COURT FILE NO.: YC 50000006-12

DATE: 20130529

ONTARIO

SUPERIOR COURT OF JUSTICE

Toronto Region

[Note: This proceeding is subject to publication restrictions under section 110 of the Youth Criminal Justice Act.]

B E T W E E N:

HER MAJESTY THE QUEEN

P. Zambonini & K. Lockhart, for the Crown

• and -

S.B.1, T.F., M.W. and S.B.2 (young persons pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)

S. Boutzouvis & A. Moustacalis, for S.B.1 I. Kostman, for T.F. D. Goodman & M. Simrod, for M.W. S. Robichaud & N. Amiri, for S.B.2

HEARD: April 2, 8-12, 15-19, 22-25, April 29-May 1, May 6-8, 10 & 13-15, 2013

Nordheimer J. (orally):

[1] I begin my reasons by noting that the accused are all young persons and are entitled to the protections regarding publication of their identities provided for in the Youth Criminal Justice Act, S.C. 2002, c. 1. Normally I would refer to them only by their initials but, in this case, two of the accused have the same initials. Consequently, and in order to avoid confusion, I will instead refer to each of the accused only by their first name. I will do the same with respect to any young persons who were witnesses in this case and whose evidence I may have to mention.

[2] S.B.1, T.F., M.W. and S.B.2 are all charged with the first degree murder of Tyrone Bracken. On November 17, 2010, shortly after 3:30 in the afternoon, sixteen year old Tyrone Bracken was shot and killed in the west staircase at 135 Neptune Drive in the City of Toronto. 135 Neptune Drive is part of a complex of three buildings: 135, 145 and 155 Neptune Drive. The Neptune complex is located near Highway #401 and Bathurst Street.

[3] Tyrone lived at 135 Neptune Drive with his mother and sister although, for reasons that I will mention, he was not actually living there on the day that he was murdered. Tyrone died from a single gunshot that entered his skull behind his right ear. The bullet lodged in his left temple area. This gunshot wound would, for all practical purposes, have been immediately fatal. Tyrone also suffered a second gunshot wound. That bullet grazed his right cheek and his nose before lodging in the wall of the staircase. The distance from which the fatal shot was fired could not be formally determined because Tyrone was wearing a hoody at the time so there was no gunshot powder or stippling or other indicia of distance present at the wound entrance. However, based on the presence of gunshot powder and stippling near the facial wound, and given the confines of the staircase where the shooting occurred, it is readily apparent that the fatal shot was fired mere inches from Tyrone’s head. Put in its simplest and basic terms, Tyrone was executed.

[4] It is the prosecution’s position that the four accused were all involved in a plan, the objective of which was to kill Tyrone. In furtherance of that plan, Tyrone was lured into a staircase in the building where he lived and was then murdered. The prosecution contends that S.B.1, T.F., and S.B.2 were all present when Tyrone was killed and that M.W., while not present, was instrumental in organizing the murder.

Background

[5] I will begin with the background facts leading up to the shooting of Tyrone. Tyrone was on bail for two separate sets of drug offences. The conditions of his release required him to live at 135 Neptune with his mother or at an address in Brampton where a close friend of his mother’s lived. While Tyrone initially was living at 135 Neptune, I accept his mother’s evidence that she came to the conclusion that it would be better if Tyrone lived in Brampton. Tyrone would be able to obtain work there with another family friend. I also assume that, in reaching this conclusion, Tyrone’s mother was hoping to remove Tyrone from the negative influences that he appeared to be under at the Neptune complex. I should add that I found Tyrone’s mother to be a forthright witness who was doing her best at a very difficult task: to provide her honest and best recollection of the events surrounding the death of her son. I generally accept her evidence as to what occurred.

[6] On the morning of November 17, Tyrone left Brampton in the company of F., the daughter of Tyrone’s mother’s friend with whom he was staying. They travelled to Toronto for the purpose of Tyrone appearing at court at 311 Jarvis Street on his drug offences. After that appearance, Tyrone and F. travelled to the Neptune complex. I accept the evidence of Tyrone’s mother that the intention was that Tyrone would spend the night at 135 Neptune and that it was widely known that he was going to do so. In particular, according to Tyrone’s mother, this plan was known to T.F. and to S.B.2. Indeed, T.F. had asked Tyrone’s mother to have Tyrone call him when he got to Neptune.

[7] Tyrone and F. arrived at Neptune at 12:54 p.m. as can be seen on the surveillance videos.[^1] They first tried to enter the east door of 135 Neptune but they were unsuccessful. They then proceeded to the centre or main door of 135 Neptune and entered the building through that unlocked door. Tyrone and F. went up to the Bracken apartment where Tyrone’s mother was.

[8] Prior to Tyrone and F. arriving at 135 Neptune, Tyrone’s mother says that she was home with Skyyy, Tyrone’s sister. Tyrone’s mother says that Skyy left to go to court that morning because she had to turn herself in for a breach of a court order. Tyrone’s mother then went to visit the mother of S.B.2 who lived at 155 Neptune. While there, she had a discussion with S.B.2’s mother in which she mentioned that Tyrone was going to be coming home. Tyrone’s mother believes that S.B.2 overheard this conversation. Tyrone’s mother returned back to her apartment prior to Tyrone and F. arriving. She believes that a short time later S.B.2 came over to see if Skyy had turned herself in for the breach because S.B.2’s sister, B., also had to turn herself in that day for the same reason. In fact, by this point, Skyy had already left for court where, after she made an appearance, she was arrested for failure to comply with a court order. B., however, did not attend court. As the surveillance videos establish, B. was arrested by police officers at the Neptune complex around 1:15 in the afternoon. Tyrone’s mother believes that when S.B.2 came over, she told him either that Tyrone was coming to Neptune or that he was on his way.

[9] Tyrone’s mother also says that prior to the arrival of Tyrone and F., T.F. came over to the apartment. T.F. also wanted to know whether Skyy had turned herself in. He also asked if Tyrone was coming over. Tyrone’s mother said Yes. T.F. asked her to have Tyrone call him when he arrived.

[10] When Tyrone and F. did arrive, they were both hungry. Tyrone also told his mother that he was tired and that, if anyone came looking for him, for her to say that he was sleeping. According to Tyrone’s mother, T.F. arrived at the apartment within ten or fifteen minutes of Tyrone and F. arriving. Tyrone went out into the hallway with T.F. where he was joined by a friend of his by the nickname of Two Ten and by two brothers who lived next door. Tyrone’s mother believes that Tyrone may have knocked on the brothers’ door because he was close to both of them.

[11] According to Tyrone’s mother, Tyrone was out in the hallway chatting with others for an hour. This was not unusual as I understand that the Bracken apartment was a place where young persons in the Neptune complex frequently hung out. It was common for Tyrone and other young men in Neptune to hang out in the hallways. They would also frequently hang out in the staircases especially in the west staircase that did not have any security cameras in it unlike some of the other staircases. This activity, especially in the staircases, often involved smoking marijuana. Tyrone’s mother also smoked marijuana, often in the company of S.B.2’s mother who also so indulged. There appears to have been no concern about Tyrone and Skyy both smoking marijuana or doing so with their friends in and around the Bracken apartment.

[12] Tyrone’s mother says that, in addition to the people I have already mentioned, at some point S.B.2 came over and was also in the hallway. Further, at a later point, another male was in the hallway that Tyrone’s mother did not know. Tyrone’s mother was shown a TTC video of a male who she identified as this other male in the hallway. It is admitted that the male in that video is Sayeed James who went by the nickname Blizzy. Tyrone’s mother said that she thought it was odd that S.B.2 was in the hallway with T.F. because she knew that the two did not like each other. Indeed, Tyrone’s mother understood that, some time, perhaps a year earlier, T.F. and M.W. had been in an altercation with S.B.2 in which they had beaten up S.B.2 – an event that Tyrone confirmed to his mother had occurred. She mentioned this oddity to Tyrone at the time but Tyrone did not respond.

[13] At some later point, Tyrone’s mother believes that yet another male arrived because Tyrone came into the apartment and asked F. for her cell phone. The expressed reason for wanting the phone was so that Tyrone could record the telephone number for this male in F.’s phone. Tyrone did not have a cell phone nor was he permitted to be in possession of one because of his bail conditions. It appears that Tyrone avoided this condition by using other people’s phones especially F.’s. Tyrone’s mother says that about ten minutes after Tyrone came in looking for F.’s phone, Tyrone said that he was leaving. Subsequently, F. told her that Tyrone had left and that he was going to the store. Tyrone’s mother added that, prior to Tyrone leaving, she felt that T.F. and this other male were pressuring Tyrone to leave.

[14] Tyrone’s mother says that about five or ten minutes later, S.B.2’s mother called. She asked Tyrone’s mother if she had heard gunshots. Tyrone’s mother said she had not heard anything.

[15] The Neptune complex is very close to a school. S.B.2’s mother was concerned that there may have been a shooting at the school.[^2] At about 4:00 p.m., Tyrone’s mother and F. went outside and walked to the school. Nothing appeared to be amiss. The two of them then went to S.B.2’s mother’s place at 155 Neptune. The three of them then walked back to 135 Neptune. As they did, a girl ran out of the building screaming. The three of them ran to the west staircase door of 135 Neptune where they saw Tyrone lying on the ground. Contrary to Tyrone’s mother’s recollection, it appears from the surveillance video that the police were already present when the three of them arrived at the area. The first officers had arrived on the scene in response to a 911 call at 4:04 p.m.[^3]

[16] It is at this point that I turn to the evidence of F.. F. was sixteen years old at the time. Again, I will say that I believe that F. was doing her best to be honest and straightforward in giving her evidence. Indeed, I would say that F. demonstrated a certain amount of courage in doing so given both her age and the circumstances in which she found herself giving evidence at this trial including a particular threat that was made involving her that I will have more to say about later. Notwithstanding those circumstances, however, F. struck me as a person who was prepared to stand up and do the right thing. While I do not accept everything that F. had to say, I do accept most of her evidence.

[17] F. confirms that she and Tyrone travelled from her home in Brampton to downtown Toronto so that Tyrone could attend court at 311 Jarvis Street. After that, they travelled to the Neptune complex. F. says that she did not know that they were going to Neptune but she accompanied Tyrone in any event even though she had plans to go to a basketball game that afternoon and the trip to Neptune was going to interfere with those plans.

[18] F. says that, after arriving at the Bracken apartment, T.F. appeared at the door. She tried to tell T.F. that Tyrone was not there, presumably trying to honour Tyrone’s request that he not be disturbed, but T.F. responded that, if she was there, so was Tyrone. F. says that T.F. pushed past her, entered the apartment and found Tyrone. T.F. and Tyrone then went out into the hallway. The brothers from next door were also in the hallway. F. says that, after this, she was going in and out of the hallway and at some point noticed that Two Ten was there and later that S.B.2 was also in the hallway. Yet later, F. says that Two Ten had left but that there was another person present who she referred to as the “new black male”. F. says that at some point the group of males moved from the hallway into the east staircase. F. is not able to identify the new black male but she did say, after viewing the TTC video, that this male was not Sayeed James because the clothing that Sayeed James was wearing did not match the clothing being worn by the new black male.

[19] I repeat that F. said that she was going in and out of the apartment. At one point, she heard S.B.2 tell Tyrone that he had “works”. F. understood “works” to refer to crack cocaine. She says that she saw S.B.2 show crack cocaine in a bag to Tyrone. At this point, she says that one of the males said “no girls allowed” and she left.

[20] F. does say that at some point Tyrone came into the apartment and asked for her cell phone. He wanted to put the telephone number of the new black male into her phone. F. asked who the male was and Tyrone refused to say. F. was unwilling to let Tyrone put the number into her phone without knowing who the person was.

