COURT FILE NO.: YC-11-10000002
DATE: 20120601
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
[Note: This proceeding is governed by publication restrictions under section 110 of the Youth Criminal Justice Act.]
B E T W E E N:
HER MAJESTY THE QUEEN
M. Humphrey and K. Simone, for the prosecution
- and -
S.M.
(a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
M. Webster & S. Stauffer, for the defence
HEARD: April 30 and May 1, 2, 7-11, 14-16, 18 & 28, 2012
Nordheimer J. (orally):
[1] On December 29, 2009, Kenneth Mark was shot and killed as he walked home. Mr. Mark had just left a pizza store located at Dundas Street West and Gilmour Street with some take-out food. As he walked north on Gilmour from Dundas, a lone male ran up behind him and shot him once in the back of the head in what can only be described as an execution. Mr. Mark died almost immediately.
[2] On March 30, 2012, after a trial before a jury, Lamar Skeete was convicted of first degree murder in the killing of Kenneth Mark. The prosecution’s theory, as advanced before the jury, was that Lamar Skeete either shot and killed Kenneth Mark or that he arranged for someone to do so.
[3] S.M., who I will refer to throughout by his initials as he is a young person, has now been separately tried on the same charge of first degree murder. It is not suggested that S.M. was the person who shot Kenneth Mark. It is, however, alleged that S.M. aided Lamar Skeete in the killing of Kenneth Mark by playing at least two roles: one as a look-out and the other as the “getaway” driver. The trial of S.M. has proceeded before me without a jury.
The involvement of Lamar Skeete
[4] In order to determine whether S.M. is guilty or not guilty of the charge, it is first necessary for me to determine the role of Lamar Skeete in this murder. In that regard, I will say that I am satisfied beyond a reasonable doubt that Lamar Skeete is the person who shot and killed Kenneth Mark on December 29, 2009. While the evidence against Lamar Skeete is circumstantial, that conclusion is, in my view, the only reasonable one to draw from the evidence as a whole.
[5] In that regard, I begin with the salient fact that Mr. Skeete had a motive to want to do harm to Mr. Mark. There was a history between Kenneth Mark, Lamar Skeete and Mr. Skeete’s younger stepbrother, J.B., who I shall also refer to by his initials as he is also a young person. Back in September 2008, J.B. allegedly showed a handgun to children in the housing complex where Mr. Mark’s relatives, including his very young nieces and nephew, lived. Mr. Mark later confronted J.B. about this conduct. Mr. Mark “draped up” J.B., that is, he pulled J.B. off of his bicycle, held him up by his shirt and told him that he was no longer welcome at the housing complex. A few days later, Mr. Mark was shot by someone using a shotgun.
[6] Mr. Mark initially told the police he could not identify who had shot him. A couple of months later, the police held a community meeting at the housing complex to address their concern about a rising incidence of criminal activity in the area. After that meeting, Mr. Mark approached the police and told them that he had additional information that he wanted to provide to them regarding the shooting. The next day, Mr. Mark told the police, in a sworn videotaped statement, that J.B. was the person who had shot him and that Lamar Skeete was with J.B. when the shooting occurred.
[7] J.B. and Mr. Skeete were charged with attempted murder. Between the time that Mr. Mark gave his statement to the police and the time when J.B. and Mr. Skeete were arrested for attempted murder, Mr. Mark told people that J.B. and Mr. Skeete came looking for him where he lived. Mr. Mark hid from J.B. and Mr. Skeete on this occasion because he feared for his safety.
[8] A preliminary hearing was held on the attempted murder charge. Mr. Mark gave evidence that J.B. was the person who shot him and that Mr. Skeete was there at the time. Mr. Mark acknowledged that both males were masked but he said that he was nonetheless able to identify them because of their body types and their clothing, which he had seem them wearing earlier in the day. As between the two, however, Mr. Mark was less certain in his identification of Mr. Skeete than he was in his identification of J.B. At the conclusion of the preliminary hearing, both J.B. and Mr. Skeete were committed for trial on the attempted murder charge.
[9] When the trial date arrived in this court, the prosecution withdrew the charge against Mr. Skeete on the basis that there was no reasonable prospect of conviction. The trial proceeded against J.B. alone. At the conclusion of that trial, on December 17, 2009, the trial judge acquitted J.B. of the charge on the basis that the prosecution had failed to prove the guilt of J.B. beyond a reasonable doubt. Twelve days later, Kenneth Mark was shot and killed.
[10] The police investigation began immediately. The police seized security surveillance videos from two stores in the area. The first of those videos, obtained from a bake shop two doors down from the pizza store on Dundas Street West, showed two individuals. One was a brief glimpse of the right shoulder of a male wearing a light coloured jacket. The other showed another male walking back and forth on Dundas Street West directly before the shooting. This male is seen a second time, starting to run east on Dundas Street and then suddenly turning and running west in the direction of Gilmour Street.
[11] The police investigation was also assisted by a witness who, for safety reasons, I will simply refer to as D.M. D.M. was in the pizza store at the time of the shooting. D.M. went to the pizza store to purchase some food. While he was waiting for his food to be prepared, D.M. said that another man came into the pizza store and also ordered some food. It is clear that this other man was Kenneth Mark.
[12] D.M. got his food and sat down on a stool in the front window of the pizza store that looks out onto Dundas Street West. D.M. began to eat his food. As he did, D.M. saw a male walk past the pizza store and stop in the general area of the Malta bake shop. D.M., at the time, thought that there was a bus stop in that area so he assumed that this male was waiting for the bus. D.M. then saw the male walk back past the pizza store in the direction of Gilmour Street.
