Warning and Non-Publication Order
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 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information and Parties
ONTARIO COURT OF JUSTICE
DATE: 2025-03-13
COURT FILE No.: 23-91109493-01
Central East Region - Newmarket
BETWEEN:
HIS MAJESTY THE KING
— AND —
KEYRON MOORE
Before Justice M. Townsend
Heard on February 20, 21, 22, 23, 27, and 28, 2024; March 1, 4, 5, 6, 7, 8, 11, 12, 13, and 14, 2024; May 6, 2024; August 7, 8, and 9, 2024; September 5, 2024; October 8 and 21, 2024; November 28, 2024; and January 17, 2025.
Reasons for Judgment given on March 13, 2025
K. Batorska — counsel for the Crown
A. Sobcuff — counsel for the accused Keyron Moore
Charges
[1] On the Information before the Court, Mr. Moore stands charged with the following offences:
That he on or about November 1, 2022, at the City of Vaughan in the Regional Municipality of York did attempt to murder Won BAE CHI by discharging a firearm, contrary to section 239(1) of the Criminal Code; and further
That he on or about November 1, 2022, at the City of Vaughan in the Regional Municipality of York did use a firearm, to wit a handgun, in kidnapping A.T., with intent to cause her to be confined against her will, contrary to section 279(1.1)(a.i) of the Criminal Code; and further
That he on or between November 1 and 2, 2022, at the City of Barrie in the County of Simcoe did, without lawful authority, confine A.T., contrary to section 279(2) of the Criminal Code; and further
That he on or between November 1 and 2, 2022, at the City of Vaughan in the Regional Municipality of York did, in committing a sexual assault on A.T., carry a weapon, namely a firearm, contrary to section 272(1)(a) of the Criminal Code; and further
That he on or between November 1 and 2, 2022, at the City of Vaughan in the Regional Municipality of York or elsewhere in Ontario was, in committing a sexual assault on A.T., a party to the offence with S.M., contrary to section 272(1)(d) of the Criminal Code; and further
That he on or about November 1, 2022, at the City of Vaughan in the Regional Municipality of York did discharge a firearm, with intent to endanger the life of Won BAE CHI, contrary to section 244.1(b) of the Criminal Code; and further
That he on or about November 1, 2022, at the City of Vaughan in the Regional Municipality of York did use a firearm, namely a handgun, while committing the indictable offence of kidnapping under section 279(1.1)(a) of the Criminal Code, contrary to section 85(1)(a) of the Criminal Code; and further
That he on or about November 1, 2022, at the City of Vaughan in the Regional Municipality of York did discharge a firearm, while being reckless as to the life or safety of another person, contrary to section 244.2(1)(b) of the Criminal Code.
[2] The Crown proceeded by Indictment, and Mr. Moore elected to have his trial in the Ontario Court of Justice.
[3] At the conclusion of the evidence, the Crown invited the Court to dismiss counts 1 and 5, on the basis that on the evidence before the Court there exists no reasonable prospect of conviction. I agree. Counts 1 and 5 will be dismissed at the request of the Crown.
[4] While this trial took place over several days, many of the viva voce witnesses gave evidence related to one of the two pre-trial motions. The evidence on the trial proper was relatively straightforward.
[5] On previous occasions I ruled that the complainant could testify with the use of testimonial aids, and that the statement given by Mr. Moore to the police on November 2, 2022, was voluntary, and as such could be used by the Crown for the purposes of cross-examination.
Overview of the Evidence
[6] There are 4 primary sources of evidence upon which proof of the offences faced by Mr. Moore rises or falls:
- The evidence of A.T. (and evidence related to the 911 call);
- The viva voce testimony of Mr. Moore;
- The extraction report with respect to Mr. Moore’s phone and the Biology Reports from the Centre of Forensic Sciences; and
- Mr. Moore’s Statement to the police.
Evidence of A.T.
[7] A.T. testified that she attended the plaza at 100 Steeles Ave. West at around 10:00 pm on November 1, 2022. She went there to meet a friend of hers “CQ”. She was meeting this man as he had some questions for her regarding cryptocurrency. He was inquiring about cryptocurrency credit cards, which apparently A.T. has some involvement in. This meeting was set up through a friend of hers named J.H.
[8] A.T. drove to the area in her white Porsche Macan vehicle. When she arrived at the plaza she met with CQ and eventually went into the nearby Pizza Pizza. She stayed in the restaurant with CQ for about 30 minutes, talking about bitcoin. When they left the restaurant, CQ called an Uber, and A.T. walked to her vehicle. CQ left.
[9] As she was walking to her vehicle, A.T. noticed that there was a confrontation going on with individuals in the parking lot. There was a man in a red shirt arguing with individuals in a vehicle. While she didn’t take note of what they were saying, A.T. had a “bad feeling” about the situation.
[10] When asked to describe what happened as she was walking to her car, and while using photos of her vehicle in the parking lot as included as exhibits on the trial, A.T. testified:
“The car pulls up, and the doors opened up, and the guy in the back seat ran out, and I immediately ran and screamed, and then the guy in the red shirt actually came running up. I think he was trying to help me. And then the guy in the backseat shot at him.”
[11] When the vehicle drove up, it was the back door that opened. The man in the backseat was the one that got out of the vehicle and grabbed her. That is when the man in the red shirt – Mr. Won Bae Chi – ran up to attempt to assist A.T. That is when the guy in the back seat shot at Mr. Bae Chi. When the shot was fired, the person from the back seat, who shot at Mr. Bae Chi, was outside the vehicle. He was maybe 3 feet from Mr. Bae Chi.
[12] A.T. clearly saw a firearm; she saw the guy from the back seat holding it in his right hand. She described it as a black handgun, and he was holding it “sideways” when he shot at Mr. Bae Chi.
[13] A.T. described that she was grabbed by the guy in the backseat around her waist, and she was forcibly pushed into the back seat of the vehicle. When she is in the back seat, the only other occupant of the vehicle is the driver. The guy in the back seat sits beside the rear door, and A.T. is in the middle. The man in the back seat was yelling “Look what you made me do” as he was getting into the vehicle after he shot at Mr. Bae Chi.
[14] Through other evidence called on this trial, we know that the driver of that vehicle is Mr. Moore. The man who grabbed A.T. was described as wearing an orange hoodie and was throughout the trial referred to as “orange hoodie guy”. I will refer to him as “OHG”.
[15] A.T. said that as soon as she was put in the vehicle, OHG grabbed her phone, changed the password, and turned off her location settings. He changed the password to something like “we all we’ve got and numbers”, or something like that.
[16] To get A.T. to stop screaming, OHG hit her in the head with the firearm. OHG threatened to shoot her and began asking her questions about who she was meeting with and whether or not he had money. They also made comments to her like “you must have money if you are driving that car”. At this point, A.T. saw that Mr. Moore had a firearm as well.
[17] The three of them continued to drive around, and at that point A.T. was not restrained in the back seat. At some point Mr. Moore tells OHG that they are low on gas, so they parked somewhere in Vaughan so that OHG could go get a jerry can. They did not want to go to a gas station because they were trying to steer clear of where the police would be.
[18] When they stop, OHG gets out of the vehicle, and tells Mr. Moore to get in the back seat with A.T., sit with her, and tells him to bind her hands with duct tape. A.T. then testifies to the following:
“He sits in the back with me, and he's telling me to cooperate, and I won't get hurt, and all they want is just money. And then he takes off my hat that I was wearing, and he - told me to give him oral, and I told him I don't want to do that. I told him that I'm cooperating. And then he said that if I don't do it, he'll shoot me, and I said that if he shoots me, then I can't cooperate, and he won't get anything. And then he says he doesn't have to shoot me to kill me. He could just shoot me in my leg.”