[21] F. says that the last time that she was out of the apartment, when these males were all in the staircase, the atmosphere appeared to be tense and that everyone was very quiet. Eventually, Tyrone came into the apartment and told F. that he was going to the store for cigarettes. While F. originally said that it was about twenty to twenty-five minutes after Tyrone left that she heard what sounded like a gunshot, she later said that it was more like ten minutes after he left. F. says that she heard only one gunshot.

[22] F. offers certain other pieces of information. A few weeks prior to November 17, there was a tattoo party at the Bracken apartment. This tattoo party appears to have stretched over the entire weekend. On the Friday of that weekend, F. says that she saw Tyrone with a gun. She asked him about the gun and Tyrone told her that he had it for protection. Tyrone went on to say that he owed a person $700. F. believed that the money owed was for drugs, specifically, crack cocaine. Tyrone’s mother also confirmed that Tyrone owed a male by the nickname “Frenchie” that sum. Tyrone’s mother said that Tyrone seemed shaken by this situation. Tyrone’s mother also says that Tyrone confirmed, just before he was killed, that he still owed this money.

[23] F. says that she told Tyrone that he had to get rid of the gun and that, on the Sunday of that same weekend, Tyrone said that he had gotten rid of the gun. F. says that she had no reason to believe that Tyrone had a gun thereafter and that she was pretty certain that Tyrone did not have a gun when he was later living with her and her mother in Brampton. F. also does not believe that Tyrone had a gun on November 17 because, among other reasons, she hugged Tyrone when he left to go to the store and she believes that, as a consequence, she would have felt a gun if Tyrone had one on him. This is a fair assumption by F. given Detective Ferguson’s evidence (that I will refer to in more detail later) that the most common area to have a firearm, when one is holding it illegally, is the waistband area. Tyrone’s mother says that she had no knowledge of Tyrone ever having a gun.

[24] F. adds some other information regarding Tyrone. She says that Tyrone told her that he did not trust his friends at Neptune. He expressed particular concern that T.F. was going to “set him up” and otherwise expressed unspecified negative comments about T.F.. Indeed, F. says that on the way back from court on November 17, Tyrone told her that he thought he was going to die that day. Tyrone had also learned that T.F. was engaged in a relationship of sorts with his sister, Skyy, and that Tyrone was not happy about it. Tyrone’s mother confirms this latter fact. In this regard, it is worth mentioning that, at the tattoo party, Tyrone had gotten a tattoo on his forearm that read “trust no one”. When Tyrone’s mother asked him about the tattoo, Tyrone told her that he could not trust anyone and that people were “snakes”.

[25] Tyrone’s mother paints a different picture of Tyrone’s relationship with people at the Neptune complex. She says that she believed that Tyrone, T.F. and M.W. were all friends. I should mention that T.F. lived at 145 Neptune with his mother. M.W. had also lived at 145 Neptune but had since moved and was not living there at the time of the murder. Tyrone’s mother also thought that M.W. and T.F. were best friends. She said that S.B.2 was also a friend of Tyrone but was not the same type of friend as T.F. and M.W.. Rather, the relationship between Tyrone and S.B.2 was more the result of the fact that Tyrone’s sister, Skyy, was friends with S.B.2’s sister, B..

[26] On the issue of the events in the hallway and staircase on November 17, I also heard from Abdurazak A., one of the brothers that lived next door. Abdurazak was a great deal vaguer in his recollection of the events of that day. Like certain other witness in this trial, it was apparent that he was concerned about being a witness in this case and what ramifications there might be for him personally as a result of him giving evidence. This concern is an aspect of the Code of Silence that I will have more to say about later. Abdurazak does acknowledge that he saw Tyrone that day. Tyrone and his mother came to Abdurazak’s door, they had a chat and Tyrone and his mother then left and Abdurazak went back into his apartment. Abdurazak says that he was never in a staircase that day and that he did not see T.F. or S.B.2 that day.

[27] Abdurazak adds that Tyrone seemed to be in a good mood. According to Abdurazak, Tyrone and T.F. were not that “tight” but added that he never heard Tyrone say anything bad about T.F.. He also said that Tyrone and M.W. were friends and ultimately acknowledged that he knew M.W.’ nickname to be “lo”. Although this was not admitted, for reasons that I will develop later, I am satisfied that M.W.’ nickname was “lo”.

[28] While I am on the subject of nicknames, I should mention that counsel fairly and responsibly agreed on a number of facts in this case. One of those agreed facts addresses the nicknames of certain persons. Among those, it is admitted that T.F. had the nickname “Chiney”, Tyrone had the nickname “Detroit, and that S.B.1 was sometimes referred to as “mloc”.

[29] As I have mentioned, Tyrone was shot in the west staircase at 135 Neptune Drive. The shooting occurred shortly before 3:37 p.m. A central issue that arises on the evidence is who was present when Tyrone Bracken was murdered. There can be no doubt that T.F. and S.B.2 were there. They are seen on the surveillance videos together prior to the event and they are both seen running from the area of the staircase after the murder occurs.[^4] It is also not disputed that M.W. was not present at the time of the shooting. The cell phone records show that, while M.W. was on his way to the Neptune complex at the time of the shooting, he did not arrive there until after the shooting had occurred. The real issue on this point is whether S.B.1 was present.

[30] Unlike the other three accused, S.B.1 did not live, and had not lived, in the Neptune complex. He lived at D[…] Street West which is in the area of Scarlett Road and Dundas Street, west of Jane Street. In terms of the events of November 17, there is surveillance video from the Neptune complex that shows a male dressed in black coming to the complex.[^5] The prosecution contends that this male is S.B.1. The male approaches the east door of 135 Neptune at about 3:10 p.m. The male tries to open the door but it is locked. The male then walks back and forth outside the east wall of the building. The male appears to be using a cell phone at this point. It is a reasonable inference that this male is texting someone. After a couple of minutes, another male appears at the inside of the east door and opens it so that the first male can enter. It is not disputed that the male who opened the east door and allowed this other male to enter is T.F.. It is clear from the text messages that the first male sent messages to T.F. advising him that he was at the door so that T.F. knew to come and open the door for him. The east door of 135 Neptune leads to a staircase that runs to the upper floor of the building. The unit in which Tyrone Bracken lived with his mother and sister is on the upper floor of 135 Neptune and is located right beside this east staircase.

[31] During one brief part of the surveillance video, a different camera is able to get a view of the male in black including his face. The quality of the video is not the best and the male is wearing a hood over his head so that only some of his face is visible. The prosecution called four police officers, each of whom identified the male in the video as S.B.1. No objection was made to this evidence being led.[^6] Each of these four officers had had prior contact with S.B.1. They had investigated him for offences, they had checked on his compliance with bail conditions and they had conversed with him in a general way when they were patrolling the Neptune complex.

[32] Each of these four officers was absolute in their identification of the male in the video as S.B.1. They all acknowledged the limitations of the surveillance video including its average quality, the brief period in which the face of the male is visible and the fact that the hood of the male’s jacket partially obscured his face. Nevertheless, they were all clear that, based on their prior dealings with S.B.1, they recognized him as the male in the video.

[33] As part of the admissions made at trial, it was agreed that six other police officers were also shown this video. None of those officers could identify the male in black as S.B.1. However, each of those police officers had less familiarity with S.B.1 than did the four officers who did recognize him.

[34] I am very conscious of the frailties of identification evidence, a subject to which I will return later. I am also conscious of the fact that the reasons that each of these officers gave for why they recognized S.B.1 as the male in black were sparse. That said, the reality is that it is often difficult for any person to articulate why they recognize a person. Any of us might be challenged to describe with any specificity why we recognize a person whom we are familiar with that we may see in a crowd or across a room or in a picture. Our inability to provide descriptors does not mean, by itself, that our recognition is necessarily faulty. Nonetheless, it is an area in which a trier of fact must tread carefully.

[35] I would not be prepared to rely on the evidence of any one of these officers, on its own, as sufficient to establish that the male in the video is S.B.1. The limitations of the video that I have mentioned would make any identification suspect. There is, however, some persuasive force in the fact that all four officers independently identified S.B.1.[^7] I repeat that the officers did so independently. There is no suggestion that any of these officers had the opportunity to influence the views of the other officers nor is there anything in the manner in which they were shown the video and asked for their opinion that taints the identification process in any way. Put simply, while there is every possibility that one of these officers could be mistaken in their identification of S.B.1, there is a reduced possibility that all four of these officers are mistaken. Nonetheless, I still recognize that a reduced possibility is different than no possibility. The fact is that all four of these officers could be mistaken. Without some other corroboration of the identification, I would not be prepared to accept the evidence of these four officers as sufficient for me to make a positive finding that the male in the video is S.B.1.

[36] There is, however, other evidence that links S.B.1 to the Neptune complex on that day. In particular, there are text messages that could establish that S.B.1 went to the Neptune complex on November 17. On that point, I should say that there are a large number of text messages in this case. They figure prominently in the prosecution’s case. Of special importance, are certain text messages from November 17. These text messages are between a phone which it is admitted was used by T.F. and two phones that the prosecution asserts were being used by S.B.1 at different times on November 17. There are also related text messages between T.F.’s phone and a phone that the prosecution asserts was being used by M.W. on November 17. Finally, there are related text messages between the phones that the prosecution says that S.B.1 was using and the phone that the prosecution says that M.W. was using.[^8]

[37] In terms of the prosecution’s assertion that S.B.1 used certain cell phones before, during and after the events of November 17, I have the evidence of nineteen year old C.G. C.G. was a reluctant witness, to put it mildly. She failed to appear when subpoenaed and was eventually arrested some weeks later on a material witness warrant. C.G. was being held in custody on that material witness warrant when she gave her evidence. C.G.’s evidence at trial was largely comprised of saying “I don’t know” or “I don’t remember”. She was frequently confronted with her earlier videotaped police statement and her evidence at the preliminary hearings. Her response to those earlier statements was to say that she did not remember making those statements and that they did not refresh her memory.[^9]

[38] Notwithstanding her reluctance to provide evidence, C.G. did eventually concede certain things. Among those was the fact that she was S.B.1’s girlfriend in November 2010, a fact that was confirmed by the evidence of a friend of C.G.’s, A.R. and by the evidence of S.B.1’s mother. C.G. acknowledged that she had a cell phone with the number 647-654-1745, another fact that was confirmed by A.R.. C.G. also acknowledged that S.B.1 would use her cell phone on occasion. On that point, C.G. was shown certain text messages from her phone that were sent and received in the afternoon on November 17. C.G. denied having been a party to those text messages.

[39] The first phone that the prosecution says that S.B.1 was using on November 17 has the number 647-856-4524. I accept that S.B.1 was using that phone. There are a number of instances where the person using the 4524 phone self-identifies as “loc”. For example, at around noon hour on November 17, the phone that C.G. acknowledges was hers, 1745, texts the 4524 phone and says “yo”. The 4524 phone responds “yo”. C.G. then texts “whos this” and the 4524 phone responds “loc”. There are other similar texts between the two phones after November 17 that reinforce this conclusion including one on November 18 where C.G. texts the 4524 phone “im coming now” and then about forty-five minutes later, texts her good friend A.R. “come to m loc”. I have no doubt that these references are to S.B.1 who was speaking with his then girlfriend C.G. and was using his nickname “loc” or “mloc” in so doing.

