Court File and Parties

COURT FILE NO.: DATE: 20180719 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JADEN SAUVE and JEREMY MORGAN Defendants

COUNSEL: M. Gharabaway, for the Crown J. Myers, for the Defendant, Jaden Sauve A. Paas, for the Defendant, Jeremy Morgan

HEARD: July 19, 2018

Byrne J.

Introduction

[1] Jaden Sauve and Jeremy Morgan are together charged with a number of offences in relation to a shooting that occurred on June 3, 2016, where 10-year-old Ahmed Arif was shot and injured while asleep in his home located at 111 - 70 Blake Street in the City of Toronto. Mr. Sauve is also charged with dangerous operation of motor vehicle, fail to stop for police, and breach of probation in relation to an incident on June 10, 2016. Further, Mr. Sauve stands charged both with possession of a firearm while prohibited and a breach of probation stemming from the events on June 3, 2016.

[2] Mr. Sauve and Mr. Morgan elected trial in the Superior Court of Justice without a jury.

[3] The evidence at trial was heard over the course of 3 months. The Crown case was comprised of 32 witnesses and 76 exhibits. Mr. Sauve and Mr. Morgan each elected to call no evidence.

[4] This is my judgment.

The Legal Principles

[5] The principles to be applied in this case are the same as those to be applied in any criminal trial.

[6] As in every criminal case, both Mr. Sauve and Mr. Morgan are presumed to be innocent, unless and until the Crown has proven each essential element of each offence beyond a reasonable doubt.

[7] I remind myself that reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.

[8] It is not enough for me to believe that Mr. Sauve or Mr. Morgan are possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

[9] The sole issue in this case is identity. In that regard, the Crown’s case against Mr. Sauve and Mr. Morgan is entirely circumstantial. Accordingly, I remind myself that in order to find Mr. Sauve or Mr. Morgan guilty of an offence, I must be satisfied beyond a reasonable doubt that such a finding is the only logical conclusion or inference based on the evidence as a whole (see: R. v. Dipnarine, 2014 ABCA 328, [2014] A.J. No. 1102; R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33).

The Undisputed Facts

[10] It is an agreed fact that on June 3, 2016, 10-year-old Ahmed Arif resided at 111 - 70 Blake Street with his mother, father and four siblings. At approximately 10:00 p.m. that evening, Ahmed and his mother returned home from the Mosque. After a short while Ahmed went to sleep on a mattress situated on the ground in the living room. The living room was located on the main floor of the townhouse. Ahmed’s next memory is waking up with a gunshot wound and being transported to Sick Kids Hospital. (See: Agreed Statement of Facts contained in Exhibit 3)

[11] Ahmed’s mother, Nighat Parvveenarif, testified that after putting her son to sleep on the mattress she stayed with him waiting for his older brother to return home. At approximately 11:30 p.m. her husband told her to go upstairs to bed as their older son would be home shortly. Within 5 minutes of going to bed, she heard what she described as fireworks and glass breaking. She said she could not understand what was transpiring but she could hear Ahmed screaming. She attended to him and realized that he was bleeding. Because neither Ms. Parvveenarif nor her husband could speak English, there was a 10 – 15 minute delay in the police being called. The police attended almost immediately after the call was placed. Although Ms. Parvveenarif’s evidence was not part of the agreed statement facts, it went in wholly uncontested. I accept her evidence completely.

[12] Further, there is no dispute that 10-year-old Ahmed suffered a “through and through” gunshot wound to his left shoulder. He spent four nights in hospital and remained on pain medication for several months after his release. The damage to bone is said to be minimal; he is young and a full physical recovery is expected. However, there is no medication for the emotional trauma this child has suffered. The emotional scars are deep and have left him fearful to sleep alone or even go to the washroom alone.

[13] At the outset of trial, counsel made a number of other admissions pursuant to s. 655 of the Criminal Code, R.S.C., 1985, c. C-46. Those admissions are contained in full in Exhibits 1 and 2. Included in those admissions is surveillance video footage from 70 Blake Street on the evening of June 3, 2016. The video surveillance is comprised of six different clips from six different surveillance cameras. The footage tracks two individuals exiting from a small green car and entering the back of the complex and making their way to the backyard fence of Unit 111, where shots were fired into that townhouse. The last two clips of video footage show the individuals running away, jumping a fence, and making their way out to the front of the Blake Street complex. Additionally, the footage shows a small green car pulling up to an area at the back of the Blake Street complex.

[14] The perpetrators were both male and wore baseball hats. One appeared to be wearing a black jacket with three white stripes down each sleeve, a grey coloured t-shirt underneath, and white coloured footwear. The other male had dark coloured footwear and wore a satchel across his body. Aside from those descriptors, it is impossible to make any positive identification of the perpetrators from the video surveillance footage.

[15] Although not a formal admission, there is no dispute that 13 bullet holes were located in the living room window of Unit 111 - 70 Blake Street and that 12 projectiles were found inside the living room of that home.

[16] Following the shooting, officers were searching for the small green car seen in the surveillance footage. On June 10, 2016 at approximately 7:11 p.m., DC Russo and his partner Cst. Kerr were led into a high-speed vehicle pursuit with a small green Hyundai. Cst. Kerr testified that he observed Jaden Sauve to be the driver. Daryhn Martin (Jaden Sauve’s ex-girlfriend) told police that she was in the passenger seat during the chase and that she had to jump out of the car because he would not stop to let her out. The car was later located abandoned and found to be rented on June 3, 2016 from Practicar Rental.

[17] The entire chase was captured on police car dash camera. Defence takes no issue that the vehicle was driven dangerously and failed to stop for police. The remaining question is: who was driving the vehicle?

The Evidence (The Disputed Facts)

Rental Car / Green Hyundai Accent

[18] Kenita Tully was the Crown’s first witness. Ms. Tully testified that on May 31, 2016, she rented a car from Practicar Rental a.k.a. Rent-A-Wreck at the request of her then boyfriend, Justin Adams. She testified that in the spring of 2016, Mr. Adams was incarcerated at the Toronto South Detention Centre. During his incarceration, Mr. Adams met a person named Riggs. Mr. Adams asked Ms. Tully to help Riggs rent a car because he was going to be released and needed a vehicle. Ms. Tully offered to help as long as she received some compensation for her efforts. The first time Ms. Tully met Riggs was at the end of May at the rental place. Although there had previously been some three-way conversation from the jail, this was the first and only time she laid eyes upon him. Riggs provided her with $500.00 for the cash deposit for the rental of a Chevy Impala. Ms. Tully said she signed the papers, drove the car off the lot and then gave the keys to Riggs. No identification was provided by Riggs. The following day Riggs contacted Ms. Tully saying that he needed to switch the car because the steering was loose. Arrangements were made and the car was switched on June 3, 2016. Ms. Tully did not attend the car rental location on that day and never again heard from Riggs.

[19] There is no dispute that on May 31, 2016, Ms. Tully rented a Chevy Impala and that the car was switched for a Green Hyundai Accent on June 3, 2016. This is all set out in the rental agreement marked as Exhibit 4.

[20] During her testimony (and after her memory was refreshed) Ms. Tully recalled that the person whom she had been referring to as Riggs actually went by the name Reilly. She also testified that she had seen Reilly on two occasions, once at the car rental place and once at the beach. Ms. Tully described Riggs as light skinned, describing him as lighter than her brown skin. She said he had long dark hair, curly and straight, frizzy, and long enough for a ponytail. She said both times she saw him his hair was in a ponytail. She described it as half breed hair. She said he was average height, 5’6” - 5’7” and guessed that he was in his 20’s.

[21] Ms. Tully has never identified Ms. Sauve as being Reilly. She was unable to identify him in a police photographic lineup.