[13] D.M. says that he saw this same male, a few minutes later, again walk past the pizza store and once again stop in the general area of the Malta bake shop. The male then again walked back past the pizza store in the direction of Gilmour Street. D.M. says that he saw this same male a few minutes later walk past the pizza store for a third time. This time, however, after this male stopped in the area of the Malta bake shop, he proceeded across Dundas Street West and went to the area of a laneway beside a coin laundry that is located on that side of Dundas Street West.
[14] A short time later, D.M. saw another male walk by the pizza store and also stop in the general area of the Malta bake shop much like the first male had done. This male also walked back past the pizza store in the direction of Gilmour Street. Moments later, this same male again walked past the pizza store and returned back as he had done the first time. D.M. noticed that when the male walked past this time, he looked into the window of the pizza store. Moments later, D.M. saw this second male walk past the pizza store for a third time and again stop in the area of the Malta bake shop. D.M. continued to eat his food when he saw what he described as a blur of someone running from the area of the Malta bake shop past the pizza store and then north on Gilmour. This caused D.M. to look up, at which time he also observed that the first male that he had seen was now in the middle of Dundas Street heading towards Gilmour.
[15] Just before he saw the blur of someone running past the pizza store, D.M. says that the other male, who had been in the pizza store, left out the Gilmour Street door. D.M. says that he saw the first male run up behind this male and fire one shot into the back of his head.
[16] D.M. is not able to identify either of the males that he saw. He did describe them as both being black males, both with slim builds and both being fairly short, perhaps 5’6” tall.
[17] D.M. initially described the shooter as wearing a wine red or burgundy jacket. However, he also said that the shooter’s jacket appeared very white at the time that he fired the shot into the back of Mr. Mark’s head. D.M. explained the discrepancy in these descriptions as arising from the fact that the Malta bake shop has a red neon sign outside of the business and that he believes that the colour of this sign reflected off of the jacket and made it look wine red. D.M. was firm that the shooter’s jacket was white when he saw the shot fired and he pointed to the shoulder of the jacket that can be seen in the Malta bake shop video as being that jacket. D.M. also recollected that there was some type of design on the jacket but he could not be specific as to the nature of that design.
[18] I earlier mentioned that there were two security surveillance videos seized by the police. The second of these two videos was seized from the coin laundry that is across Dundas Street from the bake shop. One of the security cameras from the coin laundry covered a laneway that runs beside the coin laundry exiting onto Dundas Street. This security video shows a male come into the laneway and walk back and forth across it. The male is wearing what appears to be a light coloured jacket. This male, as he walks back and forth in the laneway, is looking out in the direction of the opposite side of Dundas Street in a manner that suggests that he was watching for something. I am satisfied that this male was, in fact, watching the pizza store and the area of Dundas and Gilmour.
[19] The male in the laneway is seen trying to get something out of his jacket pocket. At this point, the male suddenly runs out of the laneway in a northwest direction, that is, in the direction of the pizza store and Gilmour Street. I am satisfied beyond a reasonable doubt that this male was the shooter, that he was watching the pizza store waiting for Kenneth Mark to leave, that when Kenneth Mark did so, the shooter ran across Dundas Streeet while at the same time removing a handgun from the pocket of his jacket. This male ran up behind Mr. Mark and shot him.
[20] I am similarly satisfied beyond a reasonable doubt that Lamar Skeete is the male seen in the coin laundry video and is the person who shot Kenneth Mark. The cellular telephone records show that Mr. Skeete was in the area of the murder for up to an hour before the shooting took place. Specifically, Mr. Skeete’s telephone utilizes the tower that is closest to the area of Dundas Street West and Gilmour Streets between 8:40 p.m. and 9:30 p.m., about fifteen minutes before the murder occurred.
[21] In addition to that fact, D.M.’s evidence is that the shooter was wearing a white jacket when the fatal shot was fired. The police executed a search warrant at Mr. Skeete’s residence on December 31, 2009. In the basement, they found a white Averix jacket. An examination of that jacket found gunshot residue in the two front jacket pockets. Further, the police subsequently found a handgun, of the same calibre that matched a shell casing found at the scene, hidden in a vent in the home of B.I., another young person and a friend of Mr. Skeete. B.I. was also seen in the company of Mr. Skeete and J.B. on December 31, 2009, just two days after the murder. I am satisfied that the handgun that was found in the vent of B.I.’s home was the handgun used to shoot and kill Kenneth Mark.
[22] I pause at this juncture to briefly address the issue about the murder weapon. Benjamin Sampson from the Centre for Forensic Sciences, who was accepted as an expert in firearms and tool marks, compared the .22 calibre shell casing found at the scene of the murder with a shell casing test fired from the .22 calibre handgun that was found in the vent at the home of B.I. His expert opinion was that there was a match between the two shell casings such that he could conclude that the handgun was the murder weapon. The defence engaged in a considerable effort to discredit that conclusion. That effort consisted in large part of looking a photographs of the two shell casings and pointing to dissimilarities between the two, despite Mr. Sampson’s consistent position that attempting to make comparisons through the use of photographs was inappropriate. Rather, Mr. Sampson said that the only way of making a comparison was through the use of two compound microscopes that are connected by an optical bridge so that the casings can be viewed in three dimensions with the concomitant ability to view all aspects of the casings.
