ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-1672

DATE: 11 02 2020

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAEDYN MILLS

Defendant

C Coughlin, for the Crown

D. Newton, for the Defendant

HEARD: July 20, 21, 22, 23 and 28 2020

REASONS FOR JUDGMENT

Shaw J.

Overview

[1] On February 19, 2018, shortly after 8:00 pm on a dark and wet evening, S.M. was shot while in his car that was parked outside his home, in a residential neighbourhood in Brampton. S.M. had just pulled out of the driveway of his home after an evening out with his wife and three children. He was shot as he sat in his car waiting for his wife to drive her car into the garage at their home. He sustained gunshot wounds to his left hip and right lower leg/ankle. He testified that he did not know who shot him or why he was shot. He could not identify the shooter, even in a photo lineup on May 21, 2018. At trial, his evidence was that just before being shot, he looked up and through the driver’s window he saw a white car pull up beside his car. He saw a Black male in the car, who he believed was driving the car, immediately before he was shot. He also testified that he saw a firearm, which he described as a handgun, and he believed that the Black male shot him. There were no other witnesses to the shooting, other than S.M.’s wife who testified that she saw a white car driving down the street in front of their home after S.M. was shot.

[2] The accused was arrested and charged with the following four counts in connection with this shooting:

1. Discharging a firearm with an intent (s.244(1) CCC);

2. Unlawful possession of a load restricted firearm (s.95(1) CCC);

3. Being the occupant of a motor vehicle containing a firearm (s.94(1) CCC);

4. Aggravated assault (s.268(1) CCC).

[3] This is a case about identity. The single disputed issue is whether there is sufficient evidence upon which the court can conclude, beyond a reasonable doubt, that Mr. Mills was the person in the white vehicle who shot S.M. The identification of Mr. Mills is based entirely on circumstantial evidence with respect to Mr. Mills’ association with the suspect vehicle, surveillance conducted in connection with another matter, and the contents of a Blackberry 9360 Curve phone (the “Blackberry”). When reviewing the evidence, I am mindful that the circumstantial evidence must be considered in its totality.

[4] For the reasons that follow, I find Mr. Mills not guilty on all counts.

Legal Principles

[5] The onus to prove guilt of a defendant beyond a reasonable doubt at all times remains with the Crown. Each individual charged with a criminal offence is presumed innocent, and that presumption remains throughout the whole of the trial unless and until the Court is satisfied that the charge has been proven beyond a reasonable doubt. If at the end of hearing of the evidence and submissions I am not satisfied that the Crown has proven any element of the offence charged beyond a reasonable doubt, and more specifically if I have any reasonable doubt about the identity of the defendant, he will be acquitted of the charge.

[6] A reasonable doubt is not an imaginary or frivolous doubt. It is based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. As noted by the Supreme Court in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40 (S.C.C.), at para. 242, there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities. If after considering all of the admissible evidence I am sure the defendant committed the alleged offence, I must convict him since that demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[7] The totality of the Crown’s case against Mr. Mills is circumstantial evidence. When dealing with circumstantial evidence, in order to find Mr. Mills guilty of the offences before the court, the court must be satisfied that Mr. Mills’ guilt is the only reasonable inference to be drawn from the totality of the circumstantial evidence: R. v. Villaroman, 2016 SCC 33, [2016] S.C.C. No. 33, [2016] 1 S.C.R. 1000 (S.C.C.), at paras. 30 and 55. As Cromwell J. held at paragraph 71: “It is fundamentally for the trier of fact to draw the line… that separates reasonable doubt from speculation.”

[8] The trier of fact must consider other plausible/reasonable theories or inferences which are inconsistent with guilt: Villaroman, at para. 37. These inferences do not have to arise from proven facts and can arise from the evidence or from a lack of/gaps in the evidence: Villaroman, at paras. 36. At para. 35, Cromwell J held that: “[i]n assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts.” Inferences drawn from circumstantial evidence must be reasonable, assessed logically, and in light of human experience and common sense, not based in speculation; Villaroman, at paras. 36-38. If there are reasonable inferences other than guilt that arise from the evidence, the Crown has not satisfied the standard of proof beyond a reasonable doubt.

[9] The Crown is also relying on post-offence conduct of Mr. Mills as evidence of his identity as the shooter. Post-offence conduct can be admitted to show that an accused person “acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person”: R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226 (Ont. C.A.). Post-offence conduct is like other pieces of circumstantial evidence that may be subject to competing interpretations. It must be weighed by the trier of fact, in light of all of the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion: R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, 125 C.C.C. (3d) 385 (S.C.C.), at para. 21.

[10] In R. v. Ramkissoon, 216 O.A.C. 388, 2006 34407 (ON CA), 2006 O.J. No. 4099 (Ont. C.A.), the court found that when dealing with post-offence conduct, it is only after the trier of fact has concluded that the accused did what the Crown alleged, and that such conduct was consistent with the accused being conscious of what the Crown alleged against him, that the trier of fact should consider such evidence: at paras. 11-12.

[11] The Crown is relying upon still photographs taken of Mr. Mills while under surveillance as evidence of his identity. If I am satisfied that the photographs are of good clarity/quality, I may rely on that evidence on the issue of the identification of the accused in the photograph: R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, 31 O.R. (3d) 480, at para. 23.

[12] In assessing the evidence in this case, I must consider the evidence cumulatively and as whole. Given that each circumstantial piece of evidence may be insufficient on its own to support the required inference, I must consider all of the individual pieces of evidence together to determine whether the Crown has met its burden.

[13] With these principles in mind, I will now review the evidence presented by the Crown. The defence did not call any evidence.

Review of the Evidence

[14] The Crown’s theory is that Mr. Mills was driving the white car that S.M. saw pull up beside his car just before he was shot. The evidence the Crown relies upon includes video showing Mr. Mills driving the car at 4:30 p.m. earlier that day when he was under surveillance by the Durham Regional Police (“DRP”) in connection with another matter. The Crown also relies on information retrieved from the Blackberry phone which the Crown alleges was Mr. Mills’ phone that was seized upon his arrest. The information included screenshots of directions to the victim’s home and a description of the victim and cars owned by the victim. The Crown also relies on cell tower evidence that shows a phone number, which the Crown says was associated with the Blackberry, travelling from Oshawa to the vicinity of the victim’s home prior to the shooting and then leaving the area after the shooting.

[15] The Crown’s theory is that the circumstantial evidence, when considered in its totality, proves beyond a reasonable doubt that Mr. Mills was the person who shot S.M., and that he is therefore guilty of the offences before the Court. The Crown also asserts that any alternate plausible theories are merely speculation.