[19] When Mr. Moore got into the back, he took his mask off. As well, A.T. noticed that he had on a silver watch with lots of diamonds. When he took off the mask and sat in the back, A.T. did not recognize Mr. Moore from anywhere. She also did not recognize OHG from anywhere.
[20] A.T. testified:
Q. Okay. And you said, “He told me to give him oral.” Were those the words he used?
A. No.
Q. Do you remember what he said?
A. He said to give him head.
Q. You told us your response was, “I don't want to do that,” and that you're cooperating, and he said, “I will shoot you.” Was he armed when he came into the back with you?
A. Yes.
Q. Armed with what?
A. A gun.
Q. Can you describe - sorry, go ahead.
A. He tapped the gun barrel on my head and told me to give him head.
Q. Can you describe that gun for us?
A. It was a black gun.
Q. And when he tapped your head, did you feel what kind of material that gun was made of?
A. It was metal, and it just - I can't really describe the tap that I heard, but I could still hear it in my head.
[21] A.T. did as she was told, performed oral sex on Mr. Moore, and he finished. Mr. Moore told A.T. not to tell OHG that that had happened. When she was performing oral sex on Mr. Moore he had the firearm in his right hand. He ejaculated on A.T.’s face and in her hair. While the oral sex was happening Mr. Moore put his right hand in her shirt and grabbed her chest.
[22] Once the oral sex is over, this is when A.T. decides to “befriend” Mr. Moore. She begins talking to him, he says things like “you understand why I am doing this”, and they talk about things like guns and drugs. Topics that A.T. thought he would be interested in talking about. The befriending continued:
A. I don't remember specifically, but he asked me if I - you know, maybe we can work together. And basically, I played along, and I said, “Yeah, I understand where you're coming from. I'm also not doing that well financially.” And he was using - I saw that on his phone he was using Snapchat, and I made a comment. I said that, “Oh, you have Snapchat? You should add me.” And he said, “Really? After all of this, you want to continue to be in contact?” And I said, “Yeah, why not?”
Q. Why were you saying that?
A. I wanted him to feel like I was on their side.
[23] This pit-stop lasted for about two hours according to A.T. She at no time felt that she could escape, even though at one point they got out of the vehicle to have a smoke or vape. OHG eventually comes back and fills the car up using a jerry can.
[24] Mr. Moore got back in the front, and OHG got in the back with A.T. They told her to keep her head down and continued driving for another hour or two. Mr. Moore told OHG that A.T. was co-operating, and that she was “cool”, and they were trying to figure out where to take her. A.T. remembered that they kept making calls, and they were unsure where to take her. A.T. heard OHG talking to someone on the phone, asking where they should go, and asking what the plan was.
[25] They stopped next at a townhouse complex in Vaughan because OHG needed a charging cable for his phone. Apparently, OHG was gone for an hour, leaving A.T. and Mr. Moore there by themselves in the car. He eventually came back, dropped off a cable, and then left again for another two hours or so. Mr. Moore was told by OHG that he would be making some calls to try and find out where Mr. Moore and OHG should take A.T..
[26] During the two hour or so period that she and Mr. Moore were waiting in the car, A.T. asked to sit in the front seat with Mr. Moore, again so that she could build rapport with him. At one point he even let her out of the vehicle to go pee. It is at this point when she observes that the car they are in is a KIA SUV.
[27] During this “rapport building” conversation with Mr. Moore, A.T. asks him if they had done this before, and Mr. Moore replies that this is not their first time. He said that while A.T. was cooperating, in the past they have had to hurt people.
[28] When OHG came back, he had A.T.’s phone, had gone through it, and made it known to her that they had a friend in common. A.T. testified that at this point, OHG noticed that she was no longer tied up, and that Mr. Moore had told OHG that she was being good. OHG told Mr. Moore that he had to continue with A.T. alone. Apparently, Mr. Moore did not like this idea.
[29] A.T. can then hear Mr. Moore talking to someone over Snapchat, and they are trying to decide where to take her. Eventually she hears “Barrie”.
[30] Once again Mr. Moore needs gas. Mr. Moore told A.T. that OHG only put $5 or $10 in the tank. A.T. is now in the front seat and Mr. Moore bound her hands again with the silver duct tape. She also put duct tape on her mouth. A.T. testified that she did this with the hope that someone at a stoplight would see her and call the police.
[31] A.T. testified that while they were driving OHG called Mr. Moore through Snapchat. She noticed that the Snapchat handle for OHG was the same as the password that he put on her phone – something to the effect of “we all we got”. The other male that was on the phone, his Snapchat handle was something like “GGG HNIC”.
[32] After a brief interaction with someone in a Fresh Co. parking lot, and some additional gas, they strike off for Barrie around 5 am. Someone on the phone told Mr. Moore that he just had to deliver A.T. to Barrie, and then he would be given money – something in the area of $20,000. The address in Barrie that A.T. heard was 64 and the street name started with a D. According to A.T., Mr. Moore was very concerned about getting his money upon delivery of A.T. to Barrie.
[33] According to A.T., Mr. Moore told her just to listen to the people in Barrie, give them what they want, and she will be ok. Mr. Moore drives the car to Barrie. The whole time, Mr. Moore has the firearm in his boxers, on his stomach.
[34] When they got to Barrie, Mr. Moore parked a block away. Mr. Moore got out and A.T. was left in the car for about 10 minutes. After coming back and getting a call from the “HNIC” guy, Mr. Moore moves the car to the driveway of the house. Even though her hands became untied at the Fresh Co., Mr. Moore told her to put the tape back on her hands and mouth so that the guys in the house could see it.
[35] Again, A.T. reiterated that she did not run after being left alone in the car as she was fearful of the firearm, and still believed that someone had been shot earlier in the night.
[36] Two “kids” came out of the house and dragged her into the garage. A.T. described them as a taller kid and a Spanish kid. A.T. is pleading with them not to hurt her. When inside the garage, one of the first things that she noticed was a chair in the middle of the garage with rope on it – apparently “waiting” for her. A.T. was put in the chair, and her hands and feet were tied to the chair with some rope.
[37] According to A.T., Mr. Moore followed them, and her, into the garage. A third kid appears in the garage as well.
[38] In her examination-in-chief A.T. described the following:
Q. Okay. So, what happens once the four, five of you now are in the garage?
A. I begged them to not hurt me, and the kids were - they just - they were super irrational. They guarded me with a hammer and a screwdriver.
Q. So, let's just take that step-by-step. Okay, you said they are irrational. What about their behaviour would you say was irrational? Were they speaking?
A. Just by the way they were speaking and just their actions. They were harder to - they were more irrational than the white hoodie guy and the orange hoodie guy.
Q. What are they saying to you, the three kids?
A. They're just saying, you know what we want. We just want money. You better cooperate or we'll kill you.
Q. What is white hoodie guy doing?
A. At this point, he's telling them to just be cool, that I'm cooperating and, you know, don't hurt me too much, but it didn't seem like he had any power over them.
Q. The three kids, did they have any accents that you noted?
A. Yes, they all had the same Jamaican Toronto accent.
Q. Did the three kids in the garage have any weapons?
A. The tall kid had a gun. Other weapons were, like, screwdriver, hammer, a heroin needle.
Q. Okay, we'll start with the gun that you saw with the tall kid. Can you describe that gun?
A. It was black.
Q. Okay, and what was he doing with the gun, if anything?
A. He was just threatening me with it.
Q. Threatening you how?
A. That he'll kill me, and he'll shoot me. That they'll torture me until I give them something.
Q. Okay. You then said screwdriver. What, if anything, were they doing with the screwdriver?
A. They took the screwdriver and they put it to my side, and they said, we'll drill this in you if you don't give us what we want.