[23] I appreciate that the opinion that Mr. Sampson gave is, to some degree, a subjective one. The nature of the examination of bullet casings does not permit an entirely objective analysis. That said, nothing that the defence raised brought into serious question any of the methodology employed by Mr. Sampson nor did it undermine in any way his conclusion or his position that photographic comparisons were inappropriate and unhelpful. As Mr. Sampson said, the photographs were produced for illustration purposes and could not be used as a substitute for direct physical examination of the casings. I would note on this issue that there was no other expert evidence lead that disputed Mr. Sampson’s methods or that contradicted his conclusion.
[24] I would also note that it would be quite a coincidence that a firearm of the same calibre that was used to shoot Mr. Mark would be found hidden in a vent in the home of a friend of Mr. Skeete. I should add in this regard that the explanation that B.I. gave as to how he came into possession of this firearm was so patently absurd and untrue that even Mr. Skeete, in his evidence, gave no credence to it.
[25] Returning then to Mr. Skeete’s role in this matter, Mr. Skeete gave an explanation for his presence in the area of the murder when it occurred. He said that he went with a friend of his, D.L-K., another young person, to a tattoo parlour on Keele Street near Dundas Street to get a tattoo. Mr. Skeete says that S.M. drove them there and left but was to return to drive them home. Mr. Skeete left the tattoo parlour at 9:00 p.m. when it closed and he and D.L-K. went to a doughnut shop to wait for S.M. Mr. Skeete attempted to contact S.M. but the battery on his cell phone ran out at around 9:30 p.m. so he had no way of contacting S.M. Eventually, at around 9:40 p.m., Mr. Skeete and D.L-K. went out in search of a cab. While they were trying to hale a cab, Mr. Skeete says that S.M. came walking quickly towards them. S.M. told them that he had seen someone get shot. They all then left the area in the car that S.M. was driving.
[26] Mr. Skeete’s explanation for his presence in the area is one that is, in my view, manifestly untrue. It would again have to be the most remarkable of coincidences that Mr. Skeete would just happen to choose to get a tattoo on the very night and in the very area where the person, who he had a motive to harm, was murdered. That coincidence is expanded by the suggestion that his driver, S.M., left him at the tattoo parlour and then also just happened to go to and witness that very shooting. Equally remarkable is that Mr. Skeete says that his cell phone dies at the very point in time when the murder is committed but nonetheless he manages to connect with S.M. right after the murder so that S.M. can still drive him and D.L-K. home. Added to all of these coincidences are the facts that a white jacket that bears a close resemblance to the jacket worn by the shooter as seen in the two videos is found in the basement of Mr. Skeete’s home, complete with gunshot residue in the two front pockets, and a firearm of the same calibre as the murder weapon is found hidden in a vent in the home of a friend of Mr. Skeete.
[27] I should say one more thing about the white Averix jacket. The defence asserts that the white Averix jacket is not the jacket that was worn by the shooter and that is seen in the two surveillance videos. This assertion by the defence arises mainly out of its challenge to the evidence of D.M., about which I will have more to say later.
[28] The assertion that the white Averix jacket is not the jacket worn by the shooter finds no traction in the evidence. The surveillance videos show a light coloured or white jacket and the Averix jacket is white. D.M. said that there was some type of design on the jacket and the Averix jacket has what might fairly be described as a design on the back of the jacket. The police re-creation of the events shown in the coin laundry video using the Averix jacket illustrated that the design on the back of the jacket would not be picked up by the surveillance video and thus explains why that design is not seen in the coin laundry video. Finally, of course, is the salient fact that gunshot residue was found in both front pockets of the Averix jacket. Mr. Skeete could not explain how the Averix jacket came to be in his basement and certainly could not explain how gunshot residue got into the pockets.
[29] I earlier referred to the fact that Mr. Skeete had a motive to kill Mr. Mark. By going to the police and telling them that J.B. and Mr. Skeete were involved in his shooting, Mr. Mark had broken the code of silence in the community of which Mr. Skeete was also a member. Mr. Skeete believes in the code of silence. Mr. Mark broke that code by co-operating with the police, a fact that Mr. Skeete acknowledged. In addition, while the attempted murder charge may have ultimately been withdrawn against Mr. Skeete, the fact remains that Mr. Skeete spent thirteen months in custody before that occurred. Admittedly some of that time would have been spent in any event because of another charge that Mr. Skeete was facing, but that does not change the fact that Mr. Skeete and his younger brother were the subjects of this very serious charge, that they spent some time in custody because of it and were always faced with the jeopardy that arises from the prospect that they might be convicted of it. Indeed, it would appear from the reasons of the trial judge that J.B. came perilously close to that very result.
[30] The fact that a person has a motive to harm another person, and harm to that second person results, is not, of course, sufficient on its own to prove that the first person acted on that motive. Therefore arguing over whether one should characterize the motive evidence as strong or weak is, to a large degree, irrelevant. What is relevant is that a motive exits. It is a circumstance that, when coupled with other evidence, may tend to support a finding of guilt which is what it does in the case of Mr. Skeete. No one else had any reason to harm Mr. Mark. Mr. Skeete is at the scene of the crime. Mr. Skeete has possession of the jacket worn by the shooter. Mr. Skeete’s friend has possession of the murder weapon. The confluence of those facts leads in only one direction.