[40] I also have no difficulty in concluding that while S.B.1 first used his own phone, the 4524 phone, on November 17, he switched to using C.G.’s cell phone in the afternoon and then later in the day switched back to the 4524 phone. The nature of the text messages sent and received by those two phones, especially C.G.’s phone, allows for no other conclusion. I note on that point the fact that C.G. denies having sent the text messages that appear on her phone in the afternoon of November 17. Not only do I accept her denial on this point, the content of the text messages would make no sense coming from C.G. There are also four text messages from A.R. around 3:30 p.m. to which there is no response. If C.G. had the phone at that time, one would expect that she would have responded to these messages from her best friend as she seems to have done on many other occasions. Further, I note that C.G.’s phone which was busy sending and receiving telephone calls throughout the morning of November 17 suddenly went silent in the mid-afternoon period with all incoming calls going to voice mail.

[41] While I will come back to the exchange of text messages on November 17, I mention at this point one particular exchange that occurs between C.G.’s phone and T.F.’s phone. At 3:01 p.m., T.F. texts C.G.’s phone “Where u at”. I should mention at this point that C.G. said that she did not know T.F. or M.W. or S.B.2. Five minutes later, C.G.’s phone responds “im here”. T.F. then texts “Wen u coming” and C.G.’s phone responds “where r u”. T.F. responds “In 35” clearly a reference to being inside 135 Neptune. At 3:11 p.m., C.G.’s phone responds “yo im at side door” and then sends a further text “hurry up by theplay ground”.

[42] The male in black, who is shown in the surveillance video, is seen at the east side door of 135 Neptune at precisely the same time: 3:11 p.m.. Significantly, the east door is also right beside a playground. This is the same male that the four police officers recognized as S.B.1. The male in the surveillance video is texting that he is at the side door by the playground using C.G.’s phone. Based on all of this evidence, it is an inescapable conclusion that the male in black seen in the surveillance video is S.B.1.

[43] While I am on the subject of cell phones, I will address the prosecution’s assertion that M.W. was using a particular cell phone, the number for which was 416-220-1948. On November 17, there are a large number of text messages between T.F.’s phone and the 1948 phone. Given the evidence that M.W. and T.F. were best friends, given the quantity of text messages between the two phones and given the content of those messages, a reasonable inference could be drawn that the 1948 phone was the one being used by M.W.. In addition to those facts, however, there are three messages on November 17 to the 1948 phone from yet another phone that help establish who is using the 1948 phone. The first message starts at 10:16:58 where the 1948 phone sends a text that, when translated into plain English says essentially “How are you stranger. You are acting like you to do not know me”.[^10] About a minute and a half later, that text receives the following response “I’m fine M.W. how are you?” The second is an exchange of messages with one at 10:27:42 to the 1948 phone that concludes with “imm a very busy girl M.W.”. The third is a single text to the 1948 phone at 23:08:35 that says simply “M.W.!”.

[44] In addition to those text messages, the 1948 phone receives approximately twenty texts between November 18 and November 29 in which the person using the 1948 phone is identified as “lo”. Among those is a text message from the 1948 phone on November 23 that says “Hey whats up its Lo”. The other person says “who” and the 1948 phone responds “M.W.”. In addition to that self-identification, there was evidence from Tyrone Bracken’s mother that she heard Tyrone and others refer to M.W. as “lo”. F. also gave evidence that M.W. was known as “lo”.

[45] Still further, there are texts later in time between T.F. and the 1948 phone regarding the fact that T.F. is going to turn himself in to the police and will be going to jail. There are also texts between T.F. and the 1948 phone respecting T.F.’s concern that his life may be in danger. The content of all of these texts are consistent with T.F. talking to his very close friend M.W.. In saying that, I am aware that cell phones often get shared. I do not doubt that cell phones in this case were shared or borrowed. The submission that the fact that phones get shared precludes any conclusion that the 1948 phone was necessarily being used by M.W. is a convenient one but it ignores the volume of messages, the nature of the messages and the content of the messages that come into, and emanate out of, the 1948 phone.

[46] I offer the following examples when I refer to the nature and content of the text messages relating to the 1948 phone:

(i) M.W. attended Northview Heights Secondary school. In one text message to an unidentified person early on November 17, the 1948 phone playfully scolds this person for skipping school. The person replies that they “hate northview”. It is a reasonable inference that the person with the 1948 phone knew that the person had skipped school because they were themselves at Northview. I would add on this point that, on November 30, an unidentified person texts the 1948 phone asking if the person with the 1948 phone goes to school. The 1948 phone responds yes and when then asked what school, the 1948 phone responds “Northview”.

(ii) On November 18, an unidentified person texts the 1948 phone at 7:45:49 “Did I wake u up”. Less than a minute later, the 1948 phone responds “Na baby I have court”. It is admitted that M.W. had a court appearance on November 18.

(iii) Also on November 18, the 1948 phone receives a message at 8:37:02 asking what class the person using the 1948 phone has. The 1948 phone replies “gym”. At that time, M.W.’ first class was gym.

(iv) Similarly on November 24, an unidentified person texts the 1948 phone “Kayy so its gym science english denn auto??”. The 1948 phone responds “Ya”. That was the same schedule and order of classes that M.W. had at the time.

(v) Finally, on November 19, a phone that was registered to the sister of M.W. texts the 1948 phone “Mom said when ur using the house phone press *67”.

(vi) On November 21, the 1948 phone texts an unidentified person “I lived in neptune my life I jus moved here When I cam out of jail I been here 4 like 6 months now or less”. M.W. used to live at 145 Neptune but moved to a different part of the city about four to six months prior to November 2010.

These are just some examples of the facts connecting M.W. to the 1948 phone.

[47] In my view, the combined effect of all of this evidence leads to the unavoidable conclusion that the 1948 phone number was the cell phone being used by M.W. at all times material to the events in issue here.

[48] I now turn back to the text messages in a much broader way. I earlier said that there were a large number of text messages put into evidence at this trial. Indeed, there were many, many pages of text messages placed into evidence. It would not be practical, nor would it be useful, to refer to all or even a good portion of those text messages. It is sufficient, for the purposes of my analysis, to refer to what I consider to be the most important messages.

[49] Before beginning, I should note a few aspects of text messages generally. One is that many short forms are used. Another is that there is often no punctuation used. Yet another is that the messages often include typographical errors. On top of all of these considerations, the text messages here often employ their own form of language that is sometimes referred to as urban street language or gang slang. Where necessary, I will provide the interpretation of the text messages that I accept. In that regard, my interpretation of these text messages, where they are not evident on their face, is based on the expert evidence of Sgt. Gavin Jansz who provided interpretations of various text messages in this case. There was no issue regarding Sgt. Jansz’s qualifications or his ability to give opinion evidence in this area. I generally accept Sgt. Jansz’s interpretations of the text messages.

[50] The crucial messages begin in the afternoon of November 17 at about 1:50 p.m. with T.F. texting M.W. “the d is outhere”. I earlier noted that there is no dispute that Tyrone’s nickname was Detroit. I do not believe that there is any controversy on the evidence that, as a consequence of his nickname, Tyrone was sometimes referred to by the single letter “d”. M.W. responds to T.F. “where inside”. T.F. responds “Yea”. M.W. then sends a message to S.B.1 saying “My yutes at his base”. There is then a phone call from S.B.1 to M.W. following which M.W. texts T.F. “Yo mloc is comein 2da hood he soon link yu”. Link you means call you or contact you.

[51] The only reasonable interpretation of these text messages is that S.B.1 is on his way to the Neptune complex. This is, of course, consistent with what I have already concluded and that is that S.B.1 is the male who arrives at the east door of 135 Neptune and is eventually let into the building by T.F.. It is also consistent with my conclusion, about which I will have more to say later, that S.B.1 had the nickname “mloc” or “loc” at the time. T.F. responds to this message by saying “Iight” meaning okay. M.W. then texts S.B.1 with T.F.’s phone number presumably so that S.B.1 can link him. Indeed, there is then a phone call between S.B.1 and T.F. About fifteen minutes later, there is a phone call between S.B.1 and M.W. That phone call is immediately followed by a text from M.W. to S.B.1 in which M.W. says “You make me know wagwan b4 I go there with my girlfriend”. Sgt. Jansz said, and I accept, that this text message is M.W. asking to be told what is going on before he goes there with his gun. S.B.1 responds “K” meaning okay. S.B.1 then adds “No y”.

[52] It is suggested by counsel for M.W. that this last message is S.B.1 telling M.W. that he will not tell him what is going on and why would he do so. I do not accept that suggested interpretation. There is nothing in the messages that would suggest that S.B.1 would rebuff M.W. in this fashion. It is also important to realize that the word “no” is often used in these text messages as a short form of “know”. In my view, given the overall context of these messages, the proper interpretation of this message is that S.B.1 is telling M.W. that M.W. knows what is going on as in “you know why”.

[53] At about 2:15, T.F. texts M.W. “Yo, hes outhere right infront of face”. Again I accept Sgt. Jansz’s evidence that this text means that Tyrone was right there with T.F., in front of his face as it were. M.W. then immediately texts S.B.1 “You hes with chiney where yu”. Chiney, as earlier noted, is T.F.’s nickname. S.B.1 responds “Im on my way”. M.W. then texts T.F. “Hes on his way”.

[54] There is then a further exchange of text messages between M.W. and S.B.1. While these messages are not directly relevant to the immediate events on November 17, they are helpful in providing some context not only for those events but also for the relationship between M.W. and S.B.1. In my view, these messages clearly show that M.W. is part of a group of people with whom S.B.1 is also associated. M.W. is concerned that he has fallen out of favour with this group. M.W. says “I feel like da mandem are chessed with me an am not fomily nomore everythings bless”. Sgt. Jansz interpreted this text as “I feel like the gang is angry at me and I am not welcome anymore”. S.B.1 reassures him by saying “Naw we just want u guys do more riding” meaning that the group wants M.W. and his associates to do more work, that is criminal activity, for the gang. M.W. responds that he needs a car and drivers to do more work and S.B.1 responds that he knows that.

[55] This exchange certainly suggests that M.W. and S.B.1 are part of a group or gang and that S.B.1 is higher up in that group than is M.W. M.W. also displays concern that he is falling out of favour with the group. It is also of some note that, in this exchange, M.W. advises S.B.1 “An I have a new girl but no belly an am being pred I need 1 asap niggaz trying to come 2 my skool”. Sgt. Jansz said that this text means that M.W. has a new gun but has no bullets for it and that he needs bullets because others are after him and may come to his school. Whether this is the same gun to which M.W. made earlier reference or a different gun is unclear.

[56] At about 2:30 p.m., T.F. texts S.B.1 “hes going dt right now” meaning Tyrone is intending on going downtown. S.B.1 responds “Naw keep him there”. T.F. responds “Iight I will” meaning okay I will. At 2:40, T.F. texts S.B.1 “Hes in the staircase beside hes door on the block”. This confirms the evidence of F. that the males outside of the Bracken apartment eventually moved into the east staircase beside the apartment. S.B.1 responds “Yo have him in a stair case”. It is not clear whether this is a question or a direction. In any event, T.F. responds “Yea”. M.W. then texts T.F. “Your with loc” and T.F. responds “Hes almost here”. M.W. texts S.B.1 “Call me right now” and there is then immediately a call from S.B.1 to M.W.

[57] At 3:01 p.m., the exchange of texts that I already mentioned takes place between S.B.1 and T.F. that leads to T.F. opening the east doorway to 135 Neptune allowing S.B.1 to enter the east staircase.

[58] At 3:24 p.m., M.W. texts “Am on my way”. There appears to be no dispute that M.W. was in school that day and was leaving school to come to the Neptune complex. There are then four telephone calls from T.F. to M.W., the first of which is at 3:27 and the last of which is at 3:39. The shooting of Tyrone occurred at or just before 3:37. This time follows from the fact that it is at 3:37 that S.B.2, T.F. and a third male are seen running from the area of the west staircase door. While the first three calls are quite brief, the fourth and final call is more than a minute and a half long. It is followed, at 3:44, by a text from M.W. to T.F. “Yur dum”. T.F. responds “How”. T.F. then sends another text, twenty seconds after the first one, saying “I didn’t bring him the d did”.