[16] The theory of the defence is that there are reasonable inferences, other than guilt, that are not speculative and that therefore the Crown’s evidence does not meet the threshold of proof beyond a reasonable doubt. The defence asserts that one of the reasonable inferences is that Julian Heath, who was with Mr. Mills when he was arrested, committed the offence. The defence points to information from a Samsung telephone, that belonged to Mr. Heath, that the defence says supports a reasonable inference that he was the shooter.

[17] I will review the evidence regarding the night of the shooting, followed by evidence regarding the white car, the surveillance conducted by DRP on February 19 and 22, 2018 and then the evidence regarding the Blackberry and Samsung phones.

(i) The Shooting

[18] S.M. testified that he, his wife and three children left their home in Brampton on the evening of February 19, 2018 in his wife’s white Mercedes to go to dinner at his parents’ home. His vehicle, a blue Nissan Altima, was parked in their single- vehicle driveway. When they arrived home, S.M. left his wife’s car to move his car that was parked in the driveway so that she could park her car in the garage. He reversed out of the driveway and parked his vehicle, facing west, across the street from his home on Vanderpool Crescent.

[19] S.M.’s wife, T.M., testified that they arrived at their home just after 8:00 p.m. As she was driving into the garage, she heard what sounded like firecrackers. She stopped her car, a white Mercedes R500 model, when she was about halfway into the garage. She exited her car and heard her husband yell that he had been shot. She looked to her left and saw a white car driving down the street. She could not provide any further particulars about the vehicle other than it was a white car and it may have had four doors. She estimated that she was about 45 to 50 feet away from the white car when she made these observations.

[20] She testified that it had rained all day and there had been a lot of fog. She testified that there was “pretty good” street lighting in the area.

[21] S.M. testified that as he was sitting in his vehicle he looked up and saw a white car pull up beside his vehicle. He described it as a smaller car, possibly a sedan. He did not see how many doors it had. He testified that his car windows were tinted so he could not identify who was in the white car other than he saw one person who he described as a Black male. He could not provide any other details of this person’s appearance. He saw a handgun and then he was shot. He drove forward after being shot and was shot again. He reversed his car and then saw the white car drive away to the end of the street and turn right, at a high rate of speed. He believes that 5 to 6 shots were fired.

[22] He testified that he thought the passenger side window in the white car was down and he believed that the person driving shot him out the passenger side window. He testified that he only saw the Black male for “seconds.”

[23] S.M. could not describe the person he saw in the white car other than he was a darker Black male. S.M. described himself is a light-skinned Black male and that the person he saw had a darker skin tone than his. He testified that he is a Canadian-born Jamaican with orange or auburn hair and freckles. His evidence was that in Jamaica he would be considered to have “high colour.”

[24] S.M. performed two photo lineups on May 21, 2018. Each photo lineup contained twelve photographs. The first lineup contained a photograph of the accused. He was shown a second photo lineup which contained a photograph of Julian Heath. S.M. did not identify any photograph in either lineup as the person who shot him on February 19, 2018.

[25] On cross-examination, S.M. agreed that the accused, who he saw in the courtroom, was a Black man with light skin. He agreed that the person he saw in the white car appeared to have dark skin, although he stated that he was looking at him through the tinted windows of his car.

[26] Officer Derek St. Denis from Peel Regional Police (“PRP”) testified that he was tasked to execute a search of S.M.’s car. He collected physical evidence and also captured it in photographs which were entered into exhibits. Those photographs show holes in the driver’s side door and the interior of the car. He testified that one of the items he retrieved was a bullet found in the passenger seat and one in the driver’s seat. Because of the damage to the bullets, it was not possible to determine the caliber or type of firearm that fired the bullets.

[27] Officer Nicholas Harris from Peel Regional Police (“PRP”) testified that he attended at the scene of the shooting at 9:31 p.m. and took a series of photographs of S.M.’s car and exterior of his home which were entered as exhibits. He described the scene as dark, and the road as poorly lit. He also testified that there had been heavy rain and standing water on the road causing a lot of reflections. He testified that there was street lighting but no street light directly above where S.M.’s car was located.

(ii) The Car

[28] Officer Ryan Fernandes from PRP testified that he received a call at approximately 8:00 p.m. on February 19, 2018 about a shooting at 26 Vanderpool Crescent in Brampton. (This is the north east area of Brampton, near Castlemore Road and Highway 50.) The complainant said her husband had been shot and a white car was involved.

[29] As officer-in-charge, he asked officers to canvass the neighbourhood for surveillance videos. From a residential home located at 3 Oshawa Drive, a street crossing Vanderpool Crescent, video was obtained of the moments leading up to and after the shooting. The video showed headlights from the suspect car pull up beside S.M.’s car and then continue to drive on Vanderpool Crescent in a westerly direction at 8:08 p.m. Officer Ryan prepared a bulletin with an image of the suspect vehicle from another home video surveillance, which he sent to other police agencies for information regarding the car and driver. Based on the surveillance image, the vehicle was described in the bulletin as a newer white Hyundai Elantra with tinted windows and a sunroof. He testified that based on the image, it appeared that the rim on the driver’s side front tire was black and the rim on the rear passenger tire was silver.

[30] He agreed on cross-examination that the video surveillance of the suspect car did not provide any information with respect to the identity of the driver or the licence plate.

[31] On March 28, 2018 Officer Fernandes spoke with spoke with an officer from DRP with respect to surveillance that DRP had been conducting of a person identified as Mr. Mills on February 19, 2018 and February 22, 2018 in connection with unrelated matters. He was told that Mr. Mills was observed driving a new-model white Hyundai Elantra with licence plate number BYNH 446 until approximately 4:30 p.m. on February 19. He was also observed on the morning of February 22travelling to a rental agency in Scarborough where the white Hyundai was exchanged for a silver Hyundai. He was informed that Mr. Mills was driving the silver Hyundai when he was arrested on February 22 and that another individual, Mr. Heath, was a passenger in the car at the time. DRP located two phones and a gun discarded in the area of the silver Hyundai at the time of their arrest. As a result of this surveillance and an examination of the phones, Mr. Mills was arrested by PRP.

(iii) The Surveillance on February 19 and 22, 2018

[32] A number of officers from DRP testified about the surveillance conducted on February 19 and 22. Photographs taken during the surveillance were marked as exhibits. The Crown alleges that Mr. Mills was the person in the photographs. The defence did not concede that it was Mr. Mills in the photographs but did agree that it was Mr. Mills who was arrested with Mr. Heath on February 22, 2018. His arrest photograph was also marked as an exhibit.

