WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110 (1) IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

COURT FILE NO.: CR-19-154-0000

DATE: 20201125

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

I.D.

Sarah Tarcza and Miriam Villamil-Pallister, for the Crown

David Heath, for I.D.

HEARD: September 28, 29, 30, October 1, 2, 6, 7, 8 and 13, 2020

REASONS FOR DECISION

CHRISTIE J. (Orally)

Overview

[1] On July 30, 2018, at approximately 7:32 a.m., Orillia OPP responded to an ambulance assist call at the Tim Hortons located at 175 Westmount Drive North in Orillia. When police arrived at 7:35 a.m., Georgian EMS and Orillia Fire were already on scene. Paramedics and fire fighters were performing CPR on Jordan Carter-Bonfield, a 25 year-old male, who had multiple stab wounds on his body. Resuscitation efforts were unsuccessful and Mr. Carter-Bonfield succumbed to his injuries.

[2] Within a fairly short period of time, police were looking to arrest I.D., a youth within the meaning of the Youth Criminal Justice Act. On August 2, 2020, I.D. surrendered to police and was placed under arrest for the second-degree murder of Mr. Carter-Bonfield.

[3] There is no question that I.D. caused the death of Jordan Carter-Bonfield at the time and place alleged. The focus of this trial was on whether I.D. caused that death unlawfully and with the requisite state of mind for second-degree murder.

[4] If this court is convinced beyond a reasonable doubt that I.D. did cause the death of Mr. Carter-Bonfield unlawfully, and convinced beyond a reasonable doubt that he had the state of mind required for murder, then he is guilty of second degree murder. If this court is not convinced beyond a reasonable doubt that I.D. caused the death unlawfully, in that the court is left in a reasonable doubt about whether I.D. acted in lawful self-defence, I.D. is not guilty. If this court is convinced beyond a reasonable doubt that I.D. caused the death unlawfully, in other words, convinced beyond a reasonable doubt that he was not acting in lawful self-defence, but has a reasonable doubt about whether I.D. had the requisite intent required for second degree murder, then I.D. must be found guilty of manslaughter.

Charges

[5] I.D. is charged with the following offence:

That on or about the 30^th^ day of July 2018, at the city of Orillia in the said region, did commit second degree murder on the person of Jordan Carter-Bonfield, contrary to the Criminal Code of Canada.

[6] This proceeded as a judge alone trial.

Facts Not in Dispute

[7] There were many facts agreed to, or at least not contentious, in this trial. Those facts, as accepted by this court, were as follows:

1. Surveillance video seized from the Highwayman Inn provides a timeline for these events. The time has been adjusted for accuracy. (Exhibit 1a: DVD – Timeline Surveillance Video)

2. At 7:22:46 a.m., I.D. came down a set of stairs by a pop machine (from the third floor to the second floor) and exited out the door into the South East parking lot of the Highwayman Inn. He was wearing a grey sweatshirt with the hood up, grey sweatpants, slides (sandals) on his feet, and smoking a cigarette. (Exhibit 1a: DVD – Timeline Surveillance Video; Exhibit 1b: ASF – Surveillance Video of the Highwayman Inn) The door on the other side of the pop machine opened into a hallway that led to the pool and to the front lobby. (Testimony of PC Lisa Hicks)

3. At 7:22:54:22 a.m., I.D. was a couple of steps beyond the door he exited from the hotel, and the video showed him walking in the Highwayman Inn parking lot. (Exhibit 1a: DVD – Timeline Surveillance Video; Testimony of PC Lisa Hicks)

4. At 7:23:03:11 a.m., I.D. stopped walking, however, the view of him was blocked by a tree. At 7:23:12:12 a.m., I.D. continued walking. (Exhibit 1a: DVD – Timeline Surveillance Video)

5. At 7:23:18:18 a.m., the surveillance video provided a different view, specifically of the front lobby entrance. The parking lot seen in the video was to the right or south of the lobby by 30 metres. (Exhibit 1a: DVD – Timeline Surveillance Video; Testimony of PC Lisa Hicks)

6. At 7:23:24 a.m., I.D. smoking a cigarette, walked past the main entrance of the hotel up the roadway in the direction of Westmount Drive. (Exhibit 1b: ASF – Surveillance Video of the Highwayman Inn). He was walking up the hill toward the Tim Hortons. (Testimony of PC Lisa Hicks)

7. At 7:23:47 a.m., I.D. was out of sight on the surveillance video. (Exhibit 1a: DVD – Timeline Surveillance Video; Exhibit 1b: ASF – Surveillance Video of the Highwayman Inn)

8. At 7:24:34 a.m., I.D. was back in view of the video surveillance, running down the hill and looked back before slowing down and entering the main lobby entrance. As he walked through the lobby, wearing only socks on his feet, he put the hood of his sweatshirt on his head. (Exhibit 1a: DVD – Timeline Surveillance Video; Exhibit 1b: ASF – Surveillance Video of the Highwayman Inn)

9. At 7:25:12 a.m., I.D. ascended the same set of stairs by the pop machine (going from the second floor up to the third floor). (Exhibit 1a: DVD – Timeline Surveillance Video; Exhibit 1b: ASF – Surveillance Video of the Highwayman Inn)

10. At 7:28 a.m., Acting Captain Bradley Stoltz, of the Orillia Fire Department, along with his partner, Rob Ferguson, were dispatched to 175 Westmount Drive North in Orillia, which is the location of the Tim Hortons. They arrived in their firetruck at 7:29 a.m. and parked facing west. No other emergency vehicles were present upon their arrival. (Exhibit 7: ASF – EMS/Fire)

11. Captain Stoltz exited his emergency vehicle and proceeded to the bush line, where he located Jordan Carter-Bonfield 15 to 20 feet off the Tim Hortons’ curb. Mr. Carter-Bonfield was found laying on his stomach with his head turned to the side facing toward the Tim Hortons’ building. Firefighter Ferguson checked the male for a pulse and could not find one. (Exhibit 7: ASF – EMS/Fire)

12. At 7:31:28 a.m., I.D. descended the same set of stairs in the same clothing, wearing only socks on his feet, with his hood up and his hand in his pocket. He walked past the hotel entrance and up the same hill as before. (Exhibit 1a: DVD – Timeline Surveillance Video; Exhibit 1b: ASF – Surveillance Video of the Highwayman Inn)

13. At 7:32:10 a.m., I.D. was out of sight up the hill. (Exhibit 1a: DVD – Timeline Surveillance Video; Exhibit 1b: ASF – Surveillance Video of the Highwayman Inn)

14. At 7:32 a.m., Constable Lisa Hicks and Constable Bailey Nicholls were dispatched to the Tim Hortons at 175 Westmount Drive North in Orillia (Testimony of PC Lisa Hicks and Testimony of PC Bailey Nicholls)

15. At 7:34 a.m., paramedics Tyler Ings and Darryl Hardie arrived on scene and parked behind the firetruck. They followed Captain Stolz and Firefighter Ferguson down the path to the location of Mr. Carter-Bonfield. Paramedic Ings found Mr. Carter-Bonfield with a hood half over his head, facing down on the path, with one hand above the other. Paramedic Ings believed Mr. Carter-Bonfield may have had a scarf, but was not certain. While turning Mr. Carter-Bonfield over, Paramedic Ings observed his eyes to be half open and his face pale and warm to touch. He checked for a neck pulse, found none, and began compressions and CPR. Captain Stolz observed Mr. Carter-Bonfield to have a significant amount of blood on his chest when his shirt was lifted. While chest compressions were conducted, he noted blood coming out of a couple of wounds on his chest. Paramedic Ings observed blood on the interior and front of Mr. Carter-Bonfield’s sweater and he observed two puncture wounds; one in the right chest wall, one inch below the clavicle, and one at the nipple line, on the right side, six inches below the first puncture wound. Paramedic Ings also observed blood clots in the left clavicle area and noted that the puncture wounds were not grossly bleeding, however blood was present during compressions. Mr. Carter-Bonfield was carried up to a flat surface along the curbside of the Tim Hortons where compressions continued. Defibrillator pads were placed on Mr. Carter-Bonfield which showed an unshockable rhythm and he was put onto a stretcher and moved to the back of the ambulance where the emergency personnel continued chest compressions and CPR. Mr. Carter-Bonfield was hooked up to the ambulance defibrillator which showed a flat line across the monitor, meaning no heart rate or pulse was present. Paramedic Ings then phoned the base hospital physician, Dr. Simard, and received permission to terminate resuscitation. (Exhibit 7: ASF – EMS/Fire)

16. Meanwhile, at 7:37:59 a.m., Andrew Franklin descended the same set of stairs I.D. had used earlier with his jacket on and hood up. He walked out of the hotel and up the grass part of the hill to the roadway until he was out of sight. (Exhibit 1a: DVD – Timeline Surveillance Video; Exhibit 1b: ASF – Surveillance Video of the Highwayman Inn)

17. Constable Bailey Nicholls arrived at the Tim Hortons at 7:39 a.m. (Testimony of Constable Bailey Nicholls)

18. At 7:40:34 a.m., I.D. and Andrew Franklin were both walking down the hill, returning to the hotel. At this time, I.D. had slides on his feet and his hood was down. (Exhibit 1a: DVD – Timeline Surveillance Video; Exhibit 1b: ASF – Surveillance Video of the Highwayman Inn)

19. At 7:40:59 a.m., I.D. and Andrew Franklin ascended the same set of stairs together. (Exhibit 1a: DVD – Timeline Surveillance Video; Exhibit 1b: ASF – Surveillance Video of the Highwayman Inn)

20. Constable Lisa Hicks arrived on scene at 7:44 a.m. She noted that fire and paramedics were already on scene, as well as an ambulance and a couple of other officers, Constable Lee and Sgt. Van Marrum, who were on shift. As PC Hicks pulled up, PC Lee advised that a male had been stabbed and that he was in the ambulance in the parking lot. Sgt. Van Marrum advised that he heard from a witness that the suspect walked toward the Highwayman Inn, wearing a grey hooded sweater, described as 5’7” with dirty blonde hair, and that he entered through a door to the left of the lobby. (Testimony of PC Lisa Hicks)

21. At 7:50 a.m., PC Hicks attended at the Highwayman Inn. She collected licence plate numbers and sent those to dispatch in case the information became relevant. (Testimony of PC Lisa Hicks)

22. Around this same time, Constable Bailey Nicholls attended in the area of the hotel to assist. (Testimony of PC Bailey Nicholls)

23. At 7:51:42 a.m., I.D. descended a new set of stairs in a different set of clothes, specifically, a black jacket with a pattern on it, and jeans. He had slides on his feet and was smoking. He appeared to have his phone to his left ear. He exited out the 1^st^ floor southeast doors of the hotel and walked up the grass hill at the far end of the parking lot. He briefly stopped on the road and then headed toward the Tim Hortons out of sight. (Exhibit 1a: DVD – Timeline Surveillance Video; Exhibit 1b: ASF – Surveillance Video of the Highwayman Inn) (Testimony of P.C. Lisa Hicks)

24. Both officers observed a male walking from the Highwayman Inn, at the southeast back corner, walking toward the Tim Hortons. This was the first person seen leaving the hotel. He was alone, on his cell phone and lighting up a cigarette. It was agreed that this was I.D. (Testimony of PC Lisa Hicks and PC Bailey Nicholls)

25. At around 7:53 a.m., Constable Bailey Nicholls approached I.D. in the Shoppers Drug Mart parking lot and initiated contact. She advised I.D. that she was to speak with anyone leaving or coming from the hotel because there was just an incident close by. She asked if she could speak with him for a moment in relation to an incident police were on scene investigating. She asked for “tombstone information”, such as name, date of birth, address and phone number. I.D. provided his name, date of birth and address in Pickering. After he said where he was from, PC Nicholls asked what he was doing in the area and asked if there would be any reason for him to be on the Tim Hortons video surveillance. He said he was in town visiting a friend and there would be no reason he would be on Tim Hortons surveillance. PC Nicholls had not received any description of a suspect at that time. She did not observe any injuries. She spoke to him for about 45 seconds. She said that was all she needed and continued back to where she was asked to park. I.D. left out of the Shoppers Drug Mart parking lot and went southbound on Westmount Drive. (Testimony of PC Bailey Nicholls)

26. Forensic Identification Constables Leanne Mumford and Janice Harris arrived at the scene at 8:35 a.m. on July 30, 2018. Jordan Carter-Bonfield was already in the ambulance when these officers arrived, and the scene was secured by several other officers. (Testimony of Forensic Identification Constables Leanne Mumford and Janice Harris)

27. At 9:17 a.m., the coroner arrived, and with protective gear on, Forensic Identification Constables Mumford and Harris entered the ambulance. FIC Mumford took photographs. The deceased male was wearing beige/tan pants, a dark t-shirt, and a dark grey sweatshirt. The t-shirt and sweatshirt had been cut by paramedics prior to the arrival of the forensic identification officers. There was blood-like staining on the sweatshirt and pants. He was also wearing a dark coloured baseball cap with “DC” on the front. On his feet, he wore tan coloured high top/ankle shoes, similar in colour to the pants. He also had a neoprene black face mask under his chin, around his neck. When first observed by FIC Mumford, he was supine in the ambulance, and the mask was on him, bunched up on his neck. Medical intervention had already been performed. (Testimony of Forensic Identification Constables Leanne Mumford and Janice Harris)

28. At 9:51 a.m., the Forensic Identification Constables exited the ambulance. FIC Mumford then took photographs of the scene, while FIC Harris took a video of the scene. (Testimony of Forensic Identification Constables Leanne Mumford and Janice Harris)

29. The photographs were marked as Exhibit 9a (DVD) and 9b (Hard copy) and can be summarized as follows:

A. Slide 2 – A view of the south west of Tim Hortons, taken at 9:12 a.m. on July 30, 2018. To the north side of this parking lot was the top of the foot trail where Mr. Carter-Bonfield was located. This photograph captured how forensic officers saw the scene when they arrived.

B. Slide 3 – Aerial view of the area, taken by another officer. Coldwater Road is located where the “north” arrow points. Westmount Drive North intersects Coldwater Road.

C. Slide 4 – Close up cropped photo of the foot path, taken from the aerial photo. At the top of the photograph was the Tim Hortons parking lot, and the road running through the photograph is Woodside Drive, which leads to the Highwayman Inn.

D. Slide 5 – View to the North, showing the top of the foot trail leading from the Tim Hortons parking lot toward Woodside Drive and the hotel. The foot trail was just to the right of the light post.

E. Slide 6 – View looking at the top of the foot trail. Blood stain is observed.

F. Slide 7 – The top of the foot trail, showing a blood stain travelling down the trail. This is a closer view of what was seen in slide 6. This was the first sign of blood after entering the top of the foot trail.

G. Slide 8 – A top view of the blood stain, showing the direction of the blood stain travelling toward the hotel from the larger blood pool.

H. Slide 9 – The view is south east, looking up the foot trail leading to the Tim Hortons parking lot. The bottom trail of the blood stain can be observed at the top of the photograph. This photograph is a view looking up the trail toward the Tim Hortons parking lot. On the right side of the photo is the blue glove of FIC Harris. There were blood-like drops, sporadically, going up the trail before the large blood stain.

I. Slide 10 – Same view as slide 9, looking up the foot trail towards the Tim Hortons parking lot. Exhibit marker 14 is observed near the center and bottom of the photograph to the left side of the trail. This exhibit was a knife that FIC Harris found on the trail.

J. Slide 11 – View to the east, showing the foot trail leading to the hotel. The orange exhibit marker, where the knife was found, is observed in the bottom center of the photograph.

K. Slide 12 – A close up of the knife found on the trail, located at approximately 12:40 p.m., by FIC Harris, on the north east side of the path, just off the worn path, amongst the foliage. The left side of the knife was facing up. It was serrated and scalloped. To the right of the marker, blood-like stains were observed on the foliage.

L. Slide 13 and 14 – Shows the knife located on the trail, with scale. There was a darker area at the top of the blade and a blood-like stain on the black handle near the bottom. This was the only knife found at the scene. No blood was ultimately found on the blade. The knife taken from the scene was introduced as Exhibit 12 at this trial.

(Exhibit 9a – DVD Powerpoint – 175 Westmount Drive – Trail – July 30, 2018; Exhibit 9b – Hard copy of powerpoint – 175 Westmount Drive – Trail – July 30, 2018; Exhibit 12 – knife seized from foot trail; Testimony of Forensic Identification Constables Leanne Mumford and Janice Harris)

30. Proper measurements were taken of the knife during the trial and it was determined to be as follows:

A. Width at 8 cm down from the tip was 3.5 cm. However, back toward the tip of the blade, the widest point was measured at 3.75 cm;

B. The top side of the blade was 20.1 cm in length;

C. The bottom side of the blade was 21 cm in length;

D. The length of the handle was 11.8 cm on the bottom and 12 cm on the top;

E. The width of the handle was 2.7 cm in the middle of the grip, however, was 3.3 cm at the top of the handle.

(Exhibit 20a – Diagram of knife with measurements; Exhibit 20b – Measurements of Knife Blade)

31. By late morning on July 30, 2018, OPP investigators were able to review the relevant video footage and began their search for I.D. Various other forces and units were involved. They spent the next couple of days looking for I.D. at locations in Orillia and elsewhere where he was known to frequent, including his grandfather’s residence in Pickering. The grandfather advised that he had not seen his grandson since the May long weekend, he knew he was in Orillia but was unsure who he was with. The OPP issued a media release on July 31, 2018. (Exhibit 25: ASF – Search for Mr. Dickson and Media Release)

32. Also on July 31, 2018, a search warrant was conducted at the Highwayman Inn, and specifically room 306. Forensic Identification Officers Mumford and Harris attended and took photographs and video. The photographs were marked as Exhibit 10a (DVD) and 10b (hard copy). Some photos of significance were:

A. Slides 10 to 15 – view of the north wall of room 306. On the bed to the left, a pocket knife was observed on the bed near the pillow and phone receiver. The blade of this knife was measured as 7 cm long and 2.5 cm wide. Ultimately, some white powdery substance was located on the blade of the knife when opened in a controlled environment. No blood was found on this knife.

B. Slide 17 – Gray Adidas track pants located inside an M & M bag, turned inside out. These pants were introduced as Exhibit 13 at the trial.

C. Slide 22 – Front waist and pocket area of track pants. Blood-like staining was observed in the right pocket area as indicated by an arrow.

D. Slide 23 – Front right pant leg, near the ankle area, with blood-like staining observed as indicated by an arrow.

E. Slide 25 – Back view of left pant leg. Blood-like stain was observed as indicated by an arrow.

F. Slide 26 – open black bag located on the floor. Inside, which can be observed, was a grey adidas sweat shirt and money. The grey adidas sweat shirt was introduced as Exhibit 14 at the trial.

G. Slide 30 – bottom of right sleeve of sweatshirt, with blood-like stain observed as indicated by arrow

H. Slide 31 – top left side of front pocket of sweatshirt, with blood-like stain observed as indicated by arrow.

I. Slide 32 – front of hood of sweatshirt, with blood-like stain observed as indicated by arrow.

J. Slide 34 – top left shoulder of back of sweatshirt, with blood-like stain observed as indicated by arrow.

K. Slide 35 – Canadian currency located in black bag - $270.00

L. Slide 36 – Canadian currency and small tied plastic bag located in M & M bag

M. Slide 37 – Small plastic bag located in M & M bag, with white rock-like substance located inside.

N. Slide 38 - $760.00 in Canadian currency located in M & M bag.

O. Slide 39 – police scanner located in M & M bag.

P. Slide 41 – small white towel located on floor near black bag with red/brown staining

(Exhibit 10a – DVD – Powerpoint – Highwayman Inn – 201 Woodside Dr. – Room 306, Second Floor; Exhibit 10b: Hard copy of powerpoint – Highwayman Inn – 201 Woodside Dr. – Room 306, Second Floor; Exhibit 13 – Grey Adidas Trackpants; Exhibit 14 – Grey Adidas Sweatshirt; Testimony of Forensic Identification Constables Leanne Mumford and Janice Harris)

33. On August 2, 2018, Forensic Identification Officers Mumford and Harris attended the post mortem examination of Jordan Carter-Bonfield. FIC Mumford photographed the clothing that was taken from Mr. Carter-Bonfield. These photographs were marked as Exhibit 11 a-h. Slide 6 and 7 was the face mask that was seized from under the chin, around the neck, of Mr. Carter-Bonfield. There was a hole that appeared to be cut in the mask for breathing, which did not appear to be factory made. The mask could be secured at the back with Velcro. There were visible cuts in the sweatshirt, however, it was difficult to determine which cuts were from paramedics or prior. Most of the blood-like staining was on the front of the sweatshirt. (Testimony of Forensic Identification Constables Leanne Mumford and Janice Harris) (Exhibit 15 – black mask) (Exhibit 16 – sweatshirt)

34. During the trial, FIC Mumford did some examination and measurement of the pants taken from Mr. Carter-Bonfield, specifically measurements of the right front pocket. In examining the pants at trial, Officer Mumford discovered a change pocket inside the right front pocket. At the bottom, was a bank machine record for the day before this incident. As for this inside small change pocket, it was measured at a depth of 3.25 inches or 8.5 cm. The larger right pocket went fairly straight across, as opposed to a slash pocket. The right pocket, from the rivet to the bottom opposite corner, from top right to bottom left, the deepest part of the pocket, was a depth of 8.5 inches or 21.5 cm. The depth of the pocket, straight down along the right outside seam, was 7.5 inches or 19 cm. Also, from the top of the pocket up to the bottom of the waist band, bottom edge of the belt, was 3 inches or 7.5 cm. (Testimony of Forensic Identification Constable Leanne Mumford) (Exhibit 17 – photograph of inside pocket of pants of Mr. Carter-Bonfield) (Exhibit 18 – photograph of outside right pocket of pants of Mr. Carter-Bonfield) (Exhibit 19 – pants of Mr. Carter-Bonfield)

35. I.D. turned himself in to police at the Toronto Detachment of the OPP on August 2, 2018 at approximately 8:18 p.m. He was placed under arrest for second degree murder and provided with his rights to counsel and caution. It was noted that his hair was cut much shorter than it had been on the Highwayman Inn video surveillance. (Exhibit 25: ASF – Search for Mr. Dickson and Media Release)

36. On August 3, 2018, Identification Constable Janice Harris was contacted by Det. Keen and asked to attend at the Barrie OPP station to photograph I.D. She arrived at 8:35 a.m. and interacted with I.D. between 8:48 a.m. and 8:57 a.m. She noted some minor injuries to the back of his right hand, near the wrist and knuckle area, partially scabbed over. There were also some scabbed scratches to the right outer calf. There were no injuries to his palms, torso, or face. (Testimony of Identification Constable Janice Harris) (Exhibit 23 – DVD Photographs of I.D.)

