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

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

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

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

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

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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

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

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

Court File and Parties

ONTARIO COURT OF JUSTICE

Date: February 13, 2023 Court File No.: 22-Y4710144

BETWEEN:

HIS MAJESTY THE KING

— AND —

M.W., a young person

Before: Justice Anthony F. Leitch

Heard on: January 3-6, 9-12, 16-19, 23-26, 31, February 1, 6, 2023 Reasons for Judgment released on: February 13, 2023

Counsel: Alannah Grady and Sheena MacDougall, for the Crown Lauren Wilhelm and Caroline McKenna, for the accused M.W.

Leitch J.:

Introduction

[1] On July 19, 2020 two groups of young men met in a parking lot in Hamilton to settle their differences. The aggressors were the Hamilton group. They lay in wait for a group of 10 to 12 young men from Peel region and attacked them in their cars killing A.M. and stabbing M.K. and H.C. in the attack. Tragically A.M. was only 19 when he was killed. He ran for his life, chased by two of the attackers after he was stabbed twice in the chest. In the confusion of the attack, it was unknown to his brother and friends where he had fled. He bled to death against a fence behind a building near the attack. Had he been found earlier he may have survived.

[2] The focus of the case was on the identification of one of the two persons seen in a cell phone video shot from a balcony in a high rise building across the street from the parking lot where the attack occurred. The crown points to that video in conjunction with surveillance video from various areas of that building to prove that M.W. is the person seen chasing the deceased in the cell phone video. The totality of the evidence marshaled by the crown is submitted to prove the essential element of identification for each of the offences on which the young person stands trial. If the evidence fails to meet that standard, proving identification beyond a reasonable doubt, the defendant must be acquitted.

[3] The defence admits, and this court agrees, that if the Crown can prove identification beyond a reasonable doubt, that the defendant participated in the attack on the group from Peel, the defendant is guilty of at least manslaughter. The defence maintains that the Crown has failed to prove the required mental element for second-degree murder and that, if identification is proven beyond a reasonable doubt, M.W. should be convicted of manslaughter, aggravated assault, and assault with a weapon in reference to three victims injured or killed in the attack. Participation in the attack attracts liability either through co-participation or party liability under section 21 of the Criminal Code. It is the defence position that the evidence does not establish the required mental element for murder namely, an intent to kill or an intent to cause bodily harm knowing that bodily harm is likely to result in death, with recklessness as to whether the victim will live or die.

[4] Given my finding set out below it is not necessary to resolve this issue in this case. For this reason, I do not extensively analyze the evidence on intent to determine if the crown has proven the mental element for murder beyond a reasonable doubt. I am satisfied that, if identification is proven, showing that the defendant participated in the attack on the Peel group, the defendant would be guilty of manslaughter, aggravated assault and assault with a weapon as he knew there was a risk the attack would result in bodily harm that was more than trivial or transitory. Again, he was then either a co-participant or aided in the attack such that it was objectively foreseeable that people would be badly injured, as they were.

The Legal Principles of Video Identification

[5] I adopt the comprehensive summary of the law of video identification by Justice Fiorucci in R. v. Thomas, 2022 ONSC 113:

LEGAL PRINCIPLES

8 The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence it introduces satisfied the trier of fact beyond a reasonable doubt that the accused is guilty. 3 A reasonable doubt is a doubt based on “reason and common sense”; it is not “imaginary or frivolous”; it “does not involve proof to an absolute certainty”; and it is “logically connected to the evidence or absence of evidence”. 4

3 R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39.

4 Ibid, at para. 36; R. v, at para. 28.

9 In Mr. Thomas’s case, the Crown relies on videotape evidence to establish identity. In Nikolovski, the Supreme Court of Canada held that because videotape evidence can present “very clear and convincing evidence of identification...triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime”. 5

5 R. v. Nikolovski, [1996] 3 S.C.R. 1197, supra, at para. 23.

6 Ibid, at para. 29.

11 In R. v. Keating, 2020 ONCA 242, the trial judge accepted the complainant’s evidence, which established that the person in certain Facebook photographs committed the crimes alleged. 7 The Crown also relied on the trial judge’s comparison of the person in the Facebook photographs with the person shown in the accused/appellant’s mugshot. 8 The Court of Appeal noted that, “[b]ased on that comparison, the trial judge was satisfied that the appellant, who was obviously the person shown in the mugshot, was also the person shown in the Facebook photographs identified by the complainant”. 9