[31] Having said that I am satisfied beyond a reasonable doubt that Mr. Skeete was the shooter, I should add that I am also satisfied beyond a reasonable doubt that the murder of Kenneth Mark was both planned and deliberate. I reach that conclusion from the following evidence:
(i) there was a gun used that was brought to the scene in order to commit the murder;
(ii) the shooter is seen in the laneway beside the coin laundry essentially staking out the pizza store where Mr. Mark is buying his food;
(iii) once Mr. Mark left the pizza store, the shooter ran across Dundas Street and up behind Mr. Mark for the purpose of then firing one shot into the back of Mr. Mark’s head;
(iv) the shooter left the scene in a car that he had waiting for him to assist in his escape;
(v) the cell phone records show that Mr. Skeete was in the area of Dundas and Gilmour for more than an hour before the shooting of Mr. Mark.
The involvement of S.M.
[32] With those conclusions reached, I now turn to the question whether the prosecution has established beyond a reasonable doubt that S.M. was a party to the first degree murder of Kenneth Mark.
[33] Different bases are advanced for finding S.M. to be a party to this offence. The prosecution submits that joint principals, aiding and common purpose are all possible avenues for such a finding in this case. I begin by saying that I am not convinced beyond a reasonable doubt that Lamar Skeete and S.M. were joint principals in the murder of Kenneth Mark. There is simply insufficient evidence to show that S.M. actively participated in the planning of the murder of Mr. Mark or that he and Mr. Skeete came to some joint agreement to carry it out. Indeed, given S.M.’s attitude, that I will refer to again later, I doubt that Mr. Skeete would have used S.M. to help him plan this murder. Mr. Skeete was the leader among this group of young men; the others were the followers.
[34] I turn then to whether the prosecution has proven that S.M. aided Mr. Skeete in the murder of Kenneth Mark. In order for S.M. to be liable as an aider, the prosecution must establish beyond a reasonable doubt that S.M. intended to help Mr. Skeete commit the offence. I being with the basic principles, one of which is that actual assistance is necessary. It is not enough that S.M. was simply there when Mr. Skeete murdered Kenneth Mark. On the other hand, if a person knows that someone intends to commit an offence; and goes to or is present at a place to help the other person commit the offence, that person is an aider of the other person’s offence and equally guilty of it.[^1]
[35] Further, aiding relates to a specific offence. An aider must intend that the offence be committed, or know that the other person intends to commit it and intend to help that person accomplish his goal. The aider does not, however, have to know precisely how the offence will be committed.[^2]
[36] With respect to that issue, I will first say that I am satisfied beyond a reasonable doubt that S.M. was present when Mr. Skeete shot Kenneth Mark. There can be no doubt that S.M. is the person who is shown in the Malta bake shop video. Mr. Skeete’s said that it is S.M. in that video and I accept his evidence on that point. Also, I note the similarity between the clothing that the male in the video is wearing and the clothing found in S.M.’s home. I also note that it is implicit in S.M.’s statement that he is the male in the bake shop video as he refers to the fact that a friend of his along with one of his girlfriends both told S.M. that they had seen him on the news after they saw that video on the news. Indeed, they both told S.M. that he was “hot”, that is, wanted by the police. These observations also confirm Mr. Skeete’s evidence when he said that anyone who knew S.M. would recognize him in that video. Finally, of course, is S.M.’s own admission that he made when he was arrested that “I saw the whole thing go down but that is all”, an admission by S.M. that he was in the area at the time and saw a man shot.[^3]
[37] I am also satisfied beyond a reasonable doubt that S.M. drove Mr. Skeete to the scene of the murder. Mr. Skeete says that is what happened although he places the location where he says S.M. dropped him off some blocks away from the actual scene of the murder. Again, I accept Mr. Skeete’s evidence that S.M. drove him. Indeed, it would be difficult not to reach that conclusion given the contemporaneous text messages that were exchanged between Mr. Skeete’s cell phone and S.M.’s cell phone on December 29. Those messages make it abundantly clear that S.M. was to play the role of Mr. Skeete’s driver that day as Mr. Skeete said that S.M. had done in the past. It is equally clear from those text messages that S.M. picked up Mr. Skeete sometime after 7:30 p.m. on December 29.
[38] I am further satisfied beyond a reasonable doubt that S.M. drove Lamar Skeete home immediately after the murder occurred. I reach that conclusion for the following reasons. One is that Mr. Skeete says that S.M. drove him and his friend, D.L-K. to their respective homes that evening. Mr. Skeete added that S.M. was driving fast when he did so although Mr. Skeete says that was to ensure that Mr. Skeete was delivered home before his curfew of 10:00 p.m. I accept Mr. Skeete’s evidence that S.M. drove both him and D.L-K. home. Another is that D.L-K. is shown arriving at the front door of his apartment building and being let in by the person with whom he was staying. The cell phone records show a telephone call from S.M.’s cell phone to that person just before D.L-K. arrives at the apartment building which is consistent with that person being alerted to come down to the lobby to let D.L-K. in. There is also a telephone call from S.M. to Mr. Skeete directly after D.L-K. is dropped off that would corroborate Mr. Skeete’s evidence that S.M. was to call him after he had taken D.L-K. home. While it could be suggested that S.M. might have driven D.L-K. home and not have driven Mr. Skeete home, that would seem implausible in light of Mr. Skeete’s evidence, the fact that Mr. Skeete and D.L-K. were together the entire evening and the fact that Mr. Skeete’s home is essentially on the same route as one would take to get D.L-K. home.
