COURT FILE NO.: YC-18-1045 DATE: 2019 06 26

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN C. Nadler and A. Cornelius, Counsel for the Crown Applicant

• and -

A.D. (A Young Person) U. Kancharla, Counsel for the Respondent Respondent

HEARD: June 12th and 13th, 2019

REASONS FOR DECISION

LEMAY J

[1] The accused, a young person, is on trial for the first degree murder of Kamar McIntosh. Mr. McIntosh was killed inside the washroom area at a fast food restaurant in Mississauga at approximately 3:25 p.m. on April 27th, 2017.

[2] The matter proceeded before me with a jury. Part of the evidence led by the Crown was evidence as to what had been said and done by the accused after the shooting took place. When it came time to discuss the charge to the jury with counsel, issues arose as to what uses, if any, the jury could make of this evidence. I note that there was no motion brought by the defence to actually exclude this evidence from being tendered before the jury.

[3] Counsel for the Crown asked me to instruct the jury that they could use the post-incident evidence for both planning and deliberation and to demonstrate that the accused aided in this murder. Counsel for the Defence asked me to instruct the jury that the evidence could not be used to establish either planning and deliberation or to prove that the accused aided in this murder.

[4] When I provided the jury charge to Counsel on June 13th, 2019, I made it clear that the post-incident conduct could only be used for the question of whether the accused aided in the murder, or aided in other unlawful conduct. It could not be used to establish whether the shooter or shooters had the intent to kill, or whether the intent was based on planning and deliberation. These are the reasons for that decision.

Background Facts

[5] The evidence of what happened on the day of the shooting comes primarily from the videotapes in the fast food restaurant where the shooting took place although there are also cellphone records. There is no video of the actual shooting. In addition, there are some videotapes from surrounding stores and from a taxicab after the shooting. It is useful to divide the background facts into two sections, being the events before and during the shooting and the events after the shooting.

a) The Events Before the Shooting

[6] The evidence before the shooting starts with cell phone records that shows the accused in communication with Mr. Meredith and Mr. Chizanga in the approximately twenty (20) minutes before the accused arrives at the restaurant.

[7] The accused arrives at the restaurant at about the same time as Mr. Chizanga. Mr. Meredith, who is sitting in the restaurant at the time that they arrive goes out and meets them in the vestibule. This is approximately 30 minutes before the shooting.

[8] Mr. Chizanga, Mr. Meredith and the accused are all seen together in the same area of the restaurant. From time to time, they are seen looking out the window at something. However, the parties agree that there is no evidence from which it can be inferred that Mr. McIntosh is the person that they are looking at. It could be inferred, however, that the parties are looking for Mr. McIntosh.

[9] One of the unidentified males hands Mr. Chizanga something. Mr. Chizanga goes into the washroom area approximately fifteen (15) minutes before the shooting takes place. He does not come out of the washroom until after the shooting takes place.

[10] In the few minutes before the murder, Mr. Meredith and the accused are engaged in discussions. There are occasions on which they are looking out the windows to the north of the restaurant. The Crown argues that the trier of fact can infer from that behavior that the accused and Mr. Meredith were looking for Mr. McIntosh.

[11] After this conversation, the accused walked into the washroom, and Mr. Meredith briefly left the restaurant. Mr. Meredith returned and walked briskly to the washroom area. Shortly thereafter, the accused slowly left the washroom area and went over to the counter, where he reportedly asked the staff for change.

[12] Mr. McIntosh briskly walked into the restaurant. He headed straight for the washroom area. When he reached the entrance to the washroom area, he hesitated before he entered the washrooms but went in anyway.

[13] In the next minute, the video shows signs that the staff are becoming increasingly concerned about what was going on in the washroom. Two staff members testified that they heard the sounds of fighting coming from the washroom, followed by shots.

[14] While this is going on, someone else enters the restaurant running, goes past the area where the accused is asking for change, and goes directly to the washroom area. The accused follows this person over to the washroom area, and stands at the entrance where he can see the door to the women’s washroom, but not the men’s washroom.