[22] Miguel Franco was the Practicar employee who rented the car to Ms. Tully. He testified that he filled in the rental agreement (see: Exhibit 4). He said that Ms. Tully was with a male person. Mr. Franco said he asked that male person for a name and phone number which he recorded on the rental agreement. He wrote down phone number 226-505-2751 and underneath wrote the name “Railly”. When asked to describe this male, Mr. Franco said his skin was not white and not dark - that his hair was curly maybe long and thick and that he might have been between 20 and 30 years of age. He prefaced this testimony by saying that he could not really remember what the male looked like. When questioned during the preliminary hearing, he testified that he could not provide a description of the male and further he could not be sure that Ms. Tully even attended with another person. Mr. Franco said as he had been thinking about the incident more and more, and that more memories had come up. I can accept that more memories have surfaced for Mr. Franco over time, but it is the reliability of those memories that cause me concern.

[23] Mr. Franco testified that on June 3, 2016, two males attended and exchanged the Chevy Impala for a green Hyundai Accent. Ms. Tully was not in attendance. One of the males provided him with two pieces of identification, a health card and a temporary drivers licence in the name of John Fedderly Brown. Mr. Franco has no memory of the second male. Mr. Franco did not dispute that he has little actual recall of these transactions and is relying, for the most part, on the rental agreement (See: Exhibit 4) and identification documents (See: Exhibit 6) to refresh his memory.

[24] As already indicated, Mr. Franco asked the male with Ms. Tully to provide a phone number and name, which he recorded on the rental agreement. The phone number was 226-505-2751 and the name written underneath was “Railly”. That number appears 12 times in the Freedom Mobile Phone Record Data extracted from Jeremy Morgan’s cell phone. The data shows that Mr. Morgan’s phone called that number: (1) three times on June 9, 2016, (2) seven times on June 10, 2016 and (3) twice on June 18, 2016. The calls range in length from five seconds to 345 seconds. Crown counsel takes the position that Mr. Morgan was calling Reilly, who she posits is Jaden Sauve, and that this is evidence supporting a connection between Jaden Sauve and Jeremy Morgan. The suggestion although alluring is not available on the evidence before me. There is no evidence connecting Jaden Sauve, or frankly anyone, to that phone number.

GPS

[25] The green Hyundai Accent rental car was installed with a GPS tracking device. The device was installed by Mr. Januash Ginewek, the owner and operator of Genuine Tracking Solutions. Following installation, his company also tracked and monitored the vehicle in accordance with the client’s directions. In this case, the car was only tracked every five to ten minutes. In addition to recording the vehicles location every five to ten minutes, it also records when the vehicle is parked and can distinguish between when the vehicle is stopped with the ignition on or off. Mr. Ginewek produced the tracking data for this vehicle from June 3, 2016 to June 10, 2016 (See: Exhibits 53 and 54).

[26] Nicole Rebelo is a Toronto Police Service intelligence analyst. Her role in the investigation was to take the vehicle coordinates from the GPS data provided and plot it on maps to assist in establishing the vehicle’s movements. Those maps are contained in Exhibits 61,63,64,66,67 and 68.

[27] Mr. Ginewek and Ms. Rebelo were not qualified as expert witnesses. They offered no opinion evidence outside of explaining what they did to produce the data and how to read it. As I understand it, the actual data extracted and produced is not in dispute in this case. The meaning and weight that I ultimately attach to it, is.

Toronto South Detention Centre

[28] Sgt. Travis Williamson is the security manager at the Toronto South Detention Center. Part of his duties include overseeing the preparation of documents for court. Sgt. Williamson explained that each range can accommodate up to 40 inmates and that inmates are free to intermingle unless there is a lockdown. Lockdowns restrict the movements of inmates, the duration of which varies depending on the circumstances. It appears from the records that in the spring of 2016, Jaden Suave and Justin Adams were both incarcerated at the Toronto South Detention Center, and that between April 12, 2016 and April 29, 2016, they were situated on the same range. If accurate, this would allow for some potential contact between Jaden Sauve and Justin Adams. The difficulty is the accuracy of the records. Sgt. Williamson testified that the records, for a variety of reasons, are often inaccurate. The records also do not indicate when and if a lockdown occurred. I am mindful that inmates can still interact even on lockdown, however, the absence of available accurate information makes it difficult to place a lot of weight on this piece of evidence.

Cell Phone Records: “Reilly”

[29] On June 22, 2016, Jaden Sauve was arrested, and a black t-mobile phone was seized on his person during the search incident to arrest. The data from that cell phone was extracted and a portion of those records are contained in Exhibit 56. That portion is comprised of thousands of exchanges in the form of calls, emails, Facebook chats and other messages. One of those is a message sent to a person named Olivia at 647-877-8041 on June 17, 2016, saying “it’s rylee”. Crown counsel takes the position that this is confirmation that Jaden Sauve is the same Reilly that rented the car with Ms. Tully.

[30] I have thoroughly reviewed the data and I am well satisfied that this phone belonged to and was being used by Jaden Sauve. Of that I have no doubt. The question I am faced with is what weight I am to attribute to this one reference of “rylee”. It is literally the needle in a haystack. I am not bothered that the spelling is different from that on the rental car form as Mr. Franco said he was the one that filled it in. I am also mindful that the name is used in June 2016, so the timing fits. The fact remains, however, that it is a single reference out of thousands and, as such, makes it far less meaningful and diminishes the weight I am prepared to attach to it.

Search Warrant Seizures

[31] On June 23, 2016, Toronto Police executed a search warrant at 10 Boultbee Avenue - Unit 405, the home of Dianne Noftall, Jaden Sauve’s step-mother. DC Chantal Smith participated in the search and testified that she found a black Adidas jacket and a grey True Religion t-shirt folded under a pile of clothes on the closet floor of the master bedroom. She said both pieces of clothing were folded inside out and found underneath each other. The Adidas jacket is marked as Exhibit 40 and the grey t-shirt as Exhibit 39. DC Smith testified that photographs of the items were taken after the search was completed. She did not take the photographs, nor was she present when they were taken. Those photos are contained in Exhibit 42. Photograph 9 in that series of photographs shows a black Adidas jacket with three white stripes on the sleeves hanging in the master bedroom closet. DC Smith could offer no explanation for this discrepancy. She maintained that the jacket she seized was folded on the floor of the closet. This leaves open three equally plausible possibilities: (1) DC Smith is wrong and the jacket she seized was hanging in the closet and not on the floor; (2) There were two jackets and DC Smith only saw and seized one of them; or (3) The photographs were taken after the seizure and the photographer placed it in the wrong location. Absent some clarification, of which there is none, the value and weight that can attach to this evidence is greatly reduced.

[32] Crown counsel takes the position that the Adidas jacket and grey t-shirt match the clothing worn by one of the perpetrators in the surveillance footage. When combined with the evidence that (1) Diane Noftall lived in close proximity to the shooting and (2) that Jaden Sauve was known to frequent the address, this amounts to some evidence of identification that Jaden Sauve was one of the perpetrators.

[33] Crown counsel does not dispute that black Adidas jackets have become rather ubiquitous among young people. I am also mindful of the fact that another young man, Brandon Noftall, similar in age to Jaden Sauve, lived at that address where the search warrant was executed. It is impossible to know if this clothing belonged to him. These factors, combined with the uncertainty around the seizure of the items, greatly reduces its value and the weight I am prepared to attach to it.

[34] On June 23, 2016, Toronto Police Service executed a search warrant at 10 Kingston Road - Unit 84. I am satisfied that this was the residence of Jeremy Morgan. PC Galvao assisted in the search and seized a Gucci Satchel (See: Exhibit 46) in the bedroom of this apartment along with six cell phones. Photographs were taken of the satchel in the exact location that it was found (See: Exhibit 45). I have compared that satchel to images of Jeremy Morgan wearing a Gucci satchel that were extracted from his cell phone, and they appear to be the same.