[59] There can be no real dispute over the meaning of this text. It is clear that the “him” T.F. is referring to is S.B.2. T.F. is saying that he did not bring S.B.2 to the staircase, Tyrone did. The prosecution contends that T.F. is lying when he says this. I will come back to that issue when I deal with my conclusions regarding S.B.2.

[60] At 3:55 p.m., about twenty minutes after the murder, S.B.1 texts T.F. “delete all messages”. T.F. responds “Yea”. S.B.1 then texts T.F. “did boy come yet” meaning have the police come yet.

[61] There is then a period of relative silence between S.B.1, T.F. and M.W. in terms of telephone calls or text messages. However, at 3:40, S.B.2 uses his mother’s home phone to call a taxi. At 3:50, S.B.2 is seen leaving 155 Neptune, getting into a taxicab and leaving the complex.[^11] By 4:11, M.W. has finally arrived at Neptune as he and T.F. are seen on surveillance video walking out the main entrance of 145 Neptune. They stand outside the door and watch what is going on across the way at 135 Neptune. Eventually T.F. returns inside. At this time, T.F. is no longer wearing the green and white jacket he had been wearing all afternoon nor is he wearing his distinctive black ball cap. T.F. has also changed his running shoes from a white pair to a black pair.[^12]

[62] At 5:40 p.m., there is a phone call from T.F. to M.W. At 6:03, there is an unsuccessful call from S.B.1 to T.F.. S.B.1 is now back using the 4524 phone. At 6:34, there is a call from S.B.1 to M.W.. At 6:48, S.B.1 texts M.W. “Yo don’t tell no one” and three minutes later M.W. responds “Ya you the feds is at his door”, an obvious reference to the police being at someone’s door – likely T.F.’s door as the time coincides with the time that a police officer was canvassing 145 Neptune looking for witnesses. S.B.1 responds “What they saying”. M.W. responds “We out” meaning we are leaving or we are gone. S.B.1 then responds “Send out the word the jungle niggas r going off” and M.W. responds “Yaya”.

[63] In terms of this last exchange, it should be noted that there was evidence that persons from a neighbouring area known as the Jungle were engaged in a dispute with people from Neptune. According to Sgt. Jansz, the Jungle refers to a neighbourhood in the vicinity of Lawrence Avenue West and Dufferin Streets extending to the Allen Road. This area is southwest of the Neptune complex. There had been a number of drive-by shootings at the Neptune complex that were apparently related to this ongoing dispute. I am satisfied that the meaning of S.B.1’s message to M.W. is to put out the word that the killing of Tyrone was done by people from the Jungle as a way of attempting to blame the killing on that group.

[64] There is another exchange of text messages that is of some importance. Later in the evening of November 17, at around 10:15, S.B.1 texts T.F. “K yo what happen to the next youte”. T.F. responds “Dawg I think he told his sister” and then further responds “and hes sister told Skyy the d sister”. S.B.1 says “Yo I should of drop him”. I am satisfied that this exchange of messages is clearly another reference to S.B.2. As I have already mentioned, S.B.2’s sister B. was a friend of Skyy, Tyrone’s sister. This exchange demonstrates that T.F. is concerned that S.B.2 has told his sister about what happened in the staircase and that she has, in turn, told Skyy (the d sister). This conclusion is reinforced by an earlier exchange of text messages that same evening between Skyy and T.F. That exchange starts with Skyy sending a text to T.F. “yo its sky. why am I hearin dat you set my bro up?”. T.F. strongly denies any involvement saying at one point “But really I roll with the man I sleep at ur house and u think I set him up wow wow this shit is some serious thing I cant beleave ur saying I set him up”. While I will return to this exchange when I reach my conclusions regarding T.F., it is clear that T.F. sources Skyy’s accusations back to information that T.F. believes S.B.2 gave to his sister who passed it along to Skyy leading to the exchange I have just set out between T.F. and S.B.1.

[65] After this discussion about what S.B.2 has told his sister, there is then a discussion where S.B.1 asks T.F. “is boydem looking 4 u” meaning are the police looking for him. T.F. responds “I dont think so but on the safe side I cut but im done talking this phone im going to get a next phone 2mrow and link u”. In other words, to be on the safe side T.F. has left Neptune, he is going to get a new phone and will contact S.B.1 after he gets the new phone. S.B.1 responds “me to” meaning he is also going to get a new phone. S.B.1 also tells T.F. “Delete everything”. It is of some significance that T.F. then texts S.B.1 “wen u get a new one give to lo and I will holla at u”. T.F. is telling S.B.1 that when he gets a new phone he should give the number to M.W. and T.F. will then contact him. As the evidence reveals, S.B.1 did get a new phone but T.F. did not.

[66] The concern about what S.B.2 may have told his sister leads to a further exchange of text messages a few days later between S.B.1 and M.W. By this time, S.B.1 is using his new phone. On November 23, at 10:50 a.m., S.B.1 texts M.W. “R we should slap the next youte as soon as he touch call me”. Sgt. Jansz interpreted this message to mean “we should beat or kill the younger member as soon as he gets here”. I am satisfied, on the evidence, that the reference here and in other subsequent text messages to the “next youte” is a reference to S.B.2. S.B.1 continues “Yo if we get the full 100 that he rat were goin to dun the mom and the rest”. Adapting the interpretation given to this message by Sgt. Jansz with my findings regarding the person to whom reference is being made, this message means that if they get proof that S.B.2 has told the police about the shooting, they are going to kill S.B.2, his mother and apparently also S.B.2’s sister. M.W. responds “Fuck the hole 100 iknow dat niggaz not real its on Dat was my fuckin right hand now am am alone nuff said”. Again adapting Sgt. Jansz’s interpretation of this message with my findings, this is M.W. saying that they do not need to wait for anything more, that he knows that S.B.2 is not loyal and, as a result, M.W. has lost his right hand, a reference to T.F. who had, by this time, turned himself in to the police and had been arrested. S.B.1 responds “Yo did the youte no the next niggas name”. S.B.1 does not get a response to this inquiry so a few minutes later he is more explicit. S.B.1 texts M.W. “Yo he does not no my name right” and M.W. responds “Na g”.[^13]

[67] I am satisfied that these text messages reveal a concern by S.B.1 and M.W., following on the concern earlier expressed by T.F., that S.B.2 has told his sister what happened in the staircase and that he may have also “ratted”, that is told the police, about what went on in the staircase. In the exchange with T.F., S.B.1 says that he should have killed S.B.2 at the same time. In the exchange with M.W., S.B.1 expresses the intention to kill S.B.2 as soon as he can be found. It is evident that S.B.1 does not know S.B.2 but he is very concerned whether S.B.2 knows his name. All of this concern can only arise because S.B.1, M.W. and T.F. are aware that S.B.2 saw what happened in the staircase when Tyrone was killed and that S.B.2 could then provide evidence that would link S.B.1, M.W. and T.F. to the killing.

[68] I leave the text messages at this point to refer to another aspect of the evidence. As part of the prosecution’s case, I heard from Detective Scott Ferguson of the Toronto Police Service. Detective Ferguson was called to give opinion evidence regarding the characteristics of armed persons. It is, of course, of some importance to the prosecution to establish how the gun that was used to kill Tyrone Bracken got to the scene of the murder and what happened to it thereafter. For one reason, if someone other than the shooter brought the gun, then that person could become a party to the offence in a number of different ways.

[69] There was no objection by the defence to Detective Ferguson’s qualifications or to him giving opinion evidence on the characteristics of armed persons. Those admissions, fairly made by counsel, do not, of course, constitute in any way an admission that Detective Ferguson’s evidence should be accepted. Like any other witness, I, as the trier of fact, am entitled to believe or rely upon the opinion of an expert witness as much or as little as I see fit.

[70] Detective Ferguson reviewed various clips from the many surveillance videos that form part of the evidence for the prosecution in this case. In particular, Detective Ferguson watched certain video clips that feature T.F. and S.B.2. Detective Ferguson concluded that at various points in time, all prior to the shooting, S.B.2 had a heavy object in the front pocket of the green sweater or “hoody” that he was wearing. While I accept Detective Ferguson’s conclusion that there was something in S.B.2’s pocket, there is nothing in the surveillance videos that assists in determining what that object was. Admittedly, it could have been a gun. However, it could have been any number of other things including, for example, a cell phone. On this point, Detective Ferguson’s evidence does not add anything that I could not have determined from viewing the videos myself and, in any event, does not assist in making a conclusion as to the nature of the object that was in S.B.2’s front pocket.

[71] After the shooting, T.F. and S.B.2 are both seen running from the area of the west staircase at 135 Neptune. S.B.2 is seen running directly towards one of the surveillance cameras. His sweater is clearly visible. Detective Ferguson essentially acknowledged that, at that point, there does not appear to be anything in the front pocket of S.B.2’s sweater. This is evident from the manner in which S.B.2 is running and the also from the way in which the sweater moves at the time. While some upward movement of the sweater can be seen, that movement appears to be the result of the running and not as a result of any object being present.

[72] The observations respecting T.F. are different. In observing T.F. running from the area of the staircase, Detective Ferguson concluded that T.F. was running in a manner that suggested he might have a firearm on his person. As noted by Detective Ferguson, persons when running normally have both arms moving, as can be seen in the manner in which S.B.2 runs. When T.F. is running, his arms are tight to his sides. Detective Ferguson said that this action is consistent with a person having a firearm on their person that they are protecting from falling as they run. Detective Ferguson pointed out that persons who are illegally in possession of a firearm do not normally have a holster in which to secure the gun. Consequently, they tend to have the firearm tucked into the waistband of their pants or stuck in a pocket. In either case, when running, the person will almost instinctively want to hold onto the firearm so that it does not fall out. This is the type of conduct that is seen in the actions of T.F. as he runs from the staircase.

[73] I accept Detective Ferguson’s basic point. T.F.’s actions as he runs, or the manner in which he runs, raise a suspicion that he is protecting something that he is carrying on his body. Suspicion of a matter is, however, not proof of it as a fact. Detective Ferguson’s evidence is insufficient on its own to establish, to the requisite degree of proof, that T.F. was in fact in possession of a firearm when he ran from the staircase. It remains a fact that there are other reasons why T.F. might have run in the fashion that he did other than because he was in possession of a firearm.

[74] I will add, on the issue of Detective Ferguson’s evidence generally that, while I appreciate that the characteristics of an armed person is a matter of importance for police officers to understand for the purposes of officer and public safety, the knowledge of those characteristics does not translate to proof, for evidentiary purposes, that a person is, in fact, armed. While an officer, equipped with the knowledge of the characteristics of an armed person, will govern his conduct accordingly and thus be in a much better position to protect himself and others, the opinion or presumption that a person may be armed does not equate to the reality that the person is armed. The law requires more than hunches or presumptions to establish a fact for evidentiary purposes.

[75] There is, however, other evidence that bears on the issue of whether T.F. had a gun on his person when he ran from the scene of the shooting. Very early in the morning of November 18, some hours after the murder, T.F. has an exchange of text messages with his mother. These text messages, in turn, led T.F. to have a contemporaneous exchange of text messages with Isaac Benson.