[15] The person who had run into the restaurant then leaves the washroom area at a run, and pushes the accused aside. The accused follows this person towards the doorway and then goes back to the washroom entrance.

[16] Very shortly after he was shoved by the washroom, the accused leaves the restaurant. As the accused is seen on video leaving the restaurant, Mr. Meredith and Mr. Chizanga are seen leaving the washroom area and the restaurant. Mr. Meredith goes out the same door that the accused uses. Mr. Chizanga goes out the other door.

[17] As Mr. Meredith is leaving, he can be seen holding a large black cylindrical object. It looks like a gun. This was not visible on the video beforehand. However, the jacket that Mr. Meredith is wearing remained zipped up for the entire time before the killing. Mr. Meredith never sits down with his legs bent 90 degrees prior to the killing either.

[18] Although defence counsel wanted the question of whether there were one or two shooters left to the jury and I acceded to that request, the uncontradicted evidence from Karen Dann, an expert from the Centre for Forensic Sciences in the examination of firearms, is that there were bullets from two different guns recovered from the scene of the crime.

b) Post Incident Conduct

[19] The conduct that the accused may have engaged in after the shooting is as follows:

a) Left the Popeyes’ restaurant and went to Triple 1 Nail Salon. He went through the Nail Salon and contemplated leaving by the back door, but did not do so. b) Called a taxicab to come and pick him up from the Nail Salon, and directed the taxi driver to make a U-turn in the parking lot. Before the taxi cab arrived, he is seen on the video in the washroom at the Triple 1 Nail Salon. c) Directed the taxi driver to take him to his home address when he got into the cab. d) Made two phone calls to Thulani Chizanga and one call to Shamar Meredith. e) Had the taxi driver backtrack and pick up Mr. Chizanga at the Kentucky Fried Chicken approximately a block away from the Popeyes. f) Been in the taxi when it picked up Mr. Meredith on King Street near Shepard Avenue. g) Paid the taxi driver after all three individuals were dropped at Mr. Dobre’s residence. h) Taken Mr. Meredith’s coat out of the taxicab.

[20] From this conduct, the Crown is seeking to have the jury draw inferences about the plan, and about the accused’s participation in that plan. In addition, on point (h), the Crown seeks to have the jury determine that at least one of the guns used in the shooting was underneath the coat that the accused removed from the taxi. The defence seeks what would be, in essence, a no probative value instruction about this conduct.

The Elements of the Offence

[21] In understanding the positions of the parties, and the reasons for my ruling, it is important to set out the elements of the offence that must be proven by the Crown in this case. The charge is first degree murder, and the only way that the accused can be guilty is if the Crown can prove beyond a reasonable doubt that the accused aided the shooter (or shooters) in committing a planned and deliberate murder. Counsel and I have agreed that the only lesser included offence that the jury can consider is manslaughter.

[22] As a result, six questions were left to be considered by the jury, as follows:

a) Did the shooter or shooters cause Mr. McIntosh’s death? b) Did the shooter or shooters cause Mr. McIntosh’s death unlawfully? c) Did the shooter or shooters have the intention required for murder? d) Was the shooter or shooters murder of Mr. McIntosh both planned and deliberate? e) Did the accused aid the shooter or shooters in the murder of Mr. McIntosh? f) Did the accused aid an unlawful and dangerous act by the shooter or shooters?

[23] There was no dispute over the answer to question a. Question b was left to the jury to determine and, if answered no, then an acquittal would be in order. If questions c, d, and e are all answered yes, then a conviction for first degree murder would be entered and question f would not be answered. If any of questions c, d or e were answered no, then question f would have to be answered. Answering yes to question f would result in a conviction for manslaughter.

[24] As a result, it is possible that the post-incident conduct could be used by the jury in answering some, but not all, of the questions before them. With that in mind, I now turn to the positions of the parties.

The Positions of the Parties

[25] The Crown argues that the post offence conduct is admissible in relation to all elements of the offence. In that regard, Crown counsel argues that I should consider the post-incident conduct cumulatively, in particular the following five points:

a) The flight from the restaurant and the area. b) The concealment in the nail salon during the flight. c) The fact that the accused provided aid to the shooter, or shooters, in escaping from the area. d) The lack of surprise or shock on the accused’s face in the taxicab. The Crown alleges that the accused took the gun and a jacket from Mr. Meredith in the taxi after the shooting. e) The lack of efforts that the accused made to separate from the shooters after the shooting took place.