Q. Do you remember which one of them did that and said that?
A. It was the tall guy.
Q. You also mentioned a hammer.
A. Yes.
Q. Tell us about that. What, if anything, happened with a hammer?
A. They hammered - at first, they had a lighter. They burnt my hair, and they burnt the bottom of my feet.
Q. Who did that?
A. The Spanish guy and the tall guy.
Q. What happened to your shoes?
A. They took it off.
Q. Okay. How long were you burnt for?
A. Two minutes.
Q. So, you said that happened before the hammer happened. Can you tell us about what happened with a hammer?
A. They hammered my feet and then they hammered my hands. They kept on asking me to call people. They kept on asking me how much my life is worth.
Q. Who was hammering....
A. And then they hammered my knees.
Q. Okay. So, when we're talking about hammering your hands, who was doing that?
A. It was the tall guy and the Spanish guy.
Q. Okay. And just so there's no confusion when you say they were hammering your hands and your knees, what does that mean?
A. They were bashing. The hammer was hitting my hand on the chair, on the armchair, and on my feet. It was on the floor, and they were hitting it, and then my thighs and my knees, they were just bashing it.
Q. Which hand, one or both hands?
A. Both hands.
Q. How about your knees, one knee or both?
A. Both knees.
Q. And I think you said your thighs as well?
A. Yes.
Q. Okay, both thighs?
A. Yes.
Q. Who was doing the hammering?
A. Both the Spanish guy and the tall guy.
[39] The men in the garage continued to tell A.T. to call people, to call anyone. They saw that she was Chinese and she drove a Porsche and so she had to have money. However, they never passed her the phone to make the calls. They kept asking her for “crypto”, in particular a million dollars.
[40] They told A.T. that the syringe was full of heroin, and they could kill her with one injection. They were at times running the syringe along her body and up and down her arms and legs.
[41] All the while, Mr. Moore is standing by, rolling a joint.
[42] A.T., while tied to the chair, was stripped naked. Someone, A.T. was not sure, was touching her back and her chest and other parts of her body while naked. They also put a sock in her mouth so she would not scream.
[43] A.T. remembers that while this was all going on, Mr. Moore got a call from someone, presumably either “HNIC” or the guy that he rented the car from. That person told him that he (Mr. Moore) had to clean the car. He grabbed some wipes and left the garage.
[44] While Mr. Moore is out of the garage, A.T. described things that were done to her, and what happens when the men in the garage go for a cigarette:
A. They keep on telling me to call people, but they would not give me my own phone. They kept on torturing me.
A. They - the tall guy, there was like a wrench. He threatened to hit the back of my skull with it. The tall guy took the screwdriver, and he didn't dig it into my flesh, but he dug it enough where I could feel it, and he said, if you don't give us what we want, we'll keep hurting you.
A. The Spanish guy goes out first, and then the tall guy. At this point, I had my eyes closed, and the tall guy went with him. Before they left, they woke me up, and they made sure that I was still tied up, and they said “don't do anything stupid.”
Q. What happens next?
A. They opened the garage door, and they went out for smoke.
Q. What did you do?
A. I had loosened the rope. When they gave me the coat, I was kind of moving around because it was so cold, and the type of rope that they had loosened up. And then I kind of looked around, and I saw that there was a back door. And at this point, I was too tired, and I didn't really have any fight left in me. And then the long hair kid came back to check on me. Then he left again. And then when it felt right, I got out of my chair, and I went towards the door to see where it led to, and I just saw a really tall fence. And I quickly went back into the chair, thinking that there wasn't any chance I could jump over the fence because of my knees. And right when I sat back into the chair, they came back in to check on me.
Q. Okay. So, let's just pause there for a sec. How were you able to loosen the rope?
A. The rope that they had, if you shimmy around enough, it just loosens on its own.
Q. Okay. So, then you told us that you got out of the chair and went towards a door. Where were the three kids when you got up?
A. They were not in the garage.
Q. How were you able to see the tall fence?
A. There was a rectangular split in the door. I think it was rectangular. There was like a small window on the door.
A. And then I sat there for a bit. And then I just decided to - like, whatever I had left, I just decided to go towards the door, and I opened it, and I ran.
Q. When you went outside the door, which way did you run? Which direction, left or right or straight?
A. Left.
Q. Okay, and you ran and what did you do?
A. I didn't know where they were smoking. And when I opened the door, I didn't do a full turn check. I just ran and I jumped over the first fence, and there was a man in the backyard. And I told him to call 911, and he just immediately went back into the house. So, I had to run across. And the other fence next door was taller, but thankfully he had left his kids car toys outside that I could hop on and jump over that fence.
Q. Okay. So, you entered a house.
A. Yes.
Q. Do you see anyone in that house?
A. I saw a kid.
Q. What did you say, if anything?
A. I asked him where his parents were.
Q. And?
A. And he said his mom was downstairs in her room. I told him to go get her and I closed the side door.
Q. Okay. Did the kid come back with his mom then?
A. He did, yes.
Q. Okay. So, tell us about that. When he comes back with the mom, what happens?
A. I asked her to use her phone so I could call the police.
Q. And did you do that?
A. I did.
[45] A.T. also recalled that when in the garage, the men in the garage took her keys and told her that they were sending someone to her apartment. She was shown pictures of her apartment and described that it was clear that someone had ransacked her apartment.
[46] A.T. was cross-examined that she “had drug dealer” friends but was adamant that they had nothing to do with this, she has known some of them for a very long time. A.T. denied that she herself sold drugs, and only ever in the past used marijuana recreationally. She denied using cocaine or marijuana while in the KIA with Mr. Moore.
[47] A.T. confirmed in cross-examination that it was OHG that had the gun in his hand when she was getting forcibly put into the KIA, and it was OHG that fired the shot at the red shirt guy. A.T. was, at this point, screaming, and OHG took her phone. A.T. also agreed in cross-examination that it was OHG that was directing Mr. Moore where to drive the KIA. However, A.T. disagreed with the suggestion that OHG at times pointed a gun at Mr. Moore.
[48] A.T. again, in cross-examination, disagreed with the suggestion that at the first stop, OHG pointed the gun at Mr. Moore and “demanded” that he get into the back of the vehicle with A.T.
[49] A.T. did have some difficulty in cross-examination remembering the sequence of when exactly her hands and mouth were taped. She was directed to some inconsistencies in the “taping timeline” as between her testimony and her police statement.
[50] In cross-examination A.T. described also seeing Mr. Moore with a gun prior to the sexual assault in the back of the KIA:
Q. Okay. But when he gets into the back with you after orange hoodie leaves, that's the first time you see the gun with the driver; is that right?
A. No.
Q. Okay. So, when did you see the driver have a gun before then?
A. When the orange hoodie put me in the back, and I was still screaming, I remember that the white hoodie guy had taken his gun out to scare me and told me to shut up and be quiet.
Q. This is when you're first grabbed into the car by orange hoodie?
A. Yes.
Q. Okay. So, when the oral sex occurs, where is the driver's gun, do you know?
A. He had it in his right hand.
Q. Okay. So, while you are giving him oral sex, he has a gun in the other hand, is that right, or his right hand?
A. Yes.
Q. And what is he doing, he's just holding it?
A. He threatened - before the oral, he took the gun out and he threatened me with it, and he tapped my head with the top barrel of the gun and told me to give him oral.
[51] A.T. admitted in cross-examination that she did not give this much detail to the police in her original statement.