Fingerprints

[35] DC Andrejishyn was permitted to testify as an expert in the field of fingerprint and palm print preservation, collection, comparison and identification. Shortly after the police chase on June 10, 2016, police located the green Hyundai Accent. It had been abandoned on a side street and was seized by police. DC Andrejishyn examined the vehicle for fingerprints and palm prints. He located two sets of fingerprints in the area of the driver front window and a palm print on the rear driver side quarter panel of the vehicle, all attributable to Jaden Sauve.

[36] DC Andrejishyn also located and identified prints on the exterior of the vehicle attributable to John Fedderly Brown, Duane Martin, Kareem Zedan and David Reece Jones. Duane Martin’s prints were also found on a glass jar containing drugs inside the front glove compartment of the vehicle.

[37] DC Andrejishyn found no prints inside the vehicle.

[38] DC Andrejishyn also said that he located 20 prints on the exterior of the vehicle that were insufficient for identification.

[39] DC Andrejishyn explained that not every contact will leave a viable print - it very much depends on a number of circumstances including the surface that is being touched. He also explained that he has no ability to date fingerprints. Depending on environmental and other external conditions, a print can last a long time or be wiped away easily.

[40] I accept that Jaden Sauve’s prints were found on the exterior of this vehicle; a vehicle that was involved in a police chase and a vehicle that was rented on June 3, 2016.

[41] DC Armstrong also testified as an expert in the field of fingerprint and palm print preservation, collection, examination, comparison and identification. The video surveillance footage from the Blake Street complex showed two perpetrators making their way through the back of the property and jumping a fence to exit onto the street. DC Armstrong lifted five prints from the top of this fence and identified one of the prints as belonging to Jeremy Morgan and one to an individual named Khalid Malik. The three remaining prints were insufficient for identification purposes.

[42] It is common for courts to receive and rely upon fingerprint evidence. Often this type of evidence goes in uncontested. That is not the case before me. Defence counsel takes the position that DC Armstrong’s evidence is fatally flawed because it lacks the sufficient evidentiary basis for judicial assessment. I have to agree. DC Armstrong testified that he has a set methodology that he applies in each and every case. He said he applied that methodology in this case but was unable to provide any further specifics. DC Armstrong offered absolutely no evidence about what he actually did in this case that led him to conclude that the palm print was Jeremy Morgan’s. In my view, DC Armstrong’s evidence amounts to nothing more than a conclusory opinion. Absent any proper evidentiary basis, I have no ability to assess his evidence and, accordingly, I am not prepared to place any weight upon it.

The Police Pursuit of the Green Hyundai

[43] On June 10, 2016 at approximately 7:11 p.m., PC Russo and PC Kerr were on general patrol in a marked scout car fully equipped with reflective decals and roof lights. When they came to the intersection at Jones Avenue and Boultbee Avenue, PC Russo observed a lime green two door Hyundai Accent stopped facing eastbound on Boultbee Avenue. Both officers knew that a green Hyundai Accent was a vehicle of interest in relation to the shooting of a 10-year-old on June 3, 2016.

[44] PC Russo, as passenger, observed the licence plate on the vehicle to be BWJK 068. He immediately did a vehicle check for the registered owner and received information that the vehicle was registered to a rental car agency on Keele Street. Upon receiving this information, the officer made the decision to pull the vehicle over. They activated their emergency equipment, made a U-turn and headed back towards the direction of the green car.

[45] It was at the this point that the officers observed the green car approach the intersection of Jones Avenue and Boultbee Avenue, pull into the oncoming live lane of traffic, swerve around a white SUV stopped at the intersection, almost colliding with the marked scout car, and proceed southbound on Jones Avenue without stopping for the stop sign.

[46] It was at this point of almost colliding that PC Kerr recognized the driver of the green car to be Jaden Sauve. He said the passenger was female. He could not identify her, but described her as having a long ponytail and wearing a white top. He said the driver, Jaden Sauve, was wearing a baseball hat and his hair was down past his ears. He said his hair was dark, straight, full and bountiful. He said his face portrayed a look of shock and fear. PC Kerr testified that he knew Jaden Sauve from previous investigations and as a result of casual police. PC Kerr specifically recalled a robbery investigation in 2014/2105 where he spoke to Jaden Sauve for approximately 10 minutes. He recalled another incident where he observed Jaden Suave and Daryhn Martin riding bikes and he knew they were not to be together. Mr. Sauve got away from him on that occasion. PC Kerr estimated that he has seen or talked to Jaden Sauve between 10 and 20 times during patrols in 55 Division.

[47] PC Russo did not identify Jaden Sauve as the driver but did say that the driver was male and the passenger was female. Immediately after the turn, he observed the passenger door fly open and the female almost fall out.

[48] The chase continued for several minutes through this residential neighborhood. The entire chase was captured on the dash camera of the scout car (See: Exhibit 26). The camera automatically activates when the emergency equipment is activated. It shows the green car travelling at incredibly high rates of speed throughout, putting both vehicular traffic and pedestrians at risk. Although the police tried to keep up, the speed put too many innocent people in this residential neighborhood at risk and the police were forced to slow down. After a couple of minutes, the police lost sight of the green car. The green car was later found abandoned not too far away. I find that the manner in which the green vehicle was driven to be dangerous and it failed to stop for the police as required. On this point there is no dispute.

[49] The sole issue is the identity of the driver.

[50] Defence counsel takes issue with PC Kerr’s ability to identify Jaden Sauve as the driver of the green car. Defence counsel argues that PC Kerr’s opportunity to observe was so fleeting, it should be given no weight.

[51] I disagree. And here is why.

[52] It is clear that PC Kerr only had seconds to observe the driver. However, the proximity of the police car to the green car is an important feature. PC Kerr said his driver’s door and the green car driver’s door came within five feet of each other. In my assessment, this would have allowed for a clear view of the driver. Moreover, PC Kerr’s mind at that point of almost colliding would have been keenly focused on attempting to identify the driver. It is important to keep in mind that the identification was not completely spontaneous or abrupt. Prior to the identification, PC Kerr had already driven by the green car and identified it as a vehicle of interest in the shooting of June 3, 2016. It was then that he and his partner decided to make a U-turn and go back and pull the green car over. In my view, the gathering of the information that led to the decision to pull the green car over, combined with time it took to go back to the location, put PC Kerr in the perfect mindset and position to make the identification. It would have been a much different scenario if the police had just come upon the vehicle without any time to process what they were seeing. That was the not the case here.

[53] Defence counsel also take issue with PC Kerr’s ability to recognize Jaden Sauve based on past interactions with him. In my view, PC Kerr’s interactions with Jaden Sauve prior to this incident were more than sufficient to make the identification. It is part of a police officer’s job to become familiar with and be able to recognize and recall people they have dealings with. That is part and parcel of community policing and that is how PC Kerr came to know Jaden Sauve. I accept that.

[54] Further support for PC Kerr’s testimony that he immediately recognized the driver to be Jaden Sauve is found in the scout car’s dash camera recording contained in Exhibit 26. That camera recorded the chase and everything the officers said in the scout car. At 19:15:47, you can hear PC Kerr identify the driver as Jaden Sauve. Defence counsel argues that all of this is suspect because PC Kerr does not know if he received information on parade that Jaden Sauve was a suspect. There is no evidence before me that Jaden Sauve was on the police radar at all prior to this police chase. And, therefore, there is no evidence to suggest that his name was given out on parade.

[55] Based on the evidence of PC Kerr, which I fully accept, and for reasons given, I am satisfied beyond a reasonable doubt that Jaden Sauve was the driver of the green Hyundai Accent on June 10, 2016.

THE EVIDENCE OF DAHRYN MARTIN

[56] On June 10, 2016, Daryhn Martin provided information to the police as a confidential informant. In a nutshell, she told police that she had been the passenger in the green Hyundai Accent that was being pursued by police. She said Jaden Sauve was the driver and that she had to jump from the car as it was being pursued because he would not let her out.