[26] Defence counsel argues that there are other inferences in this case that are equally viable. Defence also argues that the accused, after the shooting, did not have a calm demeanour, and that it could be concluded that he did not know that Mr. Chizanga and Mr. Meredith had a plan to kill Mr. McIntosh. As a result, counsel argues that the post-incident conduct evidence in this case is of no probative value and I should so instruct the jury.

Law and Analysis

a) The Law

[27] In considering post-incident conduct, the first question to be asked is what is the evidence being used by the Crown for (see R. v. White, [1998] 2 S.C.R. 72 at para. 26)? Understanding the intended purpose for the post-incident conduct is a key factor in determining whether the evidence is probative.

[28] The second point that must be remembered that it is the jury’s responsibility to determine the facts. As Major J. noted in White, supra (at para. 27):

As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role. Consequently, a “no probative value” instruction like the one required in Arcangioli will be called for only in limited circumstances.

[29] In this case, the Crown seeks to have the jury consider the evidence when deciding all of the issues in this case, including whether the shooters had the intention to kill, and whether the murder was planned and deliberate. This brings me to the third point. The question of whether the post-incident conduct is relevant to whether a murder is planned and deliberate (or whether someone had the intention to kill) is a fact specific question (see R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.) and R. v. Poitras (2002), 57 O.R. (3d) 538 (C.A.)).

[30] In considering whether, and how, post-incident conduct should be used, there will be occasions when this evidence should not be used when it would result in the jury speculating. As noted in R. v. Figueroa (2008 ONCA 106 at para 35):

While it is for the jury to choose among reasonable inferences available from the evidence, the jury cannot be invited to draw speculative or unreasonable inferences. Post-offence conduct may reasonably support the inference that an accused was involved in the offence alleged, but may provide no reasonable inference as to the nature of that participation or the accused’s state of mind at the relevant time. Either or both may be crucial to the accused’s level of culpability. Where after the fact conduct cannot reasonably assist in fixing an accused’s level of culpability, the jury should be told that the evidence has no probative value in determining the accused’s level of culpability: R v. Arcangioli (1994), 87 C.C.C. (3d) 289 (S.C.C).

[31] In particular, concerns have been discussed in the case-law about using post-incident conduct in determining the state of mind of an accused. In R. v. S.B. (2018 ONCA 807), Strathy C.J.O. provided the following explanation of why care must be exercised in using post-incident conduct (at para 70):

That said, “[n]ormally, post-offence conduct cannot help to determine the state of mind of an accused”: R v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285, at para. 103; R v. Adamson, at para. 63. That is because in many cases, post-offence conduct is equally consistent with different levels of culpability –for example, equally consistent with murder and manslaughter: see R v. White, [1998] 2 S.C.R. 72; R v. Angelis, at paras. 52-53. For this reason, great care must be exercised in using post-offence conduct to infer intent for murder: R v. Arcangioli, [1994] 1 S.C.R. 129, at pp. 145-47.

[32] Finally, it is important to remember that the post-offence conduct must be assessed cumulatively, and not in isolation. It is only when the conduct is viewed as a whole that the strength, coherence and cogency of the inference that the Crown seeks to draw can be assessed. (see R. v. McLellan 2018 ONCA 510 at para 49).

[33] All of those principles factor in to the question of whether, and to what extent, the post-incident conduct can be used in this case. I will now apply the principles to the facts of this case.

b) The Law Applied

[34] I start with the question of whether the post-incident conduct evidence is relevant to either the intent to kill or to whether that intent was planned and deliberate. In my view, it is not relevant to either issue for two reasons.

[35] First, the intent to kill was something that needed to be formed, in the first instance by Mr. Meredith and Mr. Chizanga as they were the two individuals who did the actual shooting. What the accused did after the shooting will not assist the trier of fact in determining whether the shooters had the intent to kill. What the accused does after the shooting will be based on his knowledge and intentions, and not on the intentions of the shooters.

[36] Similarly, it will also not assist the trier of fact in ascertaining the precise details of what Mr. Chizanga and Mr. Meredith were planning to do in the washroom. Using the evidence of what the accused did after a shooting does not assist the trier of fact in understanding the intent of the shooters.

[37] In addition, the case law points to the risks associated with using post-incident conduct to infer the intentions of a party to an offence. In this case, the risks associated with using this evidence are even higher, as the trier of fact would be asked to use the evidence of the accused’s conduct to infer the intent of Mr. Chizanga and Mr. Meredith. As a result, this conduct is not admissible in considering questions c or d.

[38] The next issue is whether the post-incident conduct can be considered in determining whether the accused aided Mr. Meredith and Mr. Chizanga in carrying out their plan, whatever that plan was. To be guilty of aiding in the commission of a crime, the accused must have done something to help the perpetrator of the crime and must have done it with the purpose of helping the perpetrator commit the crime.

[39] Part of the Crown’s theory of this case is that the accused was helping Mr. Chizanga and Mr. Meredith with their plan. That plan could be a planned and deliberate killing or, in the alternative, it could be an assault on Mr. McIntosh. Either way, however, the accused’s post-incident conduct is clearly relevant to the question of whether he was doing something to help Mr. Chizanga and Mr. Meredith before, during and after the commission of the offence.

[40] A plan to commit a crime will often have both a plan for the commission of the crime and a plan for fleeing the scene of the crime after it has been committed. It is clearly open to the trier of fact to infer that the accused’s post-incident conduct in this case was part of a plan to flee the scene. The trier of fact may also infer that the accused was not part of a plan to flee the scene, but that is up to the trier of fact to determine.

[41] The more difficult question is whether the accused’s post-incident conduct is relevant to whether he knew what the nature of the plan was. In this case, I am of the view that this conduct is relevant to the accused’s knowledge of the plan. I reach that conclusion for two reasons:

a) The conduct of the accused after the shooting in accepting something from Mr. Meredith wrapped up in a jacket is evidence from which the jury could infer that the accused had been given one of the murder weapons. It is open to a trier of fact to infer that removing a murder weapon and assisting in its disposal was part of a plan that the accused knew of. This is especially true when the rest of the context is considered. b) More generally, when the five factors that the Crown sets out are considered cumulatively, it is open to a trier of fact to conclude that the accused’s conduct was all part of one transaction or one plan. If the events went beyond what the plan was, it would not be unexpected for the accused to attempt to flee and to put distance between himself and the other plotters. Therefore, from the fact that the accused remained in the area, telephoned both Mr. Chizanga and Mr. Meredith, and assisted Mr. Meredith and Mr. Chizanga, it is also open to a trier of fact to infer, that the accused knew that the plan was to commit a murder, and he was simply continuing to carry it out.

[42] There is an argument that the post-incident conduct should not be used by the trier of fact to determine whether the accused knew about a plan for a murder rather than a plan for an assault. This argument is based on the fact that generally, the level of an accused’s intent cannot be determined from post-incident conduct.

[43] I also reject this argument for two reasons:

a) It is open to the jury to conclude that the accused was continuing to participate in the plan, even after he heard multiple gunshots in the Popeye’s. From this conclusion, the jury could infer that the accused knew that he was assisting in a planned and deliberate murder of Mr. McIntosh. b) The evidence has to be considered as a whole. As I have noted above, the complete picture of what happened both before and after the shooting could be used to infer that the accused knew of, and was participating in, a planned and deliberate murder of Mr. McIntosh.

Conclusion

[44] For the foregoing reasons, I find that the post-incident conduct is not relevant to questions c) and d). It is, however, relevant to all of the issues that must be determined with respect to questions e) and f). The jury instructions reflected that fact.

[45] As a final note, I provided the parties with oral comments outlining what I was planning to do with the post-incident conduct in the charge, and why I was planning to do so. My comments, of necessity, were not complete. These reasons are my complete decision on this issue.

LEMAY J. Released: June 26, 2019