[52] It was suggested to A.T. throughout the cross-examination that she in fact knew Mr. Moore before and had met him on several occasions before the night of the offence. It was suggested to A.T. that she met Mr. Moore while she was looking for housing. All of this was denied by A.T. She was adamant that she never met Mr. Moore before. She denied that the oral sex in the back of the KIA was consensual.
[53] A.T. engaged in friendly discussion with Mr. Moore after the oral sex – in particular about guns and drugs – not because she knew him from prior, but because she was simply being friendly to try and diffuse the situation. Even though she was having these cordial conversations with Mr. Moore, she continued to be fearful for her safety.
[54] The following pointed suggestions were also put to A.T. in cross-examination:
Q. Okay. All right. What I'm going to suggest to you is the following. When you were in the vehicle, when you were grabbed into the vehicle in the plaza after the shot was fired, from that point to the point where you exited the vehicle at 64 Daphne in Barrie, that entire time, you were never taped. No part of your body was taped, neither your mouth or your hands or anywhere else. Do you agree or disagree with that?
A. I disagree.
Q. I know that you indicated yesterday and the day before that white hoodie guy had a gun, and when he was threatening you and forcing you to give oral sex to him, he had the gun and he was holding it, and he, I believe, tapped your forehead or your head with the gun, correct?
A. Correct.
Q. What I'm going to suggest to you is this. White hoodie guy never had a gun, either in the car throughout that night, in early morning, nor at 64 Daphne, in the garage or anywhere else. He never had a gun at all. What do you say to that?
A. I disagree.
Q. And the one who had the gun, or the only one that had the gun in the car was orange hoodie, agree or disagree?
A. Disagree.
Q. Okay. But orange hoodie certainly had a gun, right? He had a gun.
A. They both certainly had a gun.
[55] In suggesting to A.T. that she was in fact involved in setting up a fake kidnapping of herself, the following suggestions were put to her in cross-examination:
Q. Okay. I'm going to suggest to you that you were aware, before white hoodie received a Barrie address from anybody, you were aware that that's where you were going. Do you agree or disagree?
A. I disagree.
Q. And you were aware that the address that you were going to be going to was 64 Daphne in Barrie. Do you agree or disagree?
A. I disagree.
Q. And I'm going to suggest to you that you, in fact, asked white hoodie to drive you to that address, 64 Daphne in Barrie. You requested that of him. Do you agree or disagree?
A. I disagree.
Q. All right. And when you did ask him that, you understood that that would be, obviously, an imposition to ask him to drive you that distance, and you indicated to him that if he did that, you would reward him financially for doing that. Do you agree or disagree with that?
A. I disagree.
Q. As I indicated yesterday, and I know you disagree, but this is someone that you had known, that being white hoodie, for a number of weeks, and although you understood that asking him to drive you that distance was an imposition, you weren't entirely uncomfortable in asking him to do that because you knew him from before. He was not a stranger. Do you agree or disagree?
A. I disagree.
[56] It was put to A.T. that she was trying to shake down some of her drug dealer friends for money, and that is why she faked a kidnapping. Again, A.T. disagreed with this suggestion.
Viva Voce Evidence of Mr. Moore
[57] Mr. Moore testified that he is 38 years old, single, and has three children. Up to the time that he was arrested for these charges he was working delivery for a factory. He testified that in November 2022 he was living at 87 Steeles Avenue East, in a rented room in a building described as “an AirBnB mansion”. He was living with his pregnant girlfriend Ms. Brown at the time.
[58] Mr. Moore testified that about a week or two before the offence date he met A.T. He met her at his residence when she showed up unexpectedly looking for a room to rent. Mr. Moore told her who the landlord was, and that was the end of their brief first interaction.
[59] Mr. Moore met her again some time later when A.T. came back to the residence unannounced looking for the landlady. Mr. Moore and A.T. spoke and exchanged information. Mr. Moore said that they exchanged information on the Signal App. Mr. Moore told her that his name was Shon. He knew her as Chin. On a third occasion A.T. happened to be driving by, she saw Mr. Moore’s car, and she waved hello at him from her vehicle.
[60] Mr. Moore indicated that between the first time meeting A.T. and the third time meeting A.T. there was no communication between the two.
[61] Mr. Moore testified that he was with his sister all day on November 1, 2022, shopping downtown Toronto. They ended up at the Eaton Centre, and when the mall closed Mr. Moore’s girlfriend came to pick him up around 9:00 pm or 9:30 pm. They went to a Chinese food restaurant at Dundas and University, and then headed home.
[62] Mr. Moore testified that when back at his place, he was sitting outside smoking. He received a call from A.T. asking him to give her a ride. He said yes, he would give her a ride. Mr. Moore’s girlfriend was in the vehicle with him at the time, and she “got a little vexed” that he was going to be meeting up with another woman and said that Mr. Moore would not be leaving the residence without her.
[63] Mr. Moore told his girlfriend that he was going to go to the washroom, but instead he snuck out and left to go meet up with A.T. to give her a ride.
[64] According to Mr. Moore, A.T. called him on a three-way call – there was another person, a friend of A.T., on the phone as well. A.T. asked Mr. Moore to go meet her friend (someone Mr. Moore said he had never met before) prior to him picking her up.
[65] Mr. Moore drove to Yonge and Steeles and picked up A.T.’s friend at a TD Bank. That man got in the front passenger seat of Mr. Moore’s KIA. Mr. Moore drove to the plaza where he was told to pick up A.T. He parked, made space in his backseat, and then saw A.T. coming out of a restaurant. He drove toward her.
[66] At that point the guy in the passenger seat jumped out, grabbed A.T. and brought her to the vehicle. At about the same time Mr. Moore heard a shot fire. He didn’t know where it came from or who shot, but he heard it.
[67] Mr. Moore testified that he did not have a gun, and that he has never owned a gun in his life. At the time of the shot, the man that he picked up said “Look what you made me do” to A.T. (or maybe someone else, Mr. Moore couldn’t be sure).
[68] A.T. and the male are in the back seat, Mr. Moore is driving. The male tells Mr. Moore to drive. It is at this time that Mr. Moore testified that he saw the male’s gun. Mr. Moore felt he had no choice but to drive. Mr. Moore testified:
Q. Okay. And does he tell you where to drive?
A. No, he was just saying, “Make left, make right.” He wasn’t saying exactly where to go. He was just saying, “make the left, make the right.”
Q. Okay.
A. Yeah.
Q. All right. And what’s going on with A.T. at that point in the back of the car?
A. She just in the car.
Q. What is she doing?
A. She was just in the car sitting. She wasn’t making no noise, she wasn’t screaming, she wasn’t doing anything.
[69] Mr. Moore said that at times during the drive, and when they made a quick stop nobody in the vehicle was talking. The male was telling Mr. Moore to drive places, and he had the gun in his hand the whole time. He was waving it around.
[70] The vehicle stops in a residential area at one point at the direction of the male. Mr. Moore said that the male and A.T. get out of the car for 10-15 minutes and talk amongst themselves. At that point the male leaves apparently to get gas for Mr. Moore’s vehicle. A.T. gets back into the car. Mr. Moore said that it was apparently A.T.’s idea for the male to go get gas as she was watching the gas gauge.
[71] A.T. at this point was never tied up according to Mr. Moore, and when she is in the back she and Mr. Moore started chatting. At this time all A.T. told Mr. Moore was that everything was going to be ok. Mr. Moore inquired no further.
[72] Mr. Moore eventually got in the back of the car, and then started to inquire more about what was going on. It is at this point that Mr. Moore finds out that they were “faking it”.