[76] The text messages between T.F. and his mother begin at eight minutes after midnight with T.F.’s mother saying “Who bag is dat. N in da bag. Hope no poli don’t break my door.” T.F.’s mother is concerned about something she has found in a bag and is expressing concern that the police may break down her door. T.F. responds “Go look in the bag nothing is there”. Two minutes later, T.F.’s mother says “Ur my son n I love you hope you didn’t mak da wrong choice in life.” Two minutes after that, T.F.’s mother says “Yes somethin in a stocks”. T.F. almost immediately responds “Throw it away”. T.F.’s mother says “Where”. T.F. responds “Wait im sendin someone for it”. Five minutes later, T.F. tells his mother “Out the window now.” His mother responds “My han on it” indicating that she has put her hand on the object. T.F. responds “Clean it then throw it out”. About four minutes later, T.F. tells his mother “Wait some one is going to come if I don’t text u back in 5 minss throw it”. I note that it is at this point that T.F. is engaged in an exchange of messages with Isaac Benson that I will detail in a moment. About six minutes later, T.F.’s mother sends a message to T.F. that says simply “G”. T.F. responds “Wats g”. His mother says “Wat to do”. T.F. responds “Clean it and throw it away now”. T.F.’s mother responds “where”. Five minutes later, T.F. responds “Out the window”. About nine minutes later, T.F. asks his mother “U did it” and his mother responds “I did”.

[77] It is of some importance to know, in terms of this exchange of messages, that T.F. and his mother lived at 145 Neptune at the time. Their unit was on the second floor. The unit was on the east side of the building. The windows from that unit face onto a relatively narrow grassy treed area with a fence that separates the Neptune complex from what appears to be garages or other low structures further to the east.[^14]

[78] I mentioned that the exchange between T.F. and his mother prompted an almost concurrent exchange between T.F. and Isaac Benson. Mr. Benson had been having a text conversation with T.F. since about 10:00 the prior evening. They had been talking about the murder of Tyrone and concerns that T.F. had regarding his relationship with Tyrone’s mother and sister. Mr. Benson then turned the conversation to T.F.’s mother. Mr. Benson had been talking to T.F.’s mother who was concerned about T.F. and where he was. Mr. Benson asks T.F. to contact his mother. He tells T.F. “No she thinks ur gonna ride…And do some one some thing…Cause of the d…And Skyy n her moms in b town…” In other words, T.F.’s mother is concerned that T.F. is going to do something because of what happened to Tyrone. Mr. Benson adds that Skyy and Tyrone’s mother are in Brampton. T.F. says “Iight but you send someone to my house to get something out of there”. Mr. Benson responds “Girl friend” and T.F. responds “Bellyz )or it”. Mr. Benson says “Should I send ali” and T.F. says “Yea anyone”. Mr. Benson asks “Where are they” and T.F. responds “At my house my mom has it”. Mr. Benson then says “Okay”.

[79] Mr. Benson subsequently tells T.F. that he cannot find anyone to go to T.F.’s home. By this point, T.F. has already confirmed with his mother that she has gotten rid of “it”. Mr. Benson also advises T.F. that the police knocked on the door of T.F.’s place and said that they wanted him for questioning. A couple of hours later, Mr. Benson advises T.F. not to use his phone because T.F.’s mother gave the police the number for T.F.’s phone.

[80] Mr. Benson gave evidence at this trial. I will say that Mr. Benson was so obviously being untruthful in his evidence that I do not accept much of what he had to say. Mr. Benson’s claim that he did not understand many of the text messages that he both sent and received during this time was particularly lacking in credibility. On the one hand, he claims not to have understood many of these messages but at the same time he acknowledges that he rarely, if ever, asked for clarification or an explanation. The fact that Mr. Benson blamed his consumption of marijuana for his inability to remember salient details is a convenient, but incredible, explanation. That said, there were some instances, albeit few in number, where Mr. Benson did manage to offer the truth. Included in those are Mr. Benson’s acknowledgement that he knew Tyrone Bracken to go by the nickname of Detroit and his recognition of a picture of T.F..

[81] In terms of the exchange with T.F. that I have just set out, Mr. Benson says that his response of “girl friend” was his way of saying to T.F. that he should send his girlfriend to get the object. I consider that explanation to be patently false. I have already mentioned that I had the evidence of Sgt. Gavin Jansz regarding the interpretation of these text messages insofar as they employ coded language (sometimes referred to as gang slang). Sgt. Jansz was of the opinion that the use of the term “girl friend” in this message was a reference to a gun and that similarly the use of the term “bellyz” was a reference to ammunition or bullets. Sgt. Jansz’s interpretation of these messages confirms what would otherwise have been my interpretation of these messages.

[82] Mr. Benson was aware that Tyrone Bracken had been shot and killed. He knew that T.F. had some involvement or knowledge of that fact. That is evident from earlier text messages between Mr. Benson and T.F.. I have no doubt that, when Mr. Benson said “girl friend” in this text message, he was asking whether the object that T.F. wanted picked up was a gun. This conclusion is not only confirmed by Sgt. Jansz’s opinion, it is also confirmed by T.F.’s response of “bellyz )or it”. I reject Mr. Benson’s evidence that he did not understand what T.F. meant by “bellyz”. Again, I accept Sgt. Jansz’s evidence that “bellyz” means bullets or ammunition and that Mr. Benson would have known that is what the word meant in this context. If Mr. Benson truly did not understand what T.F. was saying, like any normal person, he would have asked T.F. to explain. Instead, Mr. Benson simply responds by asking if he should send a particular person to pick up the object. Mr. Benson’s contention that he did not have any idea what T.F. was talking about, in terms of what it was that was to be picked up, and yet made no request for an explanation, is yet another example of Mr. Benson’s lack of candour. I conclude that Mr. Benson had a very good idea what T.F. was referring to.

[83] This conclusion is also confirmed by the exchange of text messages between T.F. and his mother. Those messages allow for no other explanation but that T.F. had left some illegal object in his house and his mother had found it. She is understandably worried about what she has found, that the police may come looking for it and she is concerned that her son has made a wrong choice in life. Whether the object was a gun or bullets or both is admittedly not entirely clear on the content of the messages but what is clear is that no other illegal object would fit comfortably into those messages. The suggestion that it might be drugs cannot be accepted since one would not tell another person to clean drugs. Even assuming that there is a method by which one can clean drugs, it would be hard to understand what the purpose would be of cleaning drugs if the drugs are simply to be thrown out. Based on nature of the exchange and the fact that T.F. and his mother consistently refer to the object as “it”, I am satisfied that the object that T.F. wanted Mr. Benson to have someone retrieve from his home, and which he subsequently got his mother to dispose of, was a gun. Whether there were bullets as well is really of little consequence. T.F.’s mother may have found the gun and not the bullets or she may have found both but was much more concerned with the gun than with the bullets. The truly disturbing aspect of these messages, frankly, is that T.F.’s mother willing assists her son to dispose of a gun hours after a sixteen year old boy has been shot and killed in the very complex in which they live.

[84] I should also note at this point that the gun that was used to kill Tyrone was never found.

[85] That concludes my summary of the evidence insofar as it is necessary to set the backdrop against which my analysis will proceed. I will refer to other portions of the evidence as I address my conclusions regarding each of the accused persons. Before doing that, however, I wish to deal with the elements of the offence of first degree murder.

Legal Principles

[86] In order for any of the accused to be found guilty of first degree murder, the prosecution must satisfy each of the following elements of the offence beyond a reasonable doubt:

(i) that the accused caused the victim’s death;

(ii) that the accused caused the victim’s death unlawfully;

(iii) that the accused had one of the states of mind required for murder, and;

(iv) that the murder of the victim was both planned and deliberate.

In terms of the required states of mind for murder, the prosecution must prove that the accused either meant to kill the victim or meant to cause the victim bodily harm that the accused knew was likely to kill the victim and was reckless whether the victim died or not. The prosecution does not have to prove both. One state of mind for murder is enough.

[87] It is self-evident that the person who shot Tyrone in the head caused Tyrone’s death and that his death was caused unlawfully. It should also be obvious, from the proximity of the gun to Tyrone’s head when the shots were fired, that the person who fired those shots either meant to kill Tyrone or was reckless whether Tyrone lived or died.

[88] While those conclusions are sufficient to deal with the person who actually fired the gun, it should be pointed out that a person can be found guilty of murder even though he or she does not administer the fatal injury. For example, on the facts of this case, if one or more of the accused persons participated in a plan to kill Tyrone then each of the persons who participated in that plan would be equally guilty of the offence of murder on the basis that they were joint principals to the offence even though only one person actually pulled the trigger.

[89] Joint principals is not the only mechanism by which a person could be found to be a party to the offence of murder. There are other party provisions such as aiding and abetting by which a person can also be found guilty of murder.[^15] By way of example, if someone brought a gun to the location and then passed the gun to another person, knowing that the recipient of the gun intended to kill someone, then the person who passed on the gun would be a party to the offence as an aider.

[90] Similarly, if one or more of the accused persons lured Tyrone into the staircase and/or while in the staircase prevented Tyrone from leaving the staircase thus providing the opportunity for another person to shoot and kill Tyrone, those persons would also be parties to the offence as aiders. In addition, if the latter occurred, that is that Tyrone was prevented from leaving the staircase, that could provide a separate basis for finding first degree murder based on unlawful confinement.

[91] I will also note at this point, while I am discussing general principles, that a person can be a party to an offence without knowing precisely how the offence will be committed – see R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411.

Analysis and Conclusions

[92] In terms of my analysis and conclusions, I have already concluded that the persons involved in what led to the shooting of Tyrone, caused his death and did so unlawfully. I have already concluded that those persons had the required mental state for murder. I add to those conclusions that I am satisfied beyond a reasonable doubt that Tyrone’s murder was both planned and deliberate. I note in that regard that a plan does not have to be complicated. It may be a very simple plan, one that requires not very much in the way of thought or time to complete.

[93] It is clear, beyond any reasonable debate, from the evidence, especially the text messages, that there was an organized plan to find Tyrone and to kill him. This plan was developed in advance and was then implemented. Whatever the reason may have been for wanting Tyrone dead, it is clear that the killing was set up in advance of it occurring. The communications that occurred, including that Tyrone had arrived at the Neptune complex, where he was within that complex, the instruction to keep him in the building and to have him in a staircase allow for no other conclusion. While these communications do not speak of a murder occurring, they clearly demonstrate that Tyrone is being set up for something. Tyrone is then killed. There is simply nothing on the evidence that could sustain a finding that the shooting of Tyrone was done on impulse or on the spur of the moment or as the result of some unexpected or spontaneous event. Nothing in the evidence points to anything like that having occurred. For example, there is no evidence of a dispute or fight or other confrontation that could have led to a sudden decision to kill Tyrone. One could only reach that conclusion by engaging in complete speculation. However, if there was any doubt regarding that conclusion, the events subsequent to the murder remove all doubt.[^16]

[94] I have alluded to whether there was a reason to kill Tyrone. The prosecution is not required to prove motive. The fact is that the reason for Tyrone’s death is not clear. Tyrone did tell his mother as well as F. that he owed the sum of $700 to a person. Tyrone’s mother said that Tyrone seemed worried about this debt. There was also some less specific evidence that Tyrone may have owed money to others including T.F. Indeed, Skyy says that she had enlisted S.B.2’s assistance to help her brother pay his debts. It is a reasonable inference on the evidence that the $700 that Tyrone said that he owed arose out of drug dealing. That was what Tyrone indicated to his mother and there is the additional salient fact that Tyrone was facing drug charges at the time of his death. There is, however, no apparent connection between the money that Tyrone said he owed and the accused in this case except for some apparent connection between “Frenchie” or “Franchise”, the person to whom Tyrone owed the $700, and the Neptune complex.

