Court File and Parties

Court File No.: CR-18-1310 Date: 2020 07 31

Ontario

Superior Court of Justice

B E T W E E N:

HER MAJESTY THE QUEEN R. Alexander Cornelius and Cindy Nadler, for the Crown

- and –

THULANI CHIZANGA and SHAMAR MEREDITH John Struthers Deniz Sarikaya, for Thulani Chizanga Melina Macchia, for Shamar Meredith

Heard: December 6, 2019

Parole Ineligibility Decision

D.E HARRIS J.

Introduction

[1] The defendants were convicted by a jury of second-degree murder in the killing of Kamar McIntosh. These reasons are for the purpose of explaining my decisions with respect to the setting of parole ineligibility under Section 745(c) of the Criminal Code. The imposition of sentence in this case has been delayed by the COVID-19 pandemic: see R. v. Chizanga and Meredith, 2020 ONSC 3090.

[2] Both offenders are sentenced to the mandatory life imprisonment. It remains to set parole ineligibility. For the Crown, the recommendation is 18 years ineligibility for Mr. Meredith and 16 years for Mr. Chizanga. The defence positions are 10-12 years for Mr. Meredith and the minimum of 10 years for Mr. Chizanga.

[3] The fundamental rule of sentencing is proportionality. A sentence must be proportional to the gravity of the offence and the responsibility of the offender: Section 718.1 of the Criminal Code. The mandatory sentence for second-degree murder is life in prison. Eligibility for parole must be set by the judge from between 10 and 25 years: Section 745(c) of the Code. Section 745.4 of the Criminal Code requires that account be taken of the character of the offender, the nature of the offence, and the circumstances surrounding its commission.

The Gravity and Nature of the Offence and the Circumstances Around its Commission

Shamar Meredith

[4] These are the aggravating circumstances of this murder for Mr. Meredith: 1. The killing was carried out with a semi-automatic assault type rifle. The victim was shot 14 or 15 times on the premises of a Popeyes fast food restaurant in the middle of the afternoon with patrons and staff present; 2. There were elements of planning and deliberation present although the jury rejected a conclusion of planned and deliberate first degree murder; 3. Although no motive was proven, there was a drug dealing ambience hovering over this murder; 4. Mr. Meredith’s criminal record; and 5. The criminal conduct involving both offenders caught on video the day before the killing in the Super 8 motel using the same semi-automatic assault rifle as the murder the next day.

The Aggravating Factor of a Firearm

[5] The use of a firearm to injure or kill is a crucial aggravating factor; the use of a semi-automatic assault-style rifle only adds to the aggravation.

[6] I will not reiterate what I wrote in the attempt murder case of R. v. Kawal, 2018 ONSC 7531 at paras. 11-16 about the evil of firearms. Also see R. v. Nur, 2015 SCC 15, per Chief Justice McLachlin, at para. 82, see also Justice Moldaver in dissent, at para. 131, R. v. Brown, 2009 ONCA 563, [2009] O.J. No. 2908, at paras. 29-33, affirming [2007] O.J. No. 5659 (S.C.) and Justice Watt, as he then was, in R. v. Gayle, [1996] O.J. No. 3020 (S.C.), at para. 28. Justice Hill in R. v. Williams, 2018 ONSC 5409, 151 W.C.B. (2d) 126 at paras. 33-40; Justice McCombs in R. v. Stewart, [2008] O.J. No. 5449 at para. 40, aff'd 2014 ONCA 70; R. v. Doucette, 2015 ONCA 583 at paras. 59-63; R. v. Mohamad, 2018 ONCA 966, [2018] O.J. No. 6302 at para. 300, R. v. Monney, 2017 ONSC 1007, [2017] O.J. No. 845 at 109-116 per Clark J.; R. v. Hayles-Wilson, 2018 ONSC 4337, [2018] O.J. No. 3758 per Code J. at para. 15.

[7] The primary purpose of illegal guns is to threaten, to maim and to kill. Lawyers and judges see first-hand the destruction wrought by guns. They are a disease, a plague on our communities. We have the means at our disposal to eradicate or at least to drastically curtail them. It is difficult to understand why our society would not do everything in its power to ensure that guns are not available for criminal purposes.

[8] Guns empower the unempowered. A person with a gun in their hands has a god-like power over life and death. Virtually all that is necessary is to point at another person and to apply a few pounds of pressure on the trigger in order to end a human life.

[9] To possess an illegal gun requires only the right connections and some money. No education, no accomplishment, no reputation in the community, no intelligence, nothing. As this case graphically illustrates, as is often true, an illegal gun could not find its way into worse hands. The disparity between the power of a gun and the preconditions necessary to obtaining it are a modern nightmare. Such immense power with so little reason must be opposed with everything at our disposal.