[73] In the back of the car, Mr. Moore testified that he was smoking weed to calm down, A.T. was using cocaine. A.T. said that she was cold, so Mr. Moore gave her a green jacket that he had in the car. The two of them continued to “chill”. At this point A.T. and Mr. Moore start touching each other, Mr. Moore testified that A.T. told him he “was smelling nice”, one thing leads to another, and she performed oral sex on him.
[74] Mr. Moore denied having a gun at any point. He testified that he did not force her to perform oral sex, and that it was consensual.
[75] Mr. Moore testified that the only reason he didn’t run away from the situation is because he felt he needed to keep A.T. around so that she could clear his name and tell the police that he didn’t shoot anyone. She was, in Mr. Moore’s mind, his alibi. Mr. Moore said that at no time did he know the male he picked up had a gun when he picked him up.
[76] The male eventually came back with the gas can, he and A.T. speak, and then eventually A.T. tells Mr. Moore to drive her to Barrie. A.T. told Mr. Moore that she had a “deal” up in Barrie. After the “deal” she would make sure that Mr. Moore was “good”. She told Mr. Moore that she wanted to “take down” her drug dealer friends.
[77] Mr. Moore testified that he believed that if he drove her to Barrie, he would get something out of it – money, drugs, something. Mr. Moore testified that on the drive to Barrie A.T. sat in the front, and there was no duct tape in the vehicle.
[78] On the way to Barrie, A.T. fell asleep. Mr. Moore said that when they were around Canada’s Wonderland he ran out of gas. He parked at a Fresh Co., and it was A.T. who called someone to bring them gas. During the long wait for someone to bring them gas, Mr. Moore continued to smoke weed, and A.T. continued to use cocaine.
[79] Mr. Moore said at one point that A.T. was on her phone looking up to see if whatever it was that they were doing – I assume the shot – made the news.
[80] After that second obtaining of gas, they head to Barrie. Mr. Moore testified that A.T. is asleep at some point in the passenger seat, and it takes them about an hour to get to Barrie. It was A.T. that gave the address of 64 Daphne.
[81] When they got to 64 Daphne, Mr. Moore testified that he parked in various spots around the address, and eventually at the urging of A.T. he parked in the driveway. “One of the guys” came out of the house and told him not to park in the driveway so he moved the car. A.T. got out on her own and went into the house or garage prior to Mr. Moore finding a new parking spot.
[82] Mr. Moore testified that he was in fact communicating with someone with a name “GGG HNIC” or something like that. Mr. Moore testified that that was his friend, and it was Mr. Moore who gave that person the address in Barrie where he was taking A.T., only because he thought his friend should know where he was going.
[83] Mr. Moore described that when he got into the garage, he did not know anyone in the garage. He at that point rolled a joint. A.T. was talking with the guys in the garage. Mr. Moore did not overhear their conversation. Mr. Moore did see the chair with the rope, but thought nothing significant about it.
[84] Mr. Moore then testified:
Q. I see, okay. So, what do you see next? You know, what do you see, what do you hear with respect to A.T. and these three other individuals? Tell us what you see, what you hear?
A. Okay. When I leave, and I came back in, her clothes was off.
Q. Okay.
A. I heard she said, “You have to make it look reals.”
Q. Okay.
A. So, that’s when I understand they was doing the faking up and trying to make videos, and they was making videos, and there was stuff to saying to ransom, for money, and for whatever.
Q. Okay.
A. Yeah.
Q. Who’s saying something about making it look real? Who’s saying that?
A. I heard that from her mouth.
Q. You heard that?
A. From her mouth.
[85] Mr. Moore testified that at this point they (the other men in the garage) started putting duct tape on A.T. and continuing the fake kidnapping activity. Mr. Moore questioned the men, and he testified that they told him that this was in fact all a fake kidnapping, they were sending pictures and videos to people so that they could send a ransom.
[86] Mr. Moore testified that he was not present for the inflicting of any injuries on A.T. Mr. Moore was in the garage for about an hour, or an hour and a half, and he did see them make the fake videos. Mr. Moore did not know anyone in the garage.
[87] Mr. Moore testified that at some point he got a call from the rental car guy, who told Mr. Moore that the police had been in contact with him, and that he (Mr. Moore) needed to go clean the vehicle. Mr. Moore took wipes from the garage and went to clean the car. The wipes were in a white plastic bag, that also had some duct tape in it. Mr. Moore had also taken some of the duct tape off of A.T.’s mouth and put that duct tape in the white plastic bag too.
[88] The last time that Mr. Moore saw A.T. before leaving the garage, she was still in the chair. Mr. Moore then testified as to his sequence of movements prior to his arrest by police – calling an Uber, calling a friend, disposing of garbage.
[89] Mr. Moore denied that he was ever promised $20,000 for taking A.T. to Barrie. With respect to the cell phone extraction report, Mr. Moore testified as to the following:
Q. Okay. And there was a white phone seized from the Acura, remember? A white phone that I believe was your phone; is that right?
A. Yes, sir.
Q. And the last four digits, I believe, were 3409, as I recall; is that right?
A. Yeah, yeah.
Q. Okay. And the Crown played some – or showed on the screen some extractions from your phone that were taken by the police and, you know, played some audios yesterday of communications apparently between you and, you know, the Snapchat names We All We Got and I think it’s HHNIC, right? You heard those yesterday?
A. Yes, sir.
Q. Okay. And again, what was the reason for the communications that day with them? You know, what was the point of the communications with those Snapchat addresses, if I could put it that way? What was the reason – or apps – what was the reason for that?
A. Just regular conversation.
Q. Okay.
A. Yeah.
Q. And were you expecting, you know, those individuals to do something or to tell you something? Or what was – you know, what was the reason for the communications?
A. Because I’m the one involved those guys with whatever with the address and to look up the address of 64 Daphne. I’m the one who told them to look it up and to see where I’m going. Yes, sir.
Q. Oh, okay. And why were you – why were you doing that? What was the reason for that? Why did they need to know that?
A. In case if anything go wrong with me, sir.
Q. Okay.
A. Yeah.
Q. And if something were to go wrong, what would giving them the address do? How would that assist you?
A. They know where I was. They know where I’m at.
[90] The crux of Mr. Moore’s testimony is that he was unaware that this was a fake kidnapping, he wanted to stay involved so that A.T. could clear his name, he at no time had a gun, and any sexual activity that occurred between he and A.T. was consensual.
[91] In cross-examination Mr. Moore admitted that the white phone seized from the Acura, and which was the subject of the extraction report was his, he used it, and the only other person to use it was A.T. on one occasion. He said that A.T. used his phone to message WAWG, who is a common friend of theirs.
[92] Mr. Moore agreed that it was quite the coincidence that a woman he met randomly at his apartment also happens to have a good friend in common with him.
[93] Mr. Moore was cross-examined at length on the extraction report and the circumstances surrounding the rental car. Mr. Moore was not sure why certain calls that he said that he made or received do not show up on the extraction report, nor could he explain why certain contacts that he said were in his phone were not in his phone.
[94] Mr. Moore agreed in cross-examination that the contacts in his phone – for example “GGG HNIC” are friends of his that he has known for a while.
[95] Throughout the cross-examination, when faced with the many inconsistencies between his statement to the police, the extraction report, and his examination-in-chief, Mr. Moore stuck to the testimony that this was a fake kidnapping, and he was simply in the wrong place at the wrong time.
The Extraction Report, and CFS Biology Reports
[96] Considerable evidence was called about the contents of Mr. Moore’s phone, and communication with other individuals on that phone.
[97] As referenced above, Mr. Moore admitted having exclusive use of his phone, except for one occasion where A.T. used it. He confirmed that his username was Riverz10, or some variation thereof.