[95] There is also some indication on the evidence that S.B.1 and M.W. were part of some loosely defined group or gang. It seems likely, if that was the case, that T.F. was also part of this group or gang given the close relationship between him and M.W. There is no evidence that Tyrone was part of this same group or gang, however, nor is there any evidence that he was part of any other group or gang. A conclusion that the existence of this group or gang somehow played a role in Tyrone’s death could, once again, only be founded on speculation.

[96] There was evidence that some months earlier, Tyrone and a friend of his known by the nickname Perps had been shot at while at the Neptune complex. Perps was struck by a bullet in this occurrence. It is not clear whether Tyrone or Perps or both were the intended targets and it is not clear whether this was an attack personal to them or simply an attack based on them being part of Neptune. There was some evidence, as I have said, that there was an ongoing rivalry between persons from Neptune and persons who were from a neighbouring area known as the Jungle. There is, however, no evidence that Tyrone was killed by members from this rival area. Indeed, the only connection between Tyrone’s killing and persons from the Jungle results from the attempt by certain of the accused here to blame the Jungle for the murder.

[97] The unfortunate reality is that persons have been killed for very little or no reason or for reasons that can only be known by those who are involved. Undoubtedly there was some reason, whether real or perceived, why certain persons felt the need to kill Tyrone but it is unlikely that we will ever know what that reason was or, at least, not to the evidentiary standard required in a criminal trial. Nevertheless, as I have said, motive is not a requisite or necessary element of the offence. It is a further consequence of that fact that the submission that there was no apparent reason for any of these accused to participate in the killing of Tyrone, for example that there was no connection between them and the monies that Tyrone owed, does not serve to preclude them from having been involved in the act.

[98] The issue then becomes who was involved in this planned and deliberate murder. I begin with the evidence as it relates to S.B.1. I have already concluded that S.B.1 was using the 4524 phone and thus was the sender and receiver of the text messages between he and M.W. and he and T.F.. From that conclusion, it follows that S.B.1 is the “mloc” that is referred to in the various text messages that have been placed in evidence. On this latter point, not only is there an admission that S.B.1 was “sometimes” referred to as mloc, his mother gave evidence that she had heard her son referred to as “mloc”. A.R. also gave evidence that she had heard S.B.1 referred to as “mloc” and gave evidence that the “mloc” referred to in some of the text messages was referring to S.B.1. In addition, the contents of the text messages are entirely consistent with S.B.1 being “mloc” including references by C.G., his then girlfriend, telling A.R. to meet her at “mloc’s”.

[99] Returning then to the text messages, the messages in the afternoon of November 17 show clearly that S.B.1 is giving instructions regarding Tyrone and, in particular, ensuring that Tyrone is both kept in the building and located in a staircase. I note that the staircase in which Tyrone was shot has no security cameras. I have also already concluded that S.B.1 is the male who arrives at the east door of 135 Neptune and who is eventually let into that staircase by T.F. at around 3:13 p.m. Tyrone is killed about twenty minutes later.

[100] It is a logical conclusion that, after being let into the staircase, S.B.1 went with T.F. up to the hallway outside the Bracken apartment and became the “new black male” who F. saw in the hallway. In coming to that conclusion, I am aware that F. did not identify S.B.1 in any photo line-ups that she was shown. Indeed, she pointed to someone other than S.B.1 as looking like the new black male. That is not decisive of the issue, however. It merely exemplifies the weaknesses inherent in eyewitness identification – weaknesses that do not operate in only one direction. The fact that a person identifies someone in a photo line-up does not make that fact determinative of identity because we are aware that a person may, despite their best intentions, select the wrong person. Conversely, the fact that a person fails to identify someone in a photo line-up is equally not determinative of identity. It is but one factor. It will generally fall to other evidence to establish the identity of a person. I note in this regard that F.’s description of the new black male does, in admittedly very general terms, fit S.B.1 in the sense that S.B.1 could be described as fat or chunky, he could be described as having eyes that are sunken and he is almost six feet tall. On this point, it is worth mentioning that F. had never met this male before. She saw him for a only brief period of time on November 17. It is not therefore surprising that she could not pick out his picture in a photo line-up.

[101] There is other evidence, however, that points to S.B.1’s involvement in this matter and, consequently, would lead logically to the conclusion that he was the new black male who was in the hallway immediately prior to the time that Tyrone was killed. I have already mentioned S.B.1’s entry into the east staircase. In addition, I refer to the fact that S.B.1 chose to abandon his own cell phone and instead use C.G.’s phone immediately before and after the killing. S.B.1 was obviously aware of the potential for phones to provide evidence. Not only did S.B.1 change phones after the murder, he also told T.F., within fifteen minutes of the shooting, to “delete all messages”. I also refer to the numerous text messages that were exchanged between S.B.1, M.W. and T.F. after the killing of Tyrone that include S.B.1 directing M.W. to send out the word that the killing was the work of people from the Jungle, where S.B.1 expresses concern that S.B.2 has seen him and may know his name, and where he says that S.B.2 must be killed because he is talking to the police. This is conduct that is consistent with S.B.1 having been involved in the shooting of Tyrone and inconsistent with any other explanation.

[102] There is another piece of evidence that must be mentioned regarding the involvement of S.B.1 in this matter and that is the so-called threat letter. On February 17, 2013, shortly before this trial was to commence, the police found a handwritten letter in the car of another individual. I have heard from a handwriting expert, whose qualifications were not challenged, that he compared the handwriting in this letter to other handwritten material that was known to have been authored by of each of the four accused. The expert concluded, to the “limits of practical certainty”, that the threat letter was written by S.B.1.

[103] The contents of the threat letter are truly chilling. The letter is an explicit direction to another individual, identified only as “G-kid”, to arrange for the killing of three prosecution witnesses. One of those three witnesses is F. who is identified by name in the threat letter. The threat letter advises that F. lives in Brampton along with certain other details about her. In reference to F., the letter advises that “She for sure needs to go”. The other two witnesses are not identified so clearly. They are identified simply as “bamboo” and “waste face”. During her evidence, A.R. was shown the letter and acknowledged that bamboo likely referred to her. It is also an inescapable conclusion that “waste face” is C.G. because the plot to kill these two girls, as set out in the letter, is for waste face to sleep over at bamboo’s but leave the door unlocked so that “the dogs…..with mask give bam and waste 2 heads” meaning two head shots. Given the close relationship that then existed between A.R. and C.G., it would have been possible for C.G. to make the arrangements for this sleepover. C.G., of course, would not have known the real reason for the sleepover. The threat letter goes on to suggest other ways of getting rid of these two girls including putting poison in a liquor bottle for the two of them to drink or putting rat poison in a marijuana cigar for the two of them to smoke.

[104] There can again be no reasonable debate as to the meaning of this letter. The clear purpose of the letter is to get rid of witnesses that could implicate S.B.1 in this murder. A.R. and C.G. only had connection to S.B.1 and not to the other three accused. While F. had no connection to S.B.1, as the letter mentions, S.B.1 is very concerned about F. because “she seen the kids face”. This concern by S.B.1 is further evidence that he was in the hallway and/or staircase outside the Bracken apartment and is the new black male that F. says that she saw. The fact that F. saw S.B.1 shortly before the murder is the obvious reason why he wants her to be eliminated because she may be able to identify him.

[105] Counsel submits that this letter does not mean that S.B.1 was involved in the murder of Tyrone but rather could be consistent with S.B.1 attempting, after the fact, to assist others that were involved. While I appreciate the evident need to offer some alternative explanation for this letter, this submission is not one that is persuasive. Not only is there no evidence of other persons who would logically be the subject of this remarkably generous effort on the part of S.B.1, the fact is that the submission does not square with the contents of the letter itself including the final sentence where S.B.1 says “my trail[sic] starts April Second 3 months left times ticking”. It is evident that S.B.1 wishes these witnesses eliminated for his own benefit, not for the benefit of others.

[106] I am satisfied beyond a reasonable doubt that S.B.1 was present when Tyrone was shot and that he played a central role in the planning of that killing. The text messages show that he was the one being informed that Tyrone had arrived at Neptune, that he gave instructions to keep Tyrone in a staircase until he arrived, that he was concerned after about who could identify him as having been at the scene and that he was prepared to eliminate anyone who could tie him to the event.

[107] While it is not necessary for me to conclude who, among the persons who were involved in the plan to kill Tyrone, actually shot Tyrone, I will say that I am satisfied that S.B.1 was the shooter. I base that conclusion on a number of facts including that S.B.1 was the person who was clearly the leader of this event, both before and after it occurred. I also base it on the evident willingness by which S.B.1 was prepared to have anyone, who might connect him to this event, killed. On that point, I mention the text that S.B.1 sent to T.F. in the evening after the murder where he said, in reference to S.B.2, “Yo I should of drop him”. A reasonable, if not compelling, interpretation of that text, when it became apparent that S.B.2 might be a problem, is S.B.1 saying I should have killed S.B.2 at the same time that I killed Tyrone. There is also the concern expressed by T.F. to M.W. that S.B.1 is trying to kill him. And there is, of course, the threat letter. All of this evidence points to S.B.1 as the actual shooter.

[108] I now turn to T.F. There is no interpretation of the text messages that took place between T.F. and M.W. and between T.F. and S.B.1 that allow for any conclusion other than T.F. was assisting in the plan to kill Tyrone. Indeed, it is evident that T.F.’s friendship with Tyrone is of some importance to the plan. It is T.F. who alerts M.W., and through him to S.B.1, that Tyrone has arrived at Neptune. It is T.F. who goes to see Tyrone shortly after his arrival including brushing past F. when she tries to pretend that Tyrone is not home. It is T.F. who, because of his relationship with the Bracken family, can come and go within the Bracken apartment without raising any concern. It is T.F. who is with Tyrone in the hallway and in the staircase off and on throughout the time after Tyrone’s arrival until Tyrone is killed as established by the evidence of both F. and Tyrone’s mother.

[109] It is also T.F. who is seen, immediately after the shooting, in the company of M.W., watching the events at 135 Neptune unfold. It is of some significance that, by this time, T.F. is no longer wearing the identifiable ball cap and green and white jacket that he had been wearing throughout the afternoon of November 17. Further, T.F. has also changed his shoes.

[110] It is also T.F. who, a short time after the killing, leaves Toronto and travels to Barrie. This occurs after T.F. texts an unknown person at 6:30 p.m. on November 17 “Yo famz i need to cut look on the news”. The unknown person responds that there is no TV around and asks what is happening. T.F. responds “M” meaning murder and then says “I need some where to chill”. It is T.F. who is, five days after the murder, worried that S.B.1 wants to kill him – a result that would be consistent with S.B.1’s apparent desire, as I have mentioned, to eliminate anyone who could place him at the murder scene. It is also T.F. who I have already concluded obtains the assistance of his mother in disposing of a gun and perhaps bullets as well.

[111] On this latter point, it is a reasonable inference that the gun that T.F. gets his mother to dispose of was the murder weapon. Three people flee the scene of the murder. Two of them are clearly T.F. and S.B.2. The third person must be S.B.1 because he is the only other person in the staircase other than Tyrone. The first person out is S.B.2 who runs without any hesitation directly towards 155 Neptune where his mother lives. The next person out is T.F. followed almost immediately by S.B.1 who has his arms stretched out in the direction of T.F. T.F. stops and turns back towards the area of the door and this person. T.F. hesitates very briefly in this area and then starts to run towards 145 Neptune.