[33] Officer Ryan Kavanagh from DRP testified that he was part of the surveillance team on February 19. He testified that at 12:12 p.m. he saw Mr. Mills and another individual arrive at a plaza located at 1926 Dundas Street in Whitby. A tow truck was on the scene. Officer Kavanagh took photographs of the two men standing beside the car waiting for the two truck driver to open the locked car. He described one of the persons, who he testified was Mr. Mills, as wearing a maroon jacket with a fur-trimmed hood. The car was a white Hyundai with license plate BYNH 446. He also took a photograph of the white Hyundai, which showed that it had a sunroof and the front driver side vehicle was missing a hub cap. A photograph of the car was marked as an exhibit. Once the car was open, Mr. Mills got in the drivers’ seat and turned off the car alarm and then exited the car. He then observed Mr. Mills and the other individual drive away in a Ford Escape at 12:17 p.m.

[34] He next observed Mr. Mills at 4:30 p.m. that day driving the white Hyundai as it pulled into the Whitby Entertainment Consortium.

[35] Officer James Gillam from DRP testified that he was part of the surveillance team on February 19 and attended a morning briefing where Mr. Mills’ photograph was shown.

[36] He testified that he saw a black Ford Escape on February 19, 2018 travelling to the plaza on Dundas St. in Whitby at 12:12 p.m. He saw Mr. Mills and another person waiting outside a white Hyundai Elantra.

[37] At 3:15 p.m. he saw Mr. Mills arrive at 295 Phillip Murray Avenue driving the white Hyundai. This was an address the surveillance team was given as part of the morning briefing. He next saw Mr. Mills just after 4:33 p.m., leave the Whitby Entertainment Consortium driving the white Hyundai Elantra.

[38] He agreed during cross-examination that he last saw the white Hyundai at 12:12 p.m. on February 19 and then three hours later at 3:15 p.m. when it arrived at the Phillip Murray address. He did not know where the Hyundai was for those three hours or who drove it. He agreed that he did not know when Mr. Mills first got back into the Hyundai before he saw him at 3:15 p.m.

[39] Officer Jeff Costanzi from DRP testified that he was part of the surveillance team on February 19. At the morning briefing the surveillance team were given targets for their surveillance that day, one being Mr. Mills. They were given an address of 295 Phillip Avenue in Oshawa to commence surveillance and a profile sheet with photographs of the targets.

[40] Officer Costanzi testified that on February 19, 2018 at 4:12 p.m. he saw Mr. Mills leave 295 Phillip Avenue and enter the drivers’ side of a white Hyundai Elantra with licence plate number BYNH 446. Office Costanzi and other members of the surveillance team followed the car to the Whitby Entertainment Consortium. After briefly losing sight of the car, Officer Costanzi saw the car exit the plaza at 4:33 p.m. with Mr. Mills driving.

[41] Officer Costanzi agreed that the only time he saw Mr. Mills driving or in the white Hyundai was on February 19, 2018 and he was unaware who was driving the car at any other time, including after 4:33 p.m. This was the first time that Officer Costanzi or his team had Mr. Mills under surveillance. He agreed that on February 19th there was a two-hour gap prior to 3:15 when Mr. Mills was not seen, and a three hour period when the white Hyundai Elantra was not seen.

[42] Officer Blaine Taylor was part of the surveillance team on February 22, 2018. He attended a team briefing that morning where he saw a photograph of Mr. Mills. He arrived at 295 Phillip Murray Avenue at 9:15 a.m. on February 22 and saw a white Hyundai Elantra with licence late BYNH 446 parked west of the property. At 10:02 a.m. he saw Mr. Mills enter the Hyundai and drive north. The Hyundai was seen stopped on a road next to a silver Chevy Cruise licence CBAK 846. The cars were followed to Kennedy Road and Ellesmere Avenue in Scarborough. Through a check with the Ministry of Transportation, it was determined that the Chevy Cruise was owned by Darlene Crocker.

[43] At 10:36 a.m. Officer Blaine Taylor saw Mr. Mills exit the Hyundai and enter the Platinum Car and Truck Rental on Elsmere Road. Ms. Crocker exited her vehicle and followed Mr. Mills inside. At 10:48 a.m. they exited the office and Ms. Crocker was seen entering the Hyundai and driving it into an underground parking area. At 10:53 a.m. officer Taylor saw Mr. Mills in the driver’s seat of a silver Hyundai BYNH 496 as it pulled out of the same underground parking garage.

[44] Officer Taylor took three photographs of Mr. Mills and Ms. Crocker standing in the parking lot of the rental business at 11:06 a.m. In the photographs there is a person wearing a maroon jacket with a fur-rimmed hood, who Officer Taylor said was Mr. Mills. The defence agrees that it is Ms. Crocker in the photograph.

[45] At 11:08 a.m. officer Taylor saw Mr. Mills in the driver’s seat of the silver Hyundai and the car was followed. At 11:35 a.m., officer Taylor saw Mr. Mills enter a McDonald’s near Weston Road in North York where he picked up an unknown Black male. At 12:14 p.m. Officer Taylor saw Mr. Mills and the passenger exit a 7-Eleven and enter the silver Hyundai. Mr. Mills was the driver. The car was followed and seen entering into the north Ajax area, where the car was lost for a short period of time. During this time, there was a shooting reported in the residential neighbourhood where the silver Hyundai was last seen.

[46] The car was followed back to Oshawa. At 1:30 p.m.. Officer Taylor went back to the Phillip Murray address and the silver Hyundai was seen in the driveway. At 2:23 p.m. he saw the silver Hyundai travelling towards Boundary Road, at which point the Tactical Support Unit was brought in for a high-risk vehicle stop. After a brief chase, the silver Hyundai was stopped at the end of Boundary Road which ends in a roundabout in an industrial area near the Oshawa/Whitby boundary. Mr. Mills and Mr. Heath were arrested at the scene.

[47] Officer Taylor confirmed that he did not know who drove the white Hyundai prior to February 22, 2018 when he first saw it at 9:15 a.m.

[48] Officer Brown was part of the surveillance team on February 19 and 22, 2018. He testified that on February 22 he was in the intelligence office when he heard about a shooting in Ajax. He arrived at the scene of the arrest of Ms. Mills and Mr. Heath at 2:43 p.m. and photographed certain items which were believed to have been thrown from the silver Hyundai. He took photographs of two cell phones located on a grass boulevard in the area of the arrest on the west side of Boundary Road. The Blackberry was located near the curb area and a Samsung nearby. A gun was also found about three to five hundred meters from the phone. There is no evidence that the gun was connected to the shooting of S.M.

[49] Officer Brown agreed on cross-examination that when he arrived at the arrest scene the silver Hyundai was parked facing south and the phones were located on the west side of the roundabout. He agreed that the passenger side of the Hyundai is also on the west side of the roundabout.

[50] A copy of the rental agreement for the white Hyundai was filed and marked as an exhibit. According to that document, Ms. Crocker rented the white Hyundai Elantra on February 12, 2018 and returned it on February 22, 2018 and rented the silver Hyundai at that time.