[39] Having already concluded that Lamar Skeete shot and killed Kenneth Mark, it follows that S.M. had to pick Mr. Skeete up from the scene of the murder in order to drive him home. Not only have I rejected Mr. Skeete’s evidence that he was in the area of Dundas and Keele streets in a doughnut shop, there was insufficient time for Mr. Skeete to have gone to any other location in order to be picked up for his ride home. It also does not make any sense, in terms of Mr. Skeete’s plan to murder Kenneth Mark, for Mr. Skeete to have left himself wandering around the area where the murder has taken place in order to obtain a ride home. Mr. Skeete needed to leave the scene of the murder immediately after it occurred given that the murder had occurred in the middle of a public street. Mr. Skeete would have no idea who else might be in the area of the murder and come upon him or how close the police might be in terms of responding to any report of the crime. Mr. Skeete needed to leave the area as quickly as he could and he needed to have someone facilitate his escape since Mr. Skeete, himself, did not drive. Mr. Skeete needed a car and a driver and that was one role that S.M. was to fulfill. That conclusion not only results from the application of common sense, it is consistent with certain other pieces of evidence.
[40] One is that the cell phone records show both Mr. Skeete’s cell phone and S.M.’s cell phone in the area of Dundas and Gilmour immediately prior to the shooting. Mr. Skeete’s telephone is utilizing the tower that is closest to the area of Dundas Street West and Gilmour Streets between 8:40 p.m. and 9:30 p.m. The cell phone records show that S.M.’s cell phone is also utilizing that same tower between 8:37 p.m. and 9:27 p.m. It is an irresistible inference that Mr. Skeete and S.M. were together at that time – if not physically together, at the very least in close proximity to each other. In saying that, I have not lost sight of the fact that cell phone records cannot place a phone at any specific location. At most they can place a phone in a general area covered by a particular cell phone tower. Nevertheless, given all of the evidence, the conclusion that Mr. Skeete and S.M. were at Dundas and Gilmour is again a compelling one. In that regard, I refer to the fact that in his statements to the police, S.M. puts himself at the scene of the shooting and so does the surveillance video from the Malta bake shop.
[41] What then was S.M. doing on December 29 in the area of Dundas and Gilmour? He drove Mr. Skeete there and he drove him away but did he know what was going to happen between those two acts? I return to the evidence of D.M. The evidence of D.M. was the subject of much criticism by the defence. Indeed, the defence submits that D.M. is neither reliable nor credible as a witness. I do not agree. There is no doubt that there are problems with certain aspects of his evidence including the descriptions that he gave of the two men that he saw. If D.M.’s evidence was being relied upon to directly identify Mr. Skeete and S.M. as the perpetrators of this crime, then the well-known problems with eyewitness identification would factor prominently in any analysis of his evidence. However, the importance of D.M.’s evidence does not lie in its ability to identify those two males. Its importance is that it assists in helping to explain the actions of the two males as seen in the surveillance videos from which other conclusions can then be drawn. The fact is that D.M.’s evidence is unnecessary for the purpose of identifying Mr. Skeete and S.M. The cell phone records, the Malta bake shop video and the S.M.’s statement establish that S.M. was at the scene. The cell phone records and the other evidence I have already mentioned put Mr. Skeete at the scene. D.M.’s evidence is unnecessary for either of those conclusions.
[42] What the evidence of D.M. does do is provide some understanding of what happened up to and at the time of the shooting. In considering the evidence of D.M., one must appreciate that he was not expecting to be a witness to a murder. D.M. was mainly interested in getting and eating his food. His curiosity was piqued by the actions of two males. He was not studying the scene because he knew that someone was about to be killed and he would be required to recount what he saw. Consequently, errors in descriptions and other details are to be entirely expected from D.M. as they would be from any other ordinary individual who happens to witness a crime. Parsing every statement given and every phrase uttered by a witness without taking into consideration the circumstances in which the words are spoken is an fundamentally unfair way of approaching a witness’ evidence. What is required is to determine whether any discrepancies in the witness’ evidence undermine the reliability of the central aspects of that evidence. In my view, the evidence of D.M. meets that threshold because the core of his evidence is confirmed by other evidence, notably the surveillance videos.
[43] D.M. said that he saw two males acting suspiciously immediately prior to the shooting in terms of them walking back and forth on Dundas Street outside of the pizza store. His descriptions of what these two males do is corroborated, in part, by the two surveillance videos. In that regard, D.M.’s evidence is consistent. First we have the shooter. According to D.M., the shooter goes back and forth in front of the pizza store twice before on the third time going across the street to the alley, just as is seen on the coin laundry surveillance video. Only once does the shooter go far enough east along Dundas Street to come within range of the Malta bake shop surveillance camera and then only to the extent that one can see the right shoulder of the shooter’s jacket. The shoulder of that jacket, however, is consistent with the look of the jacket worn by the male in the coin laundry video who is clearly the shooter. It is also consistent with the appearance of the white Averix jacket. Issues raised by the defence regarding the buttons and fasteners on the jacket are irrelevant since neither surveillance video shows those items so no comparisons can be made.
[44] We know from D.M. that after the first male leaves, a second male performs the same action of walking back and forth outside of the pizza store three times. Again, this male only enters the range of the Malta bake shop surveillance camera twice. One time he walks east and then turns around to walk west, just as D.M. described. The final time he starts to run east, turns and runs west. D.M. does not say that he saw the male do that. Rather, D.M. said that his attention was caught by a running motion and that is also confirmed by the Malta bake shop surveillance video. It is worthy of note, of course, that D.M. tells the police all of what he saw before he ever sees that video.