7 R. v. Keating, 2020 ONCA 242, at para. 26.

8 Ibid, at para. 25.

9 Ibid, at para. 25.

12 The Ontario Court of Appeal rejected the appellant’s argument that Nikolovski “limits a trier of fact’s ability to identify an accused as a person depicted in a photograph or video to situations in which the photograph or video is a depiction of the accused committing the crime or acting in close proximity to the commission of the crime”. 10 Doherty J.A., writing for the Ontario Court of Appeal in Keating stated:

The trial judge’s in-court observations, including his assessment of the complainant’s credibility and acceptance of her testimony, allowed him to conclude that the person in the Facebook photographs who had committed the crimes, was the same person who was before him in court. The trial judge’s reliance on his own observations to forge the connection between the perpetrator of the crimes and the accused before the court did not offend the analysis in Nikolovski or any other evidentiary principle. 11

10 Ibid, at para. 23.

11 Ibid, at para. 26.

13 The Crown submits that, for each of the three robberies, even if I am unable to identify Mr. Thomas as the perpetrator of the robbery based solely on the videotape evidence, the cumulative effect of the circumstantial evidence relating to each robbery, including Mr. Thomas’s resemblance with the black male perpetrator, establishes his guilt.

14 I denied the Crown’s similar act application. In order to find Mr. Thomas guilty of any one of the robberies, the totality of the circumstantial evidence relating to that particular robbery must satisfy me beyond a reasonable doubt that the only reasonable inference that can be drawn from the circumstantial evidence is that the accused is guilty. 12 I am mindful that inferences consistent with innocence do not have to arise from proven facts, as this would put “an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence”. 13

12 R. v. Villaroman, 2016 SCC 33, supra, at para. 30.

13 Ibid, at para. 35.

15 When assessing the circumstantial evidence, I must consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt. 14 Other plausible theories or other reasonable possibilities “must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation”. 15

14 Ibid, at para. 37.

15 Ibid, at para. 37.

16 The Crown does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”. 16 As the Supreme Court of Canada noted in R. v. Villaroman, 2016 SCC 33, “the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”. 17

16 Ibid, at para. 37, citing R. v. Bagshaw, [1972] S.C.R. 2, at p. 8.

17 Ibid, at para. 38.

17 Circumstantial evidence “does not have to totally exclude other conceivable inferences”. 18 The trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable. 19 Alternative inferences must be reasonable, not just possible. 20

18 Ibid, at para. 42, citing R. v. Dipnarine, 2014 ABCA 328, at paras. 22 and 24-25.

19 Ibid, at para. 42.

20 Ibid, at para. 42.

18 It is the cumulative effect of all the evidence that must satisfy the standard of proof beyond a reasonable doubt. In R. v. Uhrig, 2012 ONCA 470, the Ontario Court of Appeal explained how individual pieces of evidence, considered cumulatively, can satisfy the Crown’s burden:

Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), [1941] S.C.R. 279, at p. 76. 21

21 R. v. Uhrig, 2012 ONCA 470, at para. 13.

19 In R. v. John, 2010 ONSC 6085, 22 it would have been unsafe for the trier of fact to positively identify the accused as the perpetrator based on the rule in Nikolovski because there were insufficient features of the person visible in the videotape for the trier of fact to conclude, with confidence, that the accused was the person depicted in the videotape. 23

22 R. v. John, 2010 ONSC 6085, at para. 15.

23 Ibid, at para. 13.

20 However, this did not preclude the court from considering that there was a resemblance between the accused and the perpetrator; the nose, mouth, moustache, jaw line were all similar as between the accused and the perpetrator, and there was no dissimilar feature observed. Code J. stated:

The law is clear that evidence of a “resemblance”, established pursuant to the rule in Nikolovski, can be considered by the trier of fact together with other evidence of identification, in determining whether the Crown has proved its case. See: R. v. Brown (2009), 2009 ONCA 563, 251 O.A.C. 264 at para. 26 (Ont. C.A.); R. v. Cole (2006), 69 W.C.B. (2d) 760 at para. 60 (Ont. S.C.J.). Furthermore, evidence of a “resemblance” can complete the Crown’s proof of identity, depending on the strength of the other identification evidence. As Watt J.A. put it in R. v. Rybak (2008), 2008 ONCA 354, 233 C.C.C. (3d) 58 at para. 121 (Ont. C.A.), giving the judgment of the Court:

As a general rule, a resemblance, without more, does not amount to an identification. But the combined force of evidence of a resemblance and other inculpatory evidence may assist in completion of the prosecution’s proof.

Also see: R. v. Boucher (2000), 2000 ONCA 100, 146 C.C.C. (3d) 52 at para. 19 (Ont. C.A.). 24

24 Ibid, at para. 15.

21 Therefore, evidence of resemblance between the accused and the perpetrator in the videotape or photographs “is entitled to some weight in relation to the ultimate issue of identity”. 25

25 Ibid, at para. 16.

[6] The clarity and quality of the videotape to prove the essential element of identification must be rigorously assessed where it supports the bulk of the Crown’s evidence on identification. Of course, all the evidence on the issue identification must be assessed cumulatively to see if its weight can support proof beyond a reasonable doubt. The centrality of clarity and quality in making this assessment was alluded to in Nikolovski, the leading case on video identification:

28 Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.

29 The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.

30 Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused.

31 The jury or trial judge sitting alone must be able to review the videotape during their deliberations. However, the viewing equipment used at that time should be the same or similar to that used during the trial. I would think that very often triers of fact will want to review the tape on more than one occasion.

32 A trial judge sitting alone must be subject to the same cautions and directions as a jury in considering videotape evidence of identification. It would be helpful if, after reviewing the tape, the trial judge indicated that he or she was impressed with its clarity and quality to the extent that a finding of identity could be based upon it. This courtesy would permit Crown or particularly defence counsel to call, for example, expert evidence as to the quality of the tape or evidence as to any changes in appearance of the accused between the taking of the videotape and the trial and to prepare submissions pertaining to identification based on the tape [my empahasis]

R v Nikolovski, [1996] 3 SCR 1197

11 Kendale Court Surveillance Video

[7] The surveillance video from 11 Kendale court where the defendant resides is high quality. Exhibit 50 is a CCTV review report that was received in evidence to assist me in following the video clips extracted by police from many hours of video. The investigators tracked two individuals through the building. The position of the crown is that the video is of sufficient clarity and quality to find that defendant is one of those two people. The position of the defence is that although the video is of better quality than the video of the attack shot on cellphones from a balcony at 11 Kendale Court, it is insufficient to identify defendant positively, on the standard identified in Nikolovski, supra.

[8] It is high quality video from several angles in various parts of the building, including the interior of the elevator and vestibules at the front entrance. Bolstering the crown’s theory that the person in the red shirt is the defendant in these videos is the fact the defendant lives in the building, and he is observed getting off and on the elevator on the 4th floor where, as other evidence shows, he lives. At several points he takes his orange hat with a Levi’s logo on it off and I can discern his face clearly. He has been before me in the prisoner’s box for almost 30 days between motions, bail hearings and trial. I have studied him closely, covid mask on and off. I have no doubt he is the person in the red shirt in the videos from 11 Kendale court. I make this judgement by comparing his facial features as seen in the prisoner’s box with those in the video footage. In my view anybody reviewing these videos and comparing them to the defendant would come to this conclusion, such is the quality of the video seized by police from 11 Kendale court.