(iv) The Phones

[51] Officer Fernandes obtained possession of the Blackberry on May 16, 2018 and an order was obtained to analyze the phone. From the phone, two photographs were extracted that Officer Fernandes said was an image of Mr. Mills, based on his comparison with the arrest photograph of Mr. Mills taken on February 22, 2018. Also on the phone was an image, which said the following:

26 Vabderpool Dr Brampton

White Bends R500

Light blue Ultima

High colour almost albino with freckles. Blonde hair. Older man.

Has a son that looks the same but is skinny. Only him nobody else.

[52] Also on the phone were a series of images of directions which start in the Toronto area and then end on Almond Street, which is one street north of Vanderpool Crescent.

[53] Officer Fernandes testified that the SIM card in the Blackberry was associated with phone number 437-963-7009 (“7009”). A production order for that phone number was obtained from Rogers Communications for February 19, 2018 from 5:00 p.m. to 12:00 a.m. to determine if during that time-frame the phone was in the area of the shooting. According to that production order, the subscriber information, which is the registered name and home address of the subscriber for this prepaid phone, was Jerome Brown and the phone was activated on February 18, 2018 – the day before the shooting.

[54] In an agreed statement of fact, it was agreed as follows:

Cell phone numbers are assigned to SIM cards and not to particular cellphones

SIM cards can be inserted into and removed from all cellphones and transferred between cellphones;

Cell phones derive their telephone numbers from the SIM cards currently inserted into them;

For pre-paid plans, Rogers Communication does not verify the name or address of the subscriber;

The production order reflects the incoming and outgoing call and text log for the phone number for the period requested and contains information including the date and time the communication commenced, the telephone number that initiated the call or text, the receiving telephone number for the call or text, the duration of the call, the cell tower to which the cell phone using the phone number was connected when the call was initiated and the cell tower to which the phone number was connected at the time the communication terminated;

The “Resulting Subscribers” information in the production order reflects the registered telephone number, name and home address of other Rogers Communications subscribers with whom the telephone numbers communicated during the time period in the production order;

The “Resulting Chatr Subscribers” information in the production order reflects the registered telephone number, name and home address of Chatr subscribers with whom the cell phone using telephone number 437-983-7009 communicated with during the period of time reflected in the production order. Chatr is a subsidiary of Rogers Communications;

The “Cell Site Locations” in the production order contains information about the approximate municipal address of the cell tower;

Production orders do not necessarily reflect all of the cell phone towers utilized by a cell phone over the course of a communication but only the first and last cell phone towers used;

Production orders do not determine the dimensions of a particular cell phone tower’s service area and in densely populated urban areas, the service areas of cell towers overlap slightly;

It is a business policy of Rogers Communications that the contents of text messages are not stored by Rogers Communications nor reflected in the production order.

[55] Officer Fernandes testified that when a phone sends or receives calls it will use a cell tower with the strongest signal which is usually the tower closest to the phone. If the tower is busy or there is poor weather, the next closest cell tower will be used. He testified that cellular tower information can be used to determine the general location of a phone at the time of the start and end of the call. (Counsel agreed that this evidence could be led through Officer Fernandes. This was one of many examples of the cooperation between counsel in how evidence was presented during this trial).

[56] According to the production order, there were 14 phone calls and/or texts made or received by 7009 between 5:07 p.m. and 7:16 p.m. on February 19. According to the cell tower information, the first call used a cell tower located in the Highway 401 and Islington area of Toronto. Officer Fernandes testified that according to the cell tower information associated with those calls/texts, the phone then travelled in a westerly direction. The last phone call prior to the shooting was at 7:16:58 p.m. and it used a cell tower located at Goreway Drive and Castlemore Road in Brampton, which is approximately 4.8 kilometres from the victim’s home. According to Officer Fernandes, this would be approximately a seven minute drive to the victim’s home. There was then no further communication either by way of phone calls or texts from 7009 for approximately one hour. The next phone call was at 8:13:22 p.m. and the cell tower used was at Queen Street and Huntington Road, approximately 5.7 kilometres from the victim’s home. There were then a series of other phone calls or texts that used cell towers showing 7009 travelling in an easterly direction to the Oshawa area.

[57] One of the “resulting subscribers” identified in the production order was Kyle Mills with an address of 1133 Ritson Road North, Unit 94 in Oshawa.

[58] Officer Fernandes testified that he was provided with an arrest photograph of Mr. Mills, which he compared to two photographs extracted from the Blackberry. Officer Fernandes’ evidence was that the arrest photograph of Mr. Mills matched the two photographs from the Blackberry. He agreed on cross-examation that he was unable to say when the photographs that he found on the phone were taken, who took them or if they were taken by a Blackberry phone. His evidence was that the pictures were in the picture folder, but he could not say how they got there.

[59] On cross-examination, Officer Fernandes agreed that he was aware that the gun found near where Mr. Mills and Mr. Heath were arrested was not the gun used in the shooting of S.M.

[60] He agreed that the production order for 7009 did not assist in determining what type of phone was being used when the various phone calls were being made. He also agreed that between 7:16 p.m. and 8:13 p.m., the production order did not assist in knowing the movement of the phone for that hour. He also agreed he did not know the radius or distance of the cellphone towers or whether there are any cellphone towers that are actually closer to the victim’s address on Vanderpool Crescent.

[61] He also testified that the images of the directions found on the phone were not text messages on the phone, but were photographs of the directions. He agreed that no one sent a text to the phone with those directions. He agreed that he had no information of when the images were taken or made.

[62] He agreed that there was nothing on the phone that conveyed that Mr. Mills owned the phone. He also agreed that there was nothing on the phone or in the production order that assisted in determining who had possession of the phone at the time of the shooting.

[63] He agreed that the production order showed that the phone number 7009 was near Vanderpool Crescent, prior to and after the shooting but that there was no evidence that the Blackberry itself was at that location. He also agreed that he could not say that the SIM card was in the Blackberry on February 19.

[64] Officer Fernandes was asked about an extraction report obtained by the DRP for the Blackberry. He agreed that the extraction report is for the contents of the phone whereas the production order is for the telephone number. He agreed that according to the extraction report, there was no record of any phone calls made by the Blackberry on February 19. He testified that he thought that could mean that someone had deleted or wiped the phone calls from the phone.

[65] He also agreed that in addition to the Blackberry, there were three additional phones seized when Mr. Mills was arrested. One was a Samsung that was also found outside the vehicle. The two other phones were an LG and a Motorola, which were found in the car. He agreed that it appeared from the contents of the phones that they belonged to Mr. Mills.