[45] There are problems with D.M.’s description of this second male in terms of his clothing and the clothing that we see S.M. wearing on the surveillance video. Again, some discrepancies are to be expected and may be explained. For example, if the male had black gloves on (as S.M. said he might well have) and if the male had his hands up near his face (as he does the first time he is seen), it may be that D.M. mistook a gloved hand for a scarf. The point again is that we are not looking to D.M. to tell us who the male is but rather what he does.
[46] The defence elevates the discrepancies in D.M.’s descriptions to contend, if not expressly then certainly by implication, that S.M. is not the second male that D.M. saw. Rather, according to the defence, there must have been a third male present. There are two fundamental flaws in that contention. One is that it ignores the running action that D.M. described and that we see S.M. engage in on the surveillance video. The suggestion that there may have been two males who ran – one because of involvement in the murder and the other, S.M., out of fright – must arise out of desperate imagination because it certainly does not arise from the evidence or common sense. In that latter regard, I note that it is clear from the entirety of the Malta bake shop surveillance video that there was almost no pedestrian traffic on Dundas Street during the relevant time frame. This is not a situation where the sidewalk was bustling with people such that an observer might mistake one passerby for another. The sidewalks were virtually empty save for perhaps two or three other pedestrians. The other flaw is that it requires that D.M. see this third male but not see S.M. even though S.M. clearly goes past D.M.’s vantage point on at least two occasions. D.M. was clear and consistent that he only saw two males who drew his attention because of their actions.
[47] This central contention of the defence is, of course, advanced to undermine the prosecution’s suggestion that S.M. was a lookout for the murder. I would point out that, even if the defence were successful in that contention, it does not address the other basis upon which the prosecution relies for S.M.’s role in this murder and that is as the getaway driver. If S.M. was not a lookout but was the person who drove Mr. Skeete and another male away from the scene of the murder, he could still be found to have aided Mr. Skeete in the commission of the offence.
[48] The defence also raises an issue with respect to the timing of S.M.’s actions as seen on the surveillance video and the shooting of Mr. Mark. D.M. says that he saw the second male run and then he saw the first male in the middle of Dundas Street who headed up Gilmour behind Mr. Mark and shot him. There was a TTC bus that came along Dundas Street just as the shooting occurred. The bus driver gave a statement to the police, which has been admitted as evidence at this trial on consent. The bus driver said that he was approaching Gilmour and was slowing down to make a stop there when he heard a gunshot. He stopped his bus and opened the door. He was right across from the pizza store. He noticed a man in the pizza store run to the back of the store, likely D.M. as that is what D.M. said that he did. This convinced the bus driver that he had indeed heard a gunshot. The bus driver pulled his bus forward to look northbound on Gilmour. He saw a body lying in the street. The bus driver then called transit control to call the police.
[49] The defence points to the Malta bake shop video and suggests that it is possible to discern what may be a TTC bus driving along Dundas Street just as S.M. turns and runs westward. The defence adds that the coin laundry video does not show the presence of a bus when the shooter runs out of the alleyway. The defence says that this demonstrates that S.M. must have run after the gunshot and not before and thus D.M. must be mistaken about what happened.
[50] Once again, there are problems with this contention by the defence. One is that it is impossible to discern with any degree of certainty that the vehicle seen on the Malta bake shop is a TTC bus. At most, one can see the bottom portion of what appears to be a large or commercial tire. It could be any number of different vehicles. It is also a fact that, unlike the lack of pedestrian traffic at the time, there were a fair number of vehicles travelling on Dundas Street. Unfortunately for this purpose, the bake shop surveillance camera is focussed on the sidewalk and not on the street. It is not possible to tell what is happening in terms of traffic on the street. Another is that the coin laundry video only shows with any clarity the left lane of Dundas Street going west. It does not show the curb lane in any detail, that is, the lane that the bus would presumably be using especially if it is about to come to a stop at a bus stop. To try and match these fleeting images and reflections to create a time line is to greatly exaggerate the amount of information that the videos can actually provide on that subject.
[51] Further, even if the defence contention is correct, I fail to see how it assists S.M. either in providing an innocent explanation for his actions or in raising a reasonable doubt. S.M. could be a lookout who was keeping an eye out and who waited for the shooter to move towards Mr. Mark before he ran to get to the getaway vehicle. At the same time, S.M. might not have been acting as a lookout but was watching the area for the murder to occur so that he would then engage his role as the getaway driver. Once he saw the shooter moving in on his target, S.M. may have run to the getaway vehicle as the murder was in the process of being carried out in order to be ready to leave the scene. Either way, it does not change the fact that Mr. Mark was shot nor does it change my conclusion that Mr. Skeete is the person who shot Mr. Mark. And it does not change the fact that S.M. drove Mr. Skeete and D.L-K. from the scene after the murder had taken place.
[52] I would add on that latter point, two other pieces of evidence. One is the evidence of R.R. who, again for safety reasons, I identify only by initials. R.R. lived in an apartment above the Malta bake shop. On December 29, 2009, he was in the kitchen of his apartment watching a hockey game on his laptop. He heard a loud bang that captured his attention. He then heard screeching tires as would be made by a car speeding away. R.R. got up and looked out his kitchen window which faces towards Gilmour Street. R.R. did not see anything from his window. There are laneways on both sides of Gilmour Street that run behind the buildings where the Malta bake shop, the pizza store and other business are located. Indeed, it is in one of these laneways that S.M. said in his statement that he had parked his vehicle. I note that if a vehicle went west along one of those laneways, R.R. would not have been able to see the vehicle from his window. In any event, the sounds that R.R. heard are consistent with the shooting of Mr. Mark and then the escape of the shooter by car through those laneways.