[112] It is not possible from the surveillance video to determine what exactly happens in those few seconds but there certainly appears to be some form of contact between S.B.1 and T.F.. When one takes that fact and couples it with the evidence of Detective Ferguson that T.F. was running in a manner consistent with a person who has a gun on his person and then one adds to that the later effort by T.F. to get rid of a gun, it becomes a compelling inference that S.B.1 passed the gun to T.F. as they left the west staircase. This is a logical thing for S.B.1 to want to do. S.B.1 would not want to leave the gun at the scene but he also would not want to take it with him as he had some distance to travel, after the murder, to get back to his house. He would be aware that the police would be on alert as a result of the murder. S.B.1 would presumably not want to run the risk that he might encounter a police officer as he travelled home and potentially be found with a gun, especially a gun that had just be used to kill someone. T.F., on the other hand, had a very short distance to get to his home where he could hide the gun, although apparently not well enough to avoid the eyes of his mother. He also had the opportunity to dispose of the gun out the window of his unit into an area where it was unlikely to be easily found.

[113] All of that said, it is not necessary for the purposes of determining whether the charge has been proven against any of the accused persons for me to determine what happened to the murder weapon. It is sufficient to note the obvious fact that a gun was used to kill Tyrone, a gun that has never been located.

[114] Another piece of evidence that I will mention regarding T.F. is a set of rap lyrics that were found in his property bag on February 26, 2013. The lyrics are entitled “Murder one” and contain the following lyrics:

Put the burner to your head

Pow, Pow…Put your life to an end

Trey pound, man down

I warned you not to come around

the last nigga did, I left his thoughts on the ground

I’m serious…I don’t play game

Put your brain all over the stage

[115] I am aware that people will write rap lyrics for any number of reasons. I am also aware that rap lyrics can represent made up events or can represent real events that the author was not part of but just heard about. As a consequence, I do not place great reliance on these particular lyrics but they are nonetheless worthy of mention. I say that because it is of some relevance that the lyrics about putting a gun to someone’s head and firing two shots putting an end to that life is precisely what happened to Tyrone. I also note that “Trey pound” is a nickname that Tyrone sometime used although not as commonly as Detroit. It is also of some relevance that, in the aftermath of the death of his apparent friend, T.F. chose to write lyrics not that lamented the loss of his friend but rather ones that matched the circumstances of his death. The fact that T.F. writes that he warned Treypound not to come around also fits with Tyrone’s expressed concern that T.F. was going to set him up.

[116] While this latter point arises directly from the evidence of F., it also finds some confirmation in the evidence of Skyy who said that she did not trust T.F.. F. said that Tyrone expressed distrust of his friends at Neptune and, in particular, of T.F.. While I do not take those comments as related by Skyy and F. very far in terms of their evidentiary value, I do consider that those comments, taken along with Tryone’s tattoo “trust no one” and his comments to his mother about people being “snakes” as demonstrating that whatever the relationship had been between T.F. and Tyrone, it appears to have been a very unsettled one as of the time of his murder.

[117] Notwithstanding that she was Tyrone’s sister, Skyy was also a reluctant witness. She also gave her evidence only after being arrested on a material witness warrant. Nevertheless, when she did eventually reach the witness box, and unlike C.G., Skyy was relatively forthcoming in her evidence. Skyy also indicated that there were some issues between Tyrone and T.F. including that she understood from T.F. that Tyrone also owed him money. She said that Tyrone and T.F. were not that close. Skyy also said that “Franchise” or “Frenchie”, the person to whom Tyrone owed the $700, was a good friend of both T.F. and M.W..

[118] The submission that T.F. would have no reason to do harm to Tyrone because T.F. was a good friend of Tyrone and the Bracken family loses whatever persuasive value it may have in light of this changed relationship.

[119] In the end, I am satisfied beyond a reasonable doubt that T.F. was a joint principal in the plan to murder Tyrone Bracken. On the evidence, he would be equally liable as an aider in the commission of the offence.

[120] I turn next to M.W. Much of the evidence that relates to M.W. mirrors the evidence that relates to T.F. I have already concluded that M.W. was using the 1948 phone. M.W. is thus part of the numerous text messages that involve him and S.B.1 and him and T.F.. It is M.W. who T.F. tells that Tyrone has arrived at Neptune and it is M.W. that relays that information to S.B.1. It is M.W. who confirms that S.B.1 is on his way to the Neptune complex and then relays that information to T.F. It is M.W. who provides S.B.1 with T.F.’s phone number so that S.B.1 can contact him.

[121] M.W. is in school while this is all going on but it is evident that M.W. is also intending on coming to the Neptune complex as soon as he is free. Indeed, he tells S.B.1 at 3:27 p.m., about ten minutes before the murder, that he is on his way.

[122] M.W. was part of the planning of this murder as the text messages, and events after the murder, establish. Not only was he part of the planning, it is a reasonable inference that M.W. was to be part of the implementation of that plan and that is why he was on his way to Neptune to join up with S.B.1 and T.F. The critical event, however, unfolded before M.W. made it there. There may be any number of reasons for that having happened including the possibility that, before M.W. arrived, Tyrone decided that he wanted to leave the staircase and go to the store, as he said he was going to do. S.B.1 may have determined that he could not wait for M.W.’ arrival because to try and hold up Tyrone would raise suspicions and thus he had to act before M.W. could get there.

[123] M.W. arrived at the Neptune complex very shortly after the shooting. He is seen with T.F. as they stand outside 145 Neptune watching what is transpiring over at 135 Neptune. Of some importance is that prior to arriving, and only a scant few minutes after the shooting, M.W. has a telephone discussion with T.F. that lasts for more than a minute and a half. Five minutes after that conversation, M.W. texts T.F. “Yur dum” to which T.F. immediately responds “How”. Twenty seconds later, T.F. texts M.W. “I didnt bring him the d did”.

[124] One of the reasons why this exchange is of importance is that it clearly represents a discussion between M.W. and T.F. regarding the killing of Tyrone and the fact that things did not go entirely according to plan. The fact of the telephone call and the following text messages do not allow for any other conclusion.

[125] Another salient fact that arises from this exchange, and the later communications between M.W. and T.F., including the many exchanges regarding T.F.’s belief that S.B.1 wants to kill him, is that there is not a single communication in which any surprise, disbelief, shock or outrage is expressed regarding the death of Tyrone. This evidence has, among other things, relevance to the objective of the plan that existed.

[126] It is submitted by the counsel for both T.F. and M.W. that, even if some plan existed between S.B.1, T.F. and M.W. in respect of Tyrone, there is no evidence that the plan involved doing harm to Tyrone or, if harm was intended, that the harm rose to the extent of killing Tyrone. The problem with that submission is two-fold. First, as I have already said, there is simply no evidence that the killing of Tyrone was spontaneous or was the result of some unexpected event. There is no evidence of a dispute or a fight or of some other unanticipated event that could have spurred the killing of Tyrone. In other words, there is no evidence to which the defence can point that would provide a different interpretation of the various text messages other than there was a pre-arranged plan to kill Tyrone.

[127] Second, if the killing of Tyrone was something that happened out of the blue and with no prior thought or consideration, one would have expected that there would have been some expression of that very sudden and troubling event between M.W. and T.F.. M.W. and T.F., on the evidence, were very close friends. Indeed, there are text messages between M.W. and T.F., immediately before T.F. turned himself into the police, where the two of them express their affection for each other. Yet neither M.W. nor T.F. ever express a single word of concern that someone that they know, and with whom they purported to be friends, has, on counsel’s version of the events, been randomly murdered without warning by S.B.1 whom they also know and with whom they continue to communicate after the killing. If this was an unplanned and entirely spontaneous event, it is inconceivable that these two sixteen year old boys would not have voiced out their surprise and horror to each other, not only as to what had happened but the fact they are now deeply embroiled in it.

[128] Another relevant fact regarding M.W.’ involvement in the plan to kill Tyrone is his active acceptance of S.B.1’s idea to blame the killing of Tyrone on persons from the Jungle, to which I made reference earlier. Not only does M.W. accept this idea, he actively promotes it. A few days after the murder, on November 23, an unidentified person texts M.W. about what happened at Neptune. He or she asks “Dey set him up?”. M.W. responds “Na its was jungle niggaz but they sayin they didit”. This explanation is apparently accepted by the other person because they respond “Holy fuck ! so why dey arrest chiney & S.B.2”.

[129] Yet another relevant fact that belies the suggestion that M.W. was unaware of what was being planned regarding Tyrone is his active participation after the killing in the discussions regarding what is to happen to S.B.2. M.W. is not only working with S.B.1 on the task of what should be done with S.B.2, he is more aggressive on the subject than S.B.1 is. While S.B.1 wants to determine if S.B.2 has been talking to the police before taking action, M.W. is prepared to move on S.B.2 right away. His impatience in this regard appears to arise out of his distress that his good friend, T.F. (his right hand man as he called him), is now in jail – a result that it seems that M.W. blames on S.B.2.

[130] It is also submitted on behalf of M.W. that the text messages show that he was being excluded from what was going on, that he was being kept in the dark. That submission does not find any traction in the plain meaning of the text messages. Those messages, fairly read, show that M.W. is actively involved in the run-up to the killing of Tyrone and is thereafter actively involved in the fallout from that event. The suggestion that M.W. had only innocent involvement with the events of November 17 is simply entirely inconsistent both with his communications before the murder and with his subsequent acts.

[131] The innocent explanation for M.W.’ involvement in the events of November 17 also stands in stark contrast to the message that M.W. sent to S.B.1, prior to the killing, asking that S.B.1 confirm what is going on before M.W. attends at Neptune with his gun. The only reasonable conclusion that could be drawn from that exchange is that it was intended that M.W. was to be another armed participant, extra firepower it might be said, to assure the success of the plan.

[132] I am satisfied beyond a reasonable doubt that M.W. was a party to the murder of Tyrone Bracken as a joint principal. On the evidence, he also would be equally liable as an aider in the commission of the offence.

[133] I turn now to S.B.2. S.B.2 stands in a very different position than the other three accused because, unlike S.B.1, T.F. and M.W., S.B.2 has not a single text message connected to him on November 17. He is not, however, exempt from the effects of the surveillance evidence or from the effects of his subsequent conduct.

[134] At about 1:30 p.m., T.F. and another male, Shayeed, are seen walking into 155 Neptune. At 1:51, T.F. and Shayeed are seen leaving 155 Neptune. S.B.2 is with them. From then until the shooting of Tyrone, S.B.2 is seen again and again with T.F. and Shayeed or with T.F. alone as Shayeed left Neptune some time prior to the shooting. In addition, there is the evidence of both F. and Tyrone’s mother that they saw S.B.2 in the hallway with Tyrone, T.F. and others including the new black male. Indeed, as I earlier mentioned, Tyrone’s mother thought S.B.2’s presence with T.F. was curious or odd and she asked Tyrone about it but did not get a response.

[135] The reason that Tyrone’s mother thought that it was odd that S.B.2 was in the company of T.F. is due to the fact that other evidence shows that T.F. and S.B.2 were not friends. Indeed, it was more than just that they were not friends. As I have also mentioned earlier, T.F. and M.W. had apparently assaulted S.B.2 about a year before.

[136] There is also the relevant fact that at 1:49 p.m. T.F. texts M.W. “The d is outhere”. It is pretty clear that T.F. was with S.B.2 when he sent this text. It is a reasonable inference that T.F. obtained the information that Tyrone was in the Neptune complex either from S.B.2 or from his sister. There appears to be no other route for this information to have reached T.F. nor any reason why he would communicate it to M.W. at that particular point in time, if he had obtained the information earlier.

[137] The fact that this information may have come from or through S.B.2 does not itself lead to any inference that S.B.2 was part of the plan to kill Tyrone. Tyrone’s return to the Neptune complex would presumably be the stuff of casual conversation especially between two people both of whom were supposedly friends of Tyrone.