[66] Officer Fernandes agreed that the Samsung phone that was thrown from the vehicle belonged to Mr. Heath, as the phone had a number of pictures of Mr. Heath and none of Mills. It also had a number of photographs of firearms. He was shown a document entitled Samsung Phone User Accounts. An email account of julian916@hotmail.com appears as one of the user accounts and he agreed that this was also a factor that supported his conclusion that the Samsung belonged to Mr. Heath.

[67] Officer Fernandes agreed that a screenshot from the Samsung appeared to be a Google map of the area where S.M. lived, with Vanderpool Crescent highlighted in red.

[68] He was also shown a report from the Samsung phone regarding the user’s web history. He agreed that according to the report, between February 20-21, 2018 the user of that phone was searching the Brampton news about the shooting of S.M.. He agreed that on February 20, 2018 the web history included a search of an article from the Brampton Guardian about the shooting on February 19. It also showed a search of “platinum renta” on February 20.

[69] Officer Fernandes agreed that there was no evidence that Mr. Mills was in possession of the Samsung. On re-examination he testified that there was nothing on the phone from the web search history about who was in possession of the phone.

[70] Officer Fernandes was also asked about information obtained from the Samsung phone about a series of messages exchanged between the Samsung and phone number 1-647-298-4193 (“4193”) between February 12 and 21, 2018. On February 17, 2018 at 2:41 p.m. there was a text from 4193 saying: “call this number please”. The Samsung phone call log also indicated that on February 17, 2018 one minute later, at 2:42 p.m., there was a phone call to 4193 from the Samsung. There is a further text at 2:55 p.m. from 4193 to the Samsung saying:

your account number is 0500321

transit number is 21212 institution number is 002SD

$100 Scotia Bank

Respect much love brother

[71] There is a further message on February 18 at 2:05 p.m. from 4193 to the Samsung saying, “money wants you to do this ASAP”. There is then a response from the Samsung at 2:06 p.m. to 4193 saying “bare shit hdpoeb yesterday” A further text follows from the Samsung to 4193 saying “IIk do it today”.

[72] At 7:47 p.m. on February 18, 4193 texts the Samsung saying, “did you do it”. At 7:49 p.m. the Samsung texts 4193 saying “nah first thing in the am when I rouch rd been with my son all day”. There is then a response from 4193 that says, “okk thank you”.

[73] On February 19, 2018 at 8:06 p.m. there is another message from 4193 to the Samsung saying, “did you do it”. There is a response on February 20, 2018 at 9:35 a.m. with an “X” on the response meaning it was deleted.

[74] On February 21, 2018 there was a message from 4193 to the Samsung at 9:56 a.m. saying, “money said are you going to deal with that for him” and then a further message on February 21 at 1:20 p.m. from 4193 saying, “if your not dealing with that let me know”.

[75] Officer Fernandes confirmed that no investigation was done with respect to the 4193 number that was exchanging text messages with the Samsung that belonged to Mr. Heath.

[76] The Crown does not contest the admission of the portions of the Samsung report that were put to Officer Fernandes for the Court’s substantive use.

[77] Officer Anita Sikora works with digital forensic services for the PRP. She conducted a forensic examination of the Blackberry and completed an extraction report and then a second X-Ways report.

[78] She testified that when she examined the phone there was a Fido SIM card in the Blackberry. She explained that a SIM card is needed to connect to the network and Fido was the service provider. There was also a memory or SD card in the Blackberry which stores data on it, such as pictures or videos. She testified that the SD card can be moved between phones.

[79] She testified that the extraction report she prepared was for the recovery of certain data requested by Officer Fernandes. After taking photographs of the phone, she then began to extract data from the SD or memory card. She testified that the files she extracted were the two photographs of images that Officer Fernandes testified were of Mr. Mills. She also recovered screen shots of the driving directions and of the description of the alleged targeted person.

[80] She also testified that the image which appeared to be a description of the victim’s vehicles and of the victim appeared to be a picture taken from another cellphone. The same is true with respect to the five images on the phone which appeared to be directions to the victim’s home. She testified those were also located on the SD card. She testified that the report did not provide any information about when the photographs were taken so she conducted a further anlaysis and generated the X-Ways report.

[81] Officer Sikora explained that according to the X-Ways report, the images described above were recovered after being “carved” from the device. She testified that the images were taken by a Blackberry 9360, the same type of phone found at the arrest scene.

[82] According to Officer Sikora, the driving direction files appeared to have been created on February 19, 2018 just after 6 p.m. The file appearing to describe the intended target was created at 5:28 p.m. that day. One of the photos alleged to be of Mr. Mills was created on May 6, 2012. She testified that these images were deleted at some point but she did not determine when.

[83] As part of her investigation Officer Sikora took some photographs of the phone. The first was of text messages. The last text message was dated February 22, 2018. She explained that when the phone was seized, the cellular service would have been disconnected so no further messages were received. One of the unread messages on February 22 was from “Darr (Work)” at 2:54 p.m. She also took a photograph from the contacts on the phone, one of which was for “Darr”. She testified that while the phone number follows the SIM card, the contacts are internal to the phone itself.

[84] She agreed that she could not testify about who took the photographs on the phone. While the photos were taken by a Blackberry 9360 phone, she could not say if it was the same phone she analyzed.

[85] On cross-examination she agreed that there were multiple ways that images could be found in the SD card and she did not know how the photos got on the SD card. She agreed that one SD card could be moved to another phone and that nothing ties an SD card to a particular phone. She also agreed that the SD card could be removed from a phone and put into a computer. She agreed there was no way to determine when the SD card was inserted or removed from the phone or moved from other devices. She also agreed that the SIM card could have been in any number of phones and there was no information or dates about when the SIM card would have been moved. She also agreed there was nothing in the extraction report that helped identify who was the user of the Blackberry or who put anything on the SD card.

[86] The extraction report from DRP was filed as an exhibit on consent. In that report, there were a series of text messages exchanged between the Blackberry and “Darr” at 289-991-3266 commencing the morning of February 22, 2018.

Analysis

[87] There is no direct evidence regarding the identity of Mr. Mills as the shooter on February 19, 2018. In fact, the evidence of S.M. regarding the identity of the shooter is exculpatory. First, he could not identify Mr. Mills in a photo lineup. Second, when describing the shooter, S.M. testified that the shooter was a Black man with a darker skin tone than his own. S.M. described himself as a light-skinned Black male. On cross-examination, he agreed that he saw what appeared to be a dark-skinned Black male as the shooter.

[88] The Crown asserts that S.M. could be mistaken in his description of the shooter as a dark-skinned Black male as he made the observations at night, through tinted windows during a very stressful few seconds while he was being shot at more than once. S.M. also testified he was in shock when the shooting occurred.

[89] I agree with the Crown that the brief time S.M. saw the shooter, at night, through tinted windows and under stressful conditions are factors to consider in assessing the reliability of his evidence. However, despite the fact that it was dark and had been raining, S.M. was also able to make a number of other accurate observations at the time. First, he identified the car as being a white car, which was an accurate description of its colour. He saw only one person in the car. He recalled that the passenger side window of the white car was down and the shooter shot him through that window. He was able to recall his movements of his car during the shooting, first driving forward and then reversing. He was able to identify the type of gun he saw, being a handgun. He also recalled the number of shots fired, being five or six. He was also able to describe the movement of the white car after the shooting as he said it drove to the end of the street at a high rate of speed and turned right.

[90] In my view, S.M.’s ability to testify in a fair amount of detail about other observations he made at the time of the shooting enhances the reliability of his evidence regarding the observations he made of skin tone of the Black man who he said shot him, although he could not identify any other facial features of the shooter.

[91] Furthermore, as S.M. is a Black man himself, there are no risks of cross-racial identification as described in R. v. Richards, 2004 39047 (ON CA), [2004] O.J. No. 2096 (Ont. C.A.)

[92] While Mr. Mills wore a facial mask during the trial, as required for safety purposes during this pandemic, I was able to observe that he is a light-skinned Black male, as was also observed by S.M. during the trial as he acknowledged that Mr. Mills was a light-skinned Black male during cross-examination.

[93] While counsel for the defence argued that this exculpatory evidence is sufficient on its own to raise reasonable doubt and acquit Mr. Mills, in my view it is a factor to consider, given some of the concerns raised about the reliability of the evidence given the circumstances under which S.M. made his observations of the shooter. S.M.’s inability to identify Mr. Mills in a photo lineup is also exculpatory evidence which I also consider as a factor.

[94] The defence asserts that there are reasonably available alternative inferences from the circumstantial evidence that Mr. Mills was not the person who shot S.M. Counsel submits that those alternative inferences are not mere speculation and that I, as trier of fact, must decide if any proposed alternative way of looking at the case is reasonable enough to raise a reasonable doubt.

[95] When reviewing the circumstantial evidence, I am mindful that it must be viewed cumulatively as there is limited value of particular evidence standing alone and I must not examine each piece of evidence in isolation; R v. Smithen-Davis, 2009 ONCA 917 at para. 16. Furthermore, I must consider other plausible theories and reasonable possibilities which are inconsistent with guilt. The Crown is not required to disprove every possible conjecture that might be consistent with innocence, but it may need to negative reasonable possibilities in order to establish guilt beyond a reasonable doubt: Villaroman, at paras. 50, 62 and 66. Other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[96] I will now consider the circumstantial evidence that the Crown relies upon to prove that Mr. Mills is the person who shot S. M.

[97] To prove the identity of Mr. Mills as the shooter, the Crown asserts that based on the evidence, the car used at the shooting was the white Hyundai Elantra with licence plate BYNH 446. The Crown asserts as Mr. Mills was the only person seen in possession of the car 3.5 hours before the shooting and three days after the shooting, this is evidence that he was driving it on February 19, at the time of the shooting. The Crown also asserts that the evidence supports a finding that the Blackberry belonged to Mr. Mills and that it was with him as he drove to Brampton on February 19.

[98] The Crown’s position is that the Court should consider Mr. Mills’ post-offence conduct of deleting the screenshots of the directions to the home, the description of S.M. on the phone, and the phone calls made on February 19, and efforts to dispose of the phone prior to his arrest. The Crown’s position is that this is behaviour consistent with someone attempting to distance himself from a crime.

[99] I will deal firstly with the photographs taken by DRP during its surveillance. Mr. Mills does not concede that he is the person in those photographs. The images taken on February 19, when Mr. Mills was observed standing outside the white Hyundia as a tow truck driver unlocked it, are clear and of good quality. There are also photographs of Mr. Mills taken on February 22 at the car rental agency. One of the phographs is clear and of good quality. I am able to identify facial features of the person shown in those photographs. It is not disputed that the arrest photograph taken on February 22 is of Mr. Mills. When I look at these images, I am satisfied it is Mr. Mills seen in the photographs from the surveillance conducted on February 19 before the shooting and on February 22 after the shooting. He is observed to have the same hair – it is pulled back in tight braids. He also has a wide nose structure and facial hair above his lip and on his chin and he has a fuller lower lip. In the photographs taken on February 19 and 22, he is also seen wearing the same maraoon jacket with a fur-trimmed hood. When comparing the surveillance photographs to Mr. Mills’ arrest photograph, I am satisfied that it is the same person. As such, Mr. Mills was seen driving a white Hyundai Elantra with a sunroof, a missing hubcap or black rim on the front side driver’s tire and a silver hubcap or rim on the rear side driver’s tire. This vehicle matches the description of the suspect vehicle seen driving west on Vanderpool Crescent immediately after S.M. was shot.

[100] I will now deal with the Crown’s evidence that Mr. Mills was the only person seen driving the white Hyundai on February 19 and 22. According to the rental agreement, the car was rented for ten days between February 12, 2018 and February 22, 2018. Mr. Mills did not rent the vehicle, as the name on the first page of the rental agreement is Darlene Crocker. During those ten days, Mr. Mills was seen driving or near the car on February 19 for a total of 1 hour and 20 minutes and on February 22 for a total of 1 hour and 35 mintues. There is no evidence of who drove the car between February 12 and February 19 when Mr. Mills was seen driving it for less than 90 minutes. There is also no evidence of who drove it after Mr. Mills was last seen driving it on February 19 at 4:33 p.m., 3.5 hours before the shooting. There is no evidence of who drove it on February 20-21. On February 22, Mr. Mills was seen at the rental agrency exchanging the white Hyundai for a silver Hyundai that he was drving at the time of his arrest later that day.

[101] Mr. Mills was neither the owner nor the renter of the car. He is observed for a very limited of time driving it on February 19 and then again on February 22, but there is no evidence of who drove it for the majority of the time that it was rented. In my view, it would be speculative to find that given this limited period of time that Mr. Mills was seen driving the white Hyundai, that he was the person driving it on February 19 at the time of the shooting.

[102] There is also evidence that Mr. Heath was searching the name of the car rental agency on February 20, the day after the shooting, from the history of the web searches on his phone that revealed searches for “plantnium renta” and “platinum rentals” that day. A reasonable inference is that that Mr. Heath also had some connection to the rented cars.