[53] The other is the video that Det. Vander Heyden made of his attempt to recreate the route that a car might have taken from the scene of the killing to Mr. Skeete’s residence. The re-creation showed that it was possible for Mr. Skeete to have been at the scene of the killing and subsequently be at his residence at the time that the cell phone records have Mr. Skeete back in the area of his home. In addition, of course, I have already mentioned Mr. Skeete’s evidence that he returned home much in that fashion.
[54] Having concluded that S.M. was present at the scene of the murder and drove Mr. Skeete from that scene, in considering what S.M. was doing when he engaged in those actions, I must consider the explanation that S.M. provides for at least some of his conduct. S.M. did not give evidence in this trial but the prosecution did place into evidence the sworn videotaped statement that S.M. gave to the police after he was arrested. As the contents of that statement, if believed, would be exculpatory, it must be considered in terms of whether it raises a reasonable doubt.
[55] S.M. says that he went to the area of Dundas and Gilmour to do a drug deal. More specifically, S.M. says that he was intending to purchase a quantity of marijuana from a drug dealer who, coincidentally, he had never dealt with before and thus could not give any information to the police that might assist in locating him. S.M. says that he parked in an alleyway behind the pizza store. S.M. says that he waited for twenty to thirty minutes in this alleyway for the drug dealer to show up but he never did. S.M. says that, while he was waiting, he was confronted by a group of males who wanted to know where he was from. S.M. managed to get away from these males but then saw another male, wearing a brown jacket and a hoodie, run across the street. He says that he peaked out, it is not clear from where, and saw this male shoot someone. This male then jumped in a vehicle and left. S.M. says that he ran looking for another alleyway to escape but did not find one so he ran back to the original alleyway where he got into his car and drove away. S.M. says that he then went to his girlfriend’s place at Kipling and Eglinton.
[56] This version of events, much like the one offered by Mr. Skeete, is clearly untrue. Indeed, the defence does not suggest that the story that S.M. told the police is to be believed. Once again, it would be a remarkable coincidence that S.M. chose the very area and the very time that Mr. Mark was killed to conduct this alleged drug deal. It is noteworthy on this point that the cell phone records show that Mr. Skeete and S.M. were together the evening before in the same area and at the very same time as the murder occurred. Mr. Mark worked the night shift at Wal-Mart and was known to frequent the pizza store prior to going to his night shift. Mr. Skeete may have been intending to commit the murder that night or he may have been doing a dry run to ensure that his plan would work. Whatever he was doing, he was not helping S.M. organize or get ready for a subsequent drug deal.
[57] In addition, the cell phone records demonstrate that S.M. was in the area of Dundas and Gilmour for more than an hour before the shooting occurred – not just twenty or thirty minutes. Those records also show that S.M. did not go to Kipling and Eglinton when he says that he did. Rather, as I have already found, he drove Mr. Skeete and D.L-K. from the scene and it appears from the cell phone records that he then went home. In addition, and as the coin laundry surveillance video shows, the shooter was not wearing a brown jacket nor was he wearing a hoodie. In the end result, S.M.’s statement does not establish his innocence nor does it raise a reasonable doubt.
[58] I return then to the central question and that is what was S.M. doing at Dundas and Gilmour and what did he know was going to happen that evening? I have already concluded that S.M. drove Mr. Skeete and D.L-K. to that area more than an hour before the shooting and then remained with them thereafter. That latter conclusion is supported again by the cell phone records that show that, notwithstanding all of the communications between Mr. Skeete and S.M. during the course of December 29, their cell phones have no contact between 8:44 p.m. and 10:03 p.m. There is, of course, no need for Mr. Skeete and S.M. to have contact by phone because they are together.
[59] There also can be no doubt that S.M. is the second male that D.M. saw walking back and forth in front of the pizza store and is the male recorded on the Malta bake shop surveillance video. I accept the evidence of D.M. that his attention was caught by the second male running past the pizza store and that he then saw the shooter come across Dundas Street, come up behind Mr. Mark and shoot him. I am satisfied beyond a reasonable doubt that S.M. ran as the murder was about to occur because he had to get to his vehicle to be ready to drive Mr. Skeete and D.L-K. away from the scene of the murder.
[60] Did S.M. know that Mr. Skeete was going to shoot Mr. Mark? The defence suggests that S.M. may have believed that Mr. Skeete was going to commit a robbery. Reference is made to a text message the day before between Mr. Skeete (using his younger brother’s girlfriend’s cell phone) and S.M. where Mr. Skeete asks S.M. “Where’s the whip we have a eat”. There is no dispute that the word “whip” refers to a car. According to the prosecution’s expert on urban language, “eat” means a robbery, although other witnesses said that it can also mean a drug robbery specifically. Mr. Skeete said that “eat” means a drug deal.
[61] I am unable to reach any conclusion as to what that single text message means. There is no framework in which to place that message in order to assist in understanding its meaning. Like many other words used in urbane or codified language, a particular word can mean different things to different people and in different contexts. While there is other evidence that shows that S.M. was in the habit of planning the robbery of drug dealers, indeed the defence suggests that this was S.M.’s main occupation, there is no evidence that Mr. Skeete regularly engaged in that activity.