[10] The ease of killing with a gun, as the last decades in North American have sadly shown, is an exigent danger to us all. It is difficult to understand how such a grave threat to our well-being can be allowed to continue. We have become numb to the terrible consequences. Inundation of information about mass shootings and the almost daily prevalence of horrifying news about gun deaths dulls our senses. Description of the details of individual cases is an important antidote to wake us from our complacency.

[11] The Canadian organization, “Doctors For Protection From Guns” is a group of physicians who have come together to advocate for reducing the prevalence of firearms, including broad social strategies towards this end: http://www.doctorsforprotectionfromguns.ca/

[12] Doctors are in a unique position when it comes to gun crime. They see the gruesome, terrible physical consequences of bullets ripping into the human body. As front-line workers, their observations are invaluable. They raise the issue up from generalized statistics to real life stories, making the abstract concrete. That is crucial in presenting an accurate and complete picture to those who make our laws. The observation of doctors makes the human pain and loss easier to absorb and comprehend.

[13] Along the same lines, the judiciary and criminal lawyers have a special vantage point. Many of us have been exposed close-up to the horror of gun violence for many years, some for 30 years or more. Judges listen to the testimony of the pathologists and look at the photographs of the devastation of bullets on the human body. They develop an expertise and insight into both the immediate and deeper causes of gun violence. Moreover, the heart wrenching human consequences brought about by guns and their impact on victims emerges in painful detail in the sentencing process.

[14] It is important that the judiciary record the specific details they see and hear to enable the public to be informed and sensitized to the many levels of human tragedy brought on by gun violence.

[15] To that end, this is the evidence from the murder of Kamar McIntosh. He was 19 years of age when he was killed. Dr. Williams, the pathologist, found that the cause of death was multiple gun wounds, 27 entry and exit wounds. Of these, 15 entry or exit wounds were in the torso area and 12 were in the extremities. Two of them were in the back. Dr. Williams said that there were probably 15 shots fired into Kamar McIntosh in total.

[16] This case is a poster child for the evil of military assault type weapons. They are readily available. After the jury retired, one of the defence counsel handed up a catalogue from an outdoor store which had for sale for under $1000 a weapon which looked very similar to that used in this murder. The video from the Super 8 motel hallway the day before the murder enables us to see its ferocity. A still of the firearm from that video is reproduced below.

[17] The 15 shots were fired in a space of time between 2.5 and 6 seconds. The gun was a semi-automatic which enables it to fire this quickly. It also has a higher bullet capacity than most guns. While guns make killing easy, this gun made it inevitable. Kamar McIntosh never had a chance. The cowardice of this killing is highlighted by the disparity between a man armed with a semi-automatic assault-style rifle assisted by two accomplices and an unarmed man. This was not a killing, it was a slaughter.

[18] The original sentencing hearing in this case took place on the 30th anniversary of the École Polytechnique massacre in Montreal, also carried out with a semi-automatic military style long firearm. The federal government is attempting to ban such weapons. It is more than a little difficult to understand how weapons of war have ever been permitted in Canadian communities. If grenades are illegal how is it that semi-automatic military assault weapons such as the one used in this murder are legal? There is no satisfactory answer. Guns are a disease and a disease we have the means to combat if not outright defeat. Not doing so is a grave abdication of the community’s social responsibility to nurture and ensure the well-being of its citizenry.

[19] From the perspective of our criminal law and our communities, firearm control and regulation is imperative to reduce the carnage. In Canada we do not have the obstacle posed in the United States by the interpretation of the Second Amendment by the United States Supreme Count in District of Columbia et al.. v. Heller, 554 U.S. 570 (2008).

[20] It is even more pressing now what with the continuing increase of gun crimes and violence in the GTA: see Justice Moldaver in dissent in Nur, para. 131 and see generally with respect to taking into account local conditions, R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64, at paras. 90-104.

[21] Kamar McIntosh was shot just outside a washroom at a Popeyes fast food restaurant in Mississauga at about 3:30 p.m. on April 27, 2017. It was a public event. Although there were no cameras in the washroom or its anteroom, all other activity in the restaurant was recorded by video. There were quite a number of patrons and staff in the restaurant at the time. Upon hearing the gunshots, they scattered in fear of their lives.

[22] There were stray bullets which damaged the walls in the area. Shell casings were found strewn about the floor. Probably about 19 bullets were fired in all. The public nature of this crime and the clear risk to everyone present from the bullets is a major aggravating feature of the murder for both offenders.

[23] The paramedics and police arrived fairly promptly but there was nothing that could be done to save Kamar. About five minutes of video was shown to the jury of the paramedics’ futile efforts to revive him. During the playing of this video, Kamar McIntosh’s mother ran out of the courtroom crying uncontrollably. [^1]

[24] There was an ambience of drug activity outlined in the evidence. Drug dealing paraphernalia and a trace of drugs too were found in the bathroom. There was no motive suggested for the crime, but drugs were likely involved in some way.

