 1 S.C.R. 146, at para. 18, citing R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, at 1087-88.

[^46]: R. v. Cooper, supra, at para. 19.

[^47]: Ibid, at para. 19.

[^48]: Ibid, at para. 21.

[^49]: R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] S.C.J. No. 110, at para. 18.

[^50]: Ibid, at para. 18, citing R. v. Widdifield (1961), Ontario Supreme Court, unreported, as excerpted in 6 Crim. L.Q. 152, at p. 153.

[^51]: Ibid, at para. 18, citing R. v. Widdifield (1961), Ontario Supreme Court, unreported, as excerpted in 6 Crim. L.Q. 152, at p. 153.

[^52]: R. v. Papadopoulos, [2004] O.J. No. 2766 (Ont. S.C.J.), at para. 70; R. v. Nygaard, supra.

[^53]: R. v. Nygaard, supra, at para. 31.

[^54]: Ibid, at para. 31.

[^55]: R. v. Briscoe, 2010 SCC 13, at para. 13.

[^56]: R. v. Pickton, 2010 SCC 32, at para. 51.

[^57]: R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652, at para. 68.

[^58]: R. v. Thatcher, supra, at paras. 70 and 72; R. v. Pickton, supra, at para. 51.

[^59]: R. v. Thatcher, supra.

[^60]: R. v. Thatcher, supra.

[^61]: R. v. Thatcher, supra, at para. 73.

[^62]: R. v. Pickton, supra, at para. 60.

[^63]: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 44.

[^64]: Ibid, at para. 45.

[^65]: R. v. Pickton, supra, at para. 61.

[^66]: R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449, [2000] O.J. No. 100.

[^67]: Ibid, at paras. 152 and 153; R. v. Sparrow, 1979 CanLII 2988 (ON CA), [1979] O.J. No. 1233 (Ont. C.A.), at para. 53; R. v. Portillo (2003), 2003 CanLII 5709 (ON CA), 176 C.C.C. (3d) 467, [2003] O.J. No. 3030 (Ont. CA.), at paras. 67, 69-71.

[^68]: R. v. Pickton, supra, at para. 69.

[^69]: R. v. Briscoe, supra, at para. 13.

[^70]: R. v. Josipovic, 2019 ONCA 633, at para. 48.

[^71]: R. v. Papadopoulos, supra, at para. 80.

[^72]: R. v. Pickton, supra, at para. 76.

[^73]: Ibid, at para. 16.

[^74]: R. v. Briscoe, supra, at para. 16.

[^75]: Ibid, at para. 16, citing R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, at para. 37.

[^76]: R. v. Maciel, 2007 ONCA 196, at para. 88.

[^77]: Ibid, at para. 89.

[^78]: R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306, at p. 325, para. 37; R. v. Parris, 2013 ONCA 515, [2013] O.J. No. 3663, at para. 44; R. v. White, 2014 ONCA 64, [2014] O.J. No. 273, at paras. 46-47.

[^79]: R. v. Parris, supra, at para. 46.

[^80]: Ibid, at para. 46; R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711, at p. 723.

[^81]: R. v. Parris, supra, at para. 46; R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24.

[^82]: R. v. Parris, supra, at para. 61.

[^83]: Ibid, at para. 61.

[^84]: Ibid, at para. 47.

[^85]: R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 157 C.C.C. (3d) 129 (Ont. CA.), [2001] O.J. No. 3603, at para. 107.

[^86]: Ibid, at para. 107.

[^87]: R. v. Gervais, 2020 ABCA 221, [2020] A.J. No. 632.

[^88]: R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 64.

[^89]: R. v. Bottineau, cited as R. v. E.B., [2006] O.J. No. 1864 (Ont. S.C.J.), aff’d 2011 ONCA 194, 269 C.C.C. (3d) 227, leave to appeal refused, [2012] 1 S.C.R. vi.

[^90]: R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.).

[^91]: R. v. Kematch, 2010 MBCA 18, 252 C.C.C. (3d) 349.

[^92]: R. v. E.B, supra, (Ont. S.C.J.), at para. 115.

[^93]: R. v. E.B, supra, (Ont. S.C.J.), at para. 116.

[^94]: R. v. E.B, supra, (Ont. S.C.J.), at para. 117.

[^95]: R. v. Kematch, supra, at para. 97.

[^96]: R. v. Magoon, supra, at para. 64.

[^97]: R. v. Kematch, supra, at para. 89; R. v. Magoon, supra, at para. 64.

[^98]: R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306, at p. 324, para. 35; R. v. Parris, supra, at para. 48; R. v. Ferrari, 2012 ONCA 399, at para. 54.

[^99]: R. v. Harbottle, supra, at p. 324, para. 35; R. v. Parris, supra, at para. 48.

[^100]: R. v. Parris, supra, at para. 48; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 61; R. v. Ferrari, supra, at paras. 54 and 57.

[^101]: R. v. Nette, supra, at para. 61.

[^102]: R. v. Parris, supra, at para. 49.

[^103]: R. v. Tomlinson, 2014 ONCA 158, [2014] O.J. No. 930, at para. 145.

[^104]: R. v. Harbottle, supra, at pp. 324-325, para. 36.

[^105]: R. v. Parris, supra, at para. 50.

[^106]: R. v. Pritchard, supra, at para. 3.

[^107]: R. v. Pritchard, supra, at para. 27.

[^108]: R. v. Parris, supra, at para. 53.

[^109]: R. v. Parris, supra, at para. 51.

[^110]: R. v. Parris, supra, at para. 52; R. v. Pritchard, supra, at para. 19.

[^111]: R. v. Pritchard, supra, at para. 35.

[^112]: R. v. White, supra, at para. 92.

[^113]: Ibid, at para. 92.

[^114]: Ibid, at para. 93.

[^115]: Ibid, at para. 100.

[^116]: R. v. E.B., supra, at para. 116.

[^117]: Testimony of P.C. Michael Eves.

[^118]: R. v. Dadshani, 2007 ONCA 493, [2007] O.J. No. 2595.

[^119]: At 3:02 a.m. surveillance video from 38 East Avenue North shows the chase and a short time later the deceased was found on the porch. Surveillance video from a nearby convenience store shows the three accused in each other’s company at 3:04 a.m..

[^120]: If there is some evidence that an accused had a motive to harm the victim, it can be weighed by the preliminary inquiry justice in determining