[62] More importantly, however, for the issue before me is the fact that there is no other evidence to suggest that a robbery was being planned for the evening of December 29. There is also the salient fact that Mr. Mark was not robbed. His money and other belongings were found on his person. In addition, there is nothing in the evidence that would suggest that there would be any reason that Mr. Skeete and S.M. would be engaged in a plan to rob Mr. Mark. Mr. Mark was not a drug dealer nor was he possessed of large sums of money or other valuable items that would make him a likely target for a robbery. Simply put, there is nothing to show that robbery was the object of the events that took place on the evening of December 29.
[63] The fact is that Mr. Skeete killed Mr. Mark and he did so in retaliation for Mr. Mark having breached the code of silence by telling the police that J.B. had shot him in the presence of Mr. Skeete. Mr. Skeete wanted to exact his retribution for that breach. Whatever else one might say about Mr. Skeete, it is clear that he is an intelligent individual. Indeed, when asked who was the smartest person among his group of friends, Mr. Skeete responded boldly “obviously me”. Certainly, Mr. Skeete was intelligent enough to plan out the murder of Kenneth Mark and to enlist the people that he needed to carry out his plan. One critical component of that plan was a means of escape. I am satisfied beyond a reasonable doubt that Mr. Skeete enlisted S.M. to perform that role. That is clear from the text messages and from the fact that S.M. was the person that Mr. Skeete, as well as others, employed as both their driver and their supplier of vehicles.
[64] S.M. drove Mr. Skeete to and from the murder. He remained at the scene of the murder during which time he acted in a manner that is consistent with his involvement in the murder as a lookout and inconsistent with any innocent explanation for his presence. Further, it is of some significance that notwithstanding all of the communications that are transmitted through the cell phones of Mr. Skeete and S.M. on December 29, for the fifteen minutes before the murder and for fifteen minutes after it, the cell phones of Mr. Skeete and S.M. are silent. While there may be other conceivable explanations for this period of inactivity, it is once again a compelling inference that the reason that both Mr. Skeete’s and S.M.’s cell phones are silent for the period immediately prior to, during and immediately after the murder is that neither Mr. Skeete nor S.M. wanted their cell phones to interrupt or interfere with their intended plan. The last thing that either of them needed was to have one of their cell phones go off and alert Mr. Mark to their presence.
[65] The defence asserts that the openness with which S.M., Mr. Skeete and others communicated through their text messages in the days leading up to the murder, and even after it, is inconsistent with the planning of a murder. I do not accept that assertion. I am sure that the defence is correct when they say that S.M. and the others did not expect their messages to be intercepted but it does not follow from that fact that the contents of the messages thereby attract an innocent explanation. The contents of the messages speak for themselves. Many accused persons have their criminal activities revealed through the interception of their communications and I assume that none of them expected that result either. It is noteworthy on this point that after the police executed a search warrant at Mr. Skeete’s home, he immediately contacted S.M. to tell him of the search and to urge him to get a new phone – a suggestion that S.M. ignored. Mr. Skeete’s explanation that he only did that because S.M. was the person he bought drugs from is an entirely unconvincing one. It is also noteworthy on this point that despite all of the text messages that went to and from S.M. in the days after the murder, there are none in which he mentions that he saw someone get shot. One would have thought, if this event was an entirely unplanned and surprising one, that S.M. would have been inclined to have mentioned it to his friends.
[66] The defence also asserts that the casual attitude of S.M. on the day of the murder suggests that S.M. was unaware of what was planned. Again I do not accept that assertion. I am unaware that there is a particular attitude that persons who are engaged in a murder must exhibit. The unfortunate fact is that some people take the killing of another person with very little, if any, concern or reflection. The evidence suggests that S.M. was quite casual about many of his activities including his regular theft of motor vehicles and his frequent discussions of committing armed robberies of drug dealers – an activity that is an inherently dangerous one. S.M.’s casual attitude on December 29, including being late in meeting up with Mr. Skeete, appears to be entirely in character for him. S.M. may not have been the most reliable accomplice but he was a necessary one for Mr. Skeete.
[67] It is also noteworthy on this point that S.M., despite his young age, cannot claim any naivety about the presence and use of guns. S.M.’s text messages are replete with references to the need for, and obtaining of, guns to be used in the planned robberies of drug dealers. Indeed, in one of those text messages it is suggested that S.M. is going to obtain a gun from “Ryda”, the nickname for B.I., the young man who had the murder weapon hidden in his home. The text messages also refer to S.M.’s possible involvement in an early drive by shooting. In addition, when S.M.’s home was searched by the police, a number of rounds of .22 calibre ammunition were found hidden in the ceiling of his bedroom. This was, of course, the same calibre of ammunition used to kill Kenneth Mark.
[68] In summary, I am satisfied beyond a reasonable doubt that Lamar Skeete planned the murder of Kenneth Mark and then carried out that plan. I am equally satisfied beyond a reasonable doubt that S.M. knew of Mr. Skeete’s plan and participated in it by acting as both a lookout and, more importantly, as the getaway driver. In doing so, I am satisfied beyond a reasonable doubt that S.M. performed those roles with the intent of assisting Mr. Skeete in his plan to murder Kenneth Mark and is therefore as guilty of that crime as is Mr. Skeete.
NORDHEIMER J.
Released: June 1, 2012
Court File No.: YC-11-10000002
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
S.M.
(a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: see R. v. Marciel (2007), 2007 ONCA 196, 219 C.C.C. (3d) 516 (Ont. C.A.) at paras. 88-89.
[^2]: see R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411 at para. 17.
[^3]: On an earlier voir dire, I ruled this statement by S.M. inadmissible. However, after that ruling, the defence asked for the utterance to be admitted and it therefore ultimately formed part of the evidence at trial.