The Cellphone Video of the Attack

[9] The crown’s case on identification is based on the following chain of inferences. The defendant is the person seen in the surveillance videos represented in the CCTV review report (exhibit #50). His clothing can be clearly seen. He is seen at 12:13 am on this video leaving the building from the back entrance. He participates in the attack at 1 am. He re-enters 11 Kendale at 1:27 am with A.A. He is wearing the same clothes both before and after the attack: a dark red long-sleeved shirt with three lines of distinctive black lettering on the front, ripped stonewashed jeans, white adidas brand shoes with a triple black stripe and an orange or red baseball hat with a Levi’s logo on the front. This distinctive combination of clothing can be compared to the cell phone video of the attack. The clothing worn by one of two people chasing the deceased, after he was fatally stabbed twice, is the same clothing worn by the defendant in the surveillance video from 11 Kendale court, which is clearly the defendant. It defies coincidence that some other person was chasing the deceased in the exact same clothing worn by the defendant in his residence across the road from the attack less than an hour before the attack and less than half an hour after the attack. This strong improbability of co-incidence proves his identification as one of the attackers beyond a reasonable doubt, in combination with other circumstantial evidence on identification.

[10] The linchpin to the Crown’s case is the cellphone video shot from 11 Kendale court. If the clothing cannot be seen clearly on that video the chain of inference leading to identification is broken, and a reasonable doubt on identification is the result. I have watched the video in court, with contrast and without. I have reviewed it many times in chambers, changing the video settings to improve the ability to make out the clothing worn by the person the Crown submits is the defendant. All litigants have acknowledged it is the clothing that must match for identification to be proven beyond a reasonable doubt, as the cellphone video of the persons chasing the deceased is not of sufficient quality or magnification to see any facial features.

[11] The most that can be said of the comparison of the clothing worn by the defendant in the 11 Kendale court video to that worn by one of the person’s chasing the deceased is that it resembles it. I cannot say it is the same clothing. The person is likely wearing a long red sleeved shirt, but I cannot make out if the three lines of lettering are on it. He is probably wearing ripped jeans, but I cannot be certain. He has what appear to be white shoes on, but the black stripe is either absent or indiscernible. He has a hat on that may be orange or red, but I cannot clearly make out a levi’s logo, thought there may be a logo in the same place on the hat. I am not satisfied that the video is of sufficient clarity and quality to make the identification of the clothing urged by the Crown in this case.

[12] I have directed myself about the frailties of identification evidence which are aptly described in R. v. M.B., 2017 ONCA 670 where the issue was a video recording of a robbery. The only evidence of identification in that case was recognition evidence from 3 witnesses of the shooter in the video. Facial features could not be seen yet the trial court convicted. The Ontario Court of Appeal entered an acquittal because the conviction was unreasonable due to the poor quality of the video the crown relied on to prove identification:

25 I have already noted that the trial judge properly instructed himself and cited the appropriate case law. At the same time, his reasons show he did not actively consider the matters about which he initially cautioned himself. In this, he erred in law.

26 This case is similar to R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501. In Olliffe, this court found the trial judge had erred in law by failing to critically analyse the problematic aspects of the recognition evidence led in that case. The court said at para. 43 that the trial judge "was required to approach [the recognition witness'] testimony with caution and grapple with the problems in her evidence to determine whether it was reliable."

27 The trial judge in this case erred in law in the same way. He failed to approach the recognition evidence with caution and to grapple with the evident problems in the evidence.

28 In Olliffe, the court went on to find that in addition to the legal error, the verdict was unreasonable. I would do so in this case as well.

(1) Relevant principles

(a) Frailty of eyewitness identification

29 Eyewitness identification is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony when compared to other types of evidence. As a result, many wrongful convictions result from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses identify the same person. See R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.), at pp. 450-451, and R. v. A. (F.) (2004), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 39.

30 For these reasons, although identification is a matter of fact, appellate courts will subject such findings to closer scrutiny than other findings of fact. Justice Doherty summarized this approach in the context of an unreasonable verdict argument in R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.), at paras. 99-100, where he said:

While recognizing the limited review permitted under s. 686(1)(a)(i), convictions based on eyewitness identification evidence are particularly well suited to review under that section. This is so because of the well-recognized potential for injustice in such cases and the suitability of the appellate review process to cases which turn primarily on the reliability of eyewitness evidence and not the credibility of the eyewitness.