[98] In a close dissection of the extraction report, some conclusions come to light. It is clear that Mr. Moore’s contacts “WAWG” and “GGG HNIC” were involved in the kidnapping plan. Not only are there numerous messages between Mr. Moore and “WAWG” and “GGG HNIC”, but one can see that between the hours of 9:31 pm on November 1 and 8:14 am on November 2, there are 51 calls between Mr. Moore and “WAWG” and “GGG HNIC” and it appears that there are no other calls or messages between Mr. Moore and anyone else during this time frame – including his girlfriend or sister.
[99] I am prepared to find, based on the information contained in the extraction report that WAWG and OGH are one and the same person. As well, it is clear based on the messages contained within the extraction report that Mr. Moore’s claim that he was not expecting to be paid is in fact false.
[100] Mr. Moore sent and received many audio messages and text messages to WAWG about timelines, addresses, and even “coming to get ya”, such that there is no other conclusion than to find that WAWG and OGH are one and the same. All these messages are contained within the extraction report. These messages are also predominantly contrary to Mr. Moore’s testimony about simply messaging his friends to tell them where he was going to be.
[101] One such audio message even sets out “Yo my phone on 3%, gonna die, yo send me that address and I will pull up and meet you guys somewhere, my phone gonna die, I don’t even have a charger”. Again, this seems to suggest that Mr. Moore’s phone was in fact going to die (contrary to his testimony in cross-examination) and he intended to meet WAWG and potentially others at the time of the kidnapping.
[102] It is also telling that there are no messages between Mr. Moore from 10:32 pm on November 1, 2022 to 1:45 am on November 2, 2022. Again, a reasonable inference drawn from this is that there are no messages because Mr. Moore is with WAWG/OHG during this time. According to Mr. Moore’s testimony, this is a time frame that he would have been with A.T. and OGH in the KIA, waiting for gas, driving around, etc.
[103] Addresses received through text to Mr. Moore, Google searches (of Fresh Co. for example) and audio messages contained within the extraction report all suggest that Mr. Moore was a very active participant, along with WAWG/OHG.
[104] The audio message sent by WAWG at 3:58 am suggests this further: “Yo fam, they’re coming fam, just wait fam, its like fuck they will probably be there in the next couple of minutes fam, like fuck you know you have to stop and get that shit and some places don’t even have the can, you know how many places I had to go before I got it, come on they’re coming fam, chill out fam, you did the hard part already, you getting paid, chill out fam”
[105] Contrary to Mr. Moore’s testimony that it was A.T. who called her people to fill up the gas tank, WAWG sent an audio message at 3:45 am: “When the men get there, just pop your tank, and they will fill it up for you, but don’t follow their car. Just go on your route to where you’re supposed to go.”
[106] The extraction report is comprehensive, and even includes messages at a time presumably when Mr. Moore arrives at Daphne Crescent in Barrie:
At 6:17 am, WAWG writes: “Yoo its open yet yu in”.
At 6:17 am, Mr. Moore responds: “Outside fam”.
[107] According to the CFS Biology reports, Mr. Moore’s DNA is found on two separate sections of duct tape. 1) The duct tape found in the white plastic bag in the dumpster at the Bayfield address; and 2) on the discarded duct tape found in the garage at 64 Daphne, in very close proximity to the chair that A.T. was in.
[108] Mr. Moore was cross-examined on this and was unable to explain why his DNA was found on these two sections of duct tape.
Mr. Moore’s Statement to Police
[109] On an earlier occasion I ruled that the statement made by Mr. Moore to the police upon his arrest was admissible as voluntary, and the Crown was permitted to use the statement in cross-examination of Mr. Moore.
[110] The following are just some of the inconsistencies between Mr. Moore’s statement to the police and his testimony in court:
- In his statement to police, Mr. Moore maintained “that he didn’t do anything” and that “he didn’t have a role”.
- Mr. Moore maintained that he had no knowledge of the white plastic bag that was discarded at the Bayfield dumpster.
- Mr. Moore told police that he did not have any sexual contact with A.T..
- Mr. Moore maintained that he did not know any of the individuals (including that he had no idea who A.T. was) involved in the kidnapping.
- Mr. Moore told the police that his sister dropped him off after the Eaton Centre.
- Mr. Moore never told police that this was a fake kidnapping plot.
- Frequently Mr. Moore told police that he didn’t know “the girl” (A.T.) and the girl didn’t know him.
- Mr. Moore never told police about the chance meeting with the complainant prior to the kidnapping.
[111] While Mr. Moore is under no obligation to tell the police the whole story upon his arrest, the voluntary statement that Mr. Moore gave to the police contained a very different version of events than did his examination-in-chief and cross-examination.
Analysis
[112] The burden of proof in a criminal trial always rests with the Crown, it never shifts. That burden, proof beyond a reasonable doubt, must be met in relation to all essential elements of the offence, and any fact that the Crown wishes to prove in aggravation of the offence. This burden is a heavy one. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt, nor is it a doubt based on sympathy for either party in this trial, or prejudice for or against any party in this trial. A reasonable doubt must be a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence. See: R. v. Lifchus.
[113] To be clear, it is not sufficient that on the whole of the evidence, I am satisfied that Mr. Moore is probably guilty.
[114] Mr. Moore testified. When an accused person testifies at their trial, the Supreme Court of Canada in R. v. W.(D.) tells me that first, if I believe the evidence of Mr. Moore obviously I must acquit him. Second, if I do not believe the testimony of Mr. Moore but I am left in reasonable doubt by it, I must acquit him. Third, even if I am not left in doubt by the evidence of Mr. Moore, I must ask myself whether, based on the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of Mr. Moore. If I am convinced of his guilt beyond a reasonable doubt, then I must convict. Put simply, if I am not sure who to believe, then I must acquit.
[115] It is almost impossible for the Crown to prove anything to an absolute certainty, nor is the Crown required to do so. If this were the case, that standard would be impossibly high. However, proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt.
[116] In the recent Supreme Court of Canada case of R. v. Kruk, 2024 SCC 7, Justice Martin stated the following at paragraph 62:
Reasonable doubt applies to credibility assessments such that if the evidence the Crown adduced does not rise to the level required of a criminal conviction, an accused cannot be found guilty simply because they are disbelieved (see W.(D.)). Some elements of the totality of the evidence may give rise to a reasonable doubt, even where much – or all – of the accused’s evidence is disbelieved. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt. Moreover, where the trier of fact does not know whether to believe the accused’s testimony, or does not know who to believe, the accused is entitled to an acquittal.
[117] When assessing evidence, trial judges are permitted to make common sense assessments and draw common sense inferences from the evidence based on their own human experience.
[118] The phrase “common sense” and “common sense assumptions” is one that has been the subject of great legal consideration recently. In particular, the Supreme Court of Canada in R. v. Kruk, supra at paragraph 75 stated the following:
Trial judges are uniquely tasked with assessing the testimony they hear and interpreting the range of possible inferences arising from the evidence. They must be able to rely not only on their judicial experience as fact finders, but also on their common sense and the generalized expectations it generates about human behaviour. Trial judges will naturally rely on “ungrounded” assumptions about human behaviour in their testimonial assessments and thereby draw on factors that lie outside the immediate record. The judicial function entitles them to do so without requiring extrinsic evidence to support each and every one of their conclusions.
[119] This difficulty of this task was also outlined in paragraph 81 of R. v. Kruk:
Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses. The trial judge, while remaining grounded in the totality of the evidence, is obliged to evaluate the testimony of each witness and to make determinations that are entirely personal and particular to that individual. Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are "more of an 'art than a science'" (S. (R.D.), at para. 128; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621) With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to "the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events" (Gagnon, at para. 20; see also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 28; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 81). The task is further complicated by the trial judge's ability to accept some, all, or none of a witness's testimony.
