ONTARIO YOUTH CRIMINAL JUSTICE COURT

COURT FILE NO.: YC-13-50000005-00
DATE: 20140324

BETWEEN:

her majesty the queen

• and -

R.S.

Mr. T. Lissaman and Ms. K. Rogozinski, for the Crown
Mr. G. Grill and Mr. M. Forte, for R.S.

HEARD: January 14, 16, 17, 20, 21, 22, 24, 27, 29, 30, 31; February 2, 3, 4, 5, 10 and 13, 2014

Section 110 of the Youth Criminal Justice Act, S.C. 2002, c. 1 prohibits the publication of the name of R.S. or any other information that would identify R.S. Section 111 of the Act prohibits the publication of the names of C. D. and T.I. or any other information that would identify them.

REASONS FOR JUDGMENT

M. FORESTELL J.

I Overview

[1] R.S., a young person, as defined under the Youth Criminal Justice Act, S.C. 2002, c.1., entered not guilty pleas to the following charges: second degree murder of Jaivoan Cromwell, attempted murder of T.I. by discharging a firearm at T.I., discharge of a firearm at T.I. with the intent to endanger the life of T.I., careless use of a firearm and possession of a firearm without being the holder of a licence and registration certificate. R.S. elected trial by judge alone in this Court and the trial proceeded before me.

[2] The charges arise out of a shooting that occurred on April 12, 2012, in the lobby of an apartment building at W[…] in Toronto. R.S. was 17 years-old at the time of the incident. Eighteen year-old Jaivoan Cromwell was killed in the shooting.

[3] There are many facts that are not in dispute. A number of admissions were made in the trial, many of the events surrounding the shooting were captured on surveillance videos from the apartment building, and R.S. testified and admitted the shooting. The central issue in this case is self-defence.

[4] To provide a framework for the issues, I will begin by reviewing some of the facts that are not in dispute.

[5] On the evening of April 12, 2012, the accused young person, R.S., left his apartment in W[…] at around 9:49 p.m. with a loaded semi-automatic handgun in his right pocket.

[6] It was admitted that R.S. was not the holder of a licence and registration certificate. It was admitted that the gun was a .40 caliber S & W Glock semi-automatic pistol and that he possessed that gun from the time he left his apartment at around 9:49 p.m. on April 12, 2012, until after the shooting.

[7] After leaving his apartment on April 12th, R.S. took the elevator to the lobby where he remained for about 18 minutes. He is visible on video surveillance at various points during this time period.

[8] On April 12, 2012, at about the same time that R.S. left his apartment, the deceased, Jaivoan Cromwell and three others: Reece Korchinski, C.D. and T.I., were in the building at W[…], having entered at around 9:45 p.m. This group left the building at around 9:54 p.m., while R.S. was in the lobby. This is also captured by video surveillance.

[9] Just before R.S. left W[…] through the front door at 10:08 p.m., he opened the lobby door for four young men: the deceased, C.D., T.I. and Reece Korchinski.

[10] R.S. was out of the building for about 14 minutes. He testified that he entered the building through the south stairwell entrance which had no surveillance camera. He returned to the lobby of W[…].

[11] During the time that R.S. was out of the building, C.D., T.I., Reece Korchinski, Marquis Clark, the deceased and another young man, Seraphim Gahinja, could be seen on the surveillance cameras to be in the lobby of W[…]. The same six young men could also be seen in the lobby of W1[…] in different configurations during this time period. Another young man known as “Jaja” was also with the group at different times during this period. While in the lobby of W1[…], members of the group appeared to be looking out the front door of W1[…] which faced the lobby of W[…]. Jaivoan Cromwell could be seen in possession of a baseball bat.

[12] Shortly after R.S. returned to the lobby of W[…], T.I., Reece Korchinski, C.D., the deceased and Marquis Clark left the lobby of W1[…] and crossed over to W[…]. Jaivoan Cromwell had a baseball bat concealed in his pant leg.

[13] The evidence of Marquis Clark was that he thought that the group was going to W[…] to ‘“chill” at the apartment of Mr. Cromwell and Mr. Korchinski’s aunt. Reece Korchinski’s preliminary inquiry evidence, which was admitted for its truth at the trial, was also that the plan was to visit his aunt. C.D. testified that he could not remember why they were going to W[…].

[14] T.I. testified that they went to the building to “jump” or attack “some guy” in the lobby. He testified that he could not remember whose plan it was to attack the man or why the person wanted to attack him. T.I. testified that he personally had no problem with the man. He intended, however, to participate in the attack.

[15] The Crown did not invite me to accept that the group was going to visit Mr. Cromwell’s aunt.

[16] At about 10:22 p.m., Reece Korchinski knocked on the inner door of the vestibule of W[…] to be admitted to the lobby. R.S. let him in. After Mr. Korchinski entered, three others, C.D., T.I. and the deceased, entered the lobby. The deceased pulled out the baseball bat. Marquis Clark followed after the deceased but made it only as far as the vestibule before he turned and ran.

[17] R.S. testified that, after opening the door for Mr. Korchinski, he turned and walked towards the elevators. His back was towards the young men entering the door after Mr. Korchinski. He was hit on the back of the head. According to the testimony of Marquis Clark and T.I., the deceased, Mr. Cromwell, struck R.S. on the head with the baseball bat. Reece Korchinski claimed not to have seen a bat and C.D. claimed to have seen nothing. Jaivoan Cromwell is clearly shown on the video surveillance running into the lobby with the bat raised. The events inside the lobby are not captured by the video surveillance.

[18] Around the time that R.S. was hit with the bat, his gun fell to the ground. He picked up the gun and turned and fired it. It was likely fired four times. There were four cartridge casings found at the scene.

[19] The precise actions of R.S., Jaivoan Cromwell, Reece Korchinski, C.D. and T.I. at the time that the shots were fired are an area of dispute. I will address these factual issues later in these reasons.

[20] It is not disputed that one of the shots struck Jaivoan Cromwell in the back and fatally wounded him. The report of the forensic pathologist was admitted for the truth of its contents. The death of Mr. Cromwell was caused by a single gunshot wound that entered his right lower back and exited his left upper chest. The path of the wound was back to front, right to left and upwards.

[21] Mr. Cromwell ran out the front door of W[…] after being shot. Reece Korchinski also ran out the front door. C.D. followed several seconds later. Jaivoan Cromwell ran to a store across the street and collapsed. Emergency services attended. Mr. Cromwell later died from the gunshot wound.

[22] T.I. ran out of the building by running down the north hallway to a stairwell exit. He ran to a nearby pizza store and later left the store with two other men.

[23] There was physical evidence of a bullet strike in the lobby of W[…] at the front door frame, .99 metres from the ground, where a damaged copper jacketed lead bullet was found. There was physical evidence of another possible bullet strike on a partition wall between the lobby and the north hallway. There was evidence of a third bullet strike at the end of the north hallway where a damaged copper jacketed lead bullet was found.

[24] Nam Tang, a pizza store employee who knew T.I., saw T.I. in the store after the shooting. He appeared to be injured and had blood on his leg. A police officer saw a wound on the arm of T.I. on April 16, 2012, but saw no other wound on T.I. In this trial, T.I. denied being injured in the shooting. He testified that the wound to his arm had been caused by a fall from his bicycle. Marquis Clark testified that T.I. told him that he had been grazed by a bullet.

[25] Evidence was called with respect to the operation of gangs in the area of W[…] Avenue. The evidence included the testimony of an expert, Sgt. Gawain Jansz, and the evidence of Marquis Clark, a former gang member and a participant in the events that led to the shooting.

[26] There was no dispute that gangs, including a gang known as the “Gators” operated in the W[…] area. There was a code of conduct in the area that discouraged any cooperation with the police. Residents of the area, including both gang members and non-gang members, feared violent reprisal for “snitching.”

[27] The expert was cross-examined about other aspects of gang culture and agreed that within the gang culture it was not unusual for there to be violent incidents over drug territory, perceived insults, breaches of the code of conduct or simply for the purpose of general intimidation.

[28] Marquis Clark had been a member of a gang in the past. He denied ever being a member of the Gators. He testified that gang members earn “ratings” by doing the work of the gang. He also testified as to incidents of violence in which he participated while he was a gang member.

[29] Mr. Clark testified that he was not a member of the Gators but had obtained their permission to sell drugs in the area. Mr. Clark testified that C.D., T.I. and Reece Korchinski were members of the Gators. He was not sure about Jaivoan Cromwell. Mr. Clark testified that he made it clear to the younger members of the Gators that he was available to assist them in dealing drugs. Mr. Clark testified that Jaivoan Cromwell, T.I. and C.D. looked up to him.

[30] Marquis Clark testified that he had heard that there was an issue between the group that operated at the W[…] buildings and the group that operated in the nearby buildings on Jane Street.

II Issues

[31] As I indicated above, the central issue in this case is self-defence. If R.S. was acting in self-defence when he possessed the gun on April 12, 2012, he must be found not guilty of the charge of possession of a firearm without being the holder of a licence or registration certificate. If he was acting in self-defence when he fired the gun in the lobby of W[…] on April 12, 2012, he must be found not guilty of murder, attempt murder, discharge firearm with intent to endanger life and careless use of a firearm as well.

[32] If self-defence does not apply, the defence argues that the Crown has not proven the intent for attempt murder on count two.

[33] If self-defence does not apply, the defence further argues that the Crown has not proven the intent for discharge firearm with intent to endanger life on count three.

[34] If self-defence does not apply, counts four and five, careless use of the firearm and possession of the firearm, are proven.

[35] If self-defence does not apply, the defence argues that the Crown has not proven the intent for murder on count one and that the accused should be found guilty of manslaughter rather than murder.

[36] Finally, even if the Crown has proven the intent for murder on count one, the defence argues that the accused was provoked and as a result should be found guilty of manslaughter and not murder.

[37] I will address these issues in the following order:

1. Review of the evidence and findings of fact;
2. Legal principles applicable to self-defence;
3. The applicability of self-defence on the charge of possession of the gun;
4. The applicability of self-defence on the charges related to the firing of the gun;
5. Whether careless use of a firearm has been proven;
6. Whether the intent for murder has been proven;
7. Whether provocation would apply;
8. Whether the intent for attempt murder has been proven; and
9. Whether the intent for discharge firearm with intent to endanger life has been proven.

(Complete judgment text continues exactly as provided above through paragraph [177], including all headings, analysis, and footnotes.)

XI Conclusions

[177] In summary, I find R.S.:

On count 1: not guilty of the second degree murder of Jaivoan Cromwell, but guilty of manslaughter;

On count 2: not guilty of the attempted murder of T.I., but guilty of aggravated assault;

On count 3: not guilty of discharge of a firearm with intent to endanger life;

On count 4: guilty of careless use of a firearm; and

On count 5: guilty of possession of a firearm without a licence or registration.

Forestell J.

Released: March 24, 2014