31 As stated by Charron J.A. (as she then was) in Miaponoose, at p. 422: "Eyewitness testimony is in effect opinion evidence, the basis of which is very difficult to assess. The witness' opinion when she says 'that is the man' is partly based on a host of psychological and physiological factors, many of which are not well understood by jurists." Justice Charron goes on to quote from the Law Reform Commission of Canada Study Paper on Pretrial Eyewitness Identification Procedures (1983), at p. 10:

Simply by way of illustration, psychologists have shown that much of what one thinks one saw is really perpetual filling-in. Contrary to the belief of most laymen, and indeed some judges, the signals received by the sense organs and transmitted to the brain do not constitute photographic representations of reality. The work of psychologists has shown that the process whereby sensory stimuli are converted into conscious experience is prone to error, because it is impossible for the brain to receive a total picture of any event. Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer's mind may be quite different from reality. Witnesses are often completely unaware of the interpretive process whereby they fill in the necessary but missing data. They will relate their testimony in good faith, and as honestly as possible, without realizing the extent to which it has been distorted by their cognitive interpretive processes. Thus, although most eyewitnesses are not dishonest, they may nevertheless be grossly mistaken in their identification. [Emphasis added.]

Justice Charron continues: "While the circumstances surrounding the witness' identification can be subject to scrutiny in cross-examination, many of the more subjective processes that have led to it are impossible to expose in this fashion."

32 Witness identification based on video recordings can under certain circumstances be more reliable as it allows repeated and unhurried consideration. For example, R. v. Nikolovski, [1996] 3 S.C.R. 1197, at para. 23, contemplates a videotape of "sufficient clarity and quality" that it would be reasonable for the trier of fact to use it as the sole basis for identifying the accused:

It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness. It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the person shown in the videotape at the scene of the crime committing the offence. If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape. [Emphasis added.]

The kind of clear video recording described in Nikolovski, however, sharply contrasts with the video recording in this case. The trier of fact must use greater caution where the video or photo quality is poor: R. v. Cuming (2001), 158 C.C.C. (3d) 433 (Ont. C.A.), at para. 19.

[13] I find the quality of the cellphone video in this case suffers from similar poor quality and cannot support a finding that the clothing is the same as that seen worn by the defendant in the 11 Kendale court surveillance. I must review the other circumstantial evidence the crown points to on the identification issue. In some cases strong confirmatory identification evidence in combination with a finding of resemblance can overcome reasonable doubt.

Confirmatory Identification Evidence

[14] In separate reasons I have dismissed the Crown’s hearsay application pursuant to the Carter exception. The text messages between other alleged co-conspirators, including I.A. and S.G. who have been convicted of manslaughter in a separate trial cannot serve as evidence to identify the defendant as participating in the attack. The text messages of other unidentified individuals such as Wisam, Hussein and others cannot assist on this fundamental issue as the crown submits. That said, the fact phone calls were received by the defendant’s phone (that was seized on arrest) and the text messages he received are admissible as circumstantial evidence, but how corroborative are they on the issue of identification?

[15] The crown’s theory is that the defendant was recruited directly by Hussein as an agent of I.A. I.A. phones Hussein and he in turn reaches out to the defendant just before the group attack (12:47 am). Two more voice mails are left for the defendant at 12:48 am and 12:59 am by his recruiter Hussein. The attack begins at 1 am. After A.M. and the other victims have been stabbed and the attack is over Hussein leaves a voice mail at 1:27 am. Another unknown person Wisam (a.k.a. Wes) leaves voicemails at 2:18 am, 2:38 am and 2:44 am. The crown says these phone calls are circumstantial evidence of the recruitment of the defendant for the attack and after the fact discussions with others involved in the attack

[16] I.A. was not called as a witness by the crown. They take the position he would not have been truthful or helpful as he stands convicted of manslaughter, aggravated assault, and assault with a weapon from this group attack. Wisam (Wes) and Hussein are unknown persons and have therefore not been called as witnesses. There is no content to these phone calls related by a witness and no surrounding texts sent or received by the defendant that could give them some meaning. These phone calls could, as the crown submits, be associates of I.A. helping him assemble the group for the attack but in my view, it amounts to speculation not reasonable inference that this is what these calls represent. They cannot serve as strong corroboration of the defendant’s participation in the attack. There is no evidence of what was said to or by the defendant in these calls or even who these associates are, just some evidence from the Khalid sisters that they were friends of I.A.