[120] I believe very little of Mr. Moore’s testimony. In fact, the only significant aspects of Mr. Moore’s testimony that I do believe are that he was in fact the driver of that KIA, that he drove around for hours with A.T. in the vehicle, and that A.T. performed oral sex on him.
[121] Mr. Moore’s testimony is replete with inconsistencies, both throughout his own testimony and when compared to his statement to the police. Mr. Moore’s version of events – a chance encounter with A.T. and a fake kidnapping all orchestrated by A.T. and some unknown OHG third party – defies all logic and common sense.
[122] The Crown argues that acceptance alone of the complainant’s evidence is also a compelling reason for the rejection of Mr. Moore’s evidence. See: R. v. T.M., [2014] O.J. No. 5735 (CA) at para. 68; R. v. W.D., supra at para. 27; R. v. J.J.R.D. at para. 53; and R. v. R. C., [2025] O.J. No. 558 (SCJ) at para 148.
[123] Mr. Moore’s description of how he met A.T. is absurd. The notion that Mr. Moore just happened to be outside his residence, each time A.T. just happened to drive by is simply unbelievable. At one point Mr. Moore said he was in the garage, but when faced with the reality that there is no garage at that location, he stated that he was in the parking lot at the residence.
[124] I do not accept that on the second occasion that they met Mr. Moore and A.T. exchanged numbers. Mr. Moore would have me believe that he exchanged numbers with this random woman who was apparently looking for an AirBnB. He stated that he saved her number as “Chin” in his phone in the Signal App, but again this is contradicted by the information contained in the extraction report.
[125] In his testimony, Mr. Moore said that earlier in the day on November 1, 2022, he was picked up from the Eaton centre by his pregnant girlfriend Anna. Contrast this with the fact that he told the police in his statement that he was picked up by his sister from the Eaton Centre. He testified that he and Anna headed home after getting Chinese food downtown Toronto. When confronted with the extraction report, Mr. Moore admitted that he and Anna stopped at 388 Empress Ave. to meet WAWG before heading home.
[126] On their way home, Mr. Moore’s unbelievable story continued. He testified that he received a call out of the blue from A.T. – again, this is an individual that he only met in passing on at most three occasions. Mr. Moore receives a call from A.T. while his girlfriend Anna is in the vehicle with him. According to Mr. Moore, A.T. asked him – a near stranger – for a ride somewhere. Mr. Moore agrees to help A.T. – a near stranger – and give her a ride.
[127] The extraction report, however, shows no incoming communication from A.T. to Mr. Moore.
[128] Understandably, this phone call upset’s Mr. Moore’s girlfriend, so to prevent her from coming along, Mr. Moore goes to the washroom, and then proceeds to sneak out of the house to go pick up A.T. – again, a near stranger. I do not believe for one second that when pressed by his pregnant girlfriend, Mr. Moore would sneak out of the house and go meet A.T., to give her a ride to some unquestioned place for some unquestioned reason – again all the while she is a stranger to him.
[129] If Mr. Moore’s account is to be believed, one might think that Anna would have been concerned that Mr. Moore snuck out of the house. One might think that Anna would have called him to check on his whereabouts, when she discovered that he was no longer in the bathroom. Yet according to the extraction report there are no calls from Anna to Mr. Moore until 11:42 am on November 2, 2022.
[130] Not once, according to Mr. Moore – while sneaking out of the house to avoid detection by his pregnant girlfriend – did he ask A.T. where she needed a ride to. This defies common sense. To add to this account, according to Mr. Moore, A.T. asks him to pick up a mystery man – an apparent friend of A.T. – at a location along the way. Once again Mr. Moore does not question this.
[131] Mr. Moore’s position is that this was a fake kidnapping, all orchestrated by A.T. and OHG, and Mr. Moore is an innocent dupe in this scheme. I do not accept Mr. Moore’s position.
[132] If this were a fake kidnapping, one must ask themselves why A.T. would enlist Mr. Moore to help. He is a complete stranger to her, she has no idea his background, his connections, whether he would go along with the plan or whether he would bail and call the police. The suggestion that this was a fake kidnapping defies all common sense and logic.
[133] What if Mr. Moore tried to inhibit OHG’s participation? What if Mr. Moore simply got out of the car and ran away? What if Mr. Moore didn’t drive to the places and locations that OHG told him? The only reason for Mr. Moore to continue participation in this endeavour is because he knew exactly what the plan was from the beginning. Enlisting a total stranger in a fake kidnapping is far too risky for A.T. The only logical inference supported by the evidence is that Mr. Moore was an active knowing participant.
[134] Civilian witnesses described how A.T. fought and screamed when she was grabbed by OHG. Mr. Bae Chi was shot at with an actual real gun to prevent his interference. A.T. had actual real injuries. I do not accept at all the position of Mr. Moore that this was a fake kidnapping.
[135] Mr. Moore testified that he did not ask questions because he was afraid that he would be implicated in the shot fired by OHG. He never questioned the plan, he never questioned the kidnapping, and when given all the opportunities available to him he never ran, drove, or walked away. The idea that he only stayed because he wanted to be near A.T. so that she could clear his name again defies common sense.
[136] Mr. Moore had many opportunities to escape, and many opportunities to ask questions – none of which he took. An active participant doesn’t need to ask questions. Someone who stands to perhaps gain money or drugs doesn’t need to ask questions.
[137] What happened to A.T. was real. The kidnapping was real, the firearm was real, the sexual assault was real. Mr. Moore’s participation was real.
[138] I reject entirely the testimony of Mr. Moore in that the oral sex performed on him by A.T. – a stranger to him – was consensual. I accept A.T.’s testimony that this was a forced sexual assault, at gunpoint. It again defies logic and common sense that in the throws of a kidnapping – real or fake – after driving around for a prolonged period of time, seemingly evading detection because an innocent bystander had just been shot at, that A.T. and Mr. Moore would be consensually amorous with one another such that they thought this a good time for oral sex.
[139] I accept that A.T. was forced by Mr. Moore at gunpoint.
[140] What happened to A.T. at the Daphne address was real. The injuries sustained by her, the assaults she incurred all the while that Mr. Moore stood by and watched was real. A.T.’s escape from the garage and her call to 911 were all real. I do not accept that she was “acting” when she called 911 or spoke with the first officer who attended.
[141] When Mr. Moore got a call from the rental car guy while at the Daphne Cres. Address why not put the rental guy at ease and tell him that it was a fake kidnapping? Why go to the trouble of using two different modes of escape – an Uber and then a friend – if this was all fake?
[142] Mr. Moore’s involvement in this very real kidnapping, and very real sexual assault is confirmed also by the forensic evidence sent to the Centre of Forensic Sciences.
[143] Mr. Moore testified that he saw the duct tape being put on A.T.’s mouth, and he took it off. And according to Mr. Moore, that was the only duct tape that he touched. He put it in his pocket after he removed it from A.T.’s mouth. This may explain how his DNA got on one piece of duct tape, however according to the CFS Reports, exhibits 47A and 47B, Mr. Moore’s DNA is found on two separate segments of duct tape - the duct tape found in the white garbage bag in the Bayfield dumpster, and the duct tape found in the garage at 64 Daphne, underneath or in the area of the chair. Mr. Moore’s account does not explain how his DNA got onto two separate segments of duct tape.
[144] One can infer that the duct tape that is in the garbage bag came from the KIA, this was cleaned out by Mr. Moore – this again means that Mr. Moore had a hand in manipulating the duct tape on A.T. while in the KIA.
