COURT FILE NO.: CR-17-50000762-0000
DATE: 20200909
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
KYLE SPARKS-MACKINNON
Applicant
John Dick and Emile Carrington, for the Respondent Crown
Gary Grill and Leo Salloum, for the Applicant
HEARD: August 21, 2020
M. Forestell J.:
Ruling
directed verdict Application
I Overview
[1] Mr. Sparks-MacKinnon is charged with the second degree murder of Charles Shillingford. Mr. Shillingford was shot and killed on the 31st of October 2015 in the City of Toronto.
[2] The trial commenced on February 26, 2020 before me without a jury and proceeded until March 12, 2020. Because of the COVID-19 global pandemic, the trial could not continue until July 2020. The Crown concluded its case on July 7, 2020 in a hearing conducted by teleconference on consent. Mr. Sparks-MacKinnon had already given notice of his intention to apply for a directed verdict of acquittal and the hearing of that application proceeded by videoconference on August 21, 2020.
II The Governing Legal Principles
Test for a Directed Verdict
[3] The test for a directed verdict is the same test as is applied by a preliminary inquiry judge in determining committal for trial. That test, as articulated in United States v. Sheppard,[^1] is whether there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty.
[4] In assessing the adequacy of the evidence, the judge is not to assess the credibility or reliability of the evidence.[^2]
[5] The test for a directed verdict is the same, whether the evidence is direct or circumstantial.
[6] The Supreme Court of Canada, in R. v. Arcuri,[^3] held that where the Crown's case on an essential element of the offence relies wholly on circumstantial evidence, the judge must engage in a “limited weighing” of the evidence as a whole to determine whether, if the evidence is believed, it would be reasonable to infer guilt. The limited weighing is not a weighing of the reliability or credibility of the evidence, but an assessment of the reasonableness of the inferences to be drawn from the evidence.
[7] In R. v. Munoz,[^4] Ducharme J. described the limited weighing that a judge must engage in as follows:
21 This limited weighing means that inferences to be drawn from circumstantial evidence need not be ‘compelling’ or even ‘easily drawn’ in order to be reasonable. If there are competing inferences, these are for the trier of fact to resolve. A preliminary inquiry judge commits jurisdictional error where he weighs competing inferences or chooses among them. If the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for their determination. As Major J. put it in R. v. Sazant, 2004 SCC 77, [2004] S.C.J. No. 74 (S.C.C.) at para 18, ‘where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered.’ Thus, if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it.
22 However, despite the very circumscribed scope of the preliminary inquiry judge's function with respect to the drawing of inferences, the weighing of the evidence involved, while limited, is of great importance. Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence — the accused must be discharged as there would be an absence of evidence on an essential element.
[8] In R. v. Jackson,[^5] Doherty J.A. writing for the Court, explained the approach to circumstantial evidence in determining committal for trial. At paragraph 8 he wrote:
If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.
[9] It is clear from the caselaw that where the evidence is equally capable of supporting two reasonable inferences — one consistent with guilt and the other inconsistent with guilty — the directed verdict application must fail.[^6] The application will succeed only if the evidence cannot reasonably support the inferences necessary to prove the case.
III THE POSTIONS OF THE PARTIES
[10] In this case, counsel for the applicant argues that the evidence cannot support the inference that it was Mr. Sparks-MacKinnon who shot Mr. Shillingford. He submits that the evidence cannot distinguish Mr. Shillingford from any number of other people who had animus, means and opportunity. The position of the Crown is that if I, as I must, draw the reasonable inferences favourable to the Crown, the evidence as a whole can reasonably support the inference that Mr. Sparks-MacKinnon fired the fatal shots.
IV evidence
[11] The evidence against Mr. Sparks-MacKinnon is wholly circumstantial. There is no direct evidence of the identity of the person who shot and killed Mr. Shillingford.