[17] The crown points to the surveillance video from 11 Kendale court as further circumstantial proof of identity. They rely on the cumulative effect of the following behaviour exhibited by the defendant in this video:

(1) He is out in front of 11 Kendale court several times looking towards the parking lot where the attack occurred. He appears to be taking “selfies”, photographs of himself with the parking lot where the attack happened as his backdrop;

(2) He is seen shadow boxing at two points with A.A. suggesting he has just been at the fight;

(3) He points to a mark on his neck which could have been received in the fight;

(4) His collar appears pulled or loose at the back, different than its appearance in the video clips of that shirt prior to the attack;

(5) There is no cell phone activity on the defendant’s phone during the attack, but it is in regular use just before and after the attack;

(6) The defendant is seen walking back and forth from 11 Kendale court to 5 Kendale court and he and A.A. are spoken to by a police officer in the area about an hour after the attack;

(7) His cellphone is reporting off the cell tower nearest to the attack when in use before and after the attack.

[18] I examine this body of evidence carefully for alternative reasons for this conduct as it is after the fact conduct which could be indicative of guilt as confirmatory evidence that he was a participant in the attack. It is not surprising he is at 11 Kendale near the parking lot where the attack happened, as he lives in the building. Similarly, his cellphone reporting off a tower that is closest to his residence provides an alternate explanation for its presence near the crime scene. The shadow boxing could be an attempt to relive the action of the fight they were just in, but it could be a couple of 15 year old boys just playing around pretending to box. He is clearly popping zits while looking at himself in the mirror in the elevator, I cannot clearly see any injury on his neck, and he could just be pointing at another blemish not a mark on him that came from the fight. Everyone in 11 Kendale court who looked out their window would have seen the large scale attack in the parking lot, it would have been the talk of the building. Looking at the parking lot and taking selfies with the parking lot as the background could simply be to show people in his social circle that he was nearby when it went down, not that he participated in the attack itself.

[19] I must view this body of evidence cumulatively, not isolating each piece of evidence for analysis. I do so and find the ability of this body of circumstantial evidence is not strongly supportive of the defendant’s participation in the attack. At best it provides some support that he was there but cannot, in combination with my finding that the clothing worn by one of the persons chasing the deceased only resembles the clothing worn by the defendant in the 11 Kendale court surveillance video, support proof beyond a reasonable doubt of his participation in the attack.

The Absence of Evidence Raising a Doubt

[20] The reasonable doubt test directed by the Supreme Court Canada requires consideration of the absence of evidence to determine if sufficient proof of all the elements has been met by the Crown. Of course, actual exculpatory evidence must be closely considered as well. I must therefore consider any absence of evidence which would detract from the defendant’s participation in the attack. The weight of the circumstantial evidence must lead to only an inference of guilt for conviction, reasonable alternatives for what the crown submits leads to an inference of participation in the attack must be examined closely to ensure proof beyond a reasonable doubt is met.

[21] There is no direct evidence of the defendant’s participation in the attack, no witness who says he participated. There is no forensic or DNA evidence that places him as part of the attack. The only direct evidence of his participation is the cellphone video in combination with the 11 Kendale court surveillance video which I have found cannot support a positive identification in this case. There is no evidence of who stabbed A.M. before me, no witness who observed him after he left the white BMW he arrived in. The video does not show the attack on A.M. and others in the parking lot, as trees obscure this portion of the attack in the cellphone video. A.M.’s blood is in the parking lot and on the hood of the white BMW but that only establishes it is A.M. who can be seen fleeing from the scene of the attack, not who chased him. There are no text messages that show the defendant’s participation on his phone. This paucity of other evidence of his participation must be considered in assessing whether the Crown has met the onus of proof, and in this case it militates in favour of acquittal.

Conclusion

[22] I am not satisfied beyond a reasonable doubt that the evidence identifies the defendant as participating in the attack. For this reason, I find you not guilty of all the charges on which you have been tried.

Released: February 13, 2023 Justice Anthony F. Leitch