37. Several exhibits seized by Forensic Identification Officers in this matter were submitted to the Centre of Forensic Sciences for analysis. (Exhibit 21: ASF – DNA Evidence)

38. Jordan Carter-Bonfield could not be excluded as the source of a DNA profile from the following items:

A. Kitchen knife seized from 175 Westmount Drive, Orillia (trail) – blood from left side of handle;

B. Grey Adidas sweatshirt seized from Room 306 at 201 Woodside Drive, Orillia – blood from the front, above pocket, and blood on the right sleeve cuff;

C. Grey Adidas track pants seized from Room 306 at 201 Woodside Drive, Orillia – blood on the front right leg, adjacent to the pocket, and blood on the back right leg, adjacent to the outside seam

The probability that a randomly selected individual unrelated to Jordan Carter-Bonfield would coincidentally share the observed STR DNA profile was estimated to be 1 in more than 1 trillion. (Exhibit 21: ASF – DNA Evidence)

39. I.D. could not be excluded as a contributor to a sample taken from the inside waistband of the grey Adidas track pants seized from 201 Woodside Drive. The probability that a randomly selected individual unrelated to I.D. would coincidentally share the observed STR DNA profile was estimated to be 1 in more than 1 trillion. (Exhibit 21: ASF – DNA Evidence)

40. A post mortem examination was conducted on Jordan Carter-Bonfield on August 2, 2018 by Dr. Ashwyn Rajagopalan. Jordan Carter-Bonfield was noted as 6’ tall and 161 lbs. An Exhibit Brief which contained a curriculum vitae, a report of post mortem examination and the post mortem diagram was marked as Exhibit 24. The signs of recent injury, in no particular order, were as follows:

A. Stab wound of the upper right chest and neck. The location of this injury was 33 cm below the top of the head and 1.0 cm right of the midline. The size of the injury was 2.1 cm. The edges of the wound were smooth. The medial corner was square and the lateral was pointed. The wound track showed entry, then through the soft tissues of the neck, through the right subclavian fossa (small gap under collar bone), through the right carotid artery and vagus nerve, and into the right 2^nd^ intercostal space (paraspinal). The direction of the wound was front to back, upwards and slightly left to right. There was hemorrhage within the muscles of the neck and right hemothorax (800 cc of blood)

Dr. Rajagopalan explained that the hemorrhage within the muscles of the neck was an indication that there had been trauma to something in the neck. The hemorrhage in this case was from the right carotid artery as well as from the damaged muscle. This was described as a major injury that would cause significant blood loss, as it affected the major blood vessel carrying blood to the brain. The main injury was the right hemothorax where 800 cc of blood had accumulated in the right chest cavity. This was significant blood loss and accounted for approximately 20% of the blood in the body. One would expect additional blood loss at the scene where this occurred as well. Dr. Rajagopalan stated that blood loss would occur immediately from this injury, but the rate of blood loss would depend on the rate of activity. He believed this injury would cause incapacitation, unconsciousness and death over a period of time, and estimated death to occur in a number of minutes. As this blood was lost, the blood pressure would drop as the heart struggled to pump more blood to the brain to maintain consciousness. There would eventually not be enough blood carrying oxygen to the brain.

The wound track terminated near the spine, stopping in the muscle of the body, near the spinal column where the second rib originates. As for the level of force required to make this wound, Dr. Rajagopalan stated that the hardest tissues are bone, teeth and cartilage, while muscle and fat are much less so. Once the skin was breached, the other organs offer little resistance. The force required would depend on many factors, including the sharpness of the object.

Dr. Rajagopalan testified that this wound favoured the use of an instrument with a sharp edge on one side and blunt on the other, and that a knife with one sharp edge would be at the top of his list. As for the length of the object, he stated that he had no reliable conclusion. He explained that if the body is pushed or compressed, it can allow a shorter item to cause a longer wound. As for the width of the item, he explained that this is also difficult to give an opinion on as, if the item was rocked or moved back and forth or at an angle, it may produce a longer/wider wound. He also stated that he could not tell whether these wounds were caused by a smooth or serrated edge of an instrument.

Dr. Rajagopalan opined that this was the fatal wound. He stated that this would be a survival injury with very prompt medical intervention, like if it occurred on the operating table, but intervention would need to be very immediate. This injury would cause loss of consciousness in a number of minutes. This would impact mobility, as blood loss occurred, such as the person would be woozy, then lose response to stimulation (unconsciousness), then death would occur. The length of each step would be difficult to estimate, but the whole process, leading to death, would be a number of minutes.

B. Stab wound of the mid-right chest. The location of this injury was 47 cm below the top of the head and 3.5 cm to the right of the midline. The size of the injury was 4.2 cm. The edges of the wound were smooth. The medial corner was square and the lateral pointed. The wound track was entry, right pectoralis major, right 5^th^ rib at sternum (fracture). The direction of the wound was front to back. No associated injury was noted.

Dr. Rajagopalan explained that fracturing bone takes a significant force, more than piercing the skin. He described this wound as very shallow. It was not associated with any major or life-threatening injury. He stated that this wound would be painful, but not fatal immediately; in fact, he opined that this would be survivable for a long enough period of time to get medical assistance. It is much less injurious than wound A. He stated that this could have been a fatal injury given enough time, but was not in this case. This injury could have been caused by the same implement as that which caused wound A.

C. Stab wound of the lower right back. The location of this injury was 62.5 cm below the top of the head and 3 cm right of the midline. The size of the wound was 2.8 cm. The edges were smooth. The medial corner was pointed and the lateral square. The wound track was entry, soft tissues of the back, right psoas, right kidney and was estimated as 7 – 7.5 cm in length. The direction was back to front. Associated injury noted was mild right perirenal (retroperitoneal) hemorrhage.

This is a less compressible part of the body and, therefore, it is easier to estimate the length of the item used. In this case, there was not that much bleeding. It would be fatal over time if left untreated, but wound A caused death sooner. In order to survive, a person would need to staunch the bleeding from the kidney and could survive without medical intervention for a large number of minutes. The wound would bleed but less heavily than wound A. The blood loss from this injury was mild in this case, although this could have resulted in seeing blood outside of the body. The force required would only be the force to break the skin. This could be caused by the same implement as in wound A and B.

D. Stab wound of the lower central back. The location of this injury was 65.5 cm below the top of the head in the midline. The size of the wound was 2.9 cm. The edges were smooth. The medial corner was pointed and the lateral was square. The wound track was entry and soft tissues of the back. The direction was back to front.

This wound was very superficial. There was no injury to the spine or major organs from this wound. It would not be particularly debilitating and there would be minimal blood loss. The force necessary would only be that necessary to break the skin. This could be caused by the same implement as in wounds A, B, and C.

E. There were a cluster of five sharp force injuries present on the right lower back and flank. Three of the injuries were small (0.2 cm) superficial sharp force injuries. One of the injuries was a 0.7 cm superficial stab wound, situated 59 cm below the top of the head. The wound track involved the soft tissue of the right back. Finally, a further injury in this cluster was a 1.4 cm superficial stab wound, situated 67 cm below the top of the head. Dr. Rajagopalan testified that this cluster could be caused by the same instrument that caused the other wounds.

F. Other external signs of injury included a red abrasion on the left chest, a healing abrasion on the left side of the back, two superficial linear incised wounds on the posterior right forearm, healing abrasion on the right index finger, abrasions and contusions on the right knee, calf and shin, abrasion on the lateral right foot, some abrasions on the left knee and some healing abrasions on the left shin.

Dr. Rajagopalan testified that none of these injuries would cause incapacitation, unconsciousness, or death. Some of the injuries showed healing, meaning they were likely unrelated to the fatal injury. The injury to the right arm was perimortem, meaning shortly before or shortly after death, caused by contact with a sharp implement.

(Exhibit 24: Exhibit Brief – Forensic Pathology Materials; Testimony of Dr. Ashwyn Rajagopalan)

41. There was nothing remarkable about the internal examination of Mr. Carter-Bonfield. (Exhibit 24: Exhibit Brief – Forensic Pathology Materials; Testimony of Dr. Ashwyn Rajagopalan)

42. Toxicological testing of post-mortem blood revealed the presence of cocaine and cocaine metabolite. According to Dr. Rajagopalan, cocaine toxicity was not a reasonable cause of death. He stated that any amount of cocaine can cause sudden cardiac arrythmia, however, given the wounds and blood loss, this would not be a reasonable cause of death in this case. (Exhibit 24: Exhibit Brief – Forensic Pathology Materials; Testimony of Dr. Ashwyn Rajagopalan)

43. According to Dr. Rajagopalan, wounds A-E were perimortem as they showed hemorrhagic wound tracks. (Exhibit 24: Exhibit Brief – Forensic Pathology Materials; Testimony of Dr. Ashwyn Rajagopalan)

44. In the opinion of the pathologist, death was attributed to the stab wound of the right chest and neck (wound A). The mechanism of death was hemorrhage and / or hemorrhagic shock. Pneumothorax may have also contributed to death. Dr. Rajagopalan explained that when the chest cavity is breached, air can get in. The lungs, that are typically under negative pressure in the chest, then collapse. With the presence of 800 cc of blood, the lungs would shrink in size and would not be able to take in as much air. Given this, pneumothorax may have caused or contributed to the death. The stab of the kidney (wound C) resulted in organ damage, but not much hemorrhage; if untreated, this wound may have been fatal over time but was not the fatal wound in this case. (Exhibit 24: Exhibit Brief – Forensic Pathology Materials; Testimony of Dr. Ashwyn Rajagopalan)

45. In the opinion of the pathologist, the sharp force injuries could have been caused by an implement or implements with a sharp edge and tip, such as a knife. Dr. Rajagopalan was shown a picture of the knife at slide 14 of Exhibit 9a and was also shown the measurements of the knife blade captured in Exhibit 20b. According to Dr. Rajagopalan, some of the wounds could have been caused by this weapon, but some could not have been caused by the weapon. For example, he did not believe that wound A, at 2.1 cm, or wound C, was caused by this knife. (Testimony of Dr. Ashwyn Rajagopalan)

46. Dr. Rajagopalan could not say the position of the body when the wounds were inflicted and could not say the order in which the four major wounds occurred. (Testimony of Dr. Ashwyn Rajagopalan)

47. On September 23, 2019, Zachary Jones-Sheppard pleaded guilty to one count of conspiracy to commit robbery. On October 30, 2019, Miles Mathias pleaded guilty to one count of conspiracy to commit robbery. Both men acknowledged the following facts under oath:

A. During the evening hours of July 29^th^ of 2018 to the early morning hours of July 30^th^, Jordan Carter-Bonfield, Zachary Jones-Sheppard, Miles Mathias, and Donnie Johnson were together at a residence on Albert Street in Orillia making plans for purchasing drugs.

B. On approximately three occasions during this timeframe, the parties were involved in arranging and purchasing drugs without incident from I.D., a dealer known to Mr. Mathias.

C. However, at some point during the same night, while at the Albert Street residence, Mr. Jones-Sheppard, Mr. Mathias, Mr. Carter-Bonfield and Donnie Johnson jointly discussed and devised a plan to rob I.D. of his drugs during one of the transactions.

D. The plan was for Mr. Carter-Bonfield and Donnie Johnson to meet with I.D. while Mr. Jones-Sheppard and Mr. Mathias were to remain in the vehicle. Miles Mathias made all of the arrangements with I.D.

E. I.D., via phone and text message, advised to meet near the Bank of Montreal in Orillia that morning for the final transaction. Just before 7:00 a.m., all four parties left in a borrowed vehicle driven by Zachary Jones-Sheppard.

F. Mr. Jones-Sheppard parked the car near the Bank of Montreal, located in the area of Westmount Drive and Coldwater Road in Orillia, and while Mr. Jones-Sheppard and Mr. Mathias waited in the vehicle, Mr. Carter-Bonfield and Donnie Johnson left together to meet I.D. in the woods near the Tim Hortons across the street from the bank. Shortly before 7:30 that morning, in the course of the attempted robbery of I.D., there was a physical altercation and Jordan Carter-Bonfield was stabbed, resulting in his death.

G. Donnie Johnson ran back towards the vehicle in the parking lot, flagged down Mr. Jones-Sheppard and Mr. Mathias and told both parties that Mr. Carter-Bonfield has been stabbed. Mr. Mathis called 9-1-1 on the phone provided by Mr. Jones-Sheppard and all three fled in the vehicle driven by Mr. Jones-Sheppard prior to police and ambulance arriving.

(Exhibit 26 – Agreed Statement of Fact – Miles Joseph John Mathias; Exhibit 27 – Agreed Statement of Fact – Zachary Jones-Sheppard)

48. On November 5, 2019, Mr. Jones-Sheppard testified at the preliminary inquiry of his co-accused, Donnie Johnson. On that date, Mr. Jones-Sheppard, under oath, testified that Mr. Johnson was not involved in the plan to steal from I.D. (Exhibit 27 – Agreed Statement of Fact – Zachary Jones-Sheppard)

Testimony at Trial –Witnesses in the Area

Bethany Inglis

[8] At 7:22 a.m. on July 30, 2018, Bethany Inglis, who worked at the Tim Hortons at 175 Westmount Drive North, Orillia, clocked out and went outside to smoke a cigarette on her morning break. She exited the main door and went to the back left corner of the parking lot. She took her smoke break to the right of the garbage bin area. Usually, there were milk crates to sit on and she sat that day. She was facing Coldwater Road, with the Highwayman Inn to the left of her, with her back to the garbage bin wall.

[9] As Ms. Inglis came out for her smoke break, she saw a male, sitting alone on one of the parking spots facing the store. The person was male, mid to late 20s, wearing yellowish brown carpentry Carhart pants, and work boots. He was sitting on the curb on the edge of the parking lot. Ms. Inglis pointed out where the person was sitting on Exhibit 2g (photo 7), specifically that he was sitting at the crack in the curb, where the white piece of garbage is located to the right of the pole. When Ms. Inglis arrived in the smoking area, she could not see the male, as there were employee cars in the way. In cross-examination, she agreed that the parking lot was pretty busy and there may have been other people but not anyone she saw as with that individual, at least nothing she noticed. She knew there was a trail in that area for people who went to the hotel from the Tim Hortons.

[10] According to Ms. Inglis, about 7-8 minutes after she was sitting there, she saw a different male run (“bolting”) down the hill into the hotel and she lost sight of him as he went through the door next to the main entrance that led to a stairwell. This was not the same male she saw sitting on the curb earlier. The male running down the hill was about half way down the hill when she saw him. She had not seen him before that point. The hill that she was referring to was depicted in Exhibit 2h (photo 8), behind the railing. The male was early to mid 20s, wearing a white or light t-shirt. About two minutes later, she saw someone who looked similar come out from the hotel in a grey sweater, ran up the hotel driveway to Woodside Drive, and disappeared over her shoulder after he passed the garbage bins. She last saw him about one-half to two-thirds up the driveway, as he passed over her shoulder and kept running. He did not go onto the foot path.

[11] The emergency vehicles arrived about 5 minutes after she saw that.

[12] The Crown stated that Ms. Inglis did not mention a weapon, however, this court does not believe that she was asked if she saw a weapon.

Deanna Fischer

[13] Deanna Fischer was arriving in the area for her shift at Zehrs on the morning of July 30, 2018. Her usual practice, and her practice that morning, was to go through the Tim Hortons drive-thru, get her coffee, and then sit in her car and listen to the news on the radio before starting work. She estimated that on the morning of July 30, 2018, she went through the drive-thru between 7:20 and 7:25 a.m. She then exited the parking lot, took a right onto Westmount Drive North and then a left into the Zehrs parking lot. Ms. Fischer marked the location where she parked her car with a circle on Exhibit 5 – right under the words “Westmount Dr. North”. Ms. Fischer also marked with a red arrow the direction her car was facing – toward the upper left corner of the photo. She estimated that she arrived in the parking lot at about 7:25 a.m. – 7:30 a.m.

[14] As she parked, she saw, in her side view mirror, a person coming up on the right rear of her car. He walked past quickly, within two to three feet of her car. She got alarmed. He walked across the parking lot in a zig-zag fashion and did not seem to know where he was going. He looked “a little out of it”. This made Ms. Fischer nervous. He was wearing a big grey hoodie and baggy, grey jogging pants. Something about his demeanour made her nervous. He headed toward the Bank of Montreal and continued toward the long hedge at the far end of the parking lot. She marked on Exhibit 5 with a green marker the path of travel.

[15] Ms. Fischer also saw another man that morning. He had come from the other side of her car, a couple of minutes after she saw this guy in the sweatshirt. He came from the Tim Hortons and was walking through the parking lot with a coffee. Nothing alarmed her about him, and she was trying to watch the first person. This second person was dressed casually, including khaki pants, a plaid shirt - nothing out of the ordinary. He was in his late 20s, slim, and had short sandy-brown hair.

[16] When she saw the first person walking toward the bank, the first person seemed to spot this second person. The first person went up to him in a hurry. She wondered what was happening and kept watching. It was a brief encounter and the second man casually walked away. Nothing happened. She could not hear what was being said but there appeared to be a conversation. The second person was standing calmly still. The first person was flailing his arms and pointing at the Tim Hortons. She marked a red “x” where she saw the two parties come together. The conversation lasted about 30 seconds. They were about 45 feet from the car. After the conversation, the second male carried on past the bank toward Coldwater Road and walked down the sidewalk.

[17] The first person went into the bush area. For an instant, she lost sight of him. He then came back out and, again, started walking toward the passenger side of her vehicle. His hood was right over his head and down. When he started walking back, the wind must have caught his hood and knocked it down. She then saw him for a brief few seconds. He was “non-Caucasian”, with a “black afro, short on the sides and back and tall on top”. He was slim and approximately 18 to 20 years old. This time the male went toward Westmount Drive. As soon as he got past the car, she lost sight. She was nervous. She then started noticing sirens and fire trucks. She estimated that she lost sight of him at 7:30 a.m.

Sandra Preston

[18] Sandra Preston, and a co-worker, Lorraine, worked for a landscaping and maintenance company that serviced the Zehrs plaza. On July 30, 2018, they were working in that area.

[19] Ms. Preston was working in front of the Bank of Montreal, with her co-worker behind her, and they were working their way to the fence line. As they were doing that, she heard sirens. She saw a male coming toward them. She described him as agitated and jumpy and that he kept looking back toward Tim Hortons. He appeared to be in a hurry and was fumbling at the front of his grey hoodie. His hood was up over his head. He was heading toward the fence line. On Exhibit 6, Ms. Preston marked the fence line with a green “x”. She put a circle where she saw the male the first time. She described this person as 5’7” or 5’8”, slim, and 16 to 17 years old. She was about 15 feet away when he went into the bush area. He was in there for a couple of minutes and then came back out. She did not see him discard anything. At this point, his hood was down. She observed that he had curly hair and dark skin. He kept going toward the Tim Hortons, but when he arrived at the knoll that went up on an incline, she lost sight of him. She marked the knoll with a triangle on Exhibit 6. She estimated this was around 7:30 a.m.

Steven Causton

[20] Steven Causton testified that he had an interaction with a male, admitted to be I.D., on the morning of July 30, 2018.

[21] He attended at the Tim Hortons on Westmount Drive North in Orillia, where he bought a coffee. He left the Tim Hortons on foot and waited at the lights at the Zehrs parking lot. There were not a lot of people around. He crossed onto the sidewalk in the Zehrs parking lot and was then cutting through the Zehrs parking lot.

[22] As he was walking, he saw a “black male” out of the corner of his eye that was walking parallel to him. When he first saw him, he was at the opposite corner of the parking lot, between the Bank of Montreal and the gas station, at the top left corner of Exhibit 5. The male came closer to him. Mr. Causton testified that the male thought he was “some Miles guy” who had robbed him. Mr. Causton said he was not Miles, but the male did not believe him. He got more belligerent and motioned in his pants, perceived by Mr. Causton as indicating that he had a weapon, such as a gun, that he was going to show Mr. Causton. Mr. Causton did not see a weapon. Mr. Causton told the male that he was not Miles, did not know what he was talking about, and for him not to follow. Mr. Causton admitted that he swore at him to get out of there. Mr. Causton stated that this person was somewhat intimidating, and it seemed like he wanted whatever he got robbed for back. Mr. Causton described the male as wearing light grey sweat pants and a sweat shirt, 25 to 28 years old, lighter skin, and skinny. He saw his face as he took his hood off when he started talking. The interaction was between 5 and 10 minutes. There was no physical interaction. He estimated the time of the interaction to be between 7:00 a.m. and 7:20 a.m.

[23] After they parted, Mr. Causton and I.D. went in opposite directions. Out of the corner of his eye, he could see that the male was looking in cars. Ultimately, I.D. went through the bushes toward the gas station, at which point Mr. Causton lost sight of him, and Mr. Causton continued in the opposite direction.