[57] On February 7, 2016, one day after commencement of this trial, Ms. Martin waived privilege, provided a sworn statement to police and was added to the witness list. This unique and virtually unprecedented shift from confidential informant to witness in my view demands a close examination of Ms. Martin’s evidence and why she changed her mind. I approach her evidence with caution.

[58] Twenty-year-old Dahryn Martin testified over the course of four days. Three of those days were dedicated to cross-examination during which Ms. Martin was thoroughly and rigorously examined. If believed, her evidence would significantly impact and implicate Jaden Sauve in this shooting and to a much lesser extent Jeremy Morgan.

[59] Ms. Martin testifies about four key events connected to the shooting:

(1) June 1, 2016: A discussion at Woodbine Beach about shooting a rapper named STK/Rax. Both Jaden Sauve and Jeremy Morgan were present. (2) June 3, 2016: Jaden Sauve comes to her house in a panic that night to shower and change his clothes. (3) June 4, 2016: Jaden Sauve told Ms. Martin that he had shot the 10-year-old boy and that they had shot the wrong house. (4) June 10, 2016: Ms. Martin is in the passenger seat of green Hyundai Accent when it is involved in a police chase. Ms. Martin tells police Jaden Sauve was the driver.

[60] Dahryn Martin testified that she has known Jaden Sauve since she was 12 years old. She testified that they have dated on and off over that time but have never been exclusive with each other. Despite not being exclusive, Ms. Martin believes that she and Mr. Sauve share a unique “young love” bond that seems to survive regardless of circumstance. By way of example, Ms. Martin testified that Jaden Sauve was released from the Toronto South Detention Centre at the end of May 2016 after serving a nine-month sentence for breaking into her home and assaulting her. Ms. Martin said despite not being his girlfriend, she would still visit him weekly and facilitate three-way telephone calls while he was incarcerated. At the time of Mr. Sauve’s release at the end of May 2016, Ms. Martin had had a baby with another man and was at that time involved in a relationship with him.

[61] Ms. Martin’s evidence regarding Mr. Sauve’s incarceration and release are fully and completely corroborated by Toronto South Detention Centre Records contained in Exhibit 29.

[62] Ms. Martin was much less familiar with Jeremy Morgan. She only came to know him because her girlfriend Destiny Campbell was dating him and she had seen photos of him on Snapchat.

Beach/Roof Top Conversation

[63] Ms. Martin testified that the day after Mr. Sauve’s release, he picked her up in a black Impala. She had never seen the car before. She said an individual by the name of Magic was driving. They went to Woodbine Beach. She said Jaden, Jeremy Morgan, Coke (aka: John Brown Fedderly, Jaden Sauve’s cousin), Magic and a couple of other people were there drinking and smoking. She said that at some point the police arrived. The police took down their names, told them to move the picnic table off the sand and leave. Ms. Martin testified they did as instructed by police and then the entire group left in the black Impala and drove to a rooftop in the Esplanade area. No charges were laid nor were any tickets issued.

[64] Ms. Martin initially testified there was no serious conversation going on at the beach. After having her memory refreshed, Ms. Martin testified that everyone in the group was having a conversation about a turf war and a rapper named STK/Rax who made a “dis-track” and that he was going to “get it”. She testified that “getting it” meant getting shot. She also explained that a “dis-track” is a YouTube video where the person is being intentionally disrespectful to another. She said the conversation started on the beach and continued on the rooftop. She said everyone was participating in the conversation including Jeremy Morgan and Jaden Sauve and that they were all “hyped” during the conversation.

[65] Ms. Martin could not remember the entire conversation. She could not attribute any particular portion of the conversation to either Mr. Sauve or Mr. Morgan. She said she was on her phone and not really paying attention but was adamant about what she heard.

[66] I have no doubt that this group met at the beach. Ms. Martin’s evidence in that regard is completely corroborated by the evidence of PC Lokaising and PC Shafiq. Both officers testified that on June 1, 2018, they were patrolling Woodbine Beach on bikes and came across a group of six to eight people drinking. Names were recorded and the group was asked to move a picnic table and leave the area. The officers testified the group did as asked and no charges were laid. I accept both officers evidence fully and completely.

[67] Further, the black Impala Ms. Martin spoke of is consistent with the Impala that Ms. Tully rented on May 31, 2016. Defence counsel argues it is not because Ms. Tully said the Impala was grey not black. This is a distinction without a difference, so minor that it is of no moment. I am satisfied that the black Impala driven on this day at the beach was the one rented by Ms. Tully on May 31, 2016.

[68] Defence counsel argue that no weight should be placed on Ms. Martin’s evidence about what she said she overheard on this day, in large measure, because she wasn’t listening, and she was smoking marijuana. I do not find that Ms. Martin’s smoking of marijuana had any effect on her ability to hear or remember what she overheard on this particular day. She seems to be a regular smoker and there is no evidence before me that she was impaired on this day. Moreover, the fact that Ms. Martin said she was trying not to hear but could not forget what she did hear adds a layer of believability to her evidence and it is consistent with the bits and pieces she testified to. In my view, if Ms. Martin was out to get Mr. Sauve, she could have easily made up a complete and detailed conversation. She did not. I accept Ms. Martin’s evidence as to what she overheard at the beach/rooftop.

June 3, 2016 - Before the Shooting

[69] Ms. Martin testified that she next saw Mr. Sauve on June 3, 2016 when he picked her up after work in a green car. She had never seen this green car before but identified it as being the same green car that was involved in the police pursuit on June 10, 2016. This is consistent with Miguel Franco’s evidence that on June 3, 2016, the Impala was switched for a green two door Hyundai Accent.

[70] Ms. Martin said that Coke was driving but she could not recall with certainty if Jeremy Morgan was in the car, even after refreshing her memory. Ms. Martin testified that they smoked a blunt, went to the store, and then dropped her off at home.

June 3, 2016 - After the Shooting

[71] Ms. Martin testified that she saw Jaden Sauve again that night when he showed up unexpectedly at her door. She said he was in a panic. He came in and showered, changed his clothes and then left with his clothes. Mr. Sauve told her that he had done something and she said she did to want to hear about it. She told him to do what he had to do and then go.

June 4, 2016 - The Confession

[72] Ms. Martin testified that on June 4, 2016, Jaden Sauve and Coke picked her up from work at the Liberty Grand. She said they were in the same green car as before. Mr. Sauve again told her he had something to tell her and again she said she did not want to hear about it. Ms. Martin said that she and Mr. Sauve ended up at her house and that is when he told her that he had shot a 10-year-old child on Blake Street and that they hit the wrong house. Mr. Sauve told her that they were trying to shoot the house where the YouTube rapper STK/Rax lives and they got the wrong house.

[73] Ms. Martin said he did not tell her exactly what happened, but he told her what he did and how it happened. He told her that Coke, his cousin, was the driver and that Jeremy was holding the backpack with the gun in it and when they got to the window, Jeremy passed Jaden the gun and Jaden is the one that shot the window.

[74] Ms. Martin’s evidence is corroborated, in part, by the video surveillance footage contained in Exhibit 58. Clip no. 4 shows a small green two-door car dropping off two individuals on Bain Avenue at 11:34:25 p.m., which is consistent with the information Ms. Martin received from Mr. Sauve.

[75] The same clip shows two men exiting the vehicle and start walking behind the Blake Street complex. It is apparent that one man is light skinned and the other has dark skin. The darker skinned man is carrying a satchel across his body.

[76] Ms. Martin’s evidence that the gun was removed from a backpack not being carried by Mr. Sauve is corroborated in Clip No. 3. This shows the two perpetrators at 11:37:07 p.m. come to a stop behind unit 111. The lighter skinned man is in the lead and is clearly motioning and pointing into the backyard of unit 111. Both males then appear to come together with their focus directed at the satchel carried by the darker skinned male. Although the view is partially obstructed by shadows and a tree, it is clear that the darker skinned male removes an object from the satchel; the object is in the shape of a gun. The lighter skinned male continues to motion and point towards the backyard of unit 111, then both males appear to approach the backyard fence. The lighter skinned male is leading the way. Once at the fence, the view is completely obstructed by dark shadows. After eight seconds, the lighter skinned male runs away from the fenced area, stops, and looks back, waits nine seconds and then begins running. Five seconds later, the darker skinned male comes out of the shadows and begins running. Also apparent on this clip were a number of muzzle flashes at or near the fence. On my count, there were approximately six muzzle flashes all after the light skinned male backed away from the fence. There is no dispute that a number of empty cartridge casings were found on the ground in this same area.

[77] Ms. Martin testified that Mr. Sauve told her specifically that he shot the window which is fully corroborated by the police evidence. The police counted 13 bullet strikes in the living room window that faces the backyard.

[78] These details on their face may appear small and insignificant but it is exactly this kind of specificity in detail that adds credibility to Ms. Martin’s evidence. I am quite certain that Ms. Martin did not appreciate the significant of these seemingly minor points. Other than the perpetrators only a few people had access to or knowledge of them; the police, and perhaps the victim’s family.

[79] Defence counsel argue that Ms. Martin could have just as easily received this information from news sources or from the disclosure. Ms. Martin testified that at some point before Ms. Sauve’s arrest, she saw a CP24 news bulletin about the green car but that she did not pay attention to it. I accept her evidence in that regard. Moreover, Ms. Martin did not testify as to the colour or make of car that was used to complete the drop off. In my view, if she was making this up, she would have availed herself of this detail.

[80] In cross-examination, Ms. Martin agreed that Mr. Sauve and Mr. Morgan’s girlfriend, Destiny White Campbell, spoke to her about disclosure. Ms. Martin said that the only thing they discussed in terms of disclosure was the fact that she was the confidential informant. Nothing more. I accept her evidence in that regard.

[81] I don’t accept that Ms. Martin received this information from a news source or through disclosure she was told about. I find that Ms. Martin received this information directly from Jaden Sauve. It makes sense that Mr. Sauve would want to confide in her. They essentially grew up together. They shared a close bond. Even while Mr. Sauve was serving sentence for assaulting her, she visited him in jail weekly and assisted him in making three-way telephone calls from the jail daily. Given the nature of their relationship, it is common sense that Mr. Sauve would confide in Dahryn Martin.

[82] Further corroboration for Ms. Martin comes from PC Manafo. PC Manafo testified that he is part of the Toronto Police Service Intelligence Unit and their mandate is the collection and evaluation of information. Through investigation, he found four YouTube videos featuring a rapper by the name of STK/Rax. PC Manafo recognized STK/Rax as Ridge Kazumba, a person he had dealt with in the past. The officer testified that Ridge Kazumba lived at 114 Blake Street, just a few doors down from the shooting.

[83] This evidence is important for two reasons. First, Ms. Martin testified that she herself had never met STK/Rax and had never seen his YouTube videos. PC Manafo’s evidence not only verifies what Ms. Martin overheard at the beach/rooftop, but also the veracity of it. Second, it corroborates Ms. Martin’s testimony that Jaden Sauve said they hit the wrong house.

June 10, 2016 - The Pursuit

[84] Ms. Martin’s next contact with Jaden Sauve was on June 10, 2016, the day of the police pursuit. Ms. Martin testified that prior to the police pursuit, Mr. Sauve, herself, and her brother travelled in the green car to Blake Street to buy marijuana. She said her brother drove to Blake Street but when they arrived, he got out of the car and left. She testified that before they had an opportunity to buy the marijuana, a police car drove by, so they decided to leave. She described the area as being “too hot” to make the buy. She testified that Jaden sped away and that is when they got into the police pursuit.

[85] Ms. Martin testified that during the pursuit, she wanted to get out of the car but Mr. Sauve would not let her. Finally, while travelling on Ivy Street Ms. Martin jumped from the moving car. Shortly after ejecting herself from the car while walking down Walpole, Ms. Martin came into contact with DC Smith. She was handcuffed and placed under investigative detention. Ms. Martin said that she told police that Jaden Sauve was the driver of the green car involved in the police chase and that she had nothing to do with that. She testified that she was transported back to the police station where she became a confidential informant and provided a statement to the police.

[86] As previously indicated, that green car was equipped with a GPS tracking device. The device, although somewhat helpful, was by no means precise. It provided an approximate location of the vehicle every five or ten minutes. The locations and movements as described by Ms. Martin are, in my view, reasonably consistent with the GPS data evidence. Defence counsel argue that Ms. Martin should not be believed because there are some times and places she testifies about that are not reflected in the GPS data. I am not troubled by these inconsistencies. In my view, the GPS data was by no means exact. The result seemed very much dependent on any number of variables and open to interpretation. Despite some minor timing discrepancies, I find the GPS data in many ways corroborates the evidence of Ms. Martin.

[87] Ms. Martin’s evidence about how and where she came into contact with police on June 10, 2016, is further corroborated by DC Smith and DC Lymer. Her first contact with police in relation to this incident happened on June 10, 2016 at approximately 7:15 p.m. when she was walking on Walpole Avenue and came into contact with DC Smith and DC Lymer. DC Smith and DC Lymer testified that they had been circulating the area searching for the green Hyundai Accent that had been involved in the police pursuit. At approximately 7:15 p.m., DC Smith saw Ms. Martin walking alone on Walpole Avenue. DC Smith testified that she recognized her from previous dealings and that on this occasion Ms. Martin had a “panicky look” about her. Shortly after being placed under investigative detention, Mr. Martin told police that Mr. Sauve had been driving the car involved in the police pursuit and that he would not let her out, so she jumped out when she could. The officers believed her and transported her back to the police station to provide a statement. DC Smith testified that after arriving at the station, Ms. Martin became scared, and as a result, was offered confidential informant status. Ms. Martin accepted and, with that privilege in place, provided a verbal statement to police telling them that Mr. Sauve was the driver of the green Hyundai Accent. Ms. Martin did not share any other information related to the shooting with the officers on this occasion.

[88] Ms. Martin’s evidence that the car being driven was green and that she was in the passenger seat during the police pursuit and wanted to get out, is completely corroborated by PC Kerr and PC Russo. Both officers testified that the passenger was female. PC Kerr testified her hair was in a ponytail and this is consistent with DC Smith who recalled Ms. Martin’s hair being pulled back in a ponytail when they stopped to speak with her.

[89] I have no difficulty accepting the veracity of Ms. Martin’s evidence in regards to the vehicle pursuit and that Mr. Sauve was the driver. However, as indicated earlier, I am well satisfied that Jaden Sauve was the driver of the green car based upon the evidence of PC Kerr and need not rely upon Ms. Martin’s evidence in that regard.

[90] That being said, there still remains some obvious discrepancies between the evidence of Ms. Martin and that of DC Smith and DC Lymer that must be addressed.

[91] Ms. Martin testified that she was handcuffed at the scene and remained so until she reached the station. The officers testified that the handcuffs were removed quite quickly at the scene. Ms. Martin testified that she provided a one-page written statement and she also said she signed some documents in relation to being a confidential informant. DC Smith testified that Ms. Martin only provided a verbal statement. I accept the police evidence as accurate on these procedural points. However, the fact that Ms. Martin remembers things differently in my view is of no consequence. This was clearly a traumatic incident for her. She jumped from a moving car. It is no surprise that she would remember the sequence of events or more minor procedural things differently from trained and seasoned officers.

[92] Ms. Martin believes that the police searched her purse and found a small amount of marijuana during the investigative detention. I am satisfied that DC Smith and DC Lymer did not search Ms. Martin’s purse. I am not persuaded that Ms. Martin was intentionally lying or trying to mislead the court. There is a very real possibility that her memory about this collateral issue was faulty due to the traumatic nature of the incident she had just experienced and the passage of time. Moreover, she was never cross-examined on this inconsistency and never given an opportunity to provide an explanation.

[93] There is one final and connected inconsistency in Ms. Martin’s evidence as it relates to the pursuit. Ms. Martin testified that prior to the police pursuit she and Mr. Sauve went to Blake Street with the intention of buying weed. She testified that due to police presence they did not buy any marijuana. In her words, it was “too hot.” On February 7, 2018, Ms. Martin told police in her sworn statement that she “got weed” on that day. When confronted with the inconsistency, Ms. Martin did not deny it that she said that but was, nonetheless, adamant that she did not buy any marijuana on Blake Street that day.

[94] Jaden Sauve was arrested on June 22, 2016. Ms. Martin testified that she continued to have telephone contact with Mr. Sauve after he was arrested and detained on these charges. During one of these conversations, Mr. Sauve told her that the backpack carried by Jeremy was a Gucci bag. Mr. Sauve told Ms. Martin that Jeremy was stupid because he kept the backpack at his house and it had gun powder in it.

[95] Corroboration for this evidence comes from several sources. There are two images on Jeremy Morgan’s phone of him wearing a Gucci bag (See: Exhibit 57A). Further there are the photographs from the search warrant on Jeremy Morgan’s home of a Gucci bag hanging on a bedroom closet door (See: Exhibit 45). And finally, the video surveillance footage from 80 Blake shows one of the perpetrators carrying a bag that closely resembles a Gucci bag. In my view, there is ample evidence supporting the testimony of Daryhn Martin as it relates to this piece of evidence.

[96] Ms. Martin testified that by October 2016, she had intentionally stopped talking to Jaden Sauve. She said it was because when he came out of jail in the spring, he said he was going to be different and then within three days, he shot a 10-year-old. I fully accept her evidence that she wanted to distance herself from Jaden Sauve.

[97] On January 20, 2017, Ms. Martin contacted DC Smith by telephone to report that she had received threats from Jaden Sauve and that he was going to physical harm and/or kill her. This resulted in the police discussing a safety plan with Ms. Martin.

February 6, 2018 - Ms. Martin Waives Confidential Privilege

[98] The next time Ms. Martin had contact with the police was on February 6, 2018. Ms. Martin called DC Smith to report that she had been receiving threatening messages from Mr. Sauve’s friends and girlfriend. DC Martin described her voice as “panicky”. It was at this time that Ms. Martin attended the police station, waived her status as confidential informant, and provided a statement to the police.

[99] Defence counsel spent a lot of time cross-examining Ms. Martin on the veracity of the alleged threats and specifically about threats she received from a young woman named Whitney. Whitney, as I understand, is Mr. Sauve’s current girlfriend and she was present in the courtroom for this part of the cross-examination. Ms. Martin said she received threats indirectly from Mr. Sauve through Whitney and others. Defence counsel took Ms. Martin through a series of social media messages between her and Whitney. Ms. Martin took issue with the authenticity, completeness and accuracy of those messages. I have to say even with my limited knowledge of social media, the messages or conversations as they were presented in court were highly suspect. I do not rely upon them. I do not find any merit in the defence position that Ms. Martin was jealous of Whitney and came forward out of spite and seeking revenge. There does appear to be some kind of social drama between Whitney, a number of other girls and Ms. Martin. In my view, this is not only collateral but entirely irrelevant to this matter.

[100] I accept Ms. Martin’s evidence that she was of the belief that Mr. Sauve was sending threats of bodily harm and death to her and her daughter and that this fear is what motivated her to come forward to the police. Her position is reasonable given that Mr. Sauve had been violent with her in the past. However, it is not necessary for me to find that Mr. Sauve did, in fact, make or send the threatening messages. He may not have. But to Ms. Martin the threats were real.

[101] I am also satisfied on the evidence before me from the police and from Ms. Martin that she did not receive any form of incentive or compensation for coming forward in February 2018 or on June 10, 2016. The police did assist Ms. Martin with relocating her residence in February 2018. In my view, this was solely for the purpose of ensuring the safety of Ms. Martin and her daughter but was not compensatory.

[102] Ms. Martin was cross-examined at length about an outstanding robbery charge she had at the time of giving her statement in February 2018. Ms. Martin and the police both testified, and I accept, that these charges were not discussed before, during or after she provided her statement. Those charges are still outstanding and I find they played no role in Ms. Martin’s decision to waive privilege and provide a statement.

[103] I now want to address what seemed to be a theme of hesitancy or resistance that ran through Ms. Martin’s testimony in regard to collateral matters involving herself and sometimes others.

[104] Ms. Martin was reluctant to speak about her current criminal charges. It was clear that Ms. Martin’s perspective of what happened that led up to those charges was in direct contrast to that of defence counsel. In assessing what to make of this, I remind myself that at this stage they are only allegations and Ms. Martin is presumed innocent. In my view, Ms. Martin is entitled to her opinion of what happened. Given the circumstances, her reluctance is understandable. Moreover, witnesses are often caught off guard and become defensive when unexpectedly questioned about personal matters that they perceive to be irrelevant and unrelated. I am not troubled by Ms. Martin’s response and it does not impinge on her credibility.

[105] I have also considered Ms. Martin’s reluctance to speak about a number of other collateral type issues. For example, Ms. Martin was hesitant and guarded in answering questions about her buying marijuana on June 10, 2016, her past criminal antecedents and her brother’s past experience as a drug dealer. Again, Ms. Martin was caught off guard and expressed a genuine concern about the relevancy of the questions. She did answer when directed, but it was a bit like pulling teeth. In my view, it was not her intention to deliberately mislead the court. Clearly, being in a formal courtroom setting was not a normal or comfortable environment for her.

[106] This is understandable and, in my view, her reluctance and hesitancy is born out of her life experience. She has had a lot of contact with the criminal justice system as a youth, which is evinced by her youth record. Now, as a young adult with a baby, she is holding down a full-time job and paying rent. She may be young and immature, but she says she has no interest in returning to a criminal lifestyle. I believe her. I also think she is proud, loyal, and puts on a strong front in an attempt to hide her fears and insecurities.

[107] Ms. Martin’s hesitancy and/or resistance on these collateral issues, while justifiable, does make sorting through her evidence more difficult. As such, I am cautious and rely heavily on corroborative evidence in the assessment of her testimony.

[108] Ms. Martin’s reluctant attitude was, for the most part, limited to collateral matters, with one exception. The one exception is Ms. Martin’s evidence that she deliberately did not tell the police everything she knew about the shooting when speaking to DC Smith on June 10, 2016. Ms. Martin testified that she purposely held back information; vital information. At that point on her evidence, Mr. Sauve had confessed to her that he shot the 10-year-old boy. She testified that she only told the police the bare minimum so that she could leave. But for being stopped by DC Smith, Ms. Martin may never have gone to the police. But for feeling threatened, Ms. Martin may never have told the police all that she knew. It is clear that Ms. Martin is loyal to her friends and family, including Jaden Sauve. Saying things against their interest does not come easily to her. It is exactly this type of loyalty that, in my view, led her to lie to the police and during a trial in the Ontario Court of Justice.

[109] Ms. Martin testified that in 2015, she was assaulted by Mr. Sauve. She said he beat her up, hit her with the butt end of a gun, and waved a gun in her face. During the investigation, she lied to the police by telling them Mr. Sauve did not have a gun. She repeated that lie during the trial in the Ontario Court of Justice. During this trial before me, Ms. Martin, without hesitation, admitted that she lied on both these occasions. She explained that at that time she loved Jaden Sauve and wanted him back home and that is why she lied. She talked about the power of “young love”. Anytime a witness lies under oath, it is serious and significant and engages a whole new level of scrutiny by the court. Ms. Martin’s explanation as to why she lied is, in my view, believable. It is unfortunate but not uncommon for victims of domestic assault to recant and/or lie about what their abusers did for all sorts of reasons. Ms. Martin is a classic example of such a victim. I am also mindful that Ms. Martin did not lie to make things worse for Mr. Sauve. She was young, immature, in love, and prepared to do anything to protect him and their relationship. I am not under the impression that Ms. Martin no longer cares for Mr. Sauve. I think she does, she just cares more about herself more.

[110] I don’t accept that Ms. Martin came forward out of spite and jealousy to get back at Mr. Sauve for having a new girlfriend. Quite the opposite. I think it was difficult for Ms. Martin to testify against Mr. Sauve. In my view, when she believed that Mr. Sauve was threatening her and her child, she felt she had no choice. Let me be clear. I am not finding that Mr. Sauve did threaten Ms. Martin directly or indirectly. I do not have to. I am, however, satisfied that Ms. Martin thought she was being threatened and that is why she came forward.

[111] After a thorough review of Ms. Martin’s evidence, I accept that Mr. Sauve confessed to her on June 4, 2016 about the shooting and his role in it. I have been cautious in my acceptance of her evidence, mindful of her inability to be forthright on collateral issues, and other credibility issues. Her evidence in relation to the matter before this court has, in large measure, been corroborated by police or other credible evidence. Moreover, her testimony about the confession contained small yet significant details that add a layer of believability to her evidence. If Ms. Martin had wanted, she could have easily exaggerated and added detail to her testimony about the confession. She did not. Her evidence is that she did not want Mr. Sauve to tell her what happened. She did not want to be part of it. When he did finally tell her, it was brief and she asked no questions. The truth has a way of getting your attention. Ms. Martin’s evidence about how she was told and what was said has the ring of truth to it.

Analysis

[112] As indicted earlier, the case against Mr. Sauve and Mr. Morgan is entirely circumstantial. In order to find either of them guilty of an offence, I must be satisfied beyond a reasonable doubt that the only logical conclusion or inference based on the entirety of the evidence is one of guilt.

JADEN SAUVE

[113] I will first turn to the evidence against Mr. Sauve.

The Confession

[114] The most significant piece of evidence implicating Mr. Sauve in the shooting comes from the evidence of Daryhn Martin. For reasons already stated, I accept and find as a fact that Mr. Sauve did confess to Daryhn Martin on June 4, 2016.

[115] I next go on to consider if Mr. Sauve was telling the truth when he confessed to Ms. Martin. After a thorough review of all of the evidence, I find that Mr. Sauve was being truthful about his role in the shooting and here is why.

[116] Mr. Sauve told Mrs. Martin that they shot the wrong house. The evidence overwhelmingly supports this statement. Ms. Parvveenarif, the 10-year-old victim’s mother, testified that she along with her husband and five children lived in the townhouse. They had no known enemies. She knew of no reason someone would do this. There is absolutely no evidence before me to suggest that the 10-year-old victim or his family were the designated targets.

[117] Mr. Sauve told Darhyn Martin the he and Jeremy were driven to the complex and dropped off by Coke. The video surveillance fully corroborates this statement. It clearly shows the two perpetrators exiting a car at the back of the complex and the car driving away. It matters not who was driving. You are not able to see the driver in the video but the un-contradicted evidence is that Coke, also known as John Fedderly Brown, participated in the rental of the small green Hyundai Accent and it is a small green car that the two perpetrators exit from.

[118] As an aside, Ms. Martin did not know what kind of car was used to complete the drop off. She was only told who the driver was. This is an important point because it corroborates Ms. Martin’s evidence that during the police pursuit, she did not fully comprehend why Mr. Sauve was evading the police. She said it was only during the chase that she thought that the green car must have been involved. These are exactly the kind of details that augment Ms. Martin’s believability and inconsistent with a manufacturing of evidence.

[119] Mr. Sauve told Ms. Martin that Jeremy Morgan had the gun in a backpack. The video surveillance shows the darker skinned male caring a cross body satchel and when they get to the back of the unit 111, it shows the male removing what appears to be a gun from that satchel. The video is consistent with this statement.

[120] Mr. Sauve told Ms. Martin that when they got to the window, Jeremy passed him the gun and he shot the window. The video surveillance shows the two males approaching the fence, the lighter skinned male is in the lead and the darker skinned male is close behind and appears to have a gun in his right hand. The portion of the video when the males are at the fence and the shooting takes place is completely obscured by dark shadows. As indicated earlier, both males go into the darkness towards the fence, the light skinned male comes out first followed later by the dark-skinned male. The light skinned male has already moved away from the fence when the muzzle flashes are seen. It is clear the dark-skinned male is firing the gun after the light skinned male has moved away. My first thought was that the darker skinned male did all the shooting. However, I was only able to discern approximately six muzzle flashes when the dark-skinned male is alone at the fence. The evidence is that there were 13 bullet strikes in the window and 12 empty shell casing recovered. I find that not all 13 shots produced visible muzzle flashes on the video. The males are together at the fence in the darkness for approximately eight seconds. I find this was ample time for the light skinned male to have taken the gun, shot at the window, handed the gun back and then back away and wait. I find that the video of the actual shooting is not inconsistent with Mr. Sauve’s confession to Ms. Martin.

[121] I am satisfied that Mr. Sauve was telling the truth to Darhyrn Martin on June 4, 2016. I am further satisfied that Mr. Sauve was the lighter skinned male in the video.

Beach / Rooftop Conversation

[122] For reasons already stated, I accept Ms. Martin’s evidence about the beach/rooftop conversation. I find, as a fact, that the conversation did take place as she said. I find, as a fact, that Mr. Sauve participated in it. I find, as a fact, that “getting” STK/Rax and his “dis-track” was the subject of the conversation. This evidence is, in part, corroborated by the evidence of PC Manafo who confirmed that STK/Rax is a rapper and some of his videos were made exhibits. Further, PC Manofo confirmed, and I accept, that STK/ Rax lived at 114 Blake Street, just a few units away from the shooting, which amounts to additional confirmatory evidence that they shot the wrong house, just like Mr. Sauve said. I also take into account that this conversation happened only two days before the shooting. As such, it does amount to some minor evidence of motive going to identity.

The Pursuit

[123] For reasons already stated, I am satisfied beyond a reasonable doubt that Mr. Sauve was the driver of the green Hyundai Accent involved in the high-speed vehicle pursuit. I am further satisfied that this piece of circumstantial evidence amounts to post offence conduct that goes directly to the ultimate issue of identity.

[124] Defence counsel submits that the high-speed pursuit is equally consistent with other rational conclusions that cannot be excluded on the evidence. I disagree and here is why.

[125] Defence counsel points to two possibilities for Mr. Sauve wanting to evade the police. The first being that he is in the car with Darhyn Martin. There is no dispute that after being released from prison, Mr. Sauve was on a court order not to have any contact directly or indirectly with Darhyn Martin. Defence counsel argues that because Darhyn Martin was in the car with him when they came upon the police, it makes sense that he would flee. Although there is some allure to that argument, it is not supported on the evidence before me. Darhyn Martin testified that after Mr. Sauve was released, they were frequently together in public and neither she nor Mr. Suave were concerned about the no contact court order. Moreover, Mr. Sauve and Ms. Martin were together at the beach on June 1, 2016 when they were confronted by the police. Mr. Sauve did not make any attempt to run away, avoid, or evade the police on that day. Quite the contrary. Both he and Darhyn Martin identified themselves to the police and left together without incident. It makes no sense that on this day, Mr. Sauve would suddenly and randomly be concerned about being with Ms. Martin.

[126] I do not accept that Mr. Sauve engaged in a dangerous high-speed police pursuit out of fear for being caught with Ms. Martin. If that was his fear, it begs the question: why would he not let her out of the car as requested by her? It makes no sense. I do not accept it.

[127] The second possibility advanced by defence for fleeing from the police is because there were drugs in the car. The car was found abandoned after the chase. In the glove box was a jar with marijuana in it and in the console was very small plastic package that was said to also contain marijuana. The difficulty with this proposition is that there is no evidence that this was Mr. Sauve’s marijuana or that he knew it was in the car. This was a rental car that was not rented by him. He along with several others had been driving it and using it. If he had been pulled over, the drugs in the glove box were not visible and the very small package in the console was wrapped in dark plastic and blended into the dark coloured console to the point of invisibility.

[128] Moreover, the high speeds and dangerous maneuvers undertaken by Mr. Sauve to avoid the police are disproportionate to being found with a small amount of marijuana. I do not accept that Mr. Sauve engaged in a dangerous high-speed police chase because there was marijuana in the rental car.

[129] I am satisfied that Mr. Sauve was fleeing from police because he had been involved in the shooting days earlier. This is the only logical conclusion on the evidence before me. Of that, I am satisfied beyond a reasonable doubt.

The Green Car

[130] There is no dispute, and I find as a fact, that the green Hyundai Accent driven and abandoned by Mr. Sauve on June 10, 2016 was rented on June 3, 2016 from Practicar. I have compared the photographs of the green rental car to the video footage of the green car dropping off the two perpetrators behind the Blake Street complex on June 3, 2016. I am satisfied that it is the same car. The resemblance is uncanny. Both are small two door cars. Both cars appear to be the same size and shape. And both cars are green in colour. But more importantly, they appear to be the same shade or tone of green. A significant temporal connection is the fact that the green car was rented only hours before the shooting. Finally, there is the GPS evidence, while not precise, it does show the green rental in the Blake Street complex area in and around the time of the shooting. The only logical conclusion when these facts are considered in combination is that these two cars were one in the same.

[131] I am not satisfied that Mr. Sauve participated in the rental of the Impala or the green car. I am, however, satisfied that Mr. Sauve had access to and drove both cars. I accept that evidence of Dahryn Martin that Mr. Sauve was driving an Impala on June 1, 2016, when they went the beach. I am satisfied, for reasons previously stated, that the Impala was the same car rented by Ms. Tully on May 31, 2016. I am further satisfied that Mr. Sauve had access to and frequently drove the green Hyundai Accent that was rented on June 3, 2016 in exchange for the Impala. The evidence in support of this is overwhelming and comes from several sources, including Dahryn Martin, PC Kerr and Mr Sauve’s fingerprints being found on the exterior of the car. Mr. Sauve’s connection to this car is yet another piece of circumstantial evidence connecting Mr. Sauve to the shooting.

Conclusion / Jaden Sauve

[132] I have turned my mind to defence counsel’s argument that the lighter skinned male on the video is not participating but running away when the shooting starts. Defence counsel urges a finding of abandonment on the part of the lighter skinned male. I disagree. I have carefully watched the video footage on this point numerous times. While I am mindful that it was the darker skinned male who had possession of the satchel that contained the loaded firearm, it is clear from the video that both perpetrators upon exiting the green car were committed to one specific purpose. They both, without hesitation, proceeded directly and swiftly to the backyard. Once at the targeted location, it is clear that the lighter skinner male is taking the lead. He is motioning and pointing to the backyard. His body language is distinct and pronounced both before and after the shooting. It is obvious that he is fully participating and committed to the shooting. I satisfied and find that both perpetrators participated in every aspect of this offence as joint principals.

[133] For reasons previously stated, I find as a fact and am satisfied beyond a reasonable doubt, that Jaden Sauve was the lighter skinned perpetrator in the video footage. This is the only logical conclusion based on the whole of the evidence.

[134] I am also satisfied beyond a reasonable that Mr. Sauve took possession of the firearm and shot into the unit 111 on the June 3, 2016.

[135] In relation to Mr. Sauve and after a thorough review of the evidence, the law and the submissions of counsel, I find that the Crown has met it onus. I am satisfied beyond a reasonable doubt that the only logical conclusion based on the entirety of the evidence is that Mr. Sauve is guilty of the following offences:

Count 1: discharge firearm (s. 244.2(1) (a)) Count 2: use firearm while committing an indictable offence (s. 268(1)) Count 3: Aggravated Assault (s. 268(2)) Count 5: occupy a motor vehicle knowing a firearm was present (s. 94(2)) Count 6: possession of a loaded firearm without authorization (s. 95(1)) Count 7: possession of a firearm while knowingly not have a licence or registration (s. 92(1)) Count 8: carry concealed weapon (s. 90(1)) Count 9: dangerous operation of a MV (s. 294(1)(a)) Count 10: Fail to stop (s. 249.1(1)) Count 13: Breach of probation (s. 733.1(1))

[136] I find the Crown has not met it onus in relation to:

Count 4: Wear a disguise (s. 351(2)) Count 11: Possess Firearm when prohibited (s. 117.01(1)) Count 12: Possess a firearm when prohibited (s. 117.01(10))

[137] Acquittals will follow on those three counts.

JEREMY MORGAN

[138] I will now turn to the case against Jeremy Morgan.

[139] The evidence against Jeremy Morgan comes from three main sources:

(1) The beach/roof top conversation; (2) Fingerprints found on the fence at the Blake Street Complex; (3) The Gucci satchel.

[140] For reasons already stated, I accept the evidence of Dahryn Martin about the beach/rooftop conversation that took place on June 1, 2016. I am satisfied that Jeremy Morgan was present for that conversation and to some extent participated in it. However, there is no evidence at to what, if anything was said by Mr. Morgan. I am also mindful that Ms. Martin had only recently met Mr. Morgan and it makes common sense that she would have been much less focused on him than Mr. Sauve at that time. Although it does amount to some evidence of motive going to identity, the amount of weight I am prepared to attach to it is negligible.

[141] The evidence is that Mr. Morgan’s palm print was found on the top of a fence consistent with the path used by perpetrators to make good their escape. This type of evidence is typically considered compelling and persuasive. However, for reasons already stated and my inability to independently assess that evidence, I am not prepared to place any weight upon it.

[142] The final primary piece of evidence against Mr. Morgan is the Gucci satchel. After the shooting, the police executed a search warrant on Mr. Morgan’s residence. Inside the bedroom of that residence, the police located a Gucci satchel hanging on the back of a closet door. Also in evidence are images extracted from Mr. Morgan’s cell phone showing him wearing what appears to be the same Gucci satchel. It is undisputed and clear from video footage of the shooting that the darker skinned perpetrator is wearing a side satchel and that he appears to remove a gun from that bag. The satchel worn by the perpetrator does look similar to the Gucci bag found in Mr. Morgan’s home. However, I am not able with any certainty to conclude that it is that same bag. Moreover, the images of Mr. Morgan wearing the bag are taken more than two weeks after the shooting. Even if I were to conclude it was the same bag, all I know for sure is that Mr. Morgan had possession of the bag after the shooting had taken place.

[143] Crown counsel urges me to consider the GPS evidence showing that the green car was in the vicinity of Mr. Morgan’s residence after the shooting. For reasons previously stated, I am cautious about placing weight on this evidence given the imprecise nature of it.

[144] Crown counsel also urges me to find that Mr. Morgan’s association with Mr. Sauve is some evidence of identity. I am prepared to find that they were associating before and after the shooting, but standing alone or combined with the above mentioned evidence, it certainly does not satisfy me beyond a reasonable doubt that Mr. Morgan was one of the two perpetrators.

Conclusion / Jeremy Morgan

[145] The case against Mr. Morgan is vastly different than that against Mr. Sauve. I have been careful to keep my assessment of the evidence in relation to each accused independent. It is easy in a case like this, where a child has been shot, to want to identify the offender. Human nature wants to blame someone. The desire to provide an answer and bring closure is strong. But I remind myself that our law requires proof beyond a reasonable doubt. When I consider the evidence against Mr. Morgan, I find myself very much left in a state of uncertainty and doubt. Our law requires that Mr. Morgan be given the benefit of that doubt. Accordingly, Mr. Morgan will be acquitted on all counts.

Byrne J.

Released: July 19, 2018

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JADEN SAUVE and JEREMY MORGAN Defendants REASONS FOR JUDGMENT Byrne J. Released: July 19, 2018