[138] There is still the fact that S.B.2 was with T.F. for a considerable period of time leading up to the shooting. While that is admittedly curious given the known dislike between the two, that association is, without more, insufficient to make a finding that S.B.2 was part of the plan. Shayeed was also with S.B.2 and T.F. for a considerable period of time and there is no suggestion that he was part of the plan.

[139] In addition to this evidence, there is evidence that, directly before the shooting, S.B.2 is seen on his own going first to 155 Neptune, then to 145 Neptune and then back to 135 Neptune, arriving there only a short period of time before the shooting occurs. The prosecution submits that S.B.2 may have been picking up a gun and ammunition in his travels thus bringing the murder weapon to the murder scene. That submission finds no support in the evidence and thus amounts to nothing more than speculation. It is also inconsistent with the prosecution’s evidence through Det. Ferguson that S.B.2 had an object in the pocket of his hoody earlier as he was seen wandering around the Neptune complex with T.F. and Shayeed. If, as it did, the prosecution suggests that S.B.2 could have had a gun with him at that time, then there was no need for him to make another trip to acquire one. Simply put, there is no evidence that would explain what S.B.2 was doing when he took this trip around the Neptune complex.

[140] There is the significant fact that S.B.2 was in the west staircase when Tyrone was killed. A defence witness, Timothy, who wandered through the west staircase on his way to his family’s apartment just before the shooting, places S.B.2 in the staircase through his distinctive bright green hoody. Further, there is the important fact that S.B.2 is seen running from the area of the west staircase immediately after the shooting.

[141] The prosecution contends that S.B.2’s presence in the staircase must mean that he was blocking one of the exits before the shooting occurred. I do not accept that contention. There is simply no evidence that any exits from the staircase were being blocked by anyone nor is there any evidence upon which it could be concluded that Tyrone was being unlawfully confined. In fact, it was Timothy’s evidence that S.B.2 was up the stairs at the time that he walked through meaning that, at that point, at least two of the exits were unattended. Indeed, as I earlier mentioned, it is a distinct possibility that Tyrone was in the process of leaving the staircase that led to the decision to kill him before M.W. had reached the scene.

[142] There is a similarly significant fact in the actions of S.B.2 after the shooting, namely, his calling a taxicab and his departure from the scene, all without any contact with anyone including his mother or Tyrone’s mother and without any attempt to summon help for Tyrone. The prosecution says that this conduct is consistent with S.B.2 being part of the plan to kill Tyrone and inconsistent with him just being an innocent observer of the shooting.

[143] I do not agree with the prosecution’s submission in this regard. I think it is risky to make assumptions about how people will react to a situation such as this, especially a sixteen year old boy. If S.B.2 saw his friend Tyrone shot and killed, he may have concluded that there was no help that could have saved Tyrone. S.B.2 may also have considered that his own life might be at risk. The subsequent messages between S.B.1 and M.W. would prove out that concern if S.B.2 had it. It is also difficult to predict how someone like S.B.2, living in the atmosphere that seems to have pervaded the Neptune complex in terms of shootings, drug activity, the Code of Silence and other issues, would necessarily react in this situation.

[144] There is also the telling text message sent by T.F. to M.W. where he said “I didnt bring him the d did”. On its surface, that message strongly suggests that S.B.2 was not part of the plan. The subsequent concern that T.F. had that S.B.2 had told his sister what had happened and that she had told Skyy also suggests that S.B.2 was not part of the plan. This concern appears pretty accurate given the fact that Skyy subsequently engaged in many conversations with T.F. where she relays details of the shooting, the source of which would seem to have to have been someone who was present for the shooting. If S.B.2 was a party to the plan to kill Tyrone, it seems unlikely he would be recounting the event to his sister especially knowing her close friendship with Skyy, the deceased’s sister. The submission that S.B.2 was a party to the plan also seems to be inconsistent with the concerns expressed by both S.B.1 and M.W. that S.B.2 is “ratting them out” to the police. I acknowledge, however, that there is another possible explanation for this behaviour in that S.B.2 could have been part of the plan but then have been believed to have turned on the others.

[145] The prosecution’s response to the text, where T.F. says that he did not bring S.B.2, is to submit that T.F. was lying. The prosecution points to other instances where T.F. was clearly lying including his texts to Skyy where he says that he was not at the shooting. While I acknowledge the possibility that T.F. was lying in his response, I do not find that to be the more likely or convincing explanation for it. The fact that T.F. lied to Skyy, or others not involved in the plan, is a very much different thing than it is for T.F. to lie to his very good friend M.W. with whom he is engaged in this plan to kill Tyrone. The submission that T.F. was lying also means that T.F. must have chosen on his own to involve S.B.2. There are no communications between T.F. or M.W. or S.B.1 in which any of them mentions that S.B.2 is involved or onboard. It seems unlikely that if S.B.2 was part of this plan, one of the other accused would not have confirmed that he was present and participating. It also seems highly unlikely that T.F. would have taken it upon himself to involve S.B.2 in this plan and simply surprise S.B.1 and M.W. with this decision. It also seems unlikely that T.F. would choose to involve S.B.2 in this very serious venture given that neither T.F. nor M.W. liked S.B.2.

[146] The much more likely scenario is that Tyrone did bring S.B.2 along. There is evidence from F. that S.B.2 earlier showed Tyrone some crack cocaine that he had. It may be that Tyrone and S.B.2 intended to do something with this crack cocaine later. I repeat that Tyrone was facing drug charges relating to the sale of crack cocaine. There is also surveillance video that shows S.B.2 alone with Tyrone as they both are about to leave 135 Neptune at about 3:20 p.m.[^17] Tyrone then appears to change his mind and turns around. S.B.2 immediately follows. S.B.2 was also a friend of Tyrone and not of T.F. or M.W. (or S.B.1 for that matter). His presence is therefore much more likely to be the result of his connection to Tyrone not his tenuous connection to T.F.. It may well be that T.F. and S.B.1 did not like the fact that S.B.2 was present but they may have also recognized that trying to isolate Tyrone from S.B.2 would just raise suspicions in the mind of Tyrone who, I again note, was already anxious about his Neptune friends.

[147] I recognize that this latter observation does not explain, if S.B.2’s presence was a problem, why the killing did not occur slightly earlier than it did when S.B.2 was out of the staircase walking around the complex. The answer to that may simply be that S.B.1 and T.F. were still waiting for M.W. to arrive. It may also be that S.B.1 and T.F. assumed that the Code of Silence, to which much attention has been drawn in this case, would ensure that S.B.2 would not be a problem. On this latter point, I note that the evidence was that S.B.2 was not “tight” with Tyrone. Rather, he was more a friend of the Bracken family. S.B.2 also had a mother and sister who lived in the Neptune complex. All of these people would be at risk if S.B.2 breached the Code.

[148] I accept that S.B.2’s presence with T.F. during the afternoon of November 17 raises questions. I accept that S.B.2’s actions after the shooting also raise questions. Questions or suspicions do not, however, amount to proof. Also, as it is with any case, it is not necessary that the evidence answer every question raised. What is required is that the evidence prove the elements of the offence beyond a reasonable doubt.

[149] In the end result, the prosecution has failed to satisfy me, to that requisite standard of proof, that S.B.2 was a party to, or was involved in, the plan to kill Tyrone.

[150] Before concluding, I wish to address one other issue. I have mentioned on more than one occasion in the course of my reasons that there was no other explanation for a given fact or event. I am fully aware of the right of each of the accused to remain silent. I am also fully aware that no inference can be drawn from the failure of an accused to give evidence. That said, there is nevertheless a recognized principle, referred to in many cases, that where circumstantial evidence, if unexplained or uncontradicted, establishes the guilt of a person then, absent some explanation being offered, the accused person must expect that a conviction will follow. As Sopinka J. said in R. v. Lepage, 1995 123 (SCC), [1995] 1 S.C.R. 654 at para. 29:[^18]

It is not so much that the failure to testify justifies an inference of guilt; it is rather that it fails to provide any basis to conclude otherwise.

[151] Counsel for S.B.1, T.F. and M.W. submit that in considering this issue I must take into account the Code of Silence. I heard evidence from Sgt. Jansz on the Code of Silence. The Code of Silence in this context can be defined as an understanding or expectation that exists among persons living in a particular community or area that they will not co-operate with the police in terms of the investigation of criminal activity. The understanding includes the recognition that a breach of the Code of Silence can result in physical harm, including serious injury or death, being visited on anyone who breaches the Code, or is believed to have breached the Code, including that person’s family members. For example, there were text messages in this case involving S.B.1 and M.W. where it was suggested that not only would S.B.2 be killed for talking so would S.B.2’s mother and other family members.

[152] In what I view as an interesting twist on the import of this state of mind, counsel for S.B.1, T.F. and M.W. each submitted that these accused could not give evidence with respect to this matter because to do so would result in a breach of the Code of Silence with the potential for the consequences I have mentioned. The submission extended to the suggestion that, but for the Code of Silence, I would have heard from the accused and that explanations would have been forthcoming to dispel some of the inferences that otherwise flow inescapably from the evidence.

[153] The Code of Silence is a serious problem for our justice system not only for the proper investigation of criminal activity but also for the effective prosecution of offences. Its effect has been felt in a number of cases in this city. It is a serious problem for witnesses who must live in those areas of the city where the Code exists, the number of which seems to be ever increasing.

[154] I reject, however, the suggestion implicit in counsel’s submissions that the Code of Silence can be used as a shield by those who are accused of criminal offences. If a person who is accused of a criminal offence, especially a criminal offence as serious as murder, is more prepared to obey the Code of Silence than he is to take the witness stand and speak out in his own defence, putting forward explanations for facts that would otherwise lead inescapably to a finding of guilt, then he has made his own choice just as any other accused person does in deciding to stand on their constitutional right to silence. That person must accept the consequences of that choice. He cannot avoid those consequences by his own adherence to a mindset called the Code of Silence and, through that manoeuvre, invite the court to make speculative assumptions favourable to his position or find reasonable doubt where it does not otherwise exist.

NORDHEIMER J.

Released: May 29, 2013

COURT FILE NO.: YC 50000006-12

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

S.B.1, T.F., M.W. and S.B.2

REASONS FOR DECISION

NORDHEIMER J.

RELEASED:

[^1]: Trial scene 6. [^2]: Trial scene 28 [^3]: Trial scene 29 [^4]: Trial Scene 24 [^5]: Trial Scene 17 [^6]: On this process, see R. v. Leaney, 1989 28 (SCC), [1989] 2 S.C.R. 393 [^7]: On this same point, see R. v. John, 2010 ONSC 6085, [2010] O.J. No. 4738 (S.C.J.) at para. 37 [^8]: It should be noted that people often do not register their phones (especially prepaid phones) in their own names for a variety of reasons. The subscriber information for the phone does not therefore assist in establishing who actually has ownership, possession and use of the phone. [^9]: It was admitted by all parties that C.G. had given a videotaped statement to the police and that she had given evidence at the preliminary hearings as reflected in the transcripts from those hearings. [^10]: The actual text is “How are yoou stranger How are yu stranger yu gwan like yu nah know mon”. [^11]: Trial scene 26 [^12]: Trial scene 30a [^13]: These messages represent another example where “no” is used to mean “know”. [^14]: see, for example, Ex. #36, photo #77 [^15]: see R. v. Fatima, 2006 63701 (ON SC), [2006] O.J. No. 3633 (S.C.J.) at para. 68: [^16]: see R. v. MacKinnon (1999), 1999 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.) at para. 15 [^17]: Trial scene 18 [^18]: Quoting with approval from R. v. Johnson (1993), 1993 3376 (ON CA), 12 O.R. (3d) 340 (C.A.), at pp. 347-48