[12] There are many agreed facts in this case. In addition, for the purposes of this application only, counsel for Mr. Sparks-MacKinnon has conceded that there is evidence capable of supporting several factual inferences. I will set out the agreed facts and conceded available inferences, together with reference to the paragraphs of the Applicant’s factum and to the relevant agreed statements of fact:
• Mr Sparks-MacKinnon was driving a white Corvette on August 9, 2015 when his passenger shot at Mr. Shillingford in the parking lot of the Atlantis Cafe. (conceded – para.3)
• Additional shots were fired on Highway 401 between an occupant of the Corvette and the car driven by Mr. Shillingford after the Café Atlantis shooting. (conceded – para 19)
• Charles Shillingford suffered a gunshot wound to his left shoulder. (agreed, Exhibit 1)
• On October 5, 2015, Mr. Shillingford was at Brooker’s Lane near a residence of Jamal Richardson and opened fire at Mr. Sparks-MacKinnon’s white Corvette. (conceded – para. 4)
• The nearby residence of Mr. Sparks-MacKinnon’s brother at 58 Marine Parade Drive was one that Mr. Sparks would visit and stay at overnight on occasion. (agreed – Exhibit 44)
• Mr. Sparks-MacKinnon and his friends, Mitchell Mannette, Jamal Richardson and Denzel Desmond, were at The Brass Rail on October 31, 2015 from 1:27 a.m. until around 2:14 a.m. (conceded – para.5)
• Mr. Desmond handed Mr. Sparks-MacKinnon a weighted object that a trier of fact could infer was a gun behind The Brass Rail. (conceded – para. 34)
• Mr. Sparks-MacKinnon and Mr Richardson interacted with Cynthia Todorovski, a girlfriend of Mr. Shillingford’s, in the Green P parking lot. Ms. Todorovski was on the phone with Mr. Shillingford during the time she was interacting with Mr. Sparks-MacKinnon and Mr. Richardson. (conceded – para.6)
• Around the same time, Mr. Shillingford was parked in his Chrysler 300 on Charles Street. (conceded – para.6)
• Soon after, Mr. Shillingford departed, he turned right onto Yonge Street, then made two “U” turns on Yonge before travelling eastbound on Hayden Street and then returning to Charles Street in the area of the Green P parking lot. (conceded – para. 7)
• The Buick Regal carrying Mr. Sparks-MacKinnon as a rear passenger behind the driver, Mr. Mannette, travelled behind Mr. Shillingford’s Chrysler 300 down the alleyway at 35 Hayden Street. (conceded – paras. 47-48)
• At some point shortly after returning to Charles Street, Mr. Shillingford was shot three times. The shooting took place on Charles Street, near the Green P parking lot. (conceded – para. 8)
• After the shooting, the Buick Regal, which was associated with Mr. Sparks-MacKinnon, started up and proceeded westbound on Charles Street, following the same direction as Mr Shillingford's Chrysler 300. The two cars went their separate ways shortly after crossing Yonge Street. (conceded-para.9)
• Mr. Shillingford made several turns and ultimately crashed his car into a building at the intersection of Yonge and College Streets and died shortly afterwards from his gunshot wounds. (conceded/agreed)
• Mr Sparks-MacKinnon was aware of and could have been a party to an apparent decision to sell the Buick Regal that had been present near the shooting. The effort involved Mr Manette driving the car to another province on the day after the shooting. (conceded- para. 11)
[13] In addition to the facts agreed at trial or conceded for the purposes of the application, the Crown submits that I should rely on the evidence of Christopher Szybalski and Matthew Stewart, two bystanders who described the shooting and the shooter.
[14] Mr. Szybalski described the shooter as a Black man with medium skin colour, around 6’1” or maybe a bit taller, with an athletic slim build, late 20’s or early his 30’s with black hair, buzzed down short and with a hairline straight across his forehead and no facial hair. He described the sweater worn by the man as a blue sweater, between a light and dark blue, a little bright, about waist-length, crew neck collar, possibly made of wool.
[15] Matthew Stewart also described a man who a trier of fact could infer was the shooter. He described him as a Black man with light brown skin, average build, 5’7’-6’3” tall, wearing a lighter coloured shirt and a blue sweater with a lighter jacket or hoodie over it.
V analysis and conclusions
[16] I have concluded that there is evidence upon which a reasonable jury, properly instructed, could conclude that Mr. Sparks-MacKinnon fired the shots that killed Mr. Shillingford.
[17] There is evidence to support the inference that Mr. Sparks-MacKinnon was aware of the shooting of Mr. Shillingford at Café Atlantis. Mr. Sparks-MacKinnon was driving the white Corvette at Café Atlantis and was in the parking lot at the time of the shooting. He was driving the Corvette on the highway near Mr. Shillingford’s car after the parking lot shooting.
[18] The evidence of the Brookers Lane shooting of Mr. Sparks-MacKinnon’s car could support the inference that Mr. Sparks-MacKinnon was aware that his car was shot at and, given the proximity in time, it would be open to a trier of fact to infer that Mr. Sparks-MacKinnon would have believed Mr. Shillingford to be responsible for the Brookers lane shooting. This evidence as a whole is capable of supporting the inference of animus.
[19] There is evidence that Mr. Sparks-MacKinnon was in the vicinity of the fatal shooting of Mr. Shillingford. There is evidence from which a trier of fact could infer that he received a gun from Mr. Desmond shortly before the shooting.
[20] Finally, there is evidence that could support an inference that Mr. Sparks-MacKinnon took steps to remove the Buick Regal that was in the vicinity of the shooting from the province after the shooting.
[21] The evidence considered cumulatively, of animus, opportunity, means and post-offence conduct is capable of supporting a reasonable inference that Mr. Sparks-MacKinnon was the person who shot Mr. Shillingford. While there are competing inferences available, I must at this stage draw the inferences favourable to the Crown.
[22] I therefore dismiss the application of Mr. Sparks-MacKinnon for a directed verdict of acquittal.
M. Forestell J.
• Released: September 9, 2020
COURT FILE NO.: CR-17-50000762-0000
DATE: 20200909
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
KYLE SPARKS-MACKINNON Applicant
Ruling
directed verdict Application
M. Forestell J.
Released: September 9, 2020
[^1]: (1976), 1976 CanLII 8 (SCC), 30 C.C.C. (2d) 424 (S.C.C.)
[^2]: R. v. DesChamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 (S.C.C.), at para. 15; R. v. Sazant 2004 SCC 77, at para. 18; R. v. Arcuri, 2001 SC 54 at paras. 23, 30, 33
[^3]: 2001 SCC 54, [2001] 2 S.C.R. 828
[^4]: 2006 CanLII 3269 (ON SC), 2006 CarswellOnt 673 at paras. 21 and 22 (S.C.J
[^5]: 2016 ONCA 736
[^6]: Jackson, supra, at para 11; R. v. Russell, 2001 SCC 53 at para. 48