[103] The next issue is whether the white Hyundai Elantra, licence plate BYNH 446, was at the scene of the shooting on February 19. The photographs taken by the surveillance officer on February 19 of the car prior to the shooting shows that it is a four door white Hyundai Elantra, with a sunroof, and with the front driver-side tire missing a hubcap and the back driver-side tire with a silver rim. Both S.M. and J.M. testified that they saw a white car when S.M. was shot. The video surveillance from the homes in the neighhood at the time of the shooting show a white car, with a sunroof and a front black rim and a rear silver rim. This was the description sent out by Officer Fernandes to other police agencies. While there is no evidence of the licence plate of the car at the scene of the shooting or of the uniqueness of Hyundai Elantra’s that are missing a front hubcap or have a sunroof, based on the similarities of the car seen on Vanderpool Crescent on February 19 and the car observed by the surveillance officers earlier that day with Mr. Mills driving and then later returning that same car to the rental agency on February 22, and based on common sense and logic, I am satisfied that the white Hyundai Elantra seen on those days was the same vehicle at the scene of the shooting.

[104] The Crown’s position is that Mr. Mills was the driver of the car on February 19 at the time of the shooting based on the information extracted from the Blackberry phone, SIM and SD cards. The Crown’s position is that based on the this information, the only reasonable inference is that the Blackberry is Mr. Mills’ phone and that the SIM and SD cards were inserted into it at the time of the shooting, and that he had it with him at the time of the shooting.

[105] The evidence the Crown relies upon to support its theory that the Blackberry belongs to Mr. Mills are two photographs on the phone, which it says are photographs of Mr. Mills, the name of Kyle Mills listed as a contact on the Blackberry, texts exchanged with a person named “Darr” on the morning of February 22 about meeting that day and then surveillance of them seen together that day, and a phone call made between 7009 and a phone number which the Crown says is associated with Mr. Heath’s Samsung phone at 8:42 p.m. on February 19.

[106] First, the photographs obtained from the SD card are clear and of good quality and I can identify facial features in the photographs. When comparing those photographs to the arrest photograph of Mr. Mills, I am satisfied that it is the same person based on the broad nose, facial hair and fuller lower lip (his hair is covered in the photographs on the phone). Although the Crown referred to these photographs as selfies, there is no evidence to support that inference. The photographs could have been taken by anyone. The evidence is that the photographs were taken in 2012- seven years before the shooting and deleted at some point thereafter.

[107] With respect to the name of Kyle Mills found as a contact on the phone, there is no evidence that Kyle Mills has any relation to Mr. Jayden Mills but they do share a last name.

[108] The text messages on the phone exchanged with “Darr” on February 22 coincide with the time that Mr. Mills was observed meeting Darlene Crocker at the car rental agency that morning, dropping off the white Hyundai Elantra and picking up the silver one. “Darr” is also listed as one of the contacts on the phone (as opposed to being on the SIM card). It is reasonable to infer that “Darr” is Darlene Crocker, based on the similar names and the timing of the text exchanges and the surveillance observations of Mr. Mills and Ms. Crocker meeting shortly after the texts were exchanged.

[109] The Crown also relies on the results of the production order for phone number 7009, which made a phone call to phone number 289-928-6458 (“6458”) at 8:42 p.m. and 9:15 p.m., after the shooting on February 19. The phone number 6458 is listed on the user accounts for the Samsung that belonged to Mr. Heath. The Crown asserts that this supports the theory that it was Mr. Mills calling Mr. Heath after the shooting. If the shooting was done by Mr. Heath, as the defence asserts is a reasonable inference, the Crown argues that it would be illogical that Mr. Heath would be calling his own phone after the shooting.

[110] The defence argues that there is no evidence that the Samsung phone number was 6458. This was a phone number listed on the user account for the phone, but there were two other phones numbers listed as well. There was no evidence led of the phone number used by the Samsung on February 19. There was no evidence that a SIM card associated with phone number 6458 was in the Samsung on February 19.

[111] In my view, the presence of two photographs of Mr. Mills on the phone, taken seven years earlier, is of limited assistance in determining if this was Mr. Mills’ phone. As noted by Officer Ferenandes, the Samsung phone had a number of images of Mr. Heath on it. Finding only two photogrpahs of Mr. Mills on the phone taken seven years earlier in and of itself is of limited assistance in determining if it was Mr. Mills’ phone.

[112] Similarly, a contact of a person with the same last name of Mr. Mills is of limited assistance in determining if it was his phone.

[113] When I look at the evidence cumulatively, including the text messages with “Darr” on February 22 about the rental agency followed by Mr. Mills and Ms. Darelene Crocker being seen at the car rental agency on February 22, leads me to conclude that the Blackberry belonged to Mr. Mills as of February 22 and it likely belonged to him on Febuary 19. This is not evidence that Mr. Mills was in possession of the phone at the time of the shooting or that the the Blackberry was in the white Hyundai at the time of the shooting, but it does indicate that Mr. Mills had possession of it and was using it on Febraruy 22 to exchange texts with Ms. Crocker.

[114] There is no dispute that the SD card found in the Blackberry when Mr. Mills was arrested contained deleted images of directions to the area of S.M.’s home and a description of S.M. and his car and his wife’s car. Those images were taken by a Blackberry Curve, the same type of phone found when Mr. Mills was arrested. Those images were created on February 19, 2018 but there is no evidence of when they were deleted but they were deleted at some point before he was arrested on February 22. There is no evidence, however, if that SD card was in the Blackberry on February 19 or at any point prior to February 22. There is also an absence of evidence of who took the photographs or who deleted them.

[115] While common sense and experience suggest that persons do not typically remove their SIM and SD cards from their phones and move one to the other, the undisputed evidence is that there were two other phones found in the back of the silver Hyundai when Mr. Mills was arrested. It is therefore not speculative to infer that the SIM and SD cards might be moved from one phone to another and that the driver of the car had another phone in his possession at the time of the shooting.

[116] It was an agreed fact that phone numbers are associated with SIM cards, and not the cell phone itself. It was also agreed that SIM cards can be moved from one phone to another. Officer Sikora agreed that SD or memory cards can also be moved from one phone to another. The production order for phone number 7009 shows that calls were being made as that phone number moved closer to the area of the shooting on February 19. Those phone calls, however, were not on the Blackberry phone itself when it was analyzed by the DRP. The Crown says it is reasonable to infer that the phone calls were deleted. No evidence was led, however, about whether the phone calls were in fact deleted. Officer Sikora testified about her analysis of the Blackberry and SIM and SD cards and how she could determine that certain images were deleted from the phone. She was not asked about whether she could determine if phone calls were also deleted. In the absence of that evidence, I would be required to speculate that the phone calls were deleted, as another reasonable inference is that on February 19 the SIM card was inserted into another phone, thus explaining the lack of record of any of those calls on the Blackberry itself. Again, this is not a speculative inference as there were two other phones found in the car when Mr. Mills was arrested. No evidence was presented about these phones and their contents. The presence of other phones in the car at the time of the arrest of Mr. Mills and Mr. Heath supports the inference that the SIM card could have been inserted in another phone on February 19. Thus, the tracing of the phone calls off of cell towers nearing Vanderpool Cresecent does not lead to the conclusion that the SIM card was in the Blackberry as the car drove to the area of the shooting.

[117] There is also a one hour gap when there is no record of any movement of phone number 7009 – between 7:16 p.m. and 8:13 p.m. on February 19. The last cell tower recording a call was 4.8 km from S.M.’s home and the next call was from a cell ower 5.7 km away. During that time, there is no evidence of where the phone with the SIM card for phone number 7009 travelled. There is a gap in the evidence of the location of the phone using that SIM card for a one hour period around the time of the shooting.

[118] The Crown relies on evidence of Mr. Mills post-offence conduct as evidence that he was trying to cut his ties to the shooting. The Crown asserts that this conduct included throwing the phones from the car on February 22. To make use of that evidence, I must first find that Mr. Mills threw the Blackberry from the car.

[119] I cannot reach that conclusion. First, there is no evidence of anyone seeing the phones being thrown from the car. Presumably they were thrown as they were located on the grass boulevard near where the car was stopped. The location of the phones is consistent with the phones being thrown from the passenger side of the car, where Mr. Heath was sitting, as they were found on the passenger side of the car. The Crown argues that perhaps Mr. Mills drove the car in the opposite direction in the roundabout and that the phones would therefore have been thrown from the driver’s side of the car. That, I find, requires impermissible speculation in the absence of any evidence to support that inference. Furthermore, common sense is that a driver is going to drive in the direction that one would normally drive, out of habit.

[120] As noted in R. v. Hall, 2010 ONCA 724, 2010 O.J. No. 4603 (Ont. C.A.), triers should be cautioned against “drawing incriminating inferences from post-offfence conduct without considering alternate explantions for the impugned conduct”: at para. 136. In my view, given the location of where the phones were located, a reasonable alternate explantion is that the phones were thown from the passenger side of the car by Mr. Heath.

[121] The Crown also relies on the post-offence conduct of the deletion of the directions to S.M.’s home, his description, and the phone calls made on February 19 as 7009 travelled towards the area of S.M.’s home. As indicated above, it would be speculating to find that the phone calls had been deleted in the absence of any evidence. Accordingly, that is not post-offence conduct to consider. While the images were deleted from the phone, there is no evidence of who deleted the images, or when those images were deleted, other than that they were deleted prior to February 22. Again, in the absence of such evidence, I am not prepared to consider that those actions as post-offence conduct of Mr. Mills to consider, together with the rest of the circumstantial evidence.

[122] The Crown’s submission also fails because if Mr. Mills’ conduct was to eliminate evidence connecting him to the shooting, why did he then not return the car to the rental agency until three days after the shooting? Using the Crown’s arugment, common sense and logic would suggest that Mr. Mills dispose of the car after the shooting and not wait three days to do so.

[123] Defence counsel submits that the evidence or lack of evidence leaves open a reasonable inference that Mr. Heath was the shooter, or at least raises a reasonable doubt that it was Mr. Mills.

[124] Officer Fernandes agreed that there were a number of images of Mr. Julian Heath on the Samsung phone and that one of the usernames was julian916@hotmail.com. This led him to conclude that the phone belonged to Mr. Heath.

[125] That phone had a map of Vanderpool Crescent, with the street highlighted in red. There were also a series of text messages with phone number 4193 in the days prior to February 19, and a 6 minute and 48 second phone call from the Samsung to that number on February 17. These messages suggest that 4193 was asking Mr. Heath to do something. The defence argues that the most logical inference is that Mr. Heath was hired to shoot S.M. and that the texts are asking about that. Defence counsel also refers to the web history search on the Samsung regarding news of the shooting on February 20, 2019.

[126] With respect to these same text exchanges, the Crown argues that a reasonable inference, based on messages being sent after the shooting of S.M. asking if he was going to “deal with that”, was that the messages were in connection with the shooting of February 22 and not February 19.

[127] In my view, based on the totality of the information from Mr. Heath’s phone, including the map of Vanderpool Crescent, the text exchanges with 4193 prior to the shooting, the web searches about the shooting and for the car rental agency after the shooting, there is a reasonable possibility that Mr. Heath shot S.M. The Crown’s submission that the text messages are connected to a shooting on February 22 is merely speculative and fails to negate the alternative reasonable possibility that Mr. Heath was the shooter.

[128] The defence does not have to prove anything. It does not have to prove that Mr. Heath may have shot S.M. In cases involving circumstantial evidence, if there are reasonable inferences other than guilt, the Crown has not discharged its burden.

[129] I am left with a doubt as to whether Mr. Mills was driving the car and shot S.M. on February 19. Aside from assessing the circumstantial evidence, S.M.’s description of the shooter as being a dark-skinned Black male when S.M. agreed that Mr. Mills is a light-skinned Black male raises a doubt, as does his inability to identify Mr. Mills in a photo lineup.

[130] When I assess the circumstantial evidence cumulatively and the evidence regarding the contents of the Samsung phone that belonged to Mr. Heath, I am not able to conclude that the only reasonable inference is that Mr. Mills was the driver of the white car and the person who shot S.M.

[131] The Crown has failed to negate, beyond a reasonable doubt, a reasonable alternate inference that Mr. Heath was the shooter. To conclude that Mr. Mills is guilty, I would need to bridge too may gaps in the evidence through speculation. In addition, I would have to ignore the exculpatory evidence from the victim that the shooter was a dark-skinned Black male when he acknowledged that Mr. Mills is a light-skinned Black male and the victim’s inability to identify Mr. Mills in a photo lineup.

[132] The Crown alleges that if Mr. Mills was not the shooter than he was a party to it. There is, however, no evidence that Mr. Mills was aware of what Mr. Heath was doing, nor any evidence of how he may have participated. While I consider it likely that Mr. Mills and Mr. Heath were associated in some fashion, I cannot conclude beyond a reasonable doubt that Mr. Mills was a party to the shooting.

[133] I want to thank both counsel with respect to how they conducted this trial. This trial was conducted during one of the first weeks that the courthouse had reopened to in-person trials. What I observed was a high level of cooperation between both Crown and Defence counsel to ensure that only the witnesses absolutely necessary were called to give evidence. Counsel prepared three separate agreed statement facts, the result of which was that the evidence was presented in a very efficient and effective manner. I can only hope that this degree of cooperation and efficiency continues once the court returns to full operations.

L. Shaw J.

Released: November 2, 2020

COURT FILE NO.: CR-19-1672

DATE: 11 02 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JAYDEN MILLS

REASONS FOR JUDGMENT

Shaw J.

Released: November 2, 2020