[145] The extraction report on Mr. Moore’s phone further corroborates the Crown’s position that Mr. Moore was an active participant in the kidnapping.
[146] Text and audio messages were played from that extraction report. The address of 64 Daphne comes up time and time again. The audio messages suggest that Mr. Moore was reaching out to and receiving information from individuals giving him the address and direction.
[147] Mr. Moore’s version of events that he messaged WAWG just to let him know where he was is nonsensical. I have no difficulty in accepting that Mr. Moore was communicating with WAWG and HHNIC with respect to the kidnapping.
[148] As outlined above, based on the content and timing of evidence contained within the extraction report, I have no difficulty finding that OHG and WAWG are one and the same person.
[149] WAWG is directing Mr. Moore where to go and how to get there. I accept that WAWG is one of the directing minds behind this kidnapping.
[150] Section 21(2) of the Criminal Code states as follows:
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
[151] In R. v. Kelly, 2017 ONCA 920, Doherty J.A. stated the following at paragraph 24:
[24] As my colleague, Watt J.A., has explained with admirable clarity in R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754, at paras. 39-43, s. 21(1) refers to parties who participate in the offence charged as perpetrators, aiders or abettors. To aid in the commission of an offence, an accused must do something "for the purpose" of aiding another in the commission of that offence. Liability under s. 21(2) rests on an entirely different basis. Section 21(2) imposes party liability for offences that are incidental to the carrying out of a common unlawful design. Liability under s. 21(2) requires the Crown to prove that an accused formed an intention with others to engage in an unlawful purpose and that one or more of the others, in carrying out that unlawful purpose, committed a different offence that the accused knew or ought to have known was a probable consequence of carrying out the common unlawful purpose.
[152] Again, there is no doubt in my mind that this was a real kidnapping, a kidnapping in which Mr. Moore was an active participant.
[153] The Crown submits the following with respect to the issue of routes to liability:
To ground a conviction on the basis of common purpose requires proof of three elements:
a) The party’s participation with the principal in the original unlawful purpose (the “agreement”). The agreement element requires that the accused and the other participant agreed to carry out a common unlawful purpose and to help each other to do so. The unlawful purpose must be different from the offence ultimately committed. The Crown submits that Mr Moore was an aider in the kidnapping. He was the getaway driver, he provided the vehicle, he drove to the scene of the kidnapping and away from the scene with the complainant in his car. The fact that he entered into the original unlawful purpose agreement is made out by all the evidence but particularly so by the extraction report.
b) The commission of the incidental crime by the principal in the course of carrying out the common unlawful purpose (the “offence”). The offence must be committed as the participants are carrying out their original agreement or plan. The incidental offence, although not intended by the accused, must nonetheless be related to the original unlawful purpose. The offences here are the use of the firearm and the discharging of the firearm to ensure the complainant’s compliance and to ward off anyone who tried to save her.
c) The required degree of foresight of the likelihood that the incidental crime would be committed (“the knowledge”). The Crown submits that according to the evidence of the complainant, Mr. Moore himself was armed with a firearm. This goes a long way to showing the required degree of foresight. Furthermore, it is reasonable to infer that Mr. Moore knew that Orange Hoody was also armed – after all, the two were friends and engaged in this plan together. As such, it is reasonable to infer that Mr. Moore had the necessary foresight of the likelihood that the incidental crimes would be committed. Going to a kidnapping armed with a firearm leads to the inference that the person armed is prepared to use the firearm to overcome any resistance and to execute the kidnapping. The Court can infer that Mr. Moore knew or ought to have known that it was probable that Orange Hoody would discharge the firearm in the course of the kidnapping. See: R. v. Patel, 2017 ONCA 702 at paras 28-41; R. v. Simon, supra at paras. 37-43.
[154] I agree with the Crown’s assessment of the evidence and application of the route to liability with one exception – the probability that OHG would discharge the firearm at Mr. Bae Chi.
[155] I accept that Mr. Moore was armed. I accept that it is likely that Mr. Moore knew that OHG was armed. I accept that when Mr. Moore and OHG got together on November 1, 2022 – and even before November 1, 2022 when according to the text messages they were planning this scheme – the plan all along was to kidnap A.T..
[156] While I have no difficulty rejecting much of Mr. Moore’s evidence, I am left in a state of reasonable doubt with respect to whether or not Mr. Moore knew or ought to have known that it was probable that OHG would discharge his firearm at Mr. Bae Chi with the intent to endanger the life of Mr. Bae Chi.
[157] If Mr. Moore was unaware that OHG had a firearm when he picked him up that night, he certainly became aware that he had a firearm when he shot at Mr. Bae Chi. The presence of Mr. Bae Chi was presumably unexpected by both OHG and Mr. Moore. If Mr. Moore didn’t have actual knowledge that OHG had a firearm when he got in the car, he was certainly reckless as to whether he had a firearm knowing that they were about to carry out a kidnapping.
[158] A.T. testified that she was the one doing most of the yelling and screaming when she was put in the vehicle by OHG. At no time did she mention that Mr. Moore yelled words to the effect of “what the hell was that?”, “you have a gun?”, “why did you shoot?”, or express any surprise or concern over OHG’s discharge of that firearm. The logical inference here is that Mr. Moore must have known that OHG had a firearm. Common sense tells me that if Mr. Moore was caught by surprise, he would have voiced that.
[159] Knowing that OHG was armed, or being reckless as to whether OHG was armed, Mr. Moore clearly – in my opinion – knew or ought to have known that the discharge of that firearm by OHG was a probable or likely outcome through the course of the kidnapping. The discharge of that firearm in a parking lot of the plaza at 100 Steeles Ave. was likely to endanger the life or safety of another person. Mr. Moore is clearly a party to that discharge.
[160] This was a very poorly planned kidnapping. It seems that OHG and Mr. Moore were both rather unsophisticated in their commission of this offence. How they knew that A.T. had some connection to bitcoin is unclear. Whether they would have received any remuneration from their kidnapping of A.T. is unclear. What connection the men in the garage had to A.T. is unclear. The Crown need not clear up this uncertainty in order to prove the elements of the offences.
[161] Despite this uncertainty however, Mr. Moore and OHG committed a very real and violent kidnapping of A.T., all while both were armed with firearms.
Conclusion
[162] I have no difficulty in rejecting the evidence of Mr. Moore that he was an innocent dupe in this whole scheme. I accept the evidence of A.T., and none of the above-mentioned uncertainties leave me in any state of reasonable doubt with respect to the offences relating to the kidnapping and the sexual assault.
[163] As discussed above, counts 1 and 5 are dismissed at the request of the Crown.
[164] I find that the Crown has proven the essential elements of the following offences beyond a reasonable doubt:
- Count #2 – that Mr. Moore did use a firearm to wit a handgun in kidnapping A.T., with intent to cause her to be confined against her will, contrary to section 279(1.1)(a.i) of the Criminal Code.
- Count #3 – that Mr. Moore did, without lawful authority confine A.T., contrary to section 279(2) of the Criminal Code.
- Count #4 – that Mr. Moore did, in committing a sexual assault on A.T., carry a weapon, namely a firearm, contrary to section 272(1)(a) of the Criminal Code.
- Count #7 – that Mr. Moore did use a firearm, namely a handgun, while committing the indictable offence of kidnapping under section 279(1.1)(a) of the Criminal Code, contrary to section 85(1)(a) of the Criminal Code.
- Count #8 – that Mr. Moore did discharge a firearm, while being reckless as to the life or safety of another person, contrary to section 244.2(1)(b) of the Criminal Code.
[165] On the analysis above, I find Mr. Moore not guilty of count #6.
Released: March 13, 2025
Signed: Justice M. Townsend