[25] This crime was the epitome of a senseless crime in two different ways. First, whatever led the two offenders to kill Kamar McIntosh, we can be assured that it was nothing of any real consequence. Everything suggests that whatever was behind the murder, it was a triviality. It was probably not even between them and Mr. McIntosh; a third party was likely involved. It was probably about drugs and/or money in some aspect. It may well have been a token killing to send a message to others.

[26] Second, it is a natural instinct to make efforts to avoid being caught while engaged in criminal behaviour. Yet these men did not seem to possess this instinct. The prologue to this murder, its commission and its aftermath, were all caught on video. The day before the murder, Mr. Meredith and Mr. Chizanga were videoed in the hallway of a Super 8 motel. Mr. Meredith can be seen withdrawing the long assault rifle from the left leg of his pants and holding it at the ready. Mr. Chizanga knocked on the door of one of the rooms, an occupied room. There was no answer. The men left after a short period of time, Mr. Meredith again concealing the long rifle with significant difficulty down his left leg.

[27] The next day, Mr. Meredith and Mr. Chizanga waited at the Popeyes for about 20 minutes. This murder was brazen. The offenders were videoed continually by the system at the restaurant. Defence counsel, in an attempt to convince the jury that the killing was neither planned nor intended, displayed photographs showing the video surveillance cameras protruding from the ceiling. They were obvious.

[28] When they fled from the crime, the offenders were also video taped. Mr. Meredith was videotaped running away on the sidewalk. Because of its size, the gun could not be fully concealed and is clearly visible in both places: while fleeing the restaurant and outside on the sidewalk. The young person who was found guilty of manslaughter in a separate trial (R v. A.D., 2019 ONSC 6300) went into a nearby nail salon and was videoed by the system there.

[29] The young person called for a cab from the nail salon and then requested that the cab pick up Mr. Meredith and Mr. Chizanga. The cab had video recording of the back seat and captured all three of them getting in, including Mr. Meredith with the gun wrapped in a jacket, and then showed all three getting out together when they arrived at the young person’s home.

[30] The real question here is why kill a man in a public place such as a restaurant? How explain the total obliviousness to video surveillance? Why was there a total absence of surreptitious action? Was it to make a point? I think most likely that did play some part.

[31] Maybe the best answer, however, is that life meant little to these men: their own lives and Kamar McIntosh’s as well. The inanity of this crime demonstrates a profound indifference to the value of life. This underscores a pressing social problem which may lurk below: poverty, lack of opportunity, a world without hope.

[32] This should not be mistaken in the context of this murder sentencing as diminishing these offenders’ high moral responsibility. It does not. The vast majority of others in their situation do not commit these type of crimes. Nothing compelled these men to commit this murder. It would be foolish to say that this is society’s failure, not theirs. But at the same time, if the problems contributing to this senseless murder are ever to be addressed, some acknowledgement of the predicament which contributes to gun violence is necessary: R. v. Hamilton (2004), 72 O.R. (3d) 1, 241 D.L.R. (4th) 490 at paras. 140-142. Gun crime is a social problem and it is imperative that it be addressed immediately and with serious attention: R. v. Kandhai, 2020 ONSC 1611, [2020] O.J. No. 1254.

[33] The last aspect of the killing that should be recorded is the shattering of Kamar McIntosh’s family. The fabric of the community was irreparably torn by the violent loss of Kamar McIntosh; it affects all of us in one way or another. The last months have taught us that whether we recognize it or not, we are all in this together.

[34] Kamar McIntosh’s mother, Kimberley Robinson, attended every day of the trial as I am told she attended every day of the trial of the young person which preceded it. Her whole being, in every moment she was present in the courtroom, appeared to be racked with grief.

[35] Ms. Robinson gave her victim impact statement in court. She said that on April 27, 2017 her life was changed forever. She received a phone call that her son Kamar had been shot. She was praying they would tell her that he was going to be okay. Instead she was told by a doctor, "I’m sorry, your son died." She said, “I will never forget …the thought of having to call Kamar's father and tell him our son is dead.”

[36] Speaking directly to the two offenders, Ms. Robinson said,

Your participation in the brutal murder of my son destroyed me, his father, sister and many family and friends that Kamar had in his life.

[37] Ms. Robinson had Kamar while still in high school and then soon after she returned to school and then went on to college. She said in her statement,

Every decision I made following December 31,1997 was made to ensure a positive, happy upbringing for my son. With the support of his father and both our families, I worked tirelessly to be a positive influence and role model in his life.

Kamar grew to be a loving compassionate, athletic and respectful young man. He would do things like hold his great grandmother's hand as she crossed the street, prepare his little sisters’ lunch then place a note on it with her name and a big heart. Whenever I was upset Kamar would give me his charming smile and hug me. Kamar would say "Mom, I love you. You and Olivia are my everything". Every time I think about the relationship he had with his father, I cry. They were best friends. Inseparable.

Now we are left with emptiness, when my son died a part of me died as well. I spend many sleepless nights crying and wondering if he would have become a fire fighter, gotten married and had children. Depression and anxiety have taken over my life.

Kamar's 11 year old sister also suffers from anxiety, she worries constantly and say's "I don't have a big brother to protect me anymore". His father sends me 3 a.m. text messages saying "I just want to hear my son say Dad."

[38] The pain and anguish from the loss of a child is impossible to imagine for the majority of us who have not endured it. The loss of a child to a senseless, meaningless, inexplicable, inane criminal act is still more impossible to imagine.

[39] A dark sadness descended on the courtroom during Ms. Robinson’s victim impact statement and that of Kamar McIntosh’s aunt, Michelle Grimes. The loss of a much-loved young person irreparably devastates the whole community, not just Kamar McIntosh’s family and friends. There must be strong and clear denunciation of this crime to make war against this evil.

Planning of the Crime

[40] The jury acquitted of planned and deliberate first-degree murder. It would be an error to sentence these offenders as though first-degree murder was proven: R. v. Brown, [1991] 2 S.C.R. 518. However, some elements of planning to commit some crime against Kamar McIntosh are unmistakable. The Court of Appeal has consistently held that despite an acquittal on first degree murder, elements of planning may still figure into a second degree murder sentence: R. v. Armstrong, (1995), 218 C.C.C. (3d) 1, [1995] O.J. No. 535 (C.A.) at paras. 16-23; R. v. Monney, at paras. 96-101; R. v. Berry, 2017 ONCA 17 at para. 91.

[41] It may be that the evidence that there was a very brief fight before the shooting left the jury in reasonable doubt on planning and deliberation. In my view, this evidence was likely evidence of Kamar McIntosh attempting desperately to save his life when confronted with the gun.

[42] In this case, the planning of some crime was obvious. The two accused entered the Popeye’s Restaurant at about 2:56 p.m. on April 27, 2017 with A.D., the young person. They talked amongst themselves. The three men looked to the north on several occasions from the restaurant. There is every reason to believe that they were watching for the arrival of Kamar McIntosh.

[43] Mr. Meredith had the same gun down his pants in the Popeyes Restaurant as he had the day before in the hallway in the Super 8 motel. Mr. Chizanga was present on that occasion as well. At the Popeyes, Mr. Chizanga was in the washroom for 15 minutes until Kamar entered the restaurant. Kamar was killed virtually instantaneously. Before Kamar was killed, Mr. Meredith was in and out of the restaurant three times and in and out of the washroom as well. Just seconds before Kamar entered the restaurant, Mr. Meredith again re-entered after being outside and went directly to the washroom.

[44] Kamar McIntosh arrived in the washroom just before 3:25 p.m. and walked directly to the washroom area. Within no more than 30 seconds shots were heard. Staff and patrons suddenly appear bewildered on the video and fled the area. Ms. Zahar, the general manager, blocked her ears in response to the gunfire.

[45] At 3:25:51, Mr. Meredith runs full tilt out of the washroom while attempting to conceal in the front of his coat the barrel of a long-barrelled gun. Another video from the street soon afterwards also clearly shows Mr. Meredith with the gun. The other two men flee immediately as well.

[46] They make their escape jointly in a taxi-cab driven by Mr. Ali who testified at trial. There is video of the three in the back seat, getting in and leaving the cab.

[47] Planning of some type is clear. Mr. Meredith and Mr. Chizanga lay in wait for Kamar McIntosh. They monitored the outside of the restaurant, anticipating his arrival. Mr. Meredith had the assault rifle concealed in his pants. Once Kamar McIntosh entered, he was killed within a very short time, 30 seconds. The three men fled immediately afterwards, only to join up shortly afterwards in the cab.

Mr. Meredith’s Criminal Record

[48] Mr. Meredith has a significant criminal record for such a young man. In short, Mr. Meredith has two previous weapons convictions, a robbery conviction and an assault conviction. He was 18 years old at the time of the murder and is now 22 years old.

[49] Specifically, as a youth he has convictions beginning when he was 16 years old for robbery, possession of a weapon and fail to comply with bail release. None of these sentences involved custody. Once he turned 18 years old, the record continued with another fail to comply with bail release and carry a concealed weapon. Mr. Meredith did 30 days pre-sentence custody. The next year, he was convicted of assault, break and enter with intent and fail to comply with bail and received a 45-day concurrence sentence on each after doing 99 days pre-sentence custody.

Mr. Meredith was under Four Weapons Prohibitions Against Him at the Time of the Murder

[50] At the time of the murder, Mr. Meredith had four court orders against him prohibiting the possession of firearms and weapons. There was a Section 110 order for five years prohibiting firearms possession imposed as a result of his assault sentence on January 24, 2017. There was also a probation order prohibiting possession of firearms from November 2015 for a period of two years, another probation order to the same effect from 2016 and a firearms prohibition condition on an assault bodily harm bail release from March 22, 2017 (one month before the murder).

[51] The judiciary attempted to stop Mr. Meredith from possessing firearms and weapons based on the nature of his convictions and charges. His violent tendencies were apparent. The violation of his weapons prohibitions on April 26th and 27th, 2017 are aggravating factors.

The Super 8 Motel Crime on April 26, 2017, the Day Before the Murder

[52] There is no doubt that the offenders intended to commit criminal offences against the person occupying a room at the Super 8 motel with the assault rifle used the next day to murder Kamar McIntosh. I was told about what the evidence was expected to be but it was never called. I am therefore disabusing my mind of it. As a result, there is no admissible evidence with respect to what the offenders were actually planning to do in respect of the occupant of the motel room.

[53] Identity of the two men was ultimately conceded at trial. Mr. Chizanga knocked at the door of the room while Mr. Meredith waited patiently with the very large gun drawn and at the ready. We know the gun was real and operative; it was used by Mr. Meredith to murder Kamar McIntosh the next day.

[54] While the Crown asked me to take this event into consideration in aggravation of the murder, the defence did not comment on this request in any detail. They did not oppose it strenuously. Neither made specific submissions with respect to admissibility or use.

[55] Section 725(1)(c) of the Criminal Code allows a trial judge discretion to,

… consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.

[56] A trial judge must note on the charging document what other facts have been considered and, to address res judicata concerns, no further proceedings can be taken with respect to those facts: Section 725(2)(b) of the Criminal Code.

[57] The leading case is R. c. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, 2006 CarswellQue 10373, in which Justice Fish said for the court:

50 In my view, whether facts form part of the circumstances of the offence must ultimately be resolved on a case-by-case basis. Broadly speaking, however, there do appear to me to be two general categories of cases where a sufficient connection may be said to exist. These two categories, as we shall see, are not hermetic or mutually exclusive, and will often overlap.

51 The first would be connexity either in time or place, or both. This flows from the ideal animating s. 725(1)(c): In principle, a single transaction should be subject to a single determination of guilt and a single sentence that takes into account all of the circumstances…

54… [The second category is that] “circumstances” of an offence are more than the immediate transaction in the course of which it transpires. Thus, in addition to encompassing the facts of a single transaction, s. 725(1)(c) also applies, in my view, to the broader category of related facts that inform the court about the “circumstances” of the offence more generally.

55 ... Recourse to s. 725(1)(c) may nevertheless be had where the facts in question bear so close a connection to the offence charged that they form part of the circumstances surrounding its commission. In determining whether they satisfy this requirement of connexity, the court should give appropriate weight to their proximity in time and to their probative worth as evidence of system or of an unbroken pattern of criminal conduct.

(Emphasis Added)

[58] The Carswell annotation to Larche written by Professor Quigley praises Section 725(1)(c) for its effort to avoid a multiplicity of proceedings. That is its ultimate purpose. The only real question in this case is whether the concealment and wielding of the firearm the day before at the Super 8 motel are in the words of Section 725(1)(c) “facts forming part of the circumstances” of the murder the next day at the Popeyes.

[59] This is clearly not a situation like the first classification carved out by Justice Fish—a single transaction. On no reasonable interpretation could the two events be called a single transaction. This is a category dependant on a strict temporal continuity. The live issue to be determined here is whether it fits the second example from the last sentence of paragraph 55 quoted above: a more than merely temporal connection but one based on “proximity in time,” ”probative worth as evidence of system” or “an unbroken pattern of criminal conduct.” I believe it does.

[60] The language of probative worth, evidence of system and unbroken pattern used by Justice Fish was not meant to be read like legislation or to establish a strict inflexible standard. The language is reminiscent of that used to measure the worth of similar fact evidence or discreditable conduct evidence. The pertinent cases in those areas frequently use this type of language: see e.g. R. v. Handy, (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 at paras. 90, 128; Boardman v. Director of Public Prosecutions (1974) 60 Cr. App. R. 165 (H.L.) at p. 182 per Lord Hailsham; R. v. F. (D.S.), [1999] O.J. No. 688, 132 C.C.C. (3d) 97 (C.A.) at para. 25. While Justice Fish’s language is more associated with similar fact evidence than the discreditable conduct evidence admitted in this case, I do not believe Justice Fish intended to make a distinction between the two. After all, the difference between similar act evidence and discreditable conduct evidence is minimal; they are simply minor variations on the same theme of how to generate probative value: R. v. Taillefer, 2014 ONSC 794, [2014] O.J. No. 661 at paras. 32.

[61] The issue under this second branch of the Larche formulation looks to the substantive connection between the offence in the indictment and the other offence. If the other offence has important probative value in the Crown’s proof of the offence charge, that is a major step towards satisfying the test. In the circumstances here, because of the strength of the connections between the two, in my view, it can be said that the conduct at the Super 8 is part of the circumstances of the murder.

[62] I admitted the Super 8 video into evidence before the jury as its probative value outweighed the prejudicial effect of what was seriously discreditable conduct: R. v. Chizanga and Meredith, 2019 ONSC 5737. The probative value of the evidence was derived from prior possession, similar concealment down the pant leg and the handling of the firearm. The effect was to rebut accident and lack of intention, to support a conclusion of planning and deliberation and to buttress the Crown’s case on joint venture. For Mr. Chizanga, his knowledge from the day before that Mr. Meredith concealed and possessed this weapon was probative of the elements of liability for both second and first- degree murder (see paras. 33-36 of the original ruling in particular).

[63] The offences committed at the Super 8 also involved violence and the use of the same firearm. The means of committing the offence, the assault rifle, and the presence of both Mr. Meredith and Mr. Chizanga are important commonalities between the two events. The proximity in time is also very close, less than 24 hours.

[64] In R. v. Shin, 2015 ONCA 189, [2015] O.J. No. 1364 at paras. 87-97, the Court of Appeal was of the view that a long history of trafficking in drugs was properly found admissible under Justice Fish’s broader second category of Section 725(1)(c) admissibility. A pattern and system could be discerned.

[65] I find the same is true here. The criminal conduct the day before and the facts with respect to the murder are interrelated. The Larche test is satisfied, in my view. The other conditions for admissibility are clearly met as well. The offences committed there “could constitute the basis for a separate charge.” And they are proved beyond a reasonable doubt on the basis of the videotape and the admissions at trial. At the least, the offences are possession of a weapon dangerous to the public peace (Section 88), carry a concealed weapon (Section 90), and unauthorized possession of a firearm (Section 91). Mr. Chizanga, whose role was to knock on the door of the hotel room while Mr. Meredith stood at the ready just out of view with the rifle, was part of whatever plan the men had and was therefor a co-principal. Although we know the weapon was a real firearm because it was used the next day to kill Kamar McIntosh, it cannot be proven beyond a reasonable doubt that the firearm was loaded as required for the offence under Section 95 of the Criminal Code.

[66] I have a discretion whether to rely on this evidence: Larche at para. 46; Shin at para. 96. I have considered whether it would be unfair to admit the Super 8 evidence because the defence was not given notice with respect to Section 725(1)(c) and did not make submissions with respect to it. Although some form of at least informal notice is preferable prior to the invocation of Section 725(1)(c), I do not believe it would be unfair to admit and rely on this evidence in the present circumstances. It was front and centre beginning at the stage of the pre-trial motions and then continuing in the trial before the jury. No one is surprised. The defence had a full opportunity to argue against the Crown’s request to consider the evidence, although that request was not couched in the language of the Criminal Code provision. In addition, on this record, given that the facts are not realistically in dispute, the question was one primarily of law.

[67] In the circumstances, the conduct depicted at the Super 8 motel is an aggravating factor in the sentencing of both offenders. I will endorse the indictment as required by Section 725(2)(b) to indicate that I have taken this into account.

Mitigating Factors Relevant to Mr. Meredith

[68] The only measurable mitigating factors are Mr. Meredith’s relative youth and a difficult upbringing as recounted by counsel in submissions. Youth is mitigating because a young adult’s moral culpability is lower and their rehabilitation potential is higher. Neither of these principles redound enormously to Mr. Meredith’s benefit. Rehabilitation is always a possibility but for Mr. Meredith, a man capable of slaughtering another man in cold blood, it is not easy to be optimistic.

Thulani Chizanga

[69] The aggravating features around the firearm and the killing pertain to Mr. Chizanga too, although of course he did not wield the long barrelled semi-automatic gun. The Crown argues that, furthermore, based on Ms. Dann’s expert evidence, Mr. Chizanga possessed a handgun and shot Kamar McIntosh with it.

[70] The Crown’s first argument in this regard is that the verdict necessarily meant that the jury found Mr. Chizanga shot Kamar McIntosh with a handgun. If correct, this would require it to be taken into account as a substantial aggravating factor. A trial judge must accept as proven all facts, express or implied, essential to the jury’s verdict: Section 724(2)(a) of the Criminal Code. But the jury was instructed in the charge that there were three distinct routes to find second degree murder for Mr. Chizanga. Only one involved him having a gun and having shot Kamar McIntosh with it.

[71] The first two routes to second degree murder for Mr. Chizanga were based on joint venture. There were two branches to joint venture. One branch was that Mr. Chizanga had a handgun and actually shot Kamar McIntosh with it. The other branch was premised on Mr. Meredith as the sole shooter of Kamar McIntosh but with Mr. Chizanga as a co-principal assisting and with the same full and final intention as Mr. Meredith.

[72] During deliberations, the jury asked whether if they found a joint venture, both accused had to be convicted of the same offence. They were told that the answer was yes. The question was asked a considerable time before the verdict was delivered and so it cannot be said with any assurance that this was the basis upon which the jury convicted the two men. It is a possibility as the convictions were both for second degree murder. But that, in my view, is insufficient to say that the jury necessarily took this factual path. Even if they did, there were the two branches to the joint venture instruction. Only one was based on Mr. Chizanga firing a handgun; the other was not.

[73] The third route to get to second degree murder left with the jury was as a party aiding Mr. Meredith’s intention to kill. This explicitly did not involve Mr. Chizanga firing a handgun.

[74] There is simply no way that it can be ascertained which of the three murder routes left to the jury were followed with respect to Mr. Chizanga. It cannot be said that the jury necessarily determined that Mr. Chizanga fired a bullet from a handgun into Kamar McIntosh’s body as part of joint venture. Therefore, that a gun was wielded by Mr. Chizanga was not an essential fact behind the murder finding of the jury as required by Section 724(2)(a). The Crown’s first argument must fail.

[75] The Crown’s second argument requests a judicial finding under Section 724(2)(b) of the Criminal Code that it has been proved beyond a reasonable doubt that Mr. Chizanga had a handgun and shot Kamar McIntosh: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras. 18-23. The Crown’s argument is premised on the expert evidence of Ms. Dann from the Centre of Forensic Sciences. Ms. Dann testified at the trial that she found a .22 projectile with rifling which did not match the other three .22 projectiles. Those three projectiles were unquestionably from the assault-rifle. With the unknown projectile, Ms. Dann testified that there was a wider space between the ridges and the grooves than was the case with the other three projectiles. This was the sole evidence of a second gun in this prosecution.

[76] The Crown argued that despite the defence’s strong challenge to Ms. Dann’s evidence, there was no basis upon which to find that she was not correct. This formulation reverses the burden of proof. As was the case under the common law, the existence of a second gun must be proved beyond a reasonable doubt: R. v. Gardiner, [1982] 2 S.C.R. 368, Section 724(3)(e). In the circumstances, the evidence is insufficient to support the conclusion sought by the Crown.

[77] The following evidence stands in the way of a conclusion that there was a second gun. The size, .22 calibre, of the outlier projectile is the same as the bullets fired from Mr. Meredith’s gun. This posits a coincidence which, although far from impossible, weighs somewhat against the second gun finding being made. Furthermore, no shell casings were found differing from those from Mr. Meredith’s gun. That would mean that the handgun in question would have had to be a revolver, a gun that does not eject shell casings. This is entirely possible but it again narrows the possibilities to some extent.

[78] Furthermore, it emerged in cross-examination that the difference in the rifling on the one projectile was minimal. Several plausible scientific reasons which did not involve a second gun were postulated in cross-examination to explain this minor discrepancy.

[79] That is the internal evidence which threw into question the Crown’s argument that Mr. Chizanga had a gun. As well, there was an absence of non-scientific evidence that might have been expected to be present if there had been a second gun. Mr. Meredith openly displayed his gun the day before at the Super 8 motel, in the Popeyes and when he ran from the scene.

[80] As Mr. Meredith was not terribly concerned with concealing his firearm, it would perhaps have been expected that his accomplice Mr. Chizanga was not either. Of course, a .22 handgun is much smaller and easier to conceal. But the fact remains a second gun was never apparent at the Popeyes, as Mr. Chizanga fled nor was it apparent in Mr. Ali’s taxi. Mr. Meredith’s weapon was obvious, even though covered with a jacket.

[81] As well, another incongruity, again far from definitive but of some minor significance, is that there was supposedly just one shot from this gun while Mr. Meredith was on a shooting spree, firing at least 14 bullets into Kamar McIntosh, not counting the 4 or 5 that missed.

[82] In summary, there were both flaws in the expert evidence and the absence of evidence one would perhaps expect to see. Most of these circumstances taken by themselves are not particularly strong against the presence of a second gun. Certainly, the relatively minor rifling difference between the one different .22 projectile and the others is perhaps the salient circumstance in preventing the Crown from attaining the high level of certainty required by proof beyond a reasonable doubt. Concluding, the evidence of the second gun is too thin to support a beyond a reasonable doubt conclusion. As a result, I find that Mr. Chizanga was unarmed during the killing of Kamar McIntosh.

The Jury Recommendations

[83] The Section 745.2 instruction to the jury quoted verbatim from the provision of the Code. No additional direction was given. It may well be error to do so: R. v. Poirier, [2005] O.J. No. 590, 193 C.C.C. (3d) 303 (Ont. C.A.), at paras. 18-21, R. v. Nepoose, 1988 ABCA 382, [1988] A.J. No. 1115, 46 C.C.C. (3d) 421 (Alta. C.A.) at C.C.C., pp. 424-425.

[84] For Mr. Chizanga, 6 jury members made no recommendation and 6 recommended the minimum of 10 years. For Mr. Meredith, 3 made no recommendation, 7 suggested the 10-year minimum, and 2 said 15 years.

[85] I have considered the jury recommendations and would give them only nominal weight. Section 745.2 tells the jury virtually nothing about the sentencing process. The jury are only told that the accused will be sentenced to life and his parole ineligibility can be set anywhere from 10 to 25 years. Nor does the jury have any knowledge or experience with the sentencing of an offender. In truth, consideration of judicial precedents on sentencing is, in the end, an absolute necessity of course. Sentences are not arrived at in a vacuum. I acknowledge that a recommendation can express sympathy, or a lack of sympathy, for the accused and his crime. But beyond this, it may not contribute much, depending on the circumstances: see e.g. R. v. Salifu, 2019 ONSC 483, 153 W.C.B. (2d) 83 at paras. 57-63, 58.

[86] The recommendations made in this case, but for the two of 15 years for Mr. Meredith, were for the minimum of 10 years. This suggests a pool of sympathy for the accused. I confess to not understand this. The murder was heinous. Neither of the accused testified nor did the jury have any information with respect to them. Perhaps it was in response to their relative youth. Or it may have been a natural reaction to the weight of the verdict decision upon the jury, not something that can be shrugged off. However, the pertinent aggravating factors and the case law demonstrate that the jury recommendations ought not to be given much weight in the present circumstances. If I followed the recommendations of 10 years for Mr. Meredith, the result would be a demonstrably unfit sentence.

Conclusion

[87] For Mr. Meredith, the range for a murder with a firearm, with the other accompanying aggravating factors including his criminal past, is roughly 14 years to 18 years: see R. v. D.S., 2017 ONCA 38, 345 C.C.C. (3d) 1 at para. 156; R. v. Danvers, [2005] O.J. No. 3532, 199 C.C.C. (3d) 490 (C.A) at paras. 62-78; R. v. Doucette, 2015 ONCA 583, [2015] O.J. No. 4523 at paras. 59-63, R. v. Granados-Arana, 2015 ONSC 4527, [2015] O.J. No. 3931; R. v. Stewart.

[88] In my view, in light of the possession and use of this particularly dangerous firearm, the killing in a public place endangering many patrons and staff, the degree of planning and lying in wait for his prey, his criminal record, his breach of weapons prohibitions and the offences at the Super 8 motel the day before with the same firearm, the appropriate parole ineligibility for Mr. Meredith should be set at 16 years.

[89] Mr. Chizanga presents a more difficult sentencing problem. He was an aider or a joint principal in a murder committed with a semi-automatic firearm. He did not himself possess a firearm. The assault rifle and the circumstances of the offence described above are substantial aggravating factors for him as well. He knew about the firearm. He was in cahoots with Mr. Meredith not only with respect to the murder but also the day before at the Super 8, a very serious, but luckily inchoate offence. He knew about Mr. Meredith’s possession of the gun on that occasion as well. But Mr. Chizanga is a youthful (22 years old), first offender: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.) at paras. 17-21; R. v. Borde, (2003), 63 O.R. (3d) 417 (C.A.) at para. 36. His pre-sentence report was generally positive.

[90] I would not give any weight to his tepid expressions of remorse. It should be pointed out however that he was generally very candid with the presentence author, admitting to being involved in the familiar lifestyle in the neighbourhood of selling drugs for money. He admitted being associated with others who were involved in criminal activity. Of course, these circumstances were obvious from the trial evidence. In addition, Mr. Chizanga grew up in subsidized housing and lived in a bad neighbourhood. His father died in a car accident two weeks before he was born. Since that time, he has not had a consistent male paternal figure in his life. His mother suffered a stroke when he was in elementary school. None of this is any excuse for his horrible crime. But I do believe he is in a similar situation for sentencing purposes as was the offender in my recent case of Kandhai. He grew up with limited opportunities and was surrounded by criminal elements and influences. It is my impression, although only an impression, that Mr. Chizanga with his personal attributes and family support, will not be an ongoing threat to the community. The fact that his hockey coach when he was between the ages of 9-18 years old said that he was a “great kid” got along well with everyone and was a good influence in the locker room is a key indication that he likely has reasonable prospects in the future.

[91] In conclusion, these factors with respect to the offender, and the fact he did not possess or use a gun, militate towards a significantly lower sentence for him. In my view, the appropriate parole ineligibility for Mr. Chizanga is 12 years.

[92] In summary, Mr. Meredith is sentenced to life in prison without parole eligibility for 16 years. Mr. Chizanga is sentenced to life in prison without parole eligibility for 12 years. DNA databank orders and Section 109 orders for life will go.

D.E HARRIS J. Released: July 31, 2020

[^1]: The resuscitation efforts were irrelevant to any issue the jury had to decide. This part of the video should not have been shown.