[24] Earlier that morning, when Mr. Causton was eating breakfast inside the Tim Hortons, seated at a booth, looking out the window, he saw a white Chevy Cruz with a few people in it. There were at least three people in the car. The car was going toward the drive-thru of the Tim Hortons but then made a u-turn. He did not recognize anyone in the Chevy Cruz but did not get a good look.

[25] Mr. Causton did know Jordan Carter-Bonfield, in that he talked to him once at a house party and knew of him. He did not see Mr. Carter-Bonfield that day.

Testimony at Trial – Witnesses More Directly Involved in the Events

Andrew Franklin

[26] Andrew Franklin testified that he knew I.D. for a year by July 2018 and had lived with him for about six months at that time. Later in his testimony, he could not recall if it was fall or early spring that they started hanging out. He described them as close friends. As far as living arrangements in the summer of 2018, they had been bouncing around in hotels and Airbnbs. They had stayed at the Highwayman Inn three or four times throughout that summer, and they let him pay cash to stay there. Mr. Franklin was working at the Tim Hortons on Westmount Drive North. He had a girlfriend, R.P.

[27] He agreed that he and I.D. did drug sales frequently and that they had been selling drugs together for about 6 months or so by July 2018. He stated that he was in the business of selling cocaine about 10 months prior to this incident. When asked in cross-examination whether he and I.D. shared resources, he said that they had their own clientele but that if he could not go to a transaction, I.D. would go, so they would share that way. He said he was buying two or three ounces at a time. He agreed that he did not keep ledgers of the transactions. In cross-examination, he agreed that they normally did not do business in the hotel, unless the person was really trustworthy. They would go out to meet people. He said that over the months they worked together that I.D. was possibly involved in a couple of hundred drug transactions.

[28] In cross-examination, Mr. Franklin described an incident in which he was injured in June 2018 at a different hotel. He stated that it was an attempted robbery of him and I.D. and his girlfriend were there. People burst into the room, bear sprayed Mr. Franklin and stabbed him in the left shoulder. Police were involved. He was taken to the hospital that day and recovered from the injury.

[29] In cross-examination, Mr. Franklin stated that he met Miles Mathias one time and had sold drugs to him one time. He agreed that he and I.D. were in the business of selling cocaine, both crack and powder. He knew that it was crack being sold to Miles Mathias. As for his interaction with Mr. Mathias, he said that he was turned off during his first meet with him. He did not like the type of people he hung out with and “the whole vibe”. He did not feel safe. He thought he could be robbed at any second. He said he stopped dealing with him after the first occasion, as he was not comfortable dealing with him anymore. He passed on this business to I.D. and then I.D. dealt with Mr. Mathias.

[30] Mr. Franklin testified that he and I.D. would carry a knife on them to do drug deals. They each had switch blade type knives, in that it “flicks out”. He further explained that the knives were, perhaps, not technically switchblades, but the knives would fold out and lock. I.D.’s knife had engravings on it. Mr. Franklin stated that his knife had a tiger on it and bamboo. He believed that they both had their knives on July 29, 2018, as they had all of their stuff with them. In cross-examination, Mr. Franklin stated that after what had happened to him earlier, they carried knives more often when they went to meet people. I.D. would carry his clipped to the waistband of his pants. In cross-examination, Mr. Franklin agreed that I.D.’s knife was the same style and size as his, as depicted in photo Exhibit 8b and 8c.

[31] On the night of July 28, 2018, the three of them, I.D., Andrew Franklin and Mr. Franklin’s girlfriend, R.P., had stayed with Mr. Franklin’s father. On that day, Mr. Franklin booked them a room at the Highwayman Inn for the night of the 29^th^ and 30^th^. He did this online.

[32] Mr. Franklin was supposed to start work at 11 a.m. on July 29, 2018, but could not get there in time, so he had a short shift that day from 3:00-6:00 p.m. They arrived at the hotel at about 3:00 p.m. on July 29, 2018. He went and paid for the hotel then went to work for his short shift. He believed that I.D. stayed at the hotel while he was working. After the shift ended, he went back to the hotel, where he drank some beer, did some cocaine and just hung out. It was his girlfriend, R.P., and I.D. at the hotel with him. He believed that it was just him drinking beer and that he had about 4-5 beer between 6:00 p.m. and 11:00 p.m. He and his girlfriend were also doing cocaine. Mr. Franklin recalled that he sold some drugs that evening but did not remember who he sold to. He believed that he did the sales alone. He also believed that I.D. was doing drug sales that day and evening. He thought that I.D. sold to Miles Mathias twice that evening. He did not recall if I.D. sold drugs to others that evening. He did not know of the time of sales between Miles Mathias and I.D. and did not go with him. He said that they would typically meet people around the Highwayman Inn, around the Tim Hortons, in the parking lot, and in and around that general area. He was not aware of where I.D. met Miles Mathias that evening.

[33] Sometime after 12:00 a.m., perhaps 1:00 a.m., Mr. Franklin fell asleep. By that time, the drug deals had already happened. There was nothing of note about the deals; just business as usual. When he fell asleep, the three of them were in the room. There were no real plans for the next day.

[34] Mr. Franklin testified that he woke up around “6ish”, however, he did not check the clock. When asked what woke him up, he said that I.D. came in the door of the hotel freaking out. He looked scared and upset. Mr. Franklin was in bed with his girlfriend beside him. I.D. was near the front door of the hotel room by the bathroom. He was wearing a light grey sweat suit. Mr. Franklin described ID as “kinda like frantic, like kind of, I could tell something had happened because he was pacing around and like seemed a little angry but upset and scared at the same time. And then he like got on the phone with someone…” In cross-examination, he said I.D. was “panicked”. When asked what ID was saying, he said, “that like someone tried to set him up, like tried to rob him and like that he ended up stabbing someone because they tried to come at him with a long knife and a mask…” Mr. Franklin agreed in cross examination that I.D. told him multiple times that the person had tried to rob him, the person had a “long ass knife”, the person had a mask on, tried to stab him, and he stabbed that individual. Mr. Franklin took this knife to be a machete. There was nothing communicated that it was Jordan Carter-Bonfield that tried to rob him. As for what made him believe I.D. was angry, he said that I.D. was swearing while on his cellphone. As for swearing, he said, “he was just like….you tried to fuckin set me up and I think he called him a bitch or something”. Mr. Franklin assumed he was calling Miles Mathias a “bitch”.

[35] I.D. was on his cellphone, but Mr. Franklin was not sure who called who. Mr. Franklin testified that I.D. was on the phone saying “ah you tried to set me up….something about….think he might have said something about stabbing him or something but I can’t really remember. He was more or less saying ‘you set me up… why the fuck would you do that’ type thing”. Mr. Franklin did not recall anything else that I.D. said to this person. Mr. Franklin then had his memory refreshed by reviewing his statement to police from July 30, 2018. He then was asked whether he recalled anything else that I.D. said on the call, to which he responded, “He was talking to Miles that like, he tried to kill him and stuff, and like come finish it type thing”. When asked what he heard him say, he said, “I heard him say like ‘you tried to fuckin kill me, like come finish it’, more or less like trying to figure out I guess why he set him up in the first place.” When asked whether he said anything else to the person on the phone, Mr. Franklin said, “I think he just said that ‘you tried setting me up to kill me and come finish it, come meet me’.” He described the conversation as five minutes or less – not very long. Mr. Franklin assumed it was Miles Mathias on the phone because that was who I.D. had been meeting earlier in the night.

[36] Mr. Franklin did not recall seeing I.D.’s knife that morning but had seen it the previous day. In cross-examination, Mr. Franklin was asked about previous statements he made to the police about seeing the knife in I.D.’s hand that morning, but he did not see blood on it. He recalled making that statement to the police. Mr. Franklin then believed that when I.D. came back to the hotel, the knife was in his hand.

[37] After the call, according to Mr. Franklin, I.D. left the hotel room a minute or so after, and he assumed it was to meet Miles Mathias. Mr. Franklin followed him approximately two minutes later. When asked why he followed, he said that he wanted to make sure nothing else bad happened. He was not sure what had happened, but knew something had happened because I.D. was “pretty shook up”. Mr. Franklin wanted to figure out what was going on.

[38] Mr. Franklin reviewed the surveillance video marked as Exhibit 1a and identified himself on the video. At 7:38:12:10 a.m., Mr. Franklin was crossing the parking lot of the Highwayman Inn, going toward Woodside Drive between Tim Hortons and Shoppers Drug Mart to see if he could find I.D. At 7:40:45:12 a.m., Mr. Franklin and I.D. are seen returning to the hotel. Mr. Franklin was asked what occurred after he disappeared off the video and until they returned together on the video. He stated that he walked up the hill and was standing at the top getting on Woodside Drive when he saw I.D. coming from the direction of Zehrs. They met on Woodside Drive. He did not recall what was said but he imagined that they talked about what occurred. He knew someone got hurt but he was not sure how serious it was. They walked back to the Highwayman Inn together. After having his memory refreshed with his July 30, 2018 statement, he recalled that I.D. said there were cops everywhere and someone had died. Mr. Franklin started freaking out at that point and did not believe what was happening. This was the conversation while they were walking back to the hotel. While they were having this conversation, prior to getting back to the hotel, I.D. was acting “pissed of and like scared at the same time”.

[39] Mr. Franklin did not think that I.D. was injured and did not see any blood on him.

[40] Back at the hotel room, Mr. Franklin stated that he was “kinda freaking out”. I.D. got changed and went back out. As for the clothes he was wearing, he thought that I.D. left them in the bathroom. Mr. Franklin’s girlfriend, R.P. was in the room at that time. I.D. was acting “pissed off and scared at the same time”. He said that, while I.D. was changing, I.D. was “upset, kinda freaked out, think he might have been crying a bit too.” I.D. was in the room for less than five minutes before he left again. He did not think I.D. took anything with him. I.D. did not say where he was going, and he did not see I.D. again. Mr. Franklin stated that he might have sent him a text, but he did not really recall. There was no further contact between them that day. They have not communicated since.

[41] Mr. Franklin stayed in the room with his girlfriend. Mr. Franklin went back to bed but later woke up and saw things on line. It was then that it sunk in that something happened. Mr. Franklin asked his girlfriend to go get a bottle of water. She left and never came back as she had been arrested. There was a high police presence at that time. The police ultimately called the hotel phone and asked him to come speak to officers. Mr. Franklin was arrested that same day, although he was not sure of the time. He was initially charged with first degree murder then it was reduced to accessory after the fact and then the charges were dismissed completely.

[42] As for their belongings, he said that everything was in the hotel room. He reviewed and identified items in Exhibit 8 a-h, specifically:

1. Photo 1 – 8a – photo of their hotel room; the flipflops in the photo belonged to Andrew Franklin;

2. Photo 2 & 3 – 8b & 8c – photo of a knife on the bed. The knife belonged to Andrew Franklin;

3. Photo 4 – 8d – M & M bag that belonged to Andrew Franklin;

4. Photo 5 – 8e – close up of M & M bag contents. The black object in the photo was a police scanner;

5. Photo 6 – 8f – identified I.D.’s pants;

6. Photo 7 – 8g – identified as bag of Andrew Franklin and his work clothes;

7. Photo 8 – 8h – identified as I.D.’s sweatshirt.

[43] As for the money in the hotel, he said they normally had their own money, but he was not sure if this belonged to both of them or not. He agreed in cross-examination that it was not uncommon to have a couple thousand dollars around.

[44] In cross-examination, Mr. Franklin was asked whether there was some plan that he had made with I.D. that morning to which he replied, “definitely not”.

Donnie Johnson

[45] Prior to 2010, Donnie Johnson described himself as a hard-working, law abiding citizen. However, his life changed as a result of a serious accident in 2010, which left him with serious injuries. Following the accident, he was in the hospital for a year, then rehabilitated at home for another year. In 2015, he received a one-million-dollar settlement. By this time, he had recovered, but continued on a diet of prescribed narcotic pain killers. Mr. Johnson explained to his doctor that he was getting addicted to the pain killers, at which time the doctor put him on a fentanyl patch. Mr. Johnson began to lie to his doctor about losing his fentanyl patches to get more and more drugs, which led to the doctor cutting off his supply. With the financial backing of his million-dollar settlement, he began to finance his own habit, buying drugs on the street. By 2017, he had spent his settlement to support his drug habit. He then began to pool his money with friends and acquaintances, buying drugs in bulk to get a cheaper price. He would then sell those drugs at a bit of a profit to get more drugs for his own use. Mr. Johnson testified that he tried, unsuccessfully, to quit many times, even turning to methadone. However, at the time of his testimony, he stated that he had been drug free for two years, prompted by this incident and his son being born.

[46] As for a criminal record, Mr. Johnson testified that he did have one. His record was as follows:

1. December 20, 2016 – Bracebridge – break and enter with intent – suspended sentence and 24 months of probation. He explained that the break and enter involved an abandoned building;

2. February 13, 2017 – Barrie – theft over $5000 – suspended sentence, probation, and restitution;

3. September 10, 2018 – Thunder Bay – obstruct peace officer – one day in custody, with credit for the equivalent of 14 days pre-sentence custody. He explained that he was arrested September 4, spent a few days in the Thunder Bay jail and then was brought to Barrie, where he was arrested in relation to these events for conspiracy to commit an indictable offence. Following the preliminary hearing, just before Christmas 2019, the conspiracy charge was withdrawn;

4. May 14, 2019 – theft under $5000 and fail to attend court – 60-day conditional sentence, two years probation. He explained that this was for shoplifting. He was still on this probation order when he was testifying at this trial; and

5. December 3, 2019 – fail to comply with probation – $100 fine. Mr. Johnson explained that this was for something that had occurred over a year earlier. It was related to the September 2018 offence in relation to stealing gas.

He explained that these were all “100% drug fuelled charges”.

[47] Initially, on August 3, 2018, Mr. Johnson spoke to police as a witness. He was released at that time. However, in September, as stated above, he was arrested for conspiracy to commit an indictable offence, and then spoke with police again. He stated that in terms of his memory, this event is “by far burned into my brain…I remember every exact piece of it” and that it plays out “50 times per day”. He stated that this is “not something you forget”.

[48] Mr. Johnson met Jordan Carter-Bonfield, Miles Mathias and Zachary Jones-Sheppard a couple of months before these events on July 30, 2018. He met Mr. Jones-Sheppard first and then met Miles Mathias through Mr. Jones-Sheppard. As for Mr. Carter-Bonfield, he met him on his own. Mr. Johnson knew his father and went to school with his uncles. Mr. Carter-Bonfield and Mr. Johnson’s son were friends when they were younger. Mr. Johnson said that in the course of buying and selling drugs, he realized they were all friends. Mr. Carter-Bonfield, Mr. Jones-Sheppard and Mr. Mathias were some of the people he would pool money with to acquire drugs in bulk at a cheaper price.

[49] Mr. Johnson described the events on the evening of July 29^th^ and early morning of July 30^th^. In the early morning of July 30, 2018, he had been at a place in Victoria Park and was heading home. He was walking past Mr. Jones-Sheppard’s house, and started texting with him. Mr. Jones-Sheppard told Mr. Johnson to come in and he could hook him up. Mr. Johnson went in. Mr. Johnson explained that he did not buy from Mr. Jones-Sheppard, rather, he would pool money with Mr. Jones-Sheppard and then Mr. Jones-Sheppard would go get the product.

[50] There were several drug buys to purchase cocaine that night which Mr. Johnson described. The first buy was at the Bank of Montreal plaza at Coldwater Road and Westmount Drive North. Mr. Johnson, Zachary Jones-Sheppard, Miles Mathias, Jordan Carter-Bonfield and two females all went to the first transaction. Mr. Jones-Sheppard drove. According to Mr. Johnson, Mr. Jones-Sheppard and Miles Mathias did the transaction with I.D. and another “white guy”. He recalled that this first transaction occurred around 1:00 or 2:00 a.m. They met 10 feet in front of the car. Mr. Johnson was in the back-passenger seat. He testified that Zachary Jones-Sheppard had set up this meeting on the phone and the arrangement was to purchase a ¼ ounce of cocaine. Four people had put in money, including Mr. Johnson, Katie Britton, Miles Mathias and Zachary Jones-Sheppard. After this first transaction, they went back to Albert Street. Mr. Johnson went his own way and the rest stayed at the house where Zachary Jones-Sheppard was living. Mr. Johnson was pretty sure that Jordan Carter-Bonfield was staying there as well. As for Miles Mathias, he understood that Mr. Mathias was living with his girlfriend on Memorial Avenue. Mr. Johnson stated that he went and sold what he had to sell to get his money back – which he referred to as “reup”.

[51] As for the second transaction, he stated that it occurred in the same parking lot as the first transaction, in front of the old liquor store where the pizza place is now. The second transaction was attended by Mr. Johnson, Zachary Jones-Sheppard, Miles Mathias and Jordan Carter-Bonfield and was to purchase a quarter ounce of cocaine. Mr. Jones-Sheppard and Mr. Mathias did the transaction, which Mr. Johnson could see from the car. He stated that the transaction was with I.D. who was accompanied by another “white guy”. Mr. Johnson had never met I.D. and did not know his name at the time. Mr. Johnson stated that this transaction was also set up through phone, however, he was not involved as he did not know I.D. He agreed that he put money in for this second transaction. After the second transaction, they again returned to Albert Street. Mr. Johnson went his way and the rest of them stayed there. He believed that this transaction was around 3:00 or 4:00 a.m. Again, he went to “reup” to get his money back.

[52] Mr. Johnson believed that there was a third transaction before the final transaction, but could not describe it

[53] As for the last transaction, it was set up the same way, through phone. This transaction was supposed to be at the Tim Hortons parking lot on Westmount Drive, at least that was what he was told. The people who attended were Mr. Johnson, Zachary Jones-Sheppard, Miles Mathias and Jordan Carter-Bonfield. Zachary Jones-Sheppard was driving, and Mr. Johnson was in the back passenger seat. Zachary Jones-Sheppard parked across the road in front of the LCBO, beside the cart corral. Tim Hortons was across the street. As for the reason Mr. Jones-Sheppard parked where he did, Mr. Johnson recalled that he was told that on the last transaction, Zachary Jones-Sheppard shorted I.D. money and he was supposed to bring that money to this transaction. Therefore, Mr. Johnson and Jordan Carter-Bonfield were to do this deal. Mr. Johnson understood that Mr. Jones-Sheppard could not go do the transaction, as I.D. would ask for the shorted money and probably not do the deal. Mr. Johnson again put in money for the purchase. This time the purchase was to be a half an ounce of cocaine and Mr. Johnson and Zachary Jones-Sheppard each put in $400.

[54] Mr. Johnson and Jordan Carter-Bonfield left the vehicle. Miles Mathias and Zachary Jones-Sheppard stayed in the vehicle across the road where it was parked. Mr. Johnson described that he and Jordan Carter-Bonfield went and sat in the parking lot of the Tim Hortons, near the dumpster. They sat there and smoked. They could see the Highwayman Inn from there and waited for I.D. to come up. They knew I.D. had a room at the hotel. Mr. Johnson testified that it was taking a long time, at least longer than expected. He estimated that they had sat there for 10-15 minutes, maybe 20 minutes, smoking and talking. Mr. Johnson called his girlfriend and was talking with her. He said he was worried it was taking so long and he left his girlfriend with people that she did not know. He said he was on the phone for maybe 5 minutes. It was unclear whether Mr. Johnson remained seated during the call, as he initially suggested, or whether he got up and was leaning against the dumpster for some time during the call and then sat back down. Either way, he suggested that Jordan Carter-Bonfield was right beside him when he said “there he is”. Mr. Johnson told his girlfriend that he had to go and looked over his right shoulder to verify this person was coming. As Mr. Johnson looked back, Jordan Carter-Bonfield was already gone around the corner toward the trail. He said that “he was gone, he bolted”. Mr. Johnson got up and went in the direction he saw him go. He did not recall how far down the trail he got, but he got around a bush and Jordan Carter-Bonfield was coming back up holding his chest, 20-30 feet in front of him. I.D. was going in the opposite direction. He did not see blood right away. Mr. Johnson asked “what’s goin on”, as he wanted to know why they were not doing the deal. Mr. Carter-Bonfield then stumbled and fell. When Mr. Carter-Bonfield moved his hands, he saw he was soaked in blood.

[55] According to Mr. Johnson, he rolled Mr. Carter-Bonfield over and he was looking at Mr. Johnson saying, “help me”. Mr. Johnson tried dragging Mr. Carter-Bonfield up the hill by grabbing him under his arms, but he was too heavy and there was so much blood. Mr. Johnson was falling. Mr. Johnson testified that he felt Mr. Carter-Bonfield die in his arms as they were about eight feet from the top of the hill. Mr. Johnson panicked. He waved to Miles Mathias and Zachary Jones-Sheppard wanting their help. At this time, Jordan Carter-Bonfield was laying on his back. He stated that Miles Mathias jumped out of the car. Later in examination in chief, he said he saw them both heading over, and that they raced over. Mr. Johnson was screaming. He said, “Jordan’s in trouble”. Mr. Mathias grabbed Mr. Carter-Bonfield’s legs and Mr. Johnson grabbed him under his arms, and they both fell. Mr. Johnson described going under Jordan Carter-Bonfield as they fell. Mr. Johnson assumed that one of them called 911, but it was not him. As emergency crew arrived, they walked away. They left Mr. Carter-Bonfield lying on his back. He testified, “Now know I should have stayed”. Mr. Johnson said he was a drug addict and did not want to deal with police.

[56] Mr. Johnson testified that he did not recall what Jordan was wearing, but testified that there was no mask, no mask in the car, and no talk of a mask. When asked if he could see Mr. Carter-Bonfield’s face, he said “absolutely”. He also said that he did not see any weapons in the area, including he did not see Mr. Carter-Bonfield with a weapon and thought he would have known if he did have a weapon. When asked if he knew whether Jordan Carter-Bonfield had a weapon, he said, “absolutely not… I don’t know”. When asked what he understood was to happen there, he said “buying a half an ounce and leaving”. He did not see Mr. Carter-Bonfield with a weapon or a mask that night. He testified that he was unaware of any plan to rob I.D. that day. Mr. Johnson testified that there was no robbery planned while he was present.

[57] After this occurred, Zachary Jones-Sheppard drove them back to Albert Street. Miles Mathias was in the front passenger seat and Mr. Johnson was in the back passenger seat. He did not recall any conversation on the way back. Mr. Johnson went back to Albert Street, got his girlfriend and left. He had no further contact with his associates that day.

[58] Mr. Johnson agreed that he was charged in relation to a plan to rob I.D. that morning. He agreed that he was present when Zachary Jones-Sheppard pleaded guilty, however, he stated that Mr. Jones-Sheppard pleaded guilty to get out of jail. He agreed that Zachary Jones-Sheppard explained that to him and explained he had had conversations with Mr. Jones-Sheppard since this occurred. He said that Zachary Jones-Sheppard testified that Mr. Johnson knew nothing of the plan. With respect to Miles Mathias, he agreed that Mr. Mathias pleaded guilty, including agreeing to facts that included him in the conspiracy.

[59] Mr. Johnson agreed that he gave two statements to police – one on August 3, 2018 and one on September 14, 2018 after he was brought back from Thunder Bay. He would not agree that his statement to police on August 3, 2018 was completely different than his version of events in court. He also would not agree that his September 14, 2018 statement was completely different than his August 3, 2018 statement and his court testimony. Large portions of Mr. Johnson’s August 3, 2018 statement were presented to him during cross-examination. Mr. Johnson did agree that it was him in the statement and that it was him answering questions. The following things are of note:

1. In cross-examination, it was suggested to Mr. Johnson that he volunteered to come in to the police station that day. He stated that he did not volunteer to come in. He was smoking heroin when the police showed up at his door and said if he gave a statement they would not take him to jail. However, he testified that he still told the truth in the statement.

2. During the video statement, when describing the night of these events, Mr. Johnson explained to police that the others were going to get drugs but “I didn’t have any money”. Upon hearing this portion of his statement, he testified, “I was smoking heroin when they showed up. I don’t remember saying that. It’s not true. I had money. I bought dope three times throughout the night”. Mr. Johnson said he did not remember saying that specific thing. When asked if he was lying when he said he did not have any money, he responded, “I don’t remember saying that, so I’m not going to say I was lying.”

3. In the statement, he told police that he did not remember who was setting up the deals, but it was one of the three, either Zachary Jones-Sheppard, Jordan Carter-Bonfield or Miles Mathias. He was just going along for the ride and talked about Mr. Carter-Bonfield going to collect money at Cumberland Beach. He testified in cross-examination that he did go to Cumberland Beach that night. It was suggested to him that he had not mentioned that in his examination in chief, to which he responded “we did not talk about it….nobody said what happened before you got there….nobody said anything about that.” He then explained that the trip to Cumberland Beach was just before the last deal as it was getting daylight. He said, “Jordan was picking up money from somebody who owed him money or selling him dope…something along those lines.”

4. Mr. Johnson said in his statement, after the trip to Cumberland Beach, they “went to go and meet buddy at the Tim Hortons”. As for the plan there, he said, “they were going to meet some kid or something and…don’t remember whether getting money off him or dope off him.” Mr. Johnson testified that he meant the “kid in Cumberland Beach”. More of the video statement played, where Mr. Johnson described parking at the Zehrs parking lot and he walked over with Jordan Carter-Bonfield to the Tim Hortons parking lot and that Jordan Carter-Bonfield said, ‘there he is’ and went down into the bush to get dope or collect money off this person. He agreed that was what he told the officer. He said “I’m sure I didn’t want to incriminate myself for buying dope…again I was high”. Eventually, he agreed that what he told the officer was not true. Later on in the video statement, Mr. Johnson again told the officer that he did not know if Jordan Carter-Bonfield was going to get dope or collect money off of him. When it was suggested to him that this was not accurate, he responded, “I knew what Jordan was doing. I know what we were there to do. We were there buying dope. Again, again…. I can barely remember giving this statement”. He said, “I was high….I don’t remember lying….I can’t answer that….”

5. In the video statement, he said as 911 was being called and they were getting out of there “there were two other guys coming up across from the Tim Hortons there and I remember one of the two of them saying…look these guys are coming….I just followed. I didn’t want to get fucking hurt. I didn’t know if they had hurt him….” It was suggested to Mr. Johnson that he did not say anything about these two guys in examination in chief. He stated that someone said this, either Zachary Jones-Sheppard or Miles Mathias and that it had to be Miles Mathias. He said he did not see the two guys. He was scared. When asked why he did not mention the two guys in his earlier testimony, he said that he did not remember. He said he did not know if there were two guys, as he did not look and just got out of there.

6. In the video statement, Mr. Johnson said he had “never seen the kid before”, referring to the person they were meeting at Tim Hortons. Mr. Johnson agreed he had seen him earlier in the night at the Bank of Montreal. He said he must have misunderstood. He meant he had never seen him before that night.

7. In the video statement, Mr. Johnson was asked why Miles Mathias and Zachary Jones-Sheppard stayed across the road, and his answer to the officer was he did not know, as it was something they worked out between the three of them. He agreed that was not what he said earlier in his testimony. He explained that from the previous deal Zachary Jones-Sheppard or Miles Mathias owed I.D. money, but he did not know that until he was sitting there with Jordan Carter-Bonfield. Mr. Johnson said he would never give up money to someone unless he could see the transaction. Mr. Johnson said he did not know he was going to the transaction until they got to the area. Jordan Carter-Bonfield said “come on bud” and Mr. Johnson was not giving up his money.

8. In the video statement, Mr. Johnson told the officer that that was his first time in the car. He responded that he meant that night was his first time in the car.

9. Later on, in the video statement, Mr. Johnson again referred to two people coming toward him, one of whom was “black”. He agreed that this was not part of his version of events in examination in chief. In fact, he said that he did not remember it now. He stated that, apparently, he looked, even though he did not remember that now. He said he was telling the truth about that, and believed he saw them, but then said he barely remembered giving this statement. He did not remember seeing them as he testified in court. He said the reason he got out of there was because these two guys were coming – “that was the final straw that got me out of there”.

I.D.

[60] I.D. testified at this trial. At the time of his testimony, he was 19 years old. As for his physical size, he was 5’7” tall and approximately 130 lbs, although he described his size back in July 2018 as 5’5” tall and 100 lbs. He stated that he lives in Pickering, where he has lived his whole life.

[61] When I.D. was younger, he lived with his mother in a basement apartment of his grandparents’ house. Later, around 16 or 17 years old, he started living with other family members in the same house, and while his mother lived in the same house, he stated that he was not close with his mother. He never knew his father. I.D. agreed that he had a close family, that he could turn to his grandfather for help, and was comfortable doing so.

[62] He went to school in Pickering and completed first semester of grade 10. He described experiencing difficulties in school, therefore, he received an Individualized Education Plan. Specifically, he was having trouble reading and writing and difficulty accessing and retaining information. He explained that this affects his ability to remember details.

[63] I.D. started selling marijuana by the gram when he was 14 years old in order to help his mother financially, who was on government assistance at the time. He did not know if he was in high school at that time. In high school, around age 16, in addition to marijuana, he began selling Percocet and Xanax.

[64] In April 2018, when he was 17 years old, I.D. learned that his girlfriend was pregnant. He left his grandparents house and went to Orillia, where he started selling cocaine. His grandfather was in Trinidad when he left. In cross-examination, he admitted that he was not going to school at this time and did not know when he last went to school. A person he knew from high school, who went by the name of Twinkie, asked I.D. if he wanted to go to Orillia and sell. In cross-examination, he stated that he did not know Twinkie’s real name, but he was not from Orillia. Further, in cross-examination, he explained that Twinkie had offered this opportunity earlier, and he had told him he was not interested, as he was happy with what he had going on in Pickering. At that time, he just wanted to help his mother, who was an alcoholic, to put food on the table. Before he turned to cocaine, he was making $50 to $100 at the end of a week or two. However, when he learned of the pregnancy, he wanted more money to support his child, so he contacted Twinkie and said he was interested. He wanted to make a lot of money. In cross-examination, I.D. admitted that he did not explore other job options at that time, as “all I knew at the time was to sell drugs”. He then stated that he did work at Revamp Property Services, on call, but also sold drugs at the time. He agreed in cross-examination that he had other options that he could have pursued but that selling drugs was a faster way to make more money. He agreed that he chose criminality.

[65] I.D. was asked in cross-examination whether he told his grandparents about the pregnancy, to which he responded, “no… I was scared to tell them. My grandfather is a bishop of a church…I felt ashamed to tell him in a way”. He was then questioned about this statement that he was scared to tell them about the pregnancy but was drug dealing, to which he responded, “I would feel ashamed to even say that I did that to him. Yes… so…wasn’t like I was saying to him oh I’m going to go sell cocaine to do this. I would feel ashamed to say that as well.” I.D. agreed that this was a choice he made instead of seeking help from his family. He stated, “…I didn’t feel like it was the only option but…in the house at the time I was only close to my grandfather and he wasn’t there at the time so…it seemed like…you know…a good idea at the time…like I know now my decision was not smart but at 17 I’m hearing you can make thousands of dollars doing this and I’m about to have a child. I thought it was a good idea, yes.”

[66] In April 2018, Twinkie dropped I.D off at 56 Front Street in Orillia, where I.D. met Andrew Franklin and his cousin, Morgan. He had not met them before. He agreed that this residence was a “crack house”, where people bought and used crack cocaine. I.D. and Andrew Franklin went into business together. I.D. was unaware of what type of business Mr. Franklin was doing before he arrived, but the agreement was that they would work together. Mr. Franklin was also a cocaine user, however, I.D. was not. At the beginning, I.D. and Andrew Franklin would sell crack cocaine out of the house. I.D. would buy quarter ounces of the product and sell grams or half grams.

[67] Around the end of May or beginning of June, I.D. was buying an ounce or a little more and started selling half quarters and quarters. On average, he was making $3000 per week and would have 7-10 customers daily. In cross-examination, I.D. explained that he did not make this amount at the beginning, but business was picking up by the end of May, beginning of June. He agreed in cross-examination that he was making enough money to keep him in Orillia. He also agreed that this was a whole other level of drug dealing.

[68] Around this same time, I.D. had to leave the address on Front Street. One day, when Mr. Franklin was at work and I.D. was out doing something, people broke into the house and were “trashing” the place. In cross-examination, he stated that he did not know who was responsible for this, but when asked if he thought it had something to do with drugs, he stated, “I assumed so”. In cross-examination, it was suggested to I.D. that he was concerned that someone was trying to get at his drugs to which he said “no”. He explained that he was living in front with Morgan, where they were dealing drugs, and Andrew Franklin lived in the back, where no drug dealing was occurring, yet this part in the back was the part broken into to; therefore, he did not assume it had anything to do with drugs when it happened.

[69] After this break in, I.D. stated that he felt it was no longer safe to stay at Front Street. He and Andrew Franklin would then stay at hotels and Airbnbs. They would meet customers and do drug transactions at stores nearby where they were staying. Customers did not come to their locations to buy. He had stayed at the Highwayman Inn two or three times prior to July 29-30, 2018.

[70] I.D. agreed that, at this time, selling cocaine was how he supported himself. Mr. Franklin was his best friend and they would go half on everything, including hotels and food. He agreed that he had a supplier, Twinkie, to get the cocaine, however he did not believe that Mr. Franklin needed him, as he explained that Mr. Franklin was a user prior to meeting him and he had his own connections. He did not believe that Mr. Franklin was relying on him for anything. He agreed that the basis for the relationship between him and Andrew Franklin was drugs.

[71] I.D. agreed that, in the business of selling drugs, the quality of the product and the price was important. It was suggested to him that it was important that he be known as someone who could be relied upon, to which he stated, “I guess so, yes”. He agreed that he wanted to keep people coming back. He agreed he did not want to be “ripped off” because this was how he made a living. However, he also agreed that drug addicted customers can sometimes rip you off and he knew that was a risk when he took this on in April. He stated that no one had tried to rip him off or take his drugs in high school. It was suggested to I.D. that he was prepared for the risks in Orillia, to which he stated, “no, I was not prepared at all… I wasn’t prepared to get robbed, no”. When asked whether he considered this to be a possibility, he stated, “No…I wasn’t thinking about it. I was thinking I’m about to have a baby… I need to make a lot of money in a short amount of time.” It was suggested to him that money was his motivation to which he responded, “The baby was my motivation.” He agreed that he knew this was illegal. I.D. agreed that trafficking in drugs is inherently dangerous, but he said, “Going through the situation, I didn’t…I didn’t think about the consequences or danger or outcomes of anything.” He explained that he thought he would go to Orillia for nine months, sell as much as he could, come back to Pickering, try to find a real job and have enough money to take care of the baby. He was not thinking about the repercussions.

[72] There was an earlier incident during which Andrew Franklin was stabbed. Mr. Franklin had a get together for his girlfriend’s birthday at a hotel. During the evening, I.D. and Mr. Franklin were also going out to make drug sales when contacted. The next morning someone knocked on the door and asked for Morgan. Morgan had answered the door, so I.D. found that odd. When he looked over, the person sprayed bear spray in the hotel room. They all tried to run out and get away. I.D. wiped the bear spray from his eyes and saw Mr. Franklin had been stabbed in the shoulder. The police were contacted and became involved. In cross-examination, I.D. stated that he was unaware of why this happened, but he did not think this was drug related. He thought it was personal with Morgan, as they did not ask for drugs, they asked for Morgan. He agreed that he had been going out from that hotel to sell drugs, but he did not think that someone followed them to the hotel.

[73] Initially, I.D. stated that he did not think about people carrying knives, however, he agreed that, after the stabbing of Mr. Franklin, he was aware that some people carried knives. Even still, I.D. stated in cross-examination, “I didn’t think that people were going to be trying to kill me. That was not my assumption. I would have never agreed to go do it if I felt that my life was going to be at danger”. I.D. agreed that he was aware that drug addicts could be unpredictable. It was put to him that he was suggesting he was not concerned that this incident with Mr. Franklin had been related to drugs, to which he replied, “No, I didn’t say I wasn’t concerned. I said I didn’t…my first thought was not this had to do about drugs.”

[74] After that incident, I.D. said that they did not feel safe and so he and Mr. Franklin both got knives for protection. I.D. stated that it was also convenient for him because he smoked blunts and always needed a knife to cut open his blunts. I.D. stated that he had one knife, which he bought at the pawn shop on Front Street in the Metro plaza. It was a “decepticon” knife, with transformer engravings on the blade and body, that was worth $1000. He stated that it was rare. He described it as a grey-blue knife. It was a “flick out” knife, with a small knob to bring out the blade. The blade would fold in. He described the blade as just under 5 inches and the handle as 5 or 6 inches. He would use the knife for his blunts, as in he would take a cigar, cut it down the middle, take out the tobacco, and fill it with weed. In cross-examination, I.D. agreed that he had been smoking blunts before that, but he stated that the knife made it easier and it was convenient. He agreed that the motivation for the knife was for protection, as his friend had been stabbed.

[75] It was suggested to him that the knife would also assist if someone tried to rob him in the future, to which he said “no… if someone tried to stab me yes, that’s what it was for…it wasn’t….I had been robbed prior to that and just gave up my drugs.”. In cross-examination, I.D. explained that he had been robbed twice before – both times in Orillia. He explained that when he first got to the house on Front Street, someone wanted to buy but came with no money and threatened to beat him up, so I.D. gave him the drugs. The second time, at another location, a person he did not know came in and asked who has drugs. Another person pointed at I.D. The person told I.D. to give him his drugs and money. I.D said no. The person pulled out a gun, and I.D. gave him the drugs and money. He did not know the person who pulled the gun and did not go back to that residence. Both of these incidents occurred before Andrew Franklin was stabbed. I.D. testified that Twinkie told him that if anyone tried to rob him, he should just give them the drugs, as it was “not worth your freedom or dying.”

[76] He agreed that, after the incident with Mr. Franklin, he felt the need to arm himself and they both got knives, as his “best friend at the time had just been stabbed”. Even still, he never thought that this was too much risk and he should go back home. He stated, “I didn’t think that he got stabbed over drugs. Nobody said give me your drugs or nothing along those lines…” After this incident, I.D. stopped hanging out with Morgan because the person had asked for Morgan. He admitted that he knew Morgan was a drug dealer, but he also knew he smoked crack as well and was unaware of what he was doing when not with him. I.D. agreed it was scary, but he continued on in the business. He agreed that the money was too good to pass up. He stated, “Yeah I guess you could say that. I wasn’t…I wasn’t spending money buying nice clothes or cars and stuff. I was trying to save for a child, but yes, my reason for staying was I need to make money, yes”. He said he would send money to his girlfriend through an account at the Bank of Montreal and also keep some money to go half on hotels and food. He stated that his girlfriend’s name was Kyasia but he did not know how to spell her last name. He later provided a last name. She had been his girlfriend for four years but was no longer his girlfriend.

[77] I.D. agreed that, even though there were two prior robbery attempts, it was the stabbing of Mr. Franklin that prompted him to get a knife. He agreed that after he got the knife, he took it everywhere he went, however, he stated that the main reason for carrying the knife was his blunts. Again, he stated that he was not concerned about someone ripping him off. He got to know certain customers as “good people”. Even in a quick hand off, he would get a vibe off people when he met them. It was suggested to him that he was not deterred, after a gun was pointed at him, from continuing to deal cocaine. He stated, “I wanted to make sure that I could be there for my child. I don’t know my father, so I was willing to do anything to make sure that my kid would have funds and I could be there for my child.” He stated that he did not think about his life being on the line. He agreed that he was not afraid to sell cocaine but stated he was afraid to die. It was suggested to him that he was risking his life to continue in the business, to which he stated, “yes, I feel like everybody would risk their life for their child” and agreed that all he was thinking about was his unborn baby.

[78] It was suggested to I.D. that he knew he was engaging in something that could kill him to which he said, “after the incident, yes, then I knew like this is what just happened. Prior to the incident, I didn’t know that this was what I was engaging in.” As for the “incident” he was referring to, he explained that he meant the gun being pointed at him. He stated, “…before I had a gun pointed at me I didn’t know…oh I’m gonna go here and someone was going to rob me and point a gun at me….I didn’t know that…and I wasn’t ok with that so I did not go back to that place.” He stated he had never heard of people getting guns pointed at them or stabbed when dealing cocaine, until Mr. Franklin was stabbed or “maybe in movies”. He stated that he did not know other people selling drugs other than Twinkie. He did not know other people who got stabbed in drug deals, other than Andrew Franklin, and, according to I.D., that was not a drug deal. He agreed that making money was the most important thing at the time. I.D. stated that if he felt weird about the way a person was acting, he would not meet that person again.

[79] As for Miles Mathias, this was not I.D’s first time transacting with him. I.D. stated that every time he met him, Mr. Mathias never got out of the car. I.D. agreed that he continued to sell to Mr. Mathias because he had money and he wanted drugs. He did not consider him to be a regular customer.

[80] On the night of July 29, 2018, I.D. stayed at the Highwayman Inn in Orillia with Andrew Franklin and Mr. Franklin’s girlfriend. I.D. stated that he liked that hotel particularly because it had a pool, although he never got to go in it. He admitted that he was selling drugs on the evening/night of July 29 / early morning of July 30. He did not recall how many customers he had but it was more than one.

[81] One of the customers that I.D. was transacting with was Miles Mathias. I.D. recalled that he met Mr. Mathias twice that night. As for communicating with Mr. Mathias, he would call I.D.’s phone or send him a text. The typical way for customers to contact him was to call, text through his Facebook account, or text through his normal cell phone number.

[82] The first time they met was around midnight or 1:00 a.m. at the Bank of Montreal plaza, which I.D. identified on Exhibit 5 as the building in the top left of the photo with blue trim. I.D. stated that he met Mr. Mathias in front of the building where the red “x” was marked on Exhibit 5. In order to get to this location, I.D. used the foot trail (marked as foot path on Exhibit 5) behind the Tim Hortons that went into the parking lot, then across the street to the Bank of Montreal plaza. From the top of the foot path, he could see the Bank of Montreal. When I.D. arrived for the first transaction, Mr. Mathias was in a car full of people who he did not know. In cross-examination, I.D. stated that he did not pay attention to who Mr. Mathias had with him. Mr. Mathias was in the front seat but he did not recall if he was the driver or the passenger. I.D. went to the window, he was handed the money, which he counted, then he handed over the drugs. He recalled that it was a quarter ounce for which he received $350 or $400. Whoever was in the driver’s seat gave I.D. the money, however, the occupants of the car were passing around money inside, getting it together when he arrived. Following this first transaction, I.D. returned to the hotel.

[83] There was another meeting with Miles Mathias around 3:30 or 4:00 a.m. I.D. was contacted by Mr. Mathias, requesting to meet, but he did not know if the contact was by message or voice call. He was to meet again by the Bank of Montreal. I.D. took the same route from the hotel, through the foot path, over to the front of the bank. When he arrived, I.D. was handed the money from the person in the driver’s side of the car, he counted it and handed the drugs to whoever was in the driver’s seat. No one got out of the car. In cross-examination, I.D. stated that he did not pay attention to who Mr. Mathias had with him. I.D. again returned to the hotel.

[84] In cross-examination, ID was asked whether this group had shorted him money at any point to which he responded, “No” and agreed that the prior deals went fine.

[85] At around 7:00 a.m., I.D. received another call or text from Miles Mathias. He wanted to obtain a half ounce – quarter crack and quarter powder cocaine. They again arranged to meet at the Bank of Montreal. He thought he would be meeting Mr. Mathias as he had already met him twice that night. He did not remember how Mr. Mathias was dressed but knew his face.

[86] I.D. was shown Exhibit 1a, the surveillance video, commencing at 7:22:45 a.m. He identified the side entrance of the Highwayman Inn to the left of the main entrance. He explained that the stairs at that entrance went all the way to the third floor. At 7:22:46:16 a.m. on the video, I.D. identified himself coming into view in the stairway. In the video, I.D.’s hand went down to the front area of his pants, which he described as him placing the drugs into the front of his boxers. At 7:22:46:23 a.m. on the video, I.D. identified the clip of his knife visible on the waist band on the right side of his sweat pants. I.D. stated that he exited through the side entrance of the hotel. At 7:22:56:21 a.m. of the video, he described that he was taking the same route that he took on the first two trips to meet Mr. Mathias. At 7:23:25 a.m. of the video, I.D. stopped, at which point he believed that he dropped his cigarette. I.D. can then be seen walking past the pillars at the main entrance / lobby entrance of the hotel and walked up the driveway. At 7:23:47:14 a.m., I.D. walked out of sight of the video. I.D. identified on Exhibit 5 that at the point he walked out of sight on the video, he was near where the yellow triangle is on the diagram, just at the end of the footpath arrow, still on the pavement, just before the grassy area.

[87] As he was walking toward the meeting with Miles Mathias at the bank, he stated, “I just had a bad feeling like I shouldn’t be going right now….just like a gut feeling”. He confirmed in cross-examination that there was nothing he could point to as to why he felt that way – “it was just a gut feeling”. He then moved the knife from his waist to his sweater pocket and had it in his hand as he was walking. He stated that he moved the knife to his pocket a few steps before getting on the grass part of the trail. In cross-examination, he stated that he moved the knife when he was walking in the upper level parking lot of the Highwayman Inn. He agreed it was more accessible to him in this location. It was suggested to I.D. that he was ready to go with the knife before he even saw this other person, to which he responded, “I wouldn’t say ready to go… like I wasn’t holding it saying I’m going to go stab somebody right now.” However, he agreed he was holding the knife in his hand in his pocket and was prepared because he had a gut feeling.

[88] He continued to walk at the same pace as was seen in the video. He walked straight up the grass trail. As he was one metre into the bush line, he saw someone walking down the trail at a “fast pace” with their head down. He knew the person was male. Using slide 10 of Exhibit 9b, I.D. stated that he first saw the person “around the top of the path where it looks like it comes from the right going down to the left on an angle” and I.D. was approximately where the person would have been standing to take the picture on slide 10. He did not recognize the person. He did not think it was Miles Mathias. He agreed that his suspicions were up because of this gut feeling, but this person initially did not make him suspicious as he thought it was someone coming from the Tim Hortons, therefore, he did not think anything of it when he first saw him. He only saw the one person at first. He stated that he was around the bush line of the trail when he first saw the person – some distance away.

[89] The person lifted their head as they were about in the middle of the path. When the person lifted his head up, I.D. saw that the person had a mask on. He did not recognize the person. As the person’s head came up, I.D. saw the mask and he also saw the person’s right hand come up from his hip area with a knife, as he saw the shine of the blade. The knife was a large knife, bigger than his hand. In cross-examination, he said that the person lifted their head and took the knife out roughly around the same time. Also, in cross-examination, using Exhibit 9b, slide 10, I.D. stated that the person was where the path becomes straight when his head came up (basically at the intersection from where the path goes from straight to turning to the right). As for the location of I.D., he said he was just behind or below where the orange marker is located in slide 11. There was about 2 metres between them, but the person was coming at a fast pace. I.D. had been walking casually. I.D. believed he stopped walking, but then in cross-examination said he did not recall if he was still walking. In any event, the person was still coming at him at a fast pace and, within a second, he was right in front of I.D. As the person was pulling back his right arm with the knife in his hand from his hip area, I.D, with his left hand grabbed the person’s wrist and with his right hand, “I just flicked up my knife and started swinging”. In cross-examination, it was suggested to him that at the time he grabbed the wrist with his left hand, the knife was in his right hand already, to which he agreed and stated, “but it was closed.” It was suggested that it was one movement to grab the wrist and pull the knife out. He said, “yes, but my knife wasn’t open…it wasn’t just like at the….it has a little like flick on it….if you push this the blade moves up…”. I.D. explained that the knife was closed when he was walking.

[90] When asked his reason for doing this, I.D. stated, “I was scared for my life. I thought this person was just about to stab me. I don’t even know who this is. I was scared.”. I.D. testified that he was swinging with his knife but was not sure exactly how many times. At the time, I.D. thought he stabbed the person in the stomach. He admitted that he learned at the trial the location of the stab wounds, however, he had no recollection of this. In cross-examination, I.D. agreed that the trail was on an incline and that Mr. Carter-Bonfield was taller than him. He agreed that Mr. Carter-Bonfield would have been above him because of the terrain and he continued to be above him when he connected with the knife. I.D. explained that Mr. Carter-Bonfield was taller than him so he could not say if he was above him because of the terrain or his height.

[91] I.D. stated that, as this person was coming down the hill toward him, I.D. saw someone else at the top of the hill. I.D. stated, “I’m swinging the knife and I ….when he was first coming down I noticed there was someone behind him, so I pushed him off me and I ran for my life because I didn’t want to die. So…I ran right out of my slides. Ran as fast as I could.” In cross-examination he stated that he did not recall when he first noticed someone else there. He stated that when he saw the mask and the knife the main focus was on him. I.D. was asked whether it was possible that he did not see the other person until he pushed Mr. Carter-Bonfield, to which he said “I am not sure”. It was suggested to him that the other person was not masked, to which he said he did not recall, and that once he saw the mask and knife, that was his main focus. He was asked whether he recognized Donnie Johnson as the person who was there, to which he stated “I don’t recall seeing the person’s face.”

[92] I.D. stated that this all happened in seconds - very quickly.

[93] In cross-examination, he agreed that the mask combined with the knife made him realize something was wrong, however, he did not think it had anything to do with drugs. He just thought “why” and was confused. It did not occur to him at the moment that Mr. Mathias had probably set him up. He explained, “I was scared for my life. I seen someone pull out a knife… could have stabbed me. That’s all I was thinking.” In cross-examination, he stated that he was not thinking about losing his drugs. He explained, “I feel like my life is more important than drugs….I didn’t even think the person knew I had drugs. In the very moment, all I was thinking was like I was fearful for my life. Someone was about to stab me. I wasn’t thinking about drugs or nothing like that.” He stated, “Like I wasn’t thinking about drugs. I was thinking about my life. I wasn’t thinking this person is trying to kill me for drugs. I was thinking this person is trying to kill me. Like I need to defend myself. I wasn’t thinking they’re going to take my drugs.”

[94] I.D. agreed that despite the fact that this was a large knife, bigger than the person’s hand, he did not get any marks from grabbing the person’s wrist. He had no injury from the knife. In fact, Mr. Carter-Bonfield did not stab, hit or punch him. He had no injuries from this interaction. I.D. stated that “I didn’t wait and watch to see where he was going to swing the knife. I seen him pull out a knife…I thought he was going to stab me. I reacted in the moment.” It was suggested to I.D. that, at that very moment, the knife was not coming at him, to which he replied, “I can’t say because I can’t say if he started to move his hand forward or if he didn’t. I seen him come up with the knife and as soon as I seen the knife come up, I thought he was going to stab me.” He agreed that he saw the knife pulled out, but did not know if the person moved his arm forward, however, he stated, “I believed that if I did not react, he was going to stab me….why else would he have pulled out a knife right in front of me.” It was suggested to him that he was quickly in control of the situation, to which he disagreed. He stated, “this was not…this was a situation that happened in a matter of seconds. There was no thought ‘I’m in control right now’. It was ‘oh my god, I’m about to die’. I reacted and I ran away for my life. It wasn’t about being in control or nothing along those lines….I’m 5’5” 100 lbs. He’s a grown man. I don’t believe that I had it under control…” I.D. agreed his knife was smaller than the one found at the scene. He agreed that the odds were stacked against him, yet somehow he prevailed without injury.

[95] It was suggested to I.D. that one of the stabs to the chest area occurred first, causing Mr. Carter-Bonfield to be incapacitated, and that when he dropped, I.D. was able to access his upper chest area more easily. I.D. disagreed and said that he pushed him off because Mr. Carter-Bonfield was still over him. It was suggested to I.D. that he was stabbing up to which he said “I guess so, yes, I don’t recall…. I just swung my hand with the knife in my hand…” It was suggested to I.D. that Mr. Carter-Bonfield retreated, in that he turned to leave, and that was when I.D. delivered the additional stabs in the back, to which I.D. disagreed. It was suggested to I.D. that he was in control of Mr. Carter-Bonfield’s hand that had the knife the whole time and that he never let go, to which he said, “I don’t know if I let go or not… It was seconds. It wasn’t minutes. It was seconds. It was quick… I don’t recall if I held his hand the whole time or not”. I.D. agreed that he did not let go of his own knife.

[96] It was suggested to I.D. that he could have easily run away when he saw the mask and the knife to which he disagreed. He stated, “No…if I had even turned at that moment to go run away, I believe that I would have got stabbed in my back. There was not enough distance between me and him for me to run away.”.

[97] In cross-examination, I.D. agreed that the stabbing occurred where the knife was located in Exhibit 9a, slide 10. At the time, I.D. believed that he stabbed Mr. Carter-Bonfield three or four times.

[98] It was suggested to I.D. that he was not at risk of danger at any point, to which he stated, “I didn’t go there to stab nobody. I didn’t grab his hand, stab him and say ‘ok I stabbed you first I’m gonna go now’. I was scared for my life. I swung my hand and I ran away…” I.D. agreed that there were four separate stab wounds – two in the front and two in the back. It was suggested to I.D. that he had neutralized the situation when he grabbed the wrist and delivered one stab wound. He stated, “The situation happened fast. I just swung my hand and I ran away”. I.D. agreed that somehow, Mr. Carter-Bonfield ended up with wounds in his back. It was suggested that this must have occurred when Mr. Carter-Bonfield turned away, wounded and retreating. I.D. stated, “I don’t recall that but I know that I didn’t stab somebody who was trying to run away from me….I would agree where the stab wounds are because I learned in the trial where they were. But …at that time I was unaware of where I stabbed him. I had thought I stabbed him in the stomach”. I.D. stated that he did not know if Mr. Carter Bonfield “turned around or if he made a jolt”. He agreed that it did not make sense to stab someone in the back who was facing him.

[99] The Crown suggested to I.D. that he was angry at the time, to which he stated, “no, at that time I was not angry yet. I became angry when I got to the hotel and I realized that somebody had tried to set me up….At that point I was scared for my life….I’m not sure if in the video you can see my facial expression when I am running, but I was scared for my life”.

[100] I.D. did not recall seeing any blood when he pushed Mr. Carter-Bonfield, but he did recall seeing someone there with him.

[101] Continuing on with the surveillance video, at 7:24:34:19 a.m., one can see I.D.’s legs running back into the image. This was only 47 seconds after he walked out of the video frame. At 7:24:41:07 a.m. on the video, I.D. described that he was putting his knife back into his sweater pocket and then entered the hotel lobby.

[102] I.D. agreed that, as he was running to the hotel, he looked back and explained that he did that to make sure no sequence was chasing after him because he thought he saw someone behind him. I.D. did not know at that point that Mr. Carter-Bonfield was lying on the ground, as he stated that, when he pushed him, he did not see where he landed. He just pushed him off, turned and ran. It was suggested to I.D. that he ran because he knew he was hurt and that he went too far. I.D. responded, “no, I ran away because I was fearful for my life…I admit that I left the hotel because at that point I had realized that I had just killed somebody and I was panicking. I had never done that before… Never experienced that….traumatic experience for me as well. So I didn’t know what to do.”

[103] I.D. did not realize that he had ran out of his footwear, his “slides”, until he was back at the hotel.

[104] At 7:25:07:02 a.m. on the video, I.D. described that one can see the knife bouncing around in his sweater pocket and his key card in his hand. At 7:25:14:04 a.m. on the video, he went out of sight, up the stairs, on his way to his room on the 3^rd^ floor.

[105] When he arrived in the room, he went to the bathroom. He stated, “I started throwing up in the sink. I was crying. I put my knife on the counter of the sink, cause I was throwing up and then Andrew came asking like what happened, if I was ok. And like I just told him like someone just tried to rob me with a big ass knife, like they just tried to kill me like.” I.D. explained that Mr. Franklin had bad anxiety, and “started freaking out”. I.D. stated that he was also freaking out and started realizing that Miles Mathias had set him up. He did not recall the exact words he said to Andrew Franklin but remembered saying, “like someone just tried to kill me, like someone just tried to stab me with a big ass knife.”.

[106] When asked what his impression was of what had just happened on the hill, he stated, “in the moment, like I was just freaking out...I didn’t know what to think. I was so confused… like I was just thinking why would someone do that”. When asked if his impression changed, he stated, “Yes, when I got into the hotel room, like after, I started to realize like Miles probably just set me up….like because he was the only person who knew I was leaving to go meet somebody right now and that I was going through there.” I.D. stated that it was after he got back into the hotel that he thought Mr. Mathias was involved.

[107] I.D. tried calling Mr. Mathias, but he was not answering. When he realized that Mr. Mathias had likely set him up, he became angry. He stated, “When I realized that Miles had just set me up, I became angry because like someone had just tried to kill me and I just stabbed somebody like, I was upset like why would you put me in that situation.” He also stated, “I was panicking. I was still scared … I never been in a situation like that. I didn’t know what to do”. I.D. stated that he called everyone trying to figure out what he should do. In cross-examination, I.D. was asked whether he left a voice mail message for Mr. Mathias, to which he responded that he did not recall. I.D. did not recall being on the phone and saying, “you tried to fuckin kill me, come meet me, come finish it”. He admitted he was on the phone, but did not recall what he said. He agreed that he was angry at the time and it was possible that he said those things.

[108] In cross-examination, I.D. agreed that he was safe in the room. He explained that he did not become angry right away. He was crying and throwing up, in fact, feeling a lot of emotion. He did not become angry until he tried to call Mr. Mathias to see if he set him up and he was not answering. I.D. stated that he then “put two and two together” that he was set up. He now had a chance to comprehend what had just happened. He agreed that he became mostly angry in the room but was still a little bit scared. It was suggested to I.D. that, at some point, he decided to go confront Miles, to which he said, “No, I realized I didn’t have my slides on…I went back to go get them and I brought the knife with me because I didn’t know if someone was still going to be waiting there to pop out at me when I got back outside.” He agreed that he was calling Mr. Mathias to try to get answers but when he left the hotel, he went to get his slides. He stated, “It wasn’t the importance of the slippers. I knew that I had just stabbed somebody and I was scared. I didn’t want to go to jail. I was 17. I am still a kid now. I didn’t want to go to jail. I was scared. So I went back to go get my slides…” He agreed he did not want to leave evidence behind.

[109] Continuing on with the video, at 7:31:29:06 a.m., I.D. was again on video coming down the stairs from his room. At this point, he was going back to get his slides, and pointed out that he was only wearing socks on his feet in the video. He brought the knife because he did not know if someone was waiting for him outside the hotel. I.D. agreed that, in the video, he descended the stairs, and he had his right hand on his knife in the sweatshirt pocket. He stated, “I didn’t know if someone was still going to be outside waiting for me. So I made sure to bring it with me, yes.” I.D. agreed, however, that he left the safety of the hotel room with his friend. It was suggested to I.D. that the look on his face in the video at this time was indicative of someone who was angry. He stated, “yes, I was most definitely angry at this time. Somebody had just tried to stab me”. Again, it was suggested to him that going out was not just to go get his slides, but he was going out to confront someone, to which he said, “I wouldn’t say confront somebody, but yes I was trying to contact Miles to see what had happened, yes”. He agreed he wanted some answers.

[110] I.D. then walked up the driveway, as evidenced by the video. At 7:32:10:11 a.m., I.D. went out of sight on the video. In reference to Exhibit 9b, slide 4, I.D. described that he found his slides where the brown grass changed to green grass, not too far away from the brush. He slipped his feet into his slides, and kept walking, but looked back to make sure that no one was going to “pop out and try to stab me again”. He could see someone laying at the top of the hill, as he could see their feet. I.D. went back down to the driveway around the Tim Hortons.

[111] In cross-examination, it was suggested that when he went to get his slides, he must have seen Mr. Carter-Bonfield lying there and the blood. I.D. agreed that he saw him lying there, but did not agree he saw blood. He stated, “no, I didn’t go up there. I just stepped in my slides and kept moving….” It was suggested to I.D. that it must have crossed his mind that this person might be dead to which he said “Most definitely. I started freaking out even more. I thought I just killed somebody…I tried calling everybody that I could on my phone…No body was answering me”. I.D. stated that he was trying to call Mr. Mathias, and a couple of other people who drove that could come to get him, such as Twinkie and Naomi. I.D. stated that he wanted to leave. He wanted to get out of there. He did not recall if there were emergency personnel there at the time he retrieved his slides. He agreed he did not call 911 and stated that he was scared to go to jail.

[112] I.D. walked around the Zehrs plaza parking lot trying to figure out what to do. He continued trying to call people, but no one was answering. I.D. agreed that he ended up in the parking lot where the drug transaction was to take place. He agreed that he went there because he thought Mr. Mathias might be there and he was hoping to get some answers.

[113] Someone walked up from the Tim Hortons in a black hoodie and I.D. assumed this person had something to do with what had happened. I.D. asked the person if they had just tried to stab him behind the Tim Hortons and tried to rob him. The person did not seem to know what he was talking about and told him to “take a walk” and kept walking in the direction he was going. There was no physical contact between them. I.D. had not met this person previously. He agreed that he may have asked him if he was with Mr. Mathias, but he certainly knew that he was not Mr. Mathias. I.D. agreed that he had his knife in his front hoodie pocket. He did not recall if he motioned so that this person knew he had something in his pocket, but he agreed that it was possible he motioned to him that he had a weapon as he was angry. I.D. agreed that he was angry because he thought this guy could be with Mr. Mathias. He agreed that he was trying to find Mr. Mathias to figure out what had happened, and he stated, “At that time, for all I know, Miles was still waiting at the BMO for me, for all I knew”. He agreed that he was carrying the knife, “because when I left the hotel, I was unaware whether someone had still been outside waiting for me.” He agreed he could also use it if he found Mr. Mathias. He stated, “That was not the intent behind bringing it, but yes that is possible.” He agreed he could have simply returned to the hotel, but when he saw someone laying on the path, he started freaking out more and started walking around trying to figure out what to do, as it was “a lot to comprehend at the time”. He agreed that emergency personnel were beginning to arrive which had an affect on him. He said, “Yes, I was scared. At that point I didn’t want to go to jail.”

[114] He stated, “I just wanted to leave. I didn’t want to go to jail and I didn’t feel safe there anymore, so I just wanted to go”. He met Andrew Franklin by the Shoppers Drug Mart in the parking lot. He could hear firetrucks, ambulance and police in the area. They went back to the hotel. At 7:40:45 a.m. on the surveillance video, one can see I.D. and Andrew Franklin walk into view, walking back to the hotel.

[115] Back at the hotel, I.D. stated that he wanted to leave. He stated, “I didn’t want to stay here anymore”. He changed his clothes, grabbed his knife and his two cell phones and left the hotel. He did not take anything else with him. He was rushing to leave. He left his clothes, drugs, and money behind. When asked why he left his things behind, he stated, “Like I was just panicked. I just wanted to leave. Like I wasn’t trying to make like a great escape. Like I was just freaking out. I never been in that situation before”.

[116] At 7:51:40:22 a.m. of the video, one can see I.D. in the far end hallway staircase. At this point, he was obviously wearing different clothes. In cross-examination, I.D. agreed that he changed his clothes because he did not want to be wearing the same clothes as he was wearing when he stabbed Mr. Carter-Bonfield. He did not see any blood on the clothes.

[117] As for the bags in the hotel room, depicted in Exhibit 10a and 10b, for example in slide 8 and slide 26, I.D. stated that none of the bags were his. He agreed that he changed his clothes, but did not recall putting clothing in the bags.

[118] In cross-examination, it was suggested to I.D. that when he left the room, he knew he was on the run, to which he stated, “I wasn’t thinking about it, but like yes, I knew I was going to go to jail for this, yes.” He agreed he was not going to turn himself in or flag down a police officer. He stated it was all “still fresh, it just happened… I was still scared. I didn’t want to go to jail”. It was suggested to him that he did not know how long he would be hiding out and, therefore, he would take drugs and money with him, to which he said, “I wasn’t trying to plan no master get away or nothing. I was scared. I didn’t want to stay here anymore. I didn’t want to go to jail so I left. It wasn’t like I was trying to plan a get away. I just left”. He agreed that if he was going to hide out, he would need money, but he left the room with no cash, as this was not on his mind. At that time, he did not want to get caught, he did not feel safe, and did not want to go to jail. He agreed that he had to get out of there quickly, and that he used a different set of stairs, farthest from the main door, on purpose. He stated that he was unaware that the police were there until he ran into Officer Nicholls.

[119] As for Andrew Franklin, he just left him at the hotel. Even though it was his best friend, he did not contact him again.

[120] When he got outside, I.D. walked up the driveway. He was stopped by a police officer who asked what he was doing, where he was going, his name and address. He told her his real name and address and said he was just visiting a friend. She asked whether he would be on the Tim Hortons surveillance to which he said “no”. I.D. stated that this was an honest answer, as he was never at the Tim Hortons. He agreed that he was calm, but was still afraid, as this was an officer talking to him and he could go to jail. The officer let him go.

[121] He walked straight down Westmount Drive towards Mississauga Street, went down that road, and across the hospital. He went straight to the lake and threw his knife into the water. It was suggested to I.D. in cross-examination that he also disposed of one of the phones in the lake, but he said he did not do that and that getting rid of the phones did not occur to him. He agreed that he did not call his family for assistance.

[122] I.D. then went to the house on Front Street. He testified that it was the only other place he knew to go. I.D. said that there were “two crackheads there”. He asked for a ride to “go to town”. They asked for crack, but he did not have anything. I.D. then hid in the bathroom waiting for someone who could give him a ride. He was in the bathroom for multiple hours. In the bathroom, he was continuing to “freak out”. It occurred to him that he should change his appearance. He shaved his head because, “I didn’t know what to do. I didn’t want to go to jail and I was scared. I didn’t want no one to see me and say that’s him and try to get me or something…I was panicking.” A “crackhead” came in and I.D. said that if he would drive him to where he needed to go, he would give him crack when they arrived. The person agreed and drove him to Sherway Gardens in Etobicoke, which was near Naomi’s house. He did not recall the name of the person who drove him, but it was someone he knew from buying drugs from him previously. He did not give the person crack as he did not have any. I.D. said he had to go into the building to get it and then he just never came back out. He arrived at Naomi’s house around 5:00 p.m. He had the pin code to get in the door of the building, so he let himself in the building and then knocked on the door. She let him in, and he went to sleep on her couch.

[123] On Tuesday, July 31, 2018, around noon, Naomi woke I.D. up. She was freaking out as she saw his face on the news. She told him he could not stay there. Naomi arranged for an Airbnb in Kitchener. I.D. called Twinkie and asked him to drive him from Etobicoke to Kitchener. The Airbnb was in Kitchener as it was the cheapest at the time. I.D. arrived in Kitchener around 5:00 p.m. He went to a grocery store to get microwaveable food. Twinkie had given him $120. He stayed in the Airbnb the rest of the day and night.

[124] On Wednesday, August 1, 2018, I.D. woke up and realized the only phone he had was the phone he used to sell drugs, not the one he would normally use to contact family. He then made a social media account, added his aunt and cousins, and gave them a number to contact him. He agreed that he did not turn to family until Wednesday. His aunt Crystal then “facetimed” him on Wednesday afternoon around 3:00 p.m. His grandparents were present, along with his uncles and other aunts. I.D. told them he wanted to come to the house to turn himself in, but they did not want him to come there because the report said he was armed and dangerous and they did not want police to shoot at him thinking this was true. I.D.’s aunt, Tiff, and uncle, Lenny, were contacted and there was an arrangement for I.D. to go there, however, he had no ride. I.D. called Twinkie to ask for a ride and he said he would pick him up as soon as he could.

[125] On Thursday morning, August 2, 2018, Twinkie came to get I.D. He brought him to the Tim Hortons by his aunt and uncles building on Eglinton East in Toronto. I.D. was then driven to a lawyer’s office and the lawyer arranged for his surrender. He was then driven to the police station to turn himself in.

Admissibility of Accused’s Statement

[126] At the close of the Crown’s case, the Court heard submissions from counsel with respect to an application brought by the defence seeking to admit, for limited purposes, the statement I.D. made to police following his surrender and arrest on August 2, 2018. It should be noted that the application, as originally filed, sought to admit this statement as well as utterances that I.D. made to Andrew Franklin less than two minutes following the events. However, by the time the application was argued, the Crown had conceded the admissibility of those utterances and, in fact, introduced the utterances that I.D. made to Andrew Franklin, for a non-hearsay purpose, as circumstantial evidence of his state of mind.

[127] On October 7, 2020, this court advised counsel that the application was dismissed, in other words that the statement to police on August 2, 2018 was not admissible, and that reasons for this decision would follow. These are the reasons for that decision.

[128] The main argument of I.D. was that his statement should be admitted pursuant to the Edgar exception, as evidence of his spontaneous reaction to the accusation and as proof of consistency that he was acting to defend himself. I.D. submitted that his reaction amounted to circumstantial evidence that may have a bearing on his guilt or innocence and should therefore be admitted. Specifically, he submitted that he ultimately succumbed to D/Cst O’Neil’s interrogation with an admission, “I’m going to jail either way, huh? Yeah, yeah, yeah. Basically yes, yes, yeah. Basically you already know the story”. He then proceeded to provide details of his involvement. Further, I.D. submitted that his reaction was further relevant to his credibility and could be used to assess his credibility at his trial. I.D. also pointed to the reliability of the statement which he submitted was further confirmed by the fact that much of the statement was inculpatory.

[129] A secondary argument made by I.D. was that the statement could be admitted as circumstantial evidence of his state of mind, either at the time the statement was made or at the time the offence was committed. He submitted that his state of mind was relevant both to the mens rea required for second degree murder and to his advancement of self-defence. I.D. was asked about his state of mind at the time of the offence during his interrogation and made several specific references to it. He argued that the comments made at the time of this statement, only three days following the offence, were likely to be a better indicator of his state of mind at the time of the offence, as opposed to his testimony to that state of mind years later. Any doubt about the sincerity of that state of mind could be addressed in cross-examination or in the weight the court ultimately placed on this evidence.

[130] The Crown submitted that this application should be dismissed on the basis that the police statement was not spontaneous, as required by Edgar. The Crown argued that I.D. had an opportunity to think things through and that this strips the statement of any spontaneity and, therefore, of any probative value.

[131] Further the Crown submitted that the statement should not be admissible as a state of mind exception. The Crown argued that there was a clear lack of spontaneity of the statement, leading to an opportunity for fabrication given the intervening events, and, therefore, an inability on the part of I.D. to prove the inherent reliability of the statement. I.D. provided a statement in a formal setting to police after having the opportunity to think things through and consult with counsel, therefore, the Crown argued, the statement does not allow for a reliable inference as to I.D.’s state of mind.

[132] There was no question that the stabbing of Mr. Carter-Bonfield occurred at around 7:30 a.m. on July 30, 2018. The Applicant turned himself in to the Toronto OPP Detachment on the evening of August 2, 2018. Between these two events, a number of things occurred, including:

1. On the morning of July 30, 2018, Officer Bailey Nicholls was tasked with monitoring persons coming and going from the Highwayman Inn. She was uniformed and driving a marked cruiser. Almost immediately upon arriving at the hotel, Officer Nicholls observed a male exiting the hotel. This male was I.D. At 7:53 a.m., Officer Nicholls approached I.D. near the Shoppers Drug Mart, not far from the hotel. She advised him that police were investigating an incident in the area and asked if she could speak with him. Officer Nicholls asked I.D. for his name, date of birth, address and phone number – all of which was provided except for a cell phone number. When asked his reason for being there, he stated that he was visiting a friend. When asked whether he would appear on the Tim Hortons surveillance, he responded in the negative. The exchange was approximately 45 seconds.

2. On July 31, 2018, a news release was disseminated by the OPP Orillia Detachment. The news release stated in part as follows:

On Monday July 30, 2018, at 7:32 a.m. officers from the Orillia Detachment of the Ontario Provincial Police (OPP), the Orillia Fire Department and the County of Simcoe Paramedic Services (CSPS) responded to a report of a male who had been located in medical distress in the parking lot of a business located at Westmount Drive North and Woodside Drive, in the City of Orillia.

Police have determined that sometime just prior to the initial call for service that a violent altercation took place on a trail adjacent to the parking lot. As a result, a male victim sustained life threatening injuries and was subsequently pronounced deceased at the scene…..

As a result of the ongoing investigation, police have arrested and charged 20-year old Andrew FRANKLIN of Orillia, Ontario, with Accessory After the Fact to Murder….

Also being sought…..is 17-year old [I.D.] of Pickering, Ontario. He is currently wanted for Second Degree Murder…

3. Between July 30 and August 2, I.D. became aware of the charge against him and a warrant for his arrest, made changes to his hair, consulted with his family (his uncle being a pastor) and consulted with a lawyer who arranged his surrender.

[133] On August 2, 2018, I.D. was arrested and charged with second degree murder. At the police station, he was advised that he was charged with second degree murder but was not initially advised of the facts relating to the charge. I.D. was confronted with the details of the allegations for the first time during his interview with D/Cst. Caley O’Neil. While the Applicant had had prior dealings with police, he had never given a statement and had never before been interrogated by police.

[134] The statement began at 20:03:52 on the counter. At 20:07, I.D. was told of the allegations. The officer stated:

DCO…My understanding, um, is that on the 30th of July, 2018, at approximately seven thirty a.m., uh, a young fellow by the name of Jordan Carter- Bonfield, uh, was found stabbed near one seven five Westmount Drive North, Orillia, which is commonly known as the Tim Horton’s restaurant. Uh, as a result of these injuries Jordan died and as a result of the police investigation you’ve been arrested and charged with second degree murder today, okay? So that’s what you've been arrested for and that’s the only charge that’s... that’s happening right now. Does that make sense?

ID: Yes.

DCO: Okay, do you under--... you understand that?

ID: Yes.

In other words, about three minutes into the statement, the officer told I.D. who this person was, where and when it happened, and that the person was stabbed and died.

[135] Sometime later, during the statement, I.D. requested to speak to his lawyer, and at 20:40:11, the police had counsel on the phone. I.D. was taken out of the interview room to speak to counsel. At 20:50:44, I.D. was finished speaking with counsel and re-entered the interview room. I.D. confirmed that he was satisfied with the advice he was given.

[136] Around 21:16, the officer suggested to I.D. that Jordan Carter-Bonfield may be partially responsible, or at least not a completely innocent party. The officer stated:

DCO:…Now these investigators have been doing a pretty good job from what I can tell and they’ve collected lots of, uh, evidence and that evidence, um, paints a picture of what happened to Jordan, but it’s also missing a big part of that story which is your story, and also it’s missing Jordan’s story because he’s not with us anymore. So all we can do is make assumptions or guesses about what he did to bring this on himself, if he did anything at all, I don’t know, okay? Maybe he did, maybe he didn’t; it’s possible this is all your fault, it’s possible it’s not all your fault. These are some of the questions that only two people really could tell us and one of them isn’t with us anymore, you know what I mean?

ID: Yeah.

[137] Around 21:18, the officer continued:

DCO: Um, so certainly it doesn’t seem fair to me that someone doesn’t at least try to explain the situation to you and allow you to make the choice to speak or not to speak. And you know what, it doesn’t... it doesn’t offend me at all, uh, if you don’t, but at least I can say that you know what, I wanted [I] to have this opportunity. Because I have two choices really, right, when these investigators call me to come and speak, um, to people in these types of situations I have two choices, number one I can look at the case and I can say you know what, you have enough evidence there, you don’t need me, I don’t wanna talk to this guy, I can say that, or I can say no, I’d like to come and speak with this individual because, uh, I think there’s more to the story than what this investigation is showing. So I chose to come and speak with you here today, um, because from what I see there are some very concerning things to me, uh, about Jordan’s involvement in this and potentially how he created this situation and has responsibility in this situation. And one of the things that really makes me start to believe that might be the case is the fact that you decided to show up here today, you decided to come and turn yourself in, you know, you're not hiding out downtown somewhere or maybe trying to leave the c--... I don’t know, you could... you could be just takin’ off.

ID: Mm.

[138] At 21:24 on the video counter, the following exchange took place:

DCO: Now I am really having a difficult time, as I believe the investigators are as well, in not having, uh, in not thinking that Jordan has some fault here, okay? Does that make sense?

ID: Yes.

DCO: Is that true?

ID: Is what true?

DCO: That Jordan has some fault in what happened to him here?

ID: Is it true?

DCO: Yeah.

ID: Yes.

DCO: Like, uh, what I’m saying is I don’t think this is all you, I’m pretty sure he...

ID: My actions--.

DCO: ...is to blame here.

ID: Obviously sir if you do something you take the consequences for [it]. My actions were all me, but what led up to my actions were not me.

[139] At 21:29, the officer continued:

DCO: ...which says to me there’s definitely more to the story than, uh, what’s on the surface here between what hap--... whatever happened between you and Jordan, and that’s what I wanna get to, uh, the bottom, that’s the opportunity I want you to have, what did Jordan do to put you in this position [I]. Does that make sense?

ID: Yeah, it does.

DCO: You know, uh, --. My biggest question, why did he have a mask on, that tells me that he m--... went to meet you with bad intentions, you know what I mean?

ID: Mm-hmm.

DCO: Like if it was just, uh, I think it would be a different story if it was just this... this... this kid was stabbed somewhere not in a drug-rela--... you know, this seems to be a drug-related transaction that went bad, if he was lying in the middle of a Walmart par—parking lot with like a bag of, I don’t know, shoes and eggs and stuff and he was dead, uh, that would be a different story, but the fact that he’s, uh, seems to be involved in some kind of drug transaction and he’s wearing a mask, that’s concerning to me, that says to me you know what, this guy’s done something, he may be the one who started this whole thing, not you. And I think it’s important that we know that because that’s your story. I mean his story is... I mean it’s... it’s kind of... well he’s... he’s dead, right, he’s not saying anything, so we’re... he... we’re relying on the investigation to tell his story, right?

ID: Mm-hmm.

DCO: But it’s not really what actually entirely happened, you know what I mean? Does that make sense to you?

ID: Yeah.

DCO: So what did Jordan do to bring this onto you [I]?

[140] At 21:39, the following exchange took place:

DCO: And I can see that being a possibility that perhaps he had done something to you to bring this on, and I think that’s important that we know that. Is that what happened to Jordan [I].? ‘Cuz I can’t think of another reason why somebody would be wearing a mask or have a mask and have a knife. ... ‘Cuz like I said, there’s varying degrees of responsibility and if you don’t deserve all the responsibility then I think we need to know what Jordan’s responsibility is in this.

ID: I’m the only one responsible for my actions.

DCO: Well that’s not entirely true, like I mean if somebody is actively trying to hurt you, [I], --.

ID: At the end of the day if you went to try to stab me right now and I was to stab you first, I’m responsible for my actions ‘cuz nobody told me to do what I did. So no matter what...

DCO: Yeah, but theoretically...

ID: ...I’m responsible for my, uh, own action.

[141] Further, at 21:42, the discussion continued:

DCO: So that’s why I say like I can see how he has responsibility in this and it’s not all your fault. Yes you’re responsible for your actions, but like I said, you know, if he... theoretically if he was trying to harm you and you guys get into this fight that’s not entirely your fault, he has blame in that as well, and that’s important for us to know.

ID: Mm-hmm.

DCO: You know what I mean? ‘Cuz like I said, I don’t believe at this point that you just woke up outta the blue and decided, hey, I’m gonna go and stab Jordan and he’s gonna die from it, that doesn’t make sense to me. I believe you were going to do maybe some kind of drug deal with Jordan and I think he had some other intentions, hence the mask, hence the knife. It sounds to me like his intentions were not all, you know, the best towards you.

ID: Mm-hmm.

DCO: Does that make sense?

ID: Yes.

DCO: Okay. Is that what happened to Jordan? Did he attack you first?

ID: Yes.

[142] A short time after this, the officer said, “So was I correct that this was initially gonna be a….like a drug deal between you and him?” I.D. then responded at 21:44:55 with “I’m going to jail either way, huh? Yeah, yeah, yeah. Basically yes, yes, yeah. Basically you already know the story”. It was after all of this that I.D. began to provide details of his version of events. The statement ended at 22:20:35.

[143] I.D. began the statement by repeatedly asserting his right to remain silent. He was then questioned for over an hour and a half, during which the investigator befriended him, made him feel comfortable, appealed to his sense of right and wrong, suggested that providing his story would help him feel better by setting the record straight, suggested that this was his only opportunity to make a first impression, and suggested that he may not be completely responsible for the offence, providing him an avenue to escape, or at least minimize, criminal liability.

[144] A starting point in determining admissibility of evidence is that all relevant and material evidence, which is not otherwise captured by an exclusionary rule is admissible. R. v. Khelawon 2006 SCC 57, at para. 2, R. v. Candir, 2009 ONCA 915, at para. 46.

[145] With respect to evidence that the defence seeks to introduce, the court, in R. v. Seaboyer 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, made it clear that it is only evidence in which the probative value is substantially outweighed by the prejudicial effect which is inadmissible. The court stated:

[43] The Canadian cases cited above all pertain to evidence tendered by the Crown against the accused. The question arises whether the same power to exclude exists with respect to defence evidence. Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law. Exclusionary rules of evidence have been established with a purpose in mind. A trial does not benefit from admitting evidence which is not reliable. Such evidence can mislead the trier of fact. Such evidence can negatively impact upon trial fairness and truth-seeking.

[146] As a general principle, prior consistent statements of a witness are inadmissible, as such statements do not assist in the truth-seeking goal of trials. Just because a person has said the same thing on an earlier occasion does not make it more truthful. As recently stated in R. v. A.S., 2020 ONCA 229 at para. 52:

…it is a legal error for a trial judge to rely on a witness's prior consistent statement as corroborating that witness's testimony…A prior consistent statement comes from the same source that supplies the testimony and therefore lacks the independence that corroboration requires. To treat a prior consistent statement as corroborative therefore involves circular reasoning…

For this reason, an accused person is generally not permitted to tender into evidence their own prior, out-of-court exculpatory statements.

[147] The general principle that prior consistent statements are inadmissible is subject to numerous exceptions, including where the statement is relevant to the narrative, to rebut an allegation of recent fabrication, as circumstantial evidence of state of mind at a relevant time, and when the statement is integral to the charge itself. See R. v. Hong, [2015] O.J. No. 6377 (S.C.); R. v. Edgar, 2010 ONCA 529, para. 35 and R. v. Liard, 2015 ONCA 414, at para. 46

[148] However, in R. v. M.C., 2014 ONCA 611, at para. 63, Justice Watt made it clear that even when admitted, there can be limitations on use:

[63] Where prior consistent statements are admitted as circumstantial evidence, the statement is not received as evidence of the truth of its contents, rather only to establish that the statement was made…

In other words, the statement would be admitted for a non-hearsay purpose.

Edgar Exception

[149] In R. v. Edgar, (2010) ONCA 529, the Court of Appeal found that an accused’s spontaneous out-of-court statement, made on arrest or when first confronted with an accusation of a crime, if the accused testifies and can therefore be cross-examined, was relevant and should be admitted for a limited purpose.

[150] In Edgar, shortly after his arrest and later during the morning, the appellant made three statements to the police. The first two statements were made very shortly after the appellant’s arrest. The third statement was made about four hours after his arrest. The first two statements were partially exculpatory, but largely incoherent. The third statement was coherent and entirely exculpatory. The appellant was initially convicted in 1996 for second degree murder. At the first trial, the trial judge excluded all three statements. The appeal court ruled that edited portions of the statements bearing upon the appellant’s state of mind were properly admissible. At the second trial, the appellant urged the trial judge to admit all three of the statements in their entirety. The trial judge refused to do so and admitted only the edited versions found to be admissible by the appeal from the first trial. The case again went to the Court of Appeal, wherein, at paragraphs 25-34, Sharpe J.A. outlined five of the main reasons justifying the traditional exclusionary rule, namely:

1. The statement is hearsay;

2. The statement may be fabricated;

3. Admitting the statement would impair the goal of trial efficiency;

4. The statement will have minimal or no probative value;

5. Admitting the statement would amount to impermissible oath helping.

[151] With these justifications in mind, Sharpe J.A. held that excluding the spontaneous statements of an accused upon arrest or when first confronted with an accusation of a crime did not serve the reasons underlying the general exclusionary rule. The Court in Edgar stated as follows:

[65] …While probative value will depend upon the facts and circumstances of each case, I agree with the English authorities that an accused person's spontaneous reaction to an accusation may be of "vital relevance" and "one of the best pieces of evidence that an innocent man can produce is his reaction to an accusation of a crime".

[66] If a statement has probative value, it should only be excluded if there are sound reasons of law or policy to do so. In my view, the various rationales offered for exclusion simply do not warrant the imposition of a blanket exclusionary rule.

[67] The rule against oath-helping does no more than restate the need for evidence to have probative value. If evidence fails to add anything new, repetition is less than helpful. However, where an accused makes a spontaneous statement in the face of an accusation or arrest for a crime, something is added. The reaction of the accused in such circumstances may yield persuasive evidence of innocence, which has quite a different quality than the accused's testimony given months or years later in the formal proceedings of the courtroom.

[68] I find the cases cited above entirely persuasive on the point that the hearsay rationale for exclusion of a prior consistent statement evaporates where the accused takes the stand and exposes himself or herself to cross-examination.

[69] I am also of the opinion that too much is easily made of the risk of fabrication. To assert blindly that all statements made by an accused person upon arrest are fatally tainted with self-interest and the motivation to lie assumes guilt and runs counter to the presumption of innocence: see James H. Chadbourn, Wigmore on Evidence, vol. 2, rev. ed. (Toronto: Little, Brown & Co., 1979), at 293, cited in S. Casey Hill, et al., at paras. 11:40.40.30. As discussed below, at para. 97 of these reasons, this assertion is also contrary to the discouragement of jury directions counselling caution with respect to the evidence of an accused because of self-interest and motivation to say what it takes to secure an acquittal. The risk of fabrication can be dealt with more directly and precisely through cross-examination and by looking to the degree of spontaneity the proffered statement exhibits. Statements that are lacking in spontaneity may be either excluded or, in the case of doubt, made the subject of an instruction to the jury as to weight by the trial judge.

[71] In my view, it is time to abandon what David Tanovich has described as the "myth" that exculpatory statements made upon arrest are inadmissible except to the extent that they bear upon state of mind or rebut an allegation of recent fabrication: "In the Name of Innocence: Using Supreme Court of Canada Evidence Jurisprudence to Protect Against Wrongful Convictions" (Paper presented to the Ontario Criminal Lawyers' Association Criminal Law in a Changing World Conference, Toronto, November 8, 2003) (unpublished). [page183]

[72] I conclude, therefore, that it is open to a trial judge to admit an accused's spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination. As the English cases cited above hold, the statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.

[152] Therefore, under the rule in Edgar, an accused’s exculpatory statement may be admissible as evidence of an accused’s reaction when confronted with an accusation. This reaction is circumstantial evidence that bears on the accused’s guilt or innocence. The accused must meet three requirements to admit a prior consistent statement in accordance with Edgar:

1. The accused must testify;

2. The statement must be made upon arrest or when first confronted with an accusation; and

3. The statement must be spontaneous.

This third requirement – spontaneity – lies at the heart of the Edgar exception. It is the factor said to give the statement probative value. However, spontaneity is not judged on an all-or nothing basis. A contextual analysis of the circumstances surrounding the case – including the passage of time, any intervening events, and the statement itself – is required to determine the degree of spontaneity. When there is doubt about a statement’s spontaneity, the trial judge should admit the statement and consider spontaneity when assessing the statement’s weight. Any risk of fabrication can be addressed by cross-examination or through a limiting instruction.

[153] In R. v. Badhwar, 2011 ONCA 266, [2011] O.J. No. 1541 (C.A.), the accused was convicted of criminal negligence causing death and failing to stop at the scene of an accident. Initially, the accused opposed any use of his statement to the police, however, part way through the trial, the appellant sought permission from the trial judge to cross-examine one of the arresting officers to establish that he had given a statement to the police and to elicit its contents. In return, he undertook to testify. In this case, an Edgar ruling was not sought at trial and was instead raised for the first time on appeal. Therefore, the trial judge did not get to examine the circumstances surrounding the making of the statement. The trial judge refused the request to admit the statement. On appeal to the Court of Appeal, following its decision in Edgar, the Court held that the prior statement did not satisfy the requirement for spontaneity. The Court stated:

[21] That brings me to the statement of the appellant. Whatever else may be said about it, it can hardly be characterized as spontaneous. The appellant had five hours to consider his position and "think things out" before going to the police station. He also had the opportunity to speak to his friends after the accident, either directly or by cell phone, before speaking to the police.

[22] In these circumstances, if the trial judge had had the benefit of Edgar, I believe he would likely have excluded the appellant's statement for lack of spontaneity. But even if the statement had been admitted, in my view, its probative value would have been minimal due to its lack of spontaneity. The appellant's reaction upon being confronted with an accusation that he knew was coming and that he had had five hours to think about was not likely to be of much value to the jury. Bearing that in mind, as well as the fact that the statement contains nothing that the appellant did not tell the jury in his testimony, I am satisfied that the verdict would inevitably have been the same had the appellant been permitted to inform the jury of his statement to the police…

[154] In R. v. Kailayapillai (2013), 2013 ONCA 248, 115 O.R. (3d) 363 (C.A.) (April 22, 2013), the appellant, was charged with, and ultimately convicted of, murdering his wife. He provided an exculpatory statement seven hours after first coming into contact with the police and four hours after he arrived at the police station. Similar to Badhwar, at trial, the accused had initially resisted the admissibility of his statement and any evidence derived from it. After his cross-examination was completed, he changed his position and argued that an extract from the statement was admissible on re-examination because it was consistent with his testimony and could be used to rebut the allegation of recent fabrication made during cross-examination. The Court of Appeal decision in Edgar had not been released at the time of the trial but had been released by the time of the appeal. The Court stated:

[58] As my colleague explains, an accused's prior consistent statement can be characterized as the accused's "reaction" when confronted with an allegation. As a matter of common sense and human experience, one's reaction to an allegation may assist in determining the truth of that allegation. Similarly, where one's reaction takes the form of a statement, the consistency between that statement and one's trial testimony can enhance the credibility of the trial testimony.

[59] Not all reactions to allegations have probative value. The English cases relied on in Edgar refer to statements made by an accused "when first taxed with incriminating facts". Edgar itself refers to statements that are "spontaneous" and made "upon arrest or when first confronted with an accusation".

[60] The probative value of the accused's prior consistent statement under the Edgar analysis lies in its ability to truly reflect the individual's honest and genuine reaction to the allegation. Statements made in circumstances where it cannot be said that the statement reflects an honest reaction do not have probative value. The circumstances surrounding the making of the statement are crucial to the determination of admissibility under the Edgar analysis.

[61] Statements made by an accused long after he or she has had the opportunity to reflect on the situation and consider his or her response to an allegation do not provide the kind of spontaneous response capable of giving a true reflection of the accused's reaction to the allegation…

[62] In this case, the trial judge had no evidence upon which to evaluate the spontaneity of the appellant's statement, or to determine whether the statement was made when the appellant was first confronted with the accusation. The record was silent on these matters and everything else surrounding the making of the statement.

[64] Even if one takes into account the information provided on appeal about the statement, there is still no basis to find that the statement was either spontaneous or made when the appellant was first confronted with the accusation. Based on the DVD, the statement was made some seven hours after the appellant first came in contact with the police and some four hours after the appellant arrived at the police station. There is still no evidence about what the appellant did or who he talked to between the arrival of the police at his home and the eventual statement.

The statement was deemed inadmissible.

[155] In R. v. Oram, [2013] O.J. No. 4513 (S.C.), the accused was charged with second degree murder and raised the defence of self-defence. The accused sought to introduce his statement made to the police immediately following his arrest and about 20 minutes after the deceased was stabbed. Forestell J. stated:

[15] Neither Edgar nor the cases that followed Edgar established a time limit within which an exculpatory statement must be made by an accused in order to be admissible.

[16] Pursuant to the principles enunciated in Edgar, the issue is not the number of minutes, seconds or hours between the events and the making of the statement, but the issue is the probative value of the statement. The probative value of a statement may be substantially reduced by the passage of time depending upon the intervening circumstances and depending upon the issue to which the statement relates.

[17] In the circumstances of this case, the statement is tendered as evidence of the emotional state of the accused within 20 to 25 minutes of the stabbing and as evidence of the post-offence conduct of the co-operation with the police. The statement also is tendered as evidence of consistency with the version of events which the accused will advance in his testimony and which he offered immediately upon arrest with little opportunity to fabricate or tailor his evidence.

[18] In all of the circumstances, the statement has substantial probative value. It is capable of rebutting or neutralizing the evidence of post-offence conduct consistent with guilt. It is relevant to the state of mind or emotional state of Mr. Oram. And it is evidence of consistency capable of enhancing the credibility of the accused.

See also: R. v. Ye, 2013 ONSC 7251, [2013] O.J. No. 5751 (S.C.), in which Forestell J. held that in considering the spontaneity of the statement, the passage of time is relevant but not determinative. In Ye, similar to in Oram, the passage of time was minimal.

[156] In R. v. Liard, 2015 ONCA 414, [2015] O.J. No. 3000 (C.A.), the defendant made a statement 13 hours after the offence was committed, and after she had written a self-serving note to her grandmother. Several hours after the events in question, Ms. Liard attended at the police station as a mere witness. Twenty-three minutes into her interview, she was charged with being an accessory after the fact. She was first confronted with the charge of first-degree murder 6 hours into her 7 hour and 23-minute statement to police. In reply to being charged with first degree murder, she replied, “I’m fucking innocent”, and appeared stunned by the charge. She also stated, “How is this possible?” and later repeated, “I’m innocent”. She continued to protest her innocence until the interview ended. The statement was admitted. Ms. Liard was acquitted, and the Crown appealed. In dismissing the Crown’s appeal, the Court noted that although the statement was 13 hours after the murder, the statement was spontaneous, as she was initially questioned as a witness, she was only 19 years old, she was emotional, and part of her statement was corroborated by other evidence. The Court went on to state:

[54] Under the Edgar exception for prior consistent statements, only an accused's spontaneous reaction "made upon arrest or when first confronted with an accusation" of a crime is admissible. This requirement makes common sense and is linked to the requirement of spontaneity. The natural reaction of a person first confronted with a false accusation of criminal wrongdoing would be to immediately assert one's innocence.

[55] The accusation of a crime need not come from the police…

[56] But the confrontation must include an accusation of a crime. Statements by civilians -- even confrontations -- which are not accusatory, will not affect the spontaneity of an accused's reaction to a later police accusation of a crime.

[62 ] The requirement that the accused's statement be spontaneous is the critical requirement for admissibility under the Edgar exception. Spontaneity is what gives the statement its probative value and justifies its admission. A spontaneous reaction is more likely "to truly reflect the individual's honest and genuine reaction to the allegation", and thus is more likely to be a reliable reaction... Conversely, when an accused has an opportunity to "think things through", the spontaneity of the statement is diminished, and in some cases eliminated altogether.

[63] No single consideration, no single point in time, determines whether the spontaneity requirement has been met. The passage of time between the crime and the accused's reaction to an accusation of committing it, and any intervening events, are undoubtedly relevant. But spontaneity lies along a spectrum. And along that spectrum, the degree of spontaneity may vary...

[64] Thus, in determining whether an accused has satisfied the spontaneity requirement, the trial judge must consider all the circumstances of the case -- the passage of time, any intervening events, and the making of the statement itself. Importantly, as Sharpe J.A. pointed out in Edgar, at para. 69, when in doubt about spontaneity, the trial judge should admit the statement and allow the jury to assess its weight. Proper jury instructions can eliminate any risk of the jury's misuse of the statement.

Liard makes it clear that determining when an accused is first confronted and determining the question of spontaneity require a contextual analysis. Liard also makes it clear that the probative value of the statement is diminished where there is an opportunity to think things through. See also: R. v. Graham, [2019] O.J. No. 2218 (C.A.), where the court unanimously rejected the accused’s argument on appeal that his statement was spontaneous given the passage of approximately 7.5 hours between learning of the charges against him and providing the statement. The court found that the trial judge was correct in holding that the passage of time and the intervening events deprived the statement of any potential relevance.

[157] In R. v. Hong, [2015] O.J. No. 6377 (S.C.), one of the defendants – Guerra – was arrested approximately two days after the offence. He was advised of his right to counsel and availed himself of that right. Approximately three hours after his arrest, Mr. Guerra was transported from Toronto to Lindsay in the company of two officers, one who was driving, the other in the back seat with Guerra. During the transport, the officer in the back engaged Mr. Guerra in conversation which he audio-recorded. Counsel sought to introduce a discrete excerpt of the conversation in which Mr. Guerra indicated that he had no idea where they were. This was arguably relevant, as Mr. Guerra submitted that when he drove the co-accused, he was not aware of the purpose for the trip and was not familiar with the route. The officer admitted in his testimony that he “wanted to try and startle him or get him thinking”. Justice Boswell stated:

[55] I cannot disagree that three hours was more than sufficient time for Mr. Guerra to "think things through". That said, the circumstances surrounding the making of the statement have to include a consideration of the events that took place inside the police vehicle on the drive from Whitby to Lindsay.

[56 ] D/C Ginn confirmed that his question, "When you guys came up here the other day did you come this way?" was the first investigative question asked of Mr. Guerra. In other words, it is the first time Mr. Guerra was tasked with evidence implicating him in the offences. D/C Ginn also characterized his question, and the context in which it was asked, as an attempt to "startle" Mr. Guerra. In my view, these circumstances are very significant. The plan to "startle" Mr. Guerra was surely designed to evoke the type of spontaneous reaction described in Edgar.

[60] The passage of time between the arrest and the making of the statement is important, but not determinative, as cases like Edgar and Liard make clear. The particular circumstances of this case are unique and must be considered on their own strength. Here, there is conflicting evidence on which to evaluate spontaneity.

[62] This is a case where I have a doubt about the issue of spontaneity. In these circumstances, in light of the direction in Edgar, my view is that it is best to admit the statement with an instruction to the jury about its permitted use(s) and the factors that go to its weight. The jury will be in the best position to determine to what extent it was truly spontaneous, and whether it reflects an honest and genuine reaction to being confronted with involvement in the offences before the court.

The statement was admitted into evidence. Despite having a doubt about the spontaneity of the statement, Justice Boswell relied heavily on the unique circumstances, including the fact that the question was asked in an attempt to startle Mr. Guerra into a spontaneous response. See also R. v. Johnson, [2020] O.J. No. 2624 (S.C.), wherein Justice Barnes admitted a statement when left in a state of doubt as to the spontaneity of the statement.

[158] The first element of the Edgar test is an easy one to analyze – either the accused has undertaken to testify or not. The second element has two considerations, either of which will suffice – either the statement was made upon arrest, which is a more tangible point in time, or the statement was made when first confronted with an accusation. This second consideration is not so easily answered. Is being aware that you are wanted for second degree murder the same as being confronted with an accusation? Is something more required? Does confrontation with an accusation require being told of specific incriminating details? This second element of Edgar will require a consideration of the circumstances of the specific case. In some cases, an awareness of a warrant might be sufficient, while in other cases, more details may be required. It is the view of this court that this second element of Edgar cannot be considered in isolation from the spontaneity requirement. The confrontation that elicits the spontaneous, natural, unplanned reaction is what Edgar had in mind. It is this spur-of-the-moment reaction that gives the evidence probative value.

[159] In determining whether a person has spontaneously reacted to a confrontation, several things should be considered, including, but not limited to the following:

1. The age of the person;

2. The person’s prior experience with police;

3. The length of time between the alleged criminal event and the statement;

4. Any knowledge the person may have had of the accusation prior to the statement;

5. Any intervening events between the alleged criminal event and the statement;

6. Changes in the demeanour of the person as the statement unfolds;

7. The degree to which the statement is exculpatory, or rather a combination of inculpatory and exculpatory elements;

8. The investigative technique used in questioning the person; and

9. The manner in which the statement was made, such as in response to a suggestion or rather in response to an open-ended question.

This list is by no means exhaustive.

[160] The overarching issue to consider in determining the admissibility of the accused’s statement under the Edgar exception is the statement’s probative value. If the statement has probative value, and if concerns about the statement’s reliability can be reduced through cross-examination, or a limiting instruction, the statement should be admitted.

[161] Both counsel referred to I.D.’s demeanour during the statement in order to advance their own arguments. Quite frankly, this court finds it most difficult to take anything from the demeanour of I.D. on this statement. It is dangerous to make judgments about demeanour as people react differently. Assessing how an accused should react through the lens and perception of what the court feels is most appropriate should be avoided. A consideration of demeanour may be appropriate if it changes during the statement, for example, if an otherwise calm person becomes agitated. In the statement at issue in this case, it is the view of this court that I.D.’s demeanour remained fairly consistent throughout.

[162] In considering the admissibility of I.D.’s statement to police, this court seriously considered the entirety of the circumstances, including the following factors:

1. I.D. was only 17 years old when he was questioned by the police and had never been interrogated by the police in the past in this manner.

2. I.D. turned himself in. He remained silent at the beginning and demonstrated an intention to continue that position, suggesting he did not turn himself in with the intention of making a rehearsed exculpatory statement. He asserted his right to silence multiple times.

3. There are both inculpatory and exculpatory portions of the statement. I.D. clearly admitted to stabbing Mr. Carter-Bonfield. He admitted to stabbing him three or four times, he described the weapon in detail, and he described his own, potentially, inculpatory post-offence conduct. He seemed unaware of the intricacies of self-defence and, therefore, in his mind, may have been giving a completely inculpatory statement. He took responsibility for his actions and assumed he was going to jail either way.

4. Parts of his statement were corroborated, such as:

A. From the time he walks out of view of the camera until he sprints back into view is 47 seconds in total. This all happened very quickly. I.D. said he ran from the scene, which is consistent with his running into view on video;

B. A mask was seen around the neck of Mr. Carter-Bonfield;

C. A knife, similar to what I.D. described, was found at the scene;

D. Many of the statements made to Andrew Franklin, approximately 60 seconds after the stabbing took place, are consistent with his version to police, in that he told Mr. Franklin that the person had a mask on, a “long ass knife”, and tried to stab him.

[163] However, it is the view of this court that the Applicant’s statement does not meet the Edgar requirements for the following reasons:

1. The Applicant was first confronted by Officer Nicholls at the scene. He was aware of the investigation immediately.

2. Days had passed between the event and the statement. The event occurred on the morning of July 30, 2018. The statement was conducted starting around 8:00 p.m. on August 2, 2018. I.D. made some very deliberate moves after these events, including changing his clothes, getting away from the area, cutting his hair, consulting with family (including his uncle who is a pastor), a consideration of where and how to turn himself in, and obtaining advice from counsel both before and during the statement. I.D.’s lawyer, Mr. Heath, called OPP Officer Mike Burrows that evening at 6:35 p.m. to advise him that I.D. intended to turn himself in at the Toronto OPP Detachment.

3. I.D. was first confronted with the fact that he was wanted for second-degree murder by the media release. This media release was made on July 31, 2018. I.D. conceded that it would be a fair inference for the court to draw that he was aware of this media release at some point prior to turning himself in to police.

4. While this court does not judge the general demeanour of I.D. as evidenced in the statement, as mentioned above, this court does note that I.D.’s demeanour is fairly consistent throughout the statement. Being confronted with some details of the allegations early on in the statement did not lead to a change in demeanour. Being presented with the notion that Mr. Carter-Bonfield may be partially responsible did not lead to a change in demeanour.

5. The interviewing police officer was skillful, and established a relationship of trust. The interview was friendly throughout, with the officer showing compassion and understanding toward I.D. and his situation. I.D. was questioned in a calm, controlled setting. After more than an hour of telling the officer that he chose not to make a statement, I.D. began to agree with, or adopt, the suggestions put to him by the officer that this occurred in self defence. The questions do not shake or startle I.D. into an answer. While I.D., at times, disagreed with the officer as to his level of responsibility, I.D. ultimately agreed with the officer that he was acting in response to Mr. Carter-Bonfield’s actions.

6. The best evidence of I.D.’s state of mind is at the time of his utterances to Andrew Franklin in less than two minutes following these events. Mr. Franklin described I.D. as “freaking out”, “panicked”, “scared and upset”, “kinda like frantic”, “pacing”, “seemed a little angry but upset and scared at the same time” and “pretty shook up”. The statements that I.D. made during this time to Mr. Franklin, while not admissible for the truth of their content, provide circumstantial evidence of I.D.’s state of mind very near to the time of these events. I.D. stated to Mr. Franklin that the person had tried to rob him, the person had a “long ass knife”, the person had a mask on, tried to stab him, and he stabbed that individual. These statements have already been introduced through Mr. Franklin to establish I.D.’s state of mind at the relevant time. Those statements provide the most reliable state of mind to the time of the events.

7. There was no suggestion of recent fabrication by the Crown in this case.

[164] It is most certainly not the number of seconds, minutes, hours, or days that pass between an event and the statement that will rule the day. Spontaneity has been met even in cases where many days have past. As both counsel suggested, and this court agrees, the analysis is contextual.

[165] The required element of spontaneity relates directly to the probative value of the statement. If the statement is spontaneous, the expectation is that it demonstrates an honest and sincere response to the accusation. However, if the person has had time to think it through, or has received advice from others, the statement may no longer be an honest and sincere response. This does not mean that the person is not being truthful. It simply means that the probative value of the statement is lost and cannot be used as an extra piece of evidence to support the person’s credibility.

[166] It was candidly admitted by the defence that the purpose of introducing the statement of I.D. was to demonstrate that he had asserted a self-defence theory to the police, similar to his comments to Andrew Franklin, and similar to how he would testify at this trial. In my view, the statement here offered nothing more than the false notion that credibility is enhanced by repetition which is a central reason for such statements being inadmissible. The onus was on I.D. to satisfy the court that the statement was relevant and probative and offered more than this false notion. I.D.’s statement was made in response to being confronted with information he knew was coming and information he had time to consider. I.D.’s statement was made after much prompting and suggestion from the officer. Given the complete lack of spontaneity of the statement made, this court was not satisfied that there was any probative value in this statement.

[167] While this court accepts that if there is doubt on the issue of spontaneity the statement should be admitted, having balanced all of the factors, this court is left with no doubt on this issue. The court was not satisfied that this was likely a more accurate portrayal of I.D.’s reaction than his statements to Andrew Franklin or his in court testimony, both of which are present for the court to assess.

Circumstantial Evidence of State of Mind

[168] It was further submitted that I.D.’s statement to police could be admitted as circumstantial evidence of his state of mind at the time the statement was made or at the time the offence was committed.

[169] This is a long-standing exception to the rule against admission of prior consistent statements by the accused. This exception was recognized by the Supreme Court of Canada in R. v. Simpson 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3. McIntyre J., on behalf of the court, stated:

[24] As a general rule, the statements of an accused person made outside court‑‑subject to a finding of voluntariness where the statement is made to one in authority‑‑are receivable in evidence against him but not for him. This rule is based on the sound proposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross‑examination. It is, however, not an inflexible rule, and in proper circumstances such statements may be admissible; for example, where they are relevant to show the state of mind of an accused at a given time or to rebut the suggestion of recent fabrication of a defence. The first exception has been recognized in the authorities and in the text writings. In Phipson on Evidence (13th ed. 1982), para. 7‑34, the following appears:

Whenever the physical condition, emotions, opinions and state of mind of a person are material to be proved, his statements indicative thereof made at or about the time in question may be given in evidence. In the case of physical condition or emotions, if they were the natural language of the affection, whether of body or mind, they furnish original and satisfactory evidence of its existence, and the question whether they were real or feigned is for the jury to determine.

In the English case of R. v. Willis, Parker L.C.J. put it in these terms:

...provided the evidence as to his state of mind and conduct is relevant, it matters not whether it was in regard to the conduct at the time of the commission of the offence or, as here, at a subsequent time to explain his answers to the police and his conduct when charged.

Although there is no absolute prohibition against such evidence, provided the probative value outweighs any prejudicial effect, the statement must provide some added assistance to the trier of fact.

[170] In R. v. B.(S.C.), (1997), 1997 CanLII 6319 (ON CA), 119 C.C.C. (3d) 530 (C.A.), the court held that the defence was entitled to lead evidence that the accused offered his DNA and was therefore entitled to a “consciousness of innocence” inference. The court held that there was no closed list of circumstances in which such evidence may be admitted provided that the inference is a rational one. Also see: R. v. H.(A.) [1994] O.J. No. 2279 (Gen. Div.), at paras. 69, 71-72 and 81, in which Justice Hill held that both exculpatory statements and conduct can give rise to a favourable inference.

[171] In this case, I.D. relied on R. v. P.R. (1990), 58 C.C.C. (3d) 334 (Ont. H.C.J.) to argue that statements which allow for an inference as to the declarant’s state of mind ought to be regarded as circumstantial evidence from which a state of mind can be inferred. P.R. involved a statement of the deceased, not of the accused. Further, the statement was more rightly characterized as an utterance rather than a formal statement. In P.R., the court admitted the deceased’s utterance since its exclusion may have deprived the trier of fact of potentially significant information as to the deceased’s state of mind and because there was little suggestion that the deceased had motivation to misrepresent her state of mind when making the utterances to trusted confidants.

[172] It is the view of this court that the circumstances in P.R. are very different from those in the case at bar. Beside the fact that these were statements of the deceased not the accused, the utterances were comments to close family members, as opposed to statements made in a formal setting to police after consulting with counsel. A refusal to admit this statement does not deprive the court of potentially significant information. The utterances to Andrew Franklin have already been admitted as circumstantial evidence of I.D.’s state of mind. Further, the accused had the option to testify at his trial.

[173] There is no doubt that the state of mind of I.D. is a relevant issue in this case, both as to the mens rea required for second degree murder and the advancement of self-defence. There are utterances in the statement in issue that are express declarations of a particular state of mind at the time of the offence. For example:

1. “like it didn’t feel real, like you know like when you’re playing a video game and like you’re about to die…”;

2. “He had a knife, that’s why I took out my knife ‘cuz I … seen him pull back to try and stab me”;

3. “I went back to the hotel and I was throwing up”;

4. “I was panicking”; and

5. “No, I ran away, bro, I was… I was like about to shit myself, right?”.

The defence submitted that these specific references to his state of mind at the time of the events are reliable and go directly to the issue of intent and self-defence. The statement, made only three days following the events, is likely to be a better indicator of his state of mind at the relevant time as opposed to any testimony describing that state of mind made years later.

[174] However, it is the view of this court that the statement is not reliable given how the events unfolded, as explained in relation to the Edgar exception argument, and therefore, must be excluded on principled grounds. After some time, it is the officer who presented I.D. with the theory of self-defence. After suggesting a number of times that Mr. Carter-Bonfield may have been partly responsible for what occurred, the officer said, “Okay. Is that what happened to Jordan? Did he attack you first?” At that point, I.D. responded in the affirmative and then began to tell his narrative. This detracts from the reliability of the statement as demonstrating the true state of mind of the accused.

[175] Further, in this case, the accused’s statements to Andrew Franklin were very close in time to the events and were made before I.D. had any time to consider his position. Those statements were admitted as circumstantial evidence of I.D.’s state of mind. Alternatively, the statements made to the officer are made days after the event, after the accused has spoken to a number of people, including counsel, and most importantly, after the interrogating officer offers up self-defence to I.D. ID then started adopting the suggestions of the officer.

[176] The statement was, therefore, not admissible as circumstantial evidence of state of mind.

Position of the Parties on the Trial Proper

Defence

[177] The defence position was that I.D. acted in lawful self defence. The defence argued that I.D.’s actions were not as a result of a concern that he was about to be robbed and to protect his drug supply, but rather his reactions were instantaneous to save himself from being stabbed. The defence suggested that all of the circumstances must be considered, including I.D.’s demeanour throughout and immediately following. The defence submitted that the first two requirements of self defence are not seriously at issue in this case, given the corroborating evidence. However, the reasonableness element of self-defence requires some analysis given that there were four penetrating stab wounds. However, the defence argued that it was very difficult to determine exactly what occurred. The pathologist was not able to say how it happened, as in the position of the bodies or which injury occurred first. The Crown suggesting that the lower back injury occurred at a time when Jordan Carter-Bonfield was running away was pure speculation without evidence.

[178] On the issue of reasonableness, the defence argued that I.D. was the only one to tell what happened. According to I.D., Jordan-Carter Bonfield was right in front of him with a knife being drawn back. There was support for the fact that there was a knife at the scene, including the pleas of guilt and the knife found. According to the defence, this all lends credence to the fact that Mr. Carter-Bonfield was armed. The use of force was imminent and there was no duty on I.D. to retreat. I.D. was on his way to do business and the plan on the other side was to ambush and rob him. Mr. Carter-Bonfield threatened to use a weapon – a knife. Mr. Carter-Bonfield was 6’, 161 lbs and 25 years old, whereas I.D. was 5’5”, 100 lbs, and 17 years old.

[179] As for any use of post-offence conduct evidence, the defence warned against placing any weight on such evidence in this case. While clearly I.D. did do certain things following the events that could suggest a guilty conscience and resulting fear of going to jail, this does not further the analysis of his guilt in this case. I.D. did not appreciate the intricacies and availability of self-defence, and therefore, was acting with a guilty conscience; however, this is not determinative of whether the defence is available and applicable.

[180] In the alternative, if the Crown were able to disprove self-defence, the defence position was that the scenario described was consistent with manslaughter rather than second degree murder. The defence stated that the swinging of the knife without a specific understanding of where the knife was making contact was not consistent with a state of mind required for second degree murder, but rather more consistent with manslaughter.

Crown

[181] It was the position of the Crown that I.D. should be found guilty of second-degree murder. According to the Crown, I.D.’s version of events must be considered with caution, given that:

1. He was not forthcoming with his reason for selling drugs and his explanation was not reasonable;

2. His claim to be unaware of the dangers of selling hard drugs in Orillia was unreasonable;

3. He maintained that the stabbing of Andrew Franklin was not a robbery, however, he armed himself after this occurrence;

4. He downplayed his reason for carrying a knife, suggesting that it was convenient to make blunts; and

5. The fear he said he had following the incident did not make sense given his conduct after the fact.

[182] The Crown submitted that the post offence conduct is relevant in this case, and that such evidence is presumptively admissible as probative of guilt.

[183] As for the first element required to be proven for second degree murder, the Crown submitted that it is not an issue – I.D. caused the death of Mr. Carter-Bonfield. As for the second element, the Crown submitted that I.D. acted unlawfully in stabbing Mr. Carter-Bonfield four times, two in the front and two in the back, and that it was not done in self-defence. The Crown agreed that the onus is on them to disprove one of the elements of self defence and the Crown argued that the second and third element are absent beyond a reasonable doubt. The Crown submitted that even if the court accepts the evidence of I.D., the Crown has proven beyond a reasonable doubt that his actions were not reasonable.

[184] As for the state of mind required for murder, it was the Crown’s position that I.D. had the intent to stab Mr. Carter-Bonfield, he did so multiple times, and he knew that it would likely cause death given the number and location of the wounds. I.D. believed he was stabbing in the stomach and continued to make that motion. By stabbing in this area, it would be likely that I.D. would know that he could hit a major organ. According to the Crown, the intent to kill is proven by the type and area of the wounds.

[185] Alternatively, the Crown submitted that manslaughter is available in this case if the court finds that the death was caused unlawfully, but the specific intent for murder is not established. Even though not argued by the defence, the Crown put forward how culpable homicide can be reduced to manslaughter if done due to provocation, the provocation in this case being the planned robbery. Having put this forward as a consideration the court must assess in this case, however, the Crown argued that provocation would not be made out in this case, as an ordinary person would not have been deprived of self control in these circumstances.

Analysis

Burden of Proof and Elements of the Offence

[186] The Crown has the burden of proving I.D.’s guilt beyond a reasonable doubt.

[187] In order to find I.D. guilty of second-degree murder, Crown counsel must prove each of three essential elements beyond a reasonable doubt:

1. That I.D. caused Jordan Carter-Bonfield’s death;

2. That I.D. caused Jordan Carter-Bonfield’s death unlawfully; and

3. That I.D. had the state of mind required for murder.

[188] There is no question in this case that I.D. caused the death of Jordan Carter-Bonfield. The first element is proven beyond a reasonable doubt.

[189] There is a question, however, as to whether I.D. caused that death unlawfully or in lawful self-defence. There is also question as to the state of mind, or intent, of I.D.

Assessment of Credibility and Reliability of Witnesses

[190] The final determination in this case requires an assessment of credibility and reliability of the witnesses.

[191] In assessing the credibility of witnesses in this case, the court must consider, among other things, their power of observation, memory, the passage of time, any bias, partiality, or interest in the outcome, and demeanour as they testified. With respect to demeanour, “triers of fact are entitled to consider demeanour, as long as it is not given undue consideration.” See: R. v. Ahmaddy, 2018 ONCA 496, para. 6. The court must consider the reasonableness of the evidence. Further, the court must consider inconsistencies within the evidence at trial, as well as inconsistencies between the evidence at trial, and previous statements to police or previous testimony. See: R. v. Williams, 2018 ONCA 138, para. 33, referencing R. v. A.M., 2014 ONCA 769 at paras. 12-14. Credibility is a question of fact to be determined by the trial judge having considered the totality of the evidence.

[192] The Court may accept some, none or all of what a witness says, and accord different weight to different parts of the evidence that it does accept: R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 72; R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44.

[193] A verdict of guilt may, in some cases, be properly rooted in the evidence of a single witness: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at pp. 819-820.

[194] In considering the reliability of the evidence, the court must consider the accuracy of perception and memory, and factors that may have affected that, such as ability to observe. Even the evidence of an honest witness may be of questionable reliability.

Assessment of Accused’s Evidence

[195] Having said that this case requires an assessment of the credibility and reliability of the witnesses and evidence presented, it must be stated from the outset that this is not a contest between witnesses as to who the court believes more or less. I.D. has testified at this trial. As a result of this evidence, this court must, and does, follow the analysis in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, in a modified fashion, which is as follows:

1. If the Court believes the evidence of I.D., where actions are denied, or he claims to be acting in self defence, there must be an acquittal;

2. If the Court does not believe the evidence of I.D., where certain events are denied, or does not believe, based on his evidence, that he was acting in self defence, but is left in reasonable doubt by it, there must be an acquittal;

3. Even if the Court is not left in doubt by the evidence of I.D., the Court still must ask itself whether it is convinced beyond a reasonable doubt of the guilt of I.D. on the basis of the balance of the evidence which the Court does accept.

[196] It must be noted, however, that the availability of the defence of self defence cannot be determined exclusively by an assessment of I.D.’s credibility, alone, as the application of self defence includes objective aspects. See R. v. Khill, 2020 ONCA 151 at para. 108.

[197] What is absolutely clear is that it is not for I.D. to prove that what he did was in lawful self defence or protection of himself. It is the Crown’s burden to prove beyond a reasonable doubt that I.D. was not acting in lawful self defence or protection of himself in applying force to Jordan Carter-Bonfield.

Post-offence Conduct

[198] A further issue that requires special consideration in this case is the evidence related to the actions of the accused following this incident. It is not in dispute that I.D. did a number of things after this incident to avoid going to jail. He admitted to these things and the reasoning behind his actions when he testified. Those actions include:

1. He went back toward the foot path to retrieve his slides because he did not want anything associated with him to be left at the scene.

2. He was angry at the thought of Miles Mathias having set him up and wanted to, and attempted to, confront him.

3. He changed his clothes.

4. He admitted that he wanted to get away from the area as he did not want to go to jail.

5. He had the opportunity to explain what had happened to Officer Nicholls but he failed to do so. He was not honest with Officer Nicholls about his reason for being in the area.

6. He threw his knife in a lake.

7. He left the scene and went to a “crack house” where he hid out in the bathroom for multiple hours.

8. While in the bathroom, he shaved his head in an admitted effort to change his appearance.

9. He got a ride to Etobicoke, where he stayed over night.

10. He got a ride to Kitchener where he stayed for a couple of day.

11. He did not turn himself in until August 2, 2018, a few days later, after consulting with family and counsel.

There is no question that I.D. took a number of steps to avoid the police over those next couple of days. I.D. admitted that these things were done because he was scared of going to jail.

[199] The Supreme Court of Canada discussed post-offence conduct somewhat recently in the case of R. v. Calnen, 2019 SCC 6, 53 C.R. (7th) 225, 374 C.C.C. (3d) 259. Justice Martin stated:

[106] After-the-fact conduct encompasses what the accused both said and did after the offence charged in the indictment was allegedly committed. It covers a large range of possible circumstances, and its content and contours are confined only by the limits of human experience. After-the-fact conduct may also arise in respect of all types of criminal offences and in different legal settings: for example, in cases in which the accused pleads not guilty, admits all or part of an offence, admits some of the offences charged, and/or asserts a defence, excuse, or justification. It is this potential breadth, variety, and mix of considerations that lies at the heart of the much repeated observation that the proper legal treatment of after-the-fact conduct is highly context and fact specific.

[200] Justice Martin explained at paragraph 107 that there is no general rule which prohibits a trier of fact from considering evidence of post-offence conduct, and such evidence will be admissible if:

1. It is relevant to a live, material issue in the case;

2. Its admission does not offend any other exclusionary rule of evidence; and

3. Its probative value exceeds its prejudicial effect.

[201] Even if admissible, however, this does not mean that its use is unlimited. In R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, the court made it clear that the trial judge must assist the jury with a specific instruction on how to use this type of evidence. Triers of fact must consider alternative explanations for the conduct, including innocent explanations. See R. v. White, 2011 SCC 13, [2011] S.C.J. No. 13 at paras 23-25; R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129 at p. 143.

[202] With these cautions in mind, the court in Calnen made it clear that “there is no impediment to using after-the-fact conduct evidence in determining the accused’s intent…and may be used to distinguish between different levels of culpability.” In determining whether the evidence can be used for this purpose, the court must consider:

1. the specific nature of the conduct;

2. its relationship to the record as a whole; and

3. the issues raised at trial.

See Calnen, para 119

[203] There may be more than one explanation for post-offence conduct. This does not make the evidence irrelevant. Calnen, para 124. As stated in Calnen at para 145, “As long as the evidence is more capable of supporting the inference sought than the alternative inferences, then it is up to the fact finder, after considering all explanations, to determine, what, if any, inference is accepted, and the weight, if any, to be provided to a piece of circumstantial evidence.”

[204] In the case at bar, the Crown submitted that the post offence conduct can be used to assess I.D.’s credibility as to the fear he said he felt after the fact. The Crown suggested that if he was fearful, he would not have acted the way that he did following these events; for example, once he reached the comfort of his room, he would have remained there, or he would have been more open and honest with Officer Nicholls when he had the opportunity.

[205] There was no question about the admissibility of the post-offence conduct in this case. The defence made no argument for its exclusion. This court must now determine the proper use that can be made of the evidence. This court agrees with the Crown that some of the post offence conduct, such as leaving the hotel room and the interaction with Officer Nicholls, can and should be used to assess I.D.’s credibility as to his state of mind at that time.

[206] Further, there is no question in this case that the after the fact conduct was as a result of I.D. not wanting to be arrested and not wanting to go to jail. This court has direct evidence of this from I.D. himself. There are no competing inferences to assess. There is no question that I.D. felt responsible for the death of I.D. He knew that he had stabbed him and believed that he had likely killed him. He felt responsible for that and knew he was going to jail as a result. He returned to the general area to get his slides because he did not want to leave evidence behind. He changed his clothing and exited through a different part of the hotel to avoid detection. He got rid of his knife in a lake. He hid out in a bathroom for multiple hours. He cut his hair to change his appearance. He went to Etobicoke. He went to Kitchener. There is no question in this case that I.D. took all of these steps to avoid being arrested and going to jail for what had occurred on that foot path.

[207] It is the view of this court that the post-offence conduct is most certainly relevant in this case. It is relevant to I.D.’s credibility that he was fearful. It is also relevant to his claim of self-defence, which will be further addressed below.

Self-Defence

[208] In order for the defence of self defence to be considered by the court, there must be an “air of reality” to the defence. See: R. v. Phillips, 2017 ONCA 752, [2017] O.J. No. 5022 (C.A.). In determining whether an air of reality exists, the Court must consider the totality of the evidence and assume the evidence relied on by the accused to be true. The question for the trial judge is whether the evidence discloses a real issue to be decided by the trier of fact and not how the trier of fact should ultimately decide the issue: R. v. Cinous 2002 SCC 29 at para. 54. The air of reality test is not meant to be a high burden to reach. The Court must determine if there is some evidence upon which a reasonably instructed jury could find that self defence applies.

[209] On the basis of the evidence put forward in this case, an air of reality exists. It would appear that the Crown takes no issue with that.

[210] If there is an air of reality to the defence of self defence, the Crown bears the onus of disproving any form of self defence beyond a reasonable doubt. In R. v. Lieberman, 1970 CanLII 393 (ON CA), [1970] 3 O.R. 407 (C.A.), the court stated:

On the issue of self-defence, there is no burden on the accused; once he has raised it the jury must be instructed that that issue must be resolved in favour of the accused unless the prosecution satisfies the jury beyond a reasonable doubt that a finding of self-defence cannot be supported on the evidence. In the present case, if the evidence for the Crown does not carry such conviction the charge of robbery cannot be supported. In my view the instruction on this aspect of the defence, including the evidence in support thereof, the precise nature of what in law constituted self-defence, and the onus carried by the Crown, was inadequate.

[211] The Crown’s onus of disproving self defence applies to each definitional element of the defence, and the onus is not discharged if the judge has a reasonable doubt concerning the presence of each element. However, once the Crown proves beyond a reasonable doubt that at least one definitional element is absent, the defence is then unavailable to the accused. The Crown can do this by proving beyond a reasonable doubt that one or more of the preconditions do not apply.

[212] The relevant self-defence provisions of the Criminal Code read as follows:

34(1)A person is not guilty of an offence if

(a)they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b)the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c)the act committed is reasonable in the circumstances.

(2)In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[213] The items listed in s. 34(2) are but factors to be considered in determining whether the Crown has proven beyond a reasonable doubt that the accused did not act “reasonably”, an essential element prescribed in s. 34(1)(c).

[214] An assessment of self defence requires the court to look very carefully at the totality of the circumstances and to look carefully at the evidence. The court must also be careful not to hastily judge a person’s reaction. As the court stated in R. v. Cunha, 2016 ONCA 491:

[7] As for the objective element of the defence, it is accepted that in considering the reasonableness of the defendant's use of defensive force, the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection, as this court noted in R. v. Mohamed, 2014 ONCA 442, 310 C.C.C. (3d) 123, at para. 29:

As Professor Paciocco notes at p. 36:

The law's readiness to justify "mistaken self-defence" recognizes that those in peril, or even in situations of perceived peril, do not have time for full reflection and that errors in interpretation and judgment will be made.

In a similar vein, Martin J.A. commented in R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96, at p. 111, that

in deciding whether the force used by the accused was more than was necessary in self-defence under both s. 34(1) and (2), the jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety the exact measure of necessary defensive action.

[8] It is well established that self-defence can be invoked on the basis of reasonable mistakes of fact, including whether the putative assailant was armed. As this court noted in R. v. Currie 2002 CanLII 44973 (ON CA), [2002] O.J. No. 2191, 166 C.C.C. (3d) 190 (C.A.), at para. 43:

The Supreme Court of Canada in Cinous [2002 SCC 29] confirmed the principle established in R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3 that the existence of an actual assault is not a prerequisite for a defence under s. 34(2). The question that the jury must ask itself is not whether the accused was unlawfully attacked, but whether he reasonably believed in the circumstances that he was being unlawfully attacked. The question for the trial judge on the threshold evidential test is whether there is evidence upon which a jury acting reasonably could conclude that the accused reasonably believed he was about to be attacked and that this belief was reasonable in the circumstances.

[9] It is also the law that a person who is defending himself, and other occupants of his house, is not obliged to retreat in the face of danger. In R. v. Forde, 2011 ONCA 592, 277 C.C.C. (3d) 1, this court considered the issue of retreat at some length, and concluded at para. 55: "a jury is not entitled to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence."

As is clear in Cunha, the person acting in self defence is not to be held to a “standard of perfection”. See Cunha, paras. 24-25; See also R. v. Sinclair (2017), 2017 ONCA 38, 345 C.C.C. (3d) 1 (Ont. C.A.).

[215] In the more recent case of R. v. Khill, 2020 ONCA 151, the court explained the three elements of self defence, namely, the trigger, the motive and the response. The court stated in part as follows:

(a) The Trigger

[44] Section 34(1)(a) focuses on the accused's state of mind. The accused must have a subjective belief that force is being used or threatened against them. Absent that belief, the defence is not available. That belief, however, does not itself trigger the defence. For the defence to be triggered, the belief must be based on "reasonable grounds".

[46] The requirement in s. 34(1)(a) that the belief be based on "reasonable grounds" imports an objective assessment of the accused's belief. Reasonableness is ultimately a matter of judgment. A reasonableness assessment allows the trier of fact to reflect community values and normative expectations in the assignment of criminal responsibility. To brand a belief as unreasonable in the context of a self-defence claim is to declare the accused's act criminally blameworthy: see R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 210, per Arbour J. in dissent but not on this point; R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109, at para. 75; R. v. Philips, 2017 ONCA 752, at para. 98; George P. Fletcher, "The Right and the Reasonable" in Russell L. Christopher, ed., Fletcher's Essays on Criminal Law (Oxford: Oxford University Press, 2013) 150, at p. 157.

[48] Canadian courts consistently interpreted the reasonableness requirements in the previous self-defence provisions as blending subjective and objective considerations. Reasonableness could not be judged "from the perspective of the hypothetically neutral reasonable man, divorced from the appellant's personal circumstances": [R. v. Charlebois, 2000 SCC 53](https://