Court File and Parties

Court File No.: CR-17-50000762-0000 Date: 2021-01-07 Superior Court of Justice – Ontario

B E T W E E N:

HER MAJESTY THE QUEEN - and - KYLE SPARKS-MACKINNON

Counsel: John Dick and Emile Carrington, for the Crown Gary Grill and Leo Salloum, for Mr. Sparks-MacKinnon

Heard: February 26, 27, 28; March 2, 3, 5, 9, 10, 11, 12; July 7; August 21; October 26, 27, 28 and 29

M. Forestell J.:

Reasons for judgment

Overview

[1] Mr. Sparks is charged with the second-degree murder of Charles Shillingford. Mr. Shillingford was shot in the early morning hours of October 31, 2015 on Charles Street in the City of Toronto. Mr. Shillingford drove away from the scene of the shooting, but eventually crashed his car on Yonge Street south of College Street. Mr. Shillingford was alive after the crash but succumbed to his wounds soon after.

[2] Mr. Sparks was charged in relation to this offence in 2016. His trial proceeded before me without a jury over several months in 2020.

[3] Mr. Sparks testified at his trial and admitted fatally shooting Mr. Shillingford. He testified that he acted in self-defence. He testified that he exited his car before the shooting, with his loaded gun in hand, with the objective of scaring the driver of a car that had just cut off his car. Just as he stepped out of his car, the driver of the other car got out of his car and pointed a gun at Mr. Sparks while uttering threatening words. Mr. Sparks testified that he believed that he would be killed and that he fired his gun at the man in order to defend himself.

[4] Mr. Sparks also testified that he did not intend to kill Mr. Shillingford and that he was intoxicated at the time of the shooting.

[5] Prior to the October 31, 2015 killing of Charles Shillingford there had been two other shootings involving Mr. Shillingford and Mr. Sparks. On August 9, 2015, Julian Weekes, a close friend of Mr. Sparks, shot at Mr. Shillingford in the parking lot of Café Atlantis, a club in Peel Region. Mr. Shillingford was in his car at the time of the shooting and drove away although he was wounded by the gunshots. Mr. Weekes left the parking lot in a car driven by Mr. Sparks. Mr. Sparks drove alongside Mr. Shillingford on Highway 401 shortly after the initial shooting. Mr. Weekes fired further shots at Mr. Shillingford on the highway.

[6] On October 5, 2015, Mr. Shillingford, or someone acting in concert with Mr. Shillingford, fired shots at Mr. Sparks as he drove his car near his brother’s residence.

[7] Mr. Sparks testified that when he shot Mr. Shillingford on October 31, 2015 on Charles Street, he was not aware that he was shooting at the man involved in the previous incidents.

Issues

[8] To prove that Mr. Sparks committed the offence of second-degree murder, the Crown must prove beyond a reasonable doubt that Mr. Sparks caused the death of Mr. Shillingford, that he did so unlawfully and that he had the intent for murder.

[9] It is not disputed that Mr. Sparks caused the death of Mr. Shillingford.

[10] If Mr. Sparks was acting in self-defence, the killing was not unlawful. Where self-defence is raised by an accused person, and there is an air of reality to the defence, the Crown must disprove self-defence beyond a reasonable doubt.

[11] The issue in this trial is whether the Crown has disproved self-defence beyond a reasonable doubt.

[12] Section 34 of the Criminal Code, R.S.C., 1985, c. C-46 sets out the elements of self-defence. As set out by our Court of Appeal in R. v. Khill, 2020 ONCA 151, at para. 42, self-defence under s. 34 has three elements:

1. The Trigger: the accused must believe, on reasonable grounds, that force is being used or threatened against him (s. 34(1)(a));
2. The Motive: the act of the accused said to constitute the offence must be done for the purpose of defending himself (s. 34(1)(b)); and
3. The Response: the act said to constitute the offence must be reasonable in the circumstances (s. 34(1)(c)).

[13] If there is an air of reality to the defence, the burden of proof is on the Crown to disprove at least one of these three elements beyond a reasonable doubt.

[14] In this case, the Crown argues that I should reject the evidence of Mr. Sparks that Mr. Shillingford was pointing a gun at him. The Crown’s position is that the evidence supports a finding that Mr. Shillingford was shot while he sat in his car and that Mr. Shillingford did not ever remove his own gun from his pocket. Therefore, the Crown submits that the first element of self-defence, that Mr. Sparks faced a threat of force from Mr. Shillingford, has been disproven beyond a reasonable doubt and the defence of self-defence fails.

[15] If I have a reasonable doubt that Mr. Sparks faced the threat of force from Mr. Shillingford, the Crown concedes that there would also be a reasonable doubt on the second element of motive.

[16] However, the Crown position is that, even if there is a reasonable doubt with respect to the first two elements of self-defence, Mr. Sparks’ act of shooting Mr. Shillingford was not reasonable in all the circumstances and the third element of self-defence has been disproven beyond a reasonable doubt.

[17] Therefore, the issues in this case are:

1. Has the Crown proven beyond a reasonable doubt that Mr. Sparks did not believe on reasonable grounds that force was being used or threatened against him? and,
2. If the answer to the first question is no, has the Crown proven beyond a reasonable doubt that Mr. Sparks’ act of shooting Mr. Shillingford was not reasonable in the circumstances?

[18] For the reasons that follow, I have concluded that the Crown has not disproven the elements of self-defence beyond a reasonable doubt.

[19] In the reasons that follow I will first set out the facts that are not in dispute. I will then review the evidence with respect to the disputed facts, my findings of fact and finally the application of the relevant legal principles to the determination of the issues in this case.

Facts Not in Dispute

[20] There are many facts in this case that are the subject of formal admissions. Other facts are beyond dispute because they are captured on video. Still others are undisputed as a result of the testimony of Mr. Sparks. I will begin by setting out these facts before turning to the evidence relating to facts that are in dispute.

Café Atlantis Shooting – August 9, 2015

• Mr. Sparks was driving a distinctive white Corvette on August 9, 2015 when he attended Café Atlantis with his friend Julian Weekes. Mr. Weekes shot at Mr. Shillingford in the parking lot of Café Atlantis.
• Mr. Shillingford reversed his car out of the parking lot and drove towards the highway. He reached a red light where he needed to make a left turn. He did not want to be delayed and turned right before making a U-turn around an island and proceeding towards the ramp to Highway 401.
• On Highway 401, a white Corvette pulled alongside Mr. Shillingford as he was driving in the slow lane. Mr. Weekes fired again at Mr. Shillingford from the passenger seat of the Corvette. Mr. Sparks admitted that he was driving the Corvette at the time but denied that he had deliberately followed or deliberately pulled up beside Mr. Shillingford.
• While he was driving after the initial shooting, Mr. Shillingford telephoned his girlfriend and asked her to connect a three-way call to his brother. He spoke with his brother who met him and drove him to the hospital. Mr. Shillingford’s brother did not remain with Mr. Shillingford at the hospital.
• Charles Shillingford suffered a gunshot wound to his left shoulder and wounds to his neck as a result of the August 9, 2015 shooting.
• In his interview with the police following the shooting, Mr. Shillingford indicated that he intended to seek out information about the identity of the people responsible for the shooting.

Brooker Lane Shooting – October 5, 2015

• On October 5, 2015, either Mr. Shillingford or someone working in concert with Mr. Shillingford, shot at Mr. Sparks while Mr. Sparks was driving his distinctive white Corvette on Brookers Lane near the residence of Mr. Sparks’ brother, Jahmal Richardson.
• The nearby residence of Mr. Sparks’ brother at 58 Marine Parade Drive was one that Mr. Sparks would visit frequently and stay at overnight on occasion.

Brass Rail Shooting – October 31, 2015

• On October 31, 2015 at around 1:27 am Mr Sparks, Mr. Richardson, Mitchel Mannette and Denzell Desmond arrived at the Brass Rail. They approached from Charles Street, east of the Brass Rail’s rear parking lot and they entered from the rear entrance which faces Charles Street.
• On October 30th and into the early morning of October 31st, Mitchel Mannette was driving the Buick Regal owned by Mr. Sparks’ girlfriend, Tiara Lucas. Mr. Sparks, Mr. Richardson, and Mr. Desmond were passengers in the car.
• Denzell Desmond left the Brass Rail at 1:49 a.m. after getting, what appear to be car keys from Mitchel Mannette.
• Mr. Desmond was in the rear parking lot of the Brass Rail, just outside the rear entrance, at 1:58 a.m.
• At 1:59:05, Mr. Desmond can be seen on video looking at his phone. At the same time, inside the Brass Rail, Mr. Sparks can be seen putting his phone to his ear.
• Between 12:10:52 a.m. and 2:57:56 a.m. on October 31, 2015, Cynthia Todorovski, a dancer at the Brass Rail and a girlfriend of Charles Shillingford, received threatening text messages from an ex-boyfriend, Travis Savoury.
• At 2:00:21 a.m. on October 31st, Ms. Todorovski called Mr. Shillingford. The call lasted 2 minutes and 8 seconds. The cell phone tower records show that Ms. Todorovski’s phone was using a tower near the Brass Rail. Mr. Shillingford’s phone was using a tower in Scarborough at the start of the call and by the end of the call, was using a tower still in Scarborough but further west from where he began, suggesting that he travelled westbound during the call.
• At around 2:05 a.m., Mr. Sparks appears to again be on his phone. Shortly after this, Mr. Sparks, Mr. Mannette and Mr. Richardson, who were still inside the Brass Rail, began to move from an area near the front door to the back exit of the Brass Rail.
• At 2:08:26, Ms. Todorovski again called Charles Shillingford. That call lasted 47 seconds. The cell tower records suggest that Ms. Todorovski was still in the Brass Rail and Mr. Shillingford was travelling south.
• Mr. Sparks and Mr. Mannette exited the Brass Rail through the back exit at about 2:09 a.m.
• At 2:10:30, Mr. Desmond handed something to Mr. Sparks. Mr. Sparks testified that while the item appeared to be weighted and was consistent with a gun, Mr. Sparks’ recollection was that he already had a gun in his possession all night. He did not recall receiving a gun from Mr. Desmond.
• Mr. Richardson exited the Brass Rail at 2:10:45 a.m.
• At 2:11 a.m., Mr. Sparks, Mr. Mannette, Mr. Desmond and Mr. Richardson can be seen on video surveillance lingering on the Charles Street sidewalk near the entrance to the Green P parking lot beside the Brass Rail parking lot.
• At about 2:13 a.m., Ms. Todorovski left the Brass Rail with another woman. They entered the Green P parking lot. The other woman went north, and Ms. Todorovski moved off camera.
• At 2:14 a.m., Ms. Todorovski reappeared on the Green P surveillance footage moving from northeast to southwest and entering the pay station at the south entrance to the Green P parking garage. Kyle Sparks and Jahmal Richardson can be seen entering the pay station with her and then all three move into the parking garage area. Ms. Todorovski is seen putting her phone to her ear at 2:14:25 a.m. as the three enter the parking garage area and begin to engage. There is, what appears to be, a heated exchange between Ms. Todorovski and Mr. Sparks. There is an interaction between Ms. Todorovski and Mr. Richardson. Mr. Sparks later puts his arm around Ms. Todorovski. The entire exchange lasted about three minutes.
• At about 2:17:30 Ms. Todorovski left the Green P parking garage and walked back toward the Brass Rail. Shortly after leaving the Green P parking garage, she again put her phone to her ear.
• Phone records show a 233 second telephone call between Ms. Todorovski’s phone and the phone in the possession of Charles Shillingford that began at 2:14:25 a.m. and would have ended at 2:18:18 a.m. Cell tower records suggest that Mr. Shillingford was near the Brass Rail at the time of the call.
• Charles Shillingford was driving a Chrysler 300 on October 31, 2015.
• At 2:13:25, a Chrysler 300 can be seen turning eastbound from Yonge Street onto Hayden Street, one block north of Charles Street. From about 2:15-2:17 a.m., a car that appears to be a Chrysler 300 is visible on Charles Street near the Brass Rail parking lot and outside the Green P parking garage.
• At 2:18 a.m., the Chrysler 300 appears to be on Charles Street near the Brass Rail parking lot. At the same time, Mr. Sparks, Mr. Richardson, Mr. Desmond and Mr. Mannette appear to be on the sidewalk near the car.
• At 2:19:34 a.m., a Chrysler 300 can be seen travelling northbound on Yonge Street, north of Charles Street. The car makes a U-turn near Hayden Street and travels southbound on Yonge Street. At about 2:20:20 a.m., the Chrysler 300 makes another U-turn south of Charles Street and travels northbound on Yonge Street.
• At about 2:20:30 a.m., a Buick Regal can be seen going northbound on Yonge Street north of Charles Street.
• At 2:20:38 a.m., a Buick Regal can be seen turning right, eastbound onto Hayden Street.
• At 2:20:58 a.m., the Chrysler 300 can be seen travelling northbound on Yonge Street, north of Charles Street.
• At 2:21:03 a.m., the Chrysler also turned right onto Hayden Street.
• Two other cars turned onto Hayden Street between the Buick and the Chrysler, one turning left from the southbound lane of traffic, and another turning right from the northbound lane of traffic.
• The next view of the Buick Regal and the Chrysler 300, after they turn onto Hayden Street from Yonge Street, is from a camera in a condominium building at 35 Hayden Street. This building has a north-south driveway running between Hayden and Charles Streets. The driveway is 120 metres east of Yonge Street. The Chrysler can be seen moving quickly southbound through this driveway at about 2:21 a.m. The Buick Regal follows the Chrysler after about eight seconds. The Chrysler appears to turn right onto Charles Street a few second later. The Buick is still in the driveway when the video surveillance footage ends.
• When the Chrysler is back on Charles Street, it stops out of range of the cameras from the Green P parking garage and the Brass Rail. There is video surveillance footage from a camera located on the south side of the street, 33 Charles Street, that is of very poor quality and which shows a car, that is likely the Chrysler, stopped on the north side of Charles Street just east of the Green P parking garage entrance. Forty-five seconds after the car is visible on this camera footage, it is gone from the scene. The footage does not capture it leaving. There is no video of the shooting, which it is agreed, occurred during those 45 seconds after the car stopped on Charles Street.
• The shooting occurred sometime around 2:22:40 a.m., the time shown on the clock which is visible in the footage obtained from the Green P parking surveillance camera. This is based on the reactions of persons inside the Green P pay station at that time.
• Mr. Mayaki, a witness who was at the intersection of Yonge and Charles Streets when the shots were fired, heard three loud ‘pops’ – first two and then one- and, seconds later, saw a dark sedan speed past him, travelling west on Charles Street through the intersection. Mr. Mayaki continued southbound on foot and can be seen south of Charles Street at 2:22:57 a.m.
• Det. Huber identified a car from surveillance cameras on Charles Street West as a Chrysler 300 travelling westbound at 2:22:57 a.m. He identified a Buick Regal travelling west on Charles Street at 2:23:28 a.m.
• There is a telephone call from Ms. Todorovski to Mr. Shillingford at 2:22:12 a.m. that lasted 395 seconds (or until 2:28:47 a.m.). It began with Mr. Shillingford’s phone near the Brass Rail and ended with his phone near Yonge and College Streets.
• Ms. Todorovski can be seen on a video taken inside the Brass Rail to be on her phone. She appears to react and jump up at about 2:22:53 a.m. She leaves the Brass Rail, still on her phone, and runs southbound on Yonge Street. She is visible running across the intersection at Yonge and College Streets at 2:31:40 a.m.
• Mr Shillingford’s car can be seen on a camera taken from Yonge and College Streets travelling south on Yonge Street. The car ultimately crashed south of the intersection of Yonge and College Streets at about 2:24:00 a.m.
• It is an agreed fact that a witness, Mr. Juge, who was driving southbound on Yonge Street approaching College shortly before the crash, saw the Chrysler approach from behind his car “really fast”. The Chrysler crossed the center line to pass another car and then passed Mr. Juge’s car before proceeding through a red light and then losing control and crashing.
• Mr. Shillingford was alive and ‘mumbling’ after the crash, but he was incoherent. Mr. Shillingford died shortly afterwards from his gunshot wounds.
• Mr. Shillingford’s phone was still connected to the Bluetooth speakers of the car after the crash. The call to Ms. Todorovski was still connected and her voice could be heard over the car audio system.
• Mr. Shillingford was in possession of a mini-Glock handgun on October 31, 2015. After his death, medical personnel handed over to police a down vest that was worn by Mr. Shillingford. The gun was found in an inner zipped pocket of the vest.
• The post-mortem examination disclosed that Mr. Shillingford was struck by two bullets. One bullet entered his left posterior upper arm and exited the left medial upper arm. The bullet re-entered at the left axilla/lateral upper chest or, approximately below the left armpit area. The direction of the bullet in the body was back to front and left to right. The other bullet entered mid-back and the direction of the bullet in the body was back to front and left to right. Mr. Shillingford died from internal bleeding caused by the gunshots.
• A third bullet was recovered from the Chrysler 300. There is an agreed statement of facts regarding the trajectory of this bullet. The bullet entered the C-pillar of the Chrysler 300 from behind the C-pillar. The trajectory was roughly parallel to the ground at an angle of 82 degrees. It is not possible to know whether the car was moving at the time that it was struck with the bullet.
• Three cartridge casings were found on Charles Street, east of the Green P parking garage and near the north curb. The three casings were found close to each other.

Post-offence Conduct

• Mr Manette drove the Buick Regal to another province on the day after the shooting. Mr. Sparks, in his testimony, admitted that he was aware of Mr. Manette’s intention to get rid of the car.
• The gun used to shoot Mr. Shillingford was not recovered. Mr. Sparks described getting rid of the gun with the assistance of Julian Weekes.

Evidence Relating to Disputed Facts

[21] Having reviewed the relevant undisputed facts, I will now turn to the evidence relating to areas that are disputed. I will first review Mr. Sparks version of events before turning to the other evidence.

1. Testimony of Mr. Sparks

Café Atlantis Shooting

[22] The shooting of Mr. Shillingford in the parking lot of Café Atlantis and on the highway afterward is not disputed. However, in his testimony, Mr. Sparks denied being a willing participant to any part of the shooting.

[23] Mr. Sparks testified that he did not know that Mr. Weekes was going to shoot Mr. Shillingford in the parking lot of Café Atlantis. He did not know Mr. Shillingford and had no interaction with Mr. Shillingford at Café Atlantis.

[24] Mr. Sparks knew that Mr. Weekes habitually carried a gun and assumed that Mr. Weekes had that gun on August 9, 2015.

[25] Mr. Sparks testified that Mr. Weekes appeared to be upset by some remark made by a man in a white Porsche that night (who turned out to be Mr. Shillingford). Mr. Sparks testified that he tried to tell Mr. Weekes to walk away from the dispute. After Mr. Weekes shot at the car and driver, Mr. Sparks was upset with Mr. Weekes. He knew that there were cameras and he was upset that the police would now be looking for his car. He testified that he told Mr. Weekes that he was upset. He did not consider leaving Mr. Weekes at the parking lot because Mr. Weekes was his friend and they had come together.

[26] In his examination-in-chief, Mr. Sparks said that he intended, after leaving the Café Atlantis, to drive to his brother’s residence in Toronto. In cross-examination, when he was asked about why he brought Mr. Weekes with him in the car after the shooting, he said that he intended to go home and that Mr. Weekes lived near him. At the time, Mr. Sparks lived in Oakville and Mr. Weekes lived nearby.

[27] Mr. Sparks had no explanation as to why he drove eastbound rather than westbound if he had intended to drive home and to take Mr. Weekes home.

[28] Mr. Sparks agreed that the white Porsche driven by Mr. Shillingford that night was driving slowly on Highway 401. The car seemed damaged when he saw it. He testified that he did not notice the car until he was close to it. The Porsche was in the slow lane and he drove beside it in the middle lane. Mr. Weekes began shooting right away. Mr. Sparks testified that he could not get away from the Porsche immediately because of the other cars near him. After Mr. Weekes fired the shots, Mr. Sparks pulled ahead. He took an exit soon afterwards and left Mr. Weekes at a gas station. He then went home to Oakville.

[29] Mr. Shillingford made statements to the police about the shooting. He told the police that the Corvette pulled alongside him on Highway 401 and that he could not get away because of the damage to his car. He could not accelerate. Instead he slammed on the brakes and the car pulled ahead of him.

[30] Mr. Sparks testified that he did not take the Corvette out for some time after the shooting because he was worried that the police would be looking for it. He further testified that he did not have any contact with Mr. Weekes because he was angry with Mr. Weekes for shooting at the man in the Porsche.

Brooker Lane Shooting

[31] One of the first times Mr. Sparks took out the Corvette after the shooting at Café Atlantis was on October 4, 2015, when he and his brother went to the Sundowner, a club in Niagara Falls. He dropped his brother back at his brother’s residence in the early morning hours of October 5, 2015. As he left the area near his brother’s building, a man shot at his car. As indicated above, it is admitted that the man who shot at Mr. Sparks was either Charles Shillingford or someone acting in concert with him.

[32] Mr. Sparks denied, in his testimony, that he knew who was shooting at him. He agreed that at the time he thought that it could be related to the shooting at Café Atlantis. He tried to determine the identity of the person who shot at him. He testified that he had no success.

[33] Mr. Sparks went to speak to Julian Weekes to glean any information about the man from the Café Atlantis shooting. Mr. Weekes was not able to tell him who it was. However, Mr. Weekes did provide Mr. Sparks with a gun. He told Mr. Sparks that the gun was ‘ready to go’ and by this Mr. Sparks believed that he meant that it was loaded. Mr. Sparks denied ever checking the gun to see if it was loaded and he denied ever firing the gun before he used it on October 31, 2015. He testified that, after receiving it, he always carried the gun with him when he went out.

[34] Mr. Sparks testified that, for a period of time after he was shot at, he stayed away from downtown and from strip clubs or dance clubs. Prior to the October 5, 2015 shooting he used to go to clubs several times a week. He further testified that he did not go to the residence of his child and his child’s mother because he did not want to put them in danger. He testified that he rarely went out except to shop for food or do errands in Oakville. In cross-examination he agreed that he had gone to Ajax during this time period, as stated by the surveillance officer who testified as part of the Crown’s case. He said that his cousin picked him up and brought him to Ajax for a family event.

[35] Mr. Sparks agreed that his girlfriend and the mother of his child were both dancers. He agreed that his friends and his brother also had girlfriends who were dancers. He agreed that he frequented clubs such as the Brass Rail, the Sundowner and Café Atlantis. He denied that he learned the identity of the man who had shot at him or at whom Mr. Weekes had shot through these contacts.

Brass Rail Shooting

[36] Mr. Sparks testified that on October 30, 2015, Mitchel Mannette had come to see him in Oakville. They ran errands and went shopping. Mr. Mannette had arrived in a taxi. The two went out in the Buick Regal owned by Mr. Sparks’ girlfriend, Tiara Lucas. Mr. Mannette drove because he liked driving.

[37] Mr. Sparks testified that he had his gun with him in the waistband of his pants.

[38] Eventually, they went to Mitchel Mannette’s residence. Mr. Sparks testified that he planned on dropping Mr. Mannette off and going home. Instead, he went up to Mr. Mannette’s unit. About half an hour later, Denzell Desmond called, and they went to his residence. They were there for about two hours. Mr. Richardson then called and suggested going out. Mr. Sparks, while initially reluctant, agreed to go out. They picked up Mr. Richardson about an hour later. Mr. Sparks denied any plan to seek out the person who had shot at him.

[39] Up to the point that he went to Denzell Desmond’s residence, Mr. Sparks had not been drinking but he had smoked marijuana. He did not smoke more than was customary for him.

[40] After he had made the decision to go out and while they were at Mr. Desmond’s residence, Mr. Sparks and the others drank from a bottle of spiced rum. Mr. Sparks believed he had about three shots.

[41] They picked up Mr. Richardson and went to a club in Vaughan. They were there about an hour. They ate and drank at that club. Mr. Sparks drank champagne and a couple of shots.

[42] When he left the club in Vaughan, he was feeling tipsy.

[43] They next went to Filmores, a club in Toronto. At Filmores he drank two or three more shots of Grand Marnier. When they left Filmores, Mr. Sparks was feeling drunk and felt he was going to vomit.

[44] The four men next went to the Brass Rail. Once they were inside the Brass Rail, Mr. Sparks went to the washroom to vomit. Later he told Mr. Desmond that he had thrown up and was feeling ‘messed up’. Mr. Desmond told him to come downstairs. Mr. Sparks went to the washroom where Mr. Desmond gave him some cocaine. He began to feel better after the cocaine. The video surveillance from the Brass Rail shows Mr. Sparks moving toward the washroom area once on his own and once with Mr. Desmond.

[45] Mr. Sparks testified that Mr. Desmond left the Brass Rail before the other three after saying that he was not feeling well and needed air.

[46] Mr. Sparks looked at the video surveillance showing the apparent exchange of an object between he and Mr. Desmond which took place in the back parking lot of the Brass Rail after he left the club. He testified that while it appears that something was exchanged, he recalled that he had his gun the whole night and did not receive it from Denzell Desmond behind the Brass Rail. He recalled having the gun in his waistband throughout the night. He testified that immediately prior to getting out of the car and shooting Mr. Shillingford, the gun was in his front hoodie pocket and then he held it on his lap. He did not recall when or why he moved it from his waistband to his hoodie pocket or precisely when he took it out of his hoodie pocket.

[47] Mr. Sparks recalled that after they left the Brass Rail, the four men lingered on Charles Street having a cigarette.

[48] While they were smoking, the woman he now knows is Cynthia Todorovski walked by and yelled “Hey, Looch”. Looch is his nickname. He did not know the woman calling out to him. He said, “hey what’s up?” to the woman, but she just kept walking. Mr. Sparks found it ‘weird’ that the woman would call out his nickname. He was worried and paranoid after being recently shot at. He followed the woman into the parking garage. He agreed that he got a “little aggressive”. He asked her if she knew anything about him getting shot at. Mr. Sparks testified that the woman seemed confused and scared. Mr. Richardson intervened and spoke to the woman. He told Mr. Sparks to relax, that the woman knew him. Mr. Sparks apologized, hugged the woman and walked away.

[49] Mr. Sparks denied ever noticing a Chrysler 300 near the Brass Rail before the shooting.

[50] Shortly after the interaction with Ms. Todorovski, Mr. Sparks testified that the four men got in their car and left. He could not remember where they got into the car but thought it might have been parked on the street. They were supposed to go home after that. Mr. Sparks recalled texting his girlfriend, Tiara Lucas, so that she could meet him at his brother’s residence or Mr. Desmond’s residence and drive him home in the Buick.

[51] After they were in the car, Mr. Sparks testified that another car began tailgating them with its high beams on. Mr. Manette said, “oh this guy is right on my ass”. Someone said it was the police and Mr. Manette “kind of pulled over to the side”. As he started to pull over, the other car cut in front of them and slammed on the brakes. Mr. Manette slammed on his brakes and almost hit the other car. Mr. Sparks could not say what street they were on when the Chrysler cut them off. He recalled it occurring seconds after they had started driving. Someone said it was a black Chrysler. After it cut them off it drove off quickly. Mr. Manette followed the other car.

[52] Mr. Sparks did not remember the path taken by the vehicles. He recalled that after the Chrysler cut them off, someone said that it hit a taxi and there was a taxi following the Chrysler.

[53] At some point after this, someone in his car said, “there’s the guy” and Mr. Sparks saw the Chrysler 300 stopped at the side of the street. Mr. Mannette pulled up behind the Chrysler. According to Mr. Sparks, everyone in the car was ‘pumped up’ saying things like “let’s go, let’s go”. Mr. Sparks testified that they were going to go and “rough him up”. He recalled someone saying, “I’m going to fuck him up, this asshole.”

[54] The Chrysler was about 10 feet in front of the Buick when the Buick stopped.

[55] Mr. Sparks did not think that the person in the car was the person who had previously shot at him. He believed that it was “some random guy downtown driving crazy drunk or something”.

[56] Mr. Sparks testified that there was some period of delay before he got out of the car. When pressed, he estimated that they were stopped 30 seconds before he got out.

[57] At the time that the car stopped, Mr. Sparks’ gun was in the pocket of his hoodie. Just before getting out of the car, he took the gun out. He testified that he intended to brandish it and scare the driver of the Chrysler.

[58] Mr. Sparks got out of the car and turned. He saw the door of the Chrysler open and when the man got out, Mr. Sparks saw that the man had a gun. He heard the man yelling something like “hold this nigger” or “hold this bitch nigger”. Mr. Sparks screamed “no”, fired his gun at the man and jumped back in the car.

[59] Mr. Sparks testified that everything happened very quickly. He believed that the man was going to shoot him. He testified that, “Like the way he got out of the car, he just — like he was coming towards us and right away, as soon as he got out of the car, I could see the gun.” Mr. Sparks also described it in this way: “Everything was like in the same distance, like the same — everything happened altogether, like just as I got out the car, I could see his door fly open. And as soon as I turned around, he was already — like I saw his gun coming towards me, like he was already pointing it towards the vehicle. And once I heard him scream, ‘hold this bitch nigger’, I just shot.”

[60] Mr. Sparks testified that he aimed in the direction of the man and the car. He tried to jump back into the car at the same time. He did not intend to kill the man.

[61] Mr. Sparks did not remember seeing any other occupants of his car outside the car. He saw Mr. Desmond getting ready to get out just before he did, but he did not see him outside the car.

[62] Mr. Sparks testified that he did not move past the passenger rear door. He used the door as a shield and fired from behind it.

[63] After the shooting, Mitchel Mannette drove them away. Mr. Sparks testified that he passed out in the car. He woke up at home. He learned the next day that the man in the car was Charles Shillingford and that he had died. Mr. Mannette told him that he would take care of the car.

[64] Mr. Sparks contacted Mr. Weekes and Mr. Weekes drove to an area near Lake Ontario where they threw the gun into the lake.

2. Review of the Other Evidence

[65] The shooting on Charles Street was not captured on video. Customers and one apparent employee at the Green P parking garage can be seen visibly reacting to something that is occurring on Charles Street at about 2:22:40 a.m.

[66] A car that is likely the Chrysler 300 is visible on the surveillance footage from 33 Charles Street as being stopped on Charles Street at about 2:22:07 a.m. The camera stops recording and when it resumes recording 45 seconds later, the car is no longer visible.

[67] Patrick Mayaki was on foot at the northeast corner of the intersection at Yonge and Charles Streets at a red light in the early morning of October 31st. While waiting for the light to change so that he could walk south on Yonge Street, he heard three loud ‘pops’ in quick succession – first two and then one. Seconds after that, he saw a car speed past him, heading west on Charles Street. The car was a dark four-door sedan. Mr. Mayaki crossed Charles Street and proceeded southbound on the east side of Yonge Street. Mr. Mayaki can be seen on surveillance footage walking south on Yonge, south of Charles Street at 2:22:57 a.m.

[68] Two witnesses, Christopher Szybalski and Matthew Stewart, were walking westbound on the south side of Charles Street, east of the area of the Green P parking lot when they heard three gunshots.

[69] Mr. Szybalski testified that once he realized what the sound was, he looked west, towards the sound. He saw a man standing on the street. The man had a gun in his right hand, and he put it in his waistband. The man was standing next to the driver’s side front door of a car. Mr. Szybalski testified in his evidence-in-chief that the man had the gun pointed at the car. In cross-examination, after being taken to his police statement, Mr. Szybalski agreed that as he told the police, he first saw the man turning with the gun in his right hand and he did not see the man pointing the gun at the car. He said that when he testified, in his examination-in-chief, that he saw the man pointing the gun at the car, he was trying to piece things together.

[70] Mr. Szybalski testified that the car that the man was near sped away seconds after the shots were fired. Then the man turned and put the gun in his waistband. Mr. Szybalski was five to six car lengths away from the man when he first saw him. The man was moving east as he put the gun in his waistband. Mr. Szybalski believed that he and Mr. Stewart may have stopped for a moment but then they kept walking west. He tried not to look at the man as they walked west.

[71] A second car sped away after the first car. Mr. Szybalski thought the second car was white. He did not see the man get into the second car, but he assumed that he had. Mr. Szybalski testified that he and Mr. Stewart were still east of the cars when the two cars left.

[72] Mr. Szybalski described the shooter as a Black man with medium skin colour, around 6’1” or maybe a bit taller, with an athletic slim build, late 20’s into his 30’s with black hair, buzzed down short and with a hairline straight across his forehead and no facial hair. He described the sweater worn by the man as a blue sweater, between a light and dark blue, a little bright, about waist-length, crew neck collar, possibly made of wool.

[73] When he was shown a video clip of Mr. Sparks and the other men which was taken that night, he did not recognize any of the men as being the man with the gun. He said that he was looking for the blue sweater and did not see it. He distinctly recalled that the sweater had no zipper or hood. It was a crew neck sweater. The blue sweater worn by Mr. Sparks that night had a zipper and a hood.

[74] Mr. Szybalski agreed that the events happened within seconds. He had consumed six beers over six hours before he observed the man on Charles Street. He was tired and the lighting was dim. Because of these factors, he was unsure of his observations. He also agreed that he and Mr. Stewart had discussed some aspects of the event before they went to the police. He knew that Mr. Stewart recalled the second car as being dark while he believed that it was white.

[75] Mr. Szybalski agreed that it was possible that the man from the first car could have been out of the car before he looked over. He testified that he was not paying attention before the shots.

[76] Matthew Stewart testified that when he heard three loud “bangs”, he looked west and saw a car pulled over on the north side of Charles Street, facing west, with a man standing beside the car on the driver’s side. The man was within a few feet of the driver’s side door. He described the man as a Black man with light brown skin, average build, 5’7’-6’3” tall wearing a lighter coloured shirt – possibly a light blue shirt or sweater with a dark jacket or hoodie over it. As noted above, Mr. Sparks wore a blue hoodie that night. Mr. Shillingford wore a dark vest over a shirt.

[77] Mr. Stewart testified that the man was near the driver’s door of the car. In examination-in-chief, he testified that man was within a few feet of the driver’s door of the car. In cross-examination he agreed, however, that he was not 100% sure how close the man was to the driver’s side door.

[78] Mr. Stewart testified that when he first observed the man, his back was facing Mr. Stewart. The car then sped away towards Yonge Street. The man turned to face east. It was at this point that Mr. Stewart saw a gun in the man’s right hand. The man tucked the gun away, either into his waistband or into a jacket pocket. The man then moved east.

[79] In terms of the sequence of events, Mr. Stewart said that he believed that the car sped off first and then the man moved east, but everything happened very quickly.

[80] He described the car as a mid-sized dark sedan. He saw the car go westbound on Charles Street through the intersection at Yonge and carrying on westbound on Charles Street. He believed it could have run a red light.

[81] Mr. Stewart did not see where the man with the gun went. Once he realized the man had a gun, he kept his head down and kept walking west. The man was walking east, and they would have passed each other. Mr. Stewart heard the sound of a car door opening and closing east of him about five seconds after he saw the man. He then saw a car pass that was travelling westbound fairly quickly. It was also a dark sedan. Mr. Stewart got a partial license plate number that was consistent with the second car being the Buick Regal.

[82] Mr. Stewart had consumed a couple of beers and a few glasses of wine over several hours prior to making these observations. He did not recall discussing the event with Mr. Szybalski afterwards, but agreed that they probably did so before going to the police. He testified that he had looked up a media account before going to the police.

Findings of Fact and Analysis

1. Has the Crown proven beyond a reasonable doubt that Mr. Sparks did not believe on reasonable grounds that force was being used or threatened against him?

[83] There are, in this case, two competing versions of the events of October 31, 2015. Mr. Sparks’ version is that he set out to scare a stranger who had cut them off by brandishing a gun at that person. The stranger then threatened him with a gun, and he had to shoot the man in self-defence. The threat and the shooting occurred when both men were outside their respective cars. The Crown submits that Mr. Sparks, knowing who Mr. Shillingford was, followed Mr. Shillingford’s car and then shot Mr. Shillingford as he sat in his car. He did so in retaliation for the October 5, 2015 shooting by Mr. Shillingford.

[84] The Crown’s position is that when Mr. Sparks’ evidence is considered in the context of the whole of the evidence it should be rejected, and it should not raise a reasonable doubt. The Crown submits that Mr. Sparks is not credible. His account is implausible and inconsistent with the other credible and reliable evidence in this case.

[85] Because the Crown bears the burden of proof, my task is not to choose between the two competing versions of facts urged upon me by the Crown and the defence respectively. Mr. Sparks does not bear the onus of proving self-defence. The Crown must disprove it.

[86] In assessing the credibility and reliability of the evidence of the accused, Kyle Sparks, I must assess his evidence in the context of the whole of the evidence. I must consider the internal consistency of his account and the consistency with other evidence. I must consider any inherent implausibility in his account. I may take into account Mr. Sparks’ criminal record in assessing his credibility. I may accept all, some or none of his evidence.

[87] With respect to the Café Atlantis incident, one significant inconsistency in the account of Mr. Sparks is his assertion that he came upon Mr. Shillingford’s Porsche on Highway 401 by chance. Mr. Sparks’ evidence was inconsistent on the question of where he intended to go after leaving Café Atlantis and why he was travelling west on Highway 401.

[88] It does not make sense that Mr. Sparks was intending to go home and take Mr. Weekes home, but then went the wrong way on Highway 401. It does not make sense that he was going to go to his brother’s residence but was taking Mr. Weekes with him.

[89] I do not accept his evidence that he encountered the Porsche on Highway 401 by chance. It is highly improbable that he went the wrong way and then by chance overtook the same car that his passenger had just been shooting at. It is also highly improbable that after the shooting of the white Porsche moments earlier, Mr. Sparks did not notice a white Porsche on the highway travelling slowly because of damage until he was overtaking the car. I do not accept that he did not notice the car until he was almost next to it. While I cannot make a finding about the motivation for the Café Atlantis shooting, I find that, at least on the highway, Mr. Sparks was a willing assistant to Mr. Weekes.

[90] Another aspect of the evidence of Mr. Sparks which is problematic is his insistence that he did not recall receiving a gun from Denzell Desmond a short time before the shooting. I do not accept Mr. Sparks’ evidence on this point. I find that there was an exchange between Mr. Sparks and Mr. Desmond behind the Brass Rail and that the exchange was the handing over of a gun. I do not accept Mr. Sparks’ evidence that he did not recall the exchange. Mr. Sparks was clearly unwilling to say anything in his evidence that would incriminate one of his friends. He incriminated only Mr. Weekes who is now deceased. I accept that Mr. Sparks was somewhat intoxicated the night of the shooting, but I do not accept that he has no memory of the exchange with Mr. Desmond. I find that Mr. Desmond retrieved the gun from the car and handed it to Mr. Sparks in the parking lot of the Brass Rail.

[91] The aspect of Mr. Sparks’ testimony that is central to my determination of the issues in this case is his account of the actual shooting of Charles Shillingford. I have approached this part of his testimony with caution in light of his lack of credibility on aspects of the August 9, 2015 Café Atlantis shooting and his lack of credibility with respect to the exchange of the gun in the parking lot.

[92] I have also kept in mind Mr. Sparks’ criminal record. That record includes Youth Criminal Justice findings for offences against the administration of justice and one adult fail to comply conviction. Most convictions, however, are either dated or have little impact on credibility.

[93] I have also assessed Mr. Sparks’ version of the events leading to the shooting in light of his evidence that he was intoxicated by drugs and alcohol. I accept that Mr. Sparks consumed a considerable amount of alcohol on the night and morning leading up to the shooting. He can be seen drinking fairly steadily over the time that he is at the Brass Rail. He is not visibly staggering in the video, but it does provide some support for his evidence that he consumed alcohol and that he accompanied Mr. Desmond to the washroom to consume cocaine.

[94] With those observations in mind, I turn to my findings of fact with respect to the shooting outside the Brass Rail.

[95] I find that Mr. Sparks was in possession of a gun after receiving it from Denzell Desmond in the parking lot of the Brass Rail at 2:10:30 a.m. He and his three companions then stood near the Charles Street entrance to the Green P parking garage until the interaction with Cynthia Todorovski which began at about 2:14 a.m. and ended at about 2:17 a.m.

[96] The Crown submits that given the history of conflict between Mr. Sparks and Mr. Shillingford and the fact that they frequented the same establishments, it is highly unlikely that the encounter between Mr. Sparks and Ms. Todorovski on October 31, 2015 at the Green P parking garage near the Brass Rail occurred by chance. The Crown argues that I should reject Mr. Sparks’ evidence with respect to this encounter and that I should find that Mr. Sparks was seeking out Ms. Todorovski in order to find Mr. Shillingford.

[97] While I agree that it is implausible that the encounter with Ms. Todorovski occurred by chance, I cannot make the finding that the encounter was engineered by Mr. Sparks.

[98] It is apparent from the Brookers Lane shooting that Mr. Shillingford had information about Mr. Sparks. Mr. Sparks’ evidence that Ms. Todorovski called his nickname as she passed him is plausible and it is consistent with the history between Mr. Sparks and Mr. Shillingford.

[99] Ms. Todorovski’s actions in leaving the Brass Rail, heading north and then east and circling back past Mr. Sparks before the encounter also support the inference that the encounter was initiated by Ms. Todorovski. The telephone records support the inference that Ms. Todorovski and Mr. Shillingford communicated at a time that would be consistent with Mr. Shillingford being alerted to the presence of Mr. Sparks. The telephone call between Mr. Shillingford and Ms. Todorovski, that began when Ms. Todorovski encountered Mr. Sparks and Mr. Richardson, was connected through the interaction between Ms. Todorovski and the two men.

[100] A Chrysler 300 was stopped near the Green P parking garage during the encounter between Ms. Todorovski, Mr. Sparks and Mr. Richardson.

[101] After the interaction with Ms. Todorovski, Mr. Sparks and his three companions remained near the entrance to the Green P parking garage and near the Brass Rail parking lot until around 2:18 a.m. A Chrysler 300 was stopped near the same area. In light of the subsequent path of the Chrysler 300 driven by Charles Shillingford and the cell tower records for Mr. Shillingford’s phone, I find that Charles Shillingford was the driver of the Chrysler 300 on Charles Street.

[102] Mr. Shillingford left the area of the Brass Rail parking lot at about 2:19 a.m. The Chrysler was driving north on Yonge Street at 2:19:34 a.m.

[103] The Buick Regal, driven by Mitchel Mannette and carrying Mr. Sparks, Mr. Richardson and Mr. Desmond, followed the same path as that travelled by Mr. Shillingford: west on Charles Street and then north on Yonge Street. I do not find that the Buick was attempting to follow the Chrysler 300. By the time the Buick turned north onto Yonge Street, the Chrysler was already traveling south. It is not clear why the Buick would go north and then east in order to travel to the west end of the city, but Mr. Sparks was not the driver and I can make no finding as to why Mr. Mannette chose that route.

[104] As noted in my review of the undisputed facts, it appears from the video surveillance that Mr. Shillingford made two U-turns on Yonge Street and then ended up following the Buick Regal. The Buick Regal turned right from Yonge Street onto Hayden Street. The Chrysler 300 followed and made the same turn about 20 seconds later. By the time the two cars were travelling south in the driveway of 35 Hayden Street, Mr. Shillingford’s Chrysler 300 had overtaken the Buick Regal.

[105] I have difficulty accepting that Mr. Shillingford made the two U-turns on Yonge Street and ended up behind the Buick by coincidence. It seems probable that Mr. Shillingford was aware of the presence of Mr. Sparks and his friends and was driving in the manner he was driving because of their presence. It is possible that he left the area and made the U-turns to avoid encountering Mr. Sparks and his companions and then overtook them on Hayden Street inadvertently. It is also possible that he did so deliberately. What is unlikely in my view is that Mr. Manette or the others in the Buick somehow knew that Mr. Shillingford would travel south, then north, then east onto Hayden Street and that Mr. Manette therefore turned onto Hayden Street, pulled over and waited to follow the Chrysler.

[106] I accept the evidence of Mr. Sparks that the Buick was overtaken by the Chrysler. I find that this had to have occurred on Hayden Street. The Buick was ahead of the Chrysler when they turned onto Hayden Street and the Buick was behind the Chrysler when they both drove south along the driveway between Hayden and Charles Streets.

[107] While I find it suspicious that Mr. Sparks’ car ended up following Mr. Shillingford, the man who shot at Mr. Sparks 26 days earlier, I cannot conclude that this occurred because of any plan or maneuver by Mr. Sparks. I am not able to find that Mr. Sparks knew the identity of the man in the Chrysler. It would be speculative to conclude that Mr. Sparks became aware of the identity of the driver and then lay in wait on Hayden Street, knowing that Mr. Shillingford would pass by and could then be followed. Mr. Sparks’ explanation, that the car cut them off, is supported by the evidence of Mr. Shillingford’s aggressive driving on Yonge Street and by the fact that the Chrysler had to have overtaken the Buick on Hayden Street.

[108] It is not disputed that Mr. Shillingford pulled over to the north side of Charles Street after he drove through the driveway at 35 Hayden Street. I accept Mr. Sparks’ evidence that the car driven by Mitchel Mannette pulled up some distance behind the Chrysler. The distance was described as about 10 feet behind the Chrysler.

[109] The account given by Mr. Sparks, that he stepped out of his car only briefly and did not approach Mr. Shillingford’s car, is not consistent with the evidence of the two witnesses Christopher Szybalski and Matthew Stewart. Mr. Sparks insisted that he did not move past the rear passenger door of the Buick when he shot Mr. Shillingford. Both Mr. Szybalski and Mr. Stewart testified that, after hearing three gunshots, they saw a man generally matching Mr. Sparks’ description in the middle of the street, turning from an area near the driver’s door of a dark sedan and tucking his gun in his waistband or front pocket as he moved eastbound on Charles Street. Neither man could define precisely what was meant by the ‘middle’ of the street. They saw the dark sedan drive away. Mr. Szybalski initially said that he saw the man pointing the gun at the driver’s side door and then turning. He admitted in cross-examination that, with respect to this aspect of his testimony, he had not made the observation but was “piecing things together”.

[110] In considering the evidence of Mr. Szybalski and Mr. Stewart I have instructed myself on the inherent dangers of eyewitness testimony. I found both witnesses to be sincere and honest. Both said that they avoided looking at the man with the gun as they walked closer to him because they did not want to attract his attention. Neither man would have had more than a few seconds to make observations. Both had consumed some alcohol earlier in the evening. The events occurred very quickly.

[111] Mr. Szybalski conceded that because of the speed of the events and the conditions of his observations, he could have been mistaken. Mr. Szybalski agreed that the man in the first car that sped off could have been out of his car before Mr. Szybalski made his observations. Mr. Stewart could not say with certainty how far the man with gun was from the car. He could not attest with certainty to the sequence of events.

[112] Neither man saw what happened before the shots were fired or as they were fired. Their observations after the shots were fired were made from a distance and at night. They both deliberately looked away as they got closer to the area. In light of the conditions under which these witnesses made their observations, I cannot rely on their evidence to find that Mr. Sparks approached Mr. Shillingford’s car before firing his gun.

[113] I have considered the evidence of the timing of the shots and the departure of the cars. I have also considered the evidence of the location of the wounds to Mr. Shillingford and the trajectory of the bullet recovered from the Chrysler 300.

[114] The wound paths provide little assistance with respect to the location of Mr. Sparks or Mr. Shillingford at the time of the shooting. The wound paths support the inference that Mr. Shillingford raised his left arm and turned just before the shots were fired. This could have occurred inside or outside the car. Regardless of whether Mr. Shillingford was inside the car or out, he would have had to contort his body to be struck by the bullets in the manner that the wound paths suggest.

[115] The bullet that entered through the C-pillar of the Chrysler was fired from behind the car. This could have occurred if the initial two shots were fired through the window, wounding Mr. Shillingford, and Mr. Shillingford then drove away with the last shot fired at the car as it left. It could also have occurred if all three shots were fired from behind the Chrysler while Mr. Shillingford was outside the driver’s door. The evidence of the location and trajectory of the bullet is not inconsistent with Mr. Sparks’ account of the shooting.

[116] The Crown argues that the timing of the Chrysler 300 driving away immediately after the shots were fired is not consistent with Mr. Sparks’ account. It would take some amount of time for Mr. Shillingford to re-enter his car, put it in drive and leave after the shots were fired. Mr. Mayaki’s evidence is that the car went through the intersection seconds after Mr. Mayaki heard the shots. Mr. Stewart and Mr. Szybalski also testified that the car drove away quickly after the shots. This evidence of the speed of Mr. Shillingford’s departure was a subjective assessment by the witnesses.

[117] I cannot find that the reliable evidence of timing is inconsistent with Mr. Sparks’ account. The shooting likely occurred at around 2:22:40 based on the reactions of the people in the Green P pay station. The Chrysler went through the intersection just before 2:22:57. This allowed approximately 10- 15 seconds for Mr. Shillingford to re-enter his car and drive away. I cannot say that this was an insufficient period of time for Mr. Shillingford to re-enter his car and drive away.

[118] The Crown has also argued that I should reject Mr. Sparks’ version of events because Mr. Shillingford’s gun was found in the inner zipped pocket of his down vest. It is argued that this is inconsistent with Mr. Sparks’ evidence that Mr. Shillingford had his gun drawn and pointed at Mr. Sparks before Mr. Sparks shot him. The Crown argues that it makes no sense that a person who has just been shot and is trying to escape his assailant would be concerned with putting away his gun and zipping the pocket.

[119] I agree that it is logical that a person who has been shot would use his strength to escape and to get help — not to conceal his own gun. However, I am of the view that it would be dangerous for me to base findings of fact on assumptions about what a person would or would not do after being shot and fleeing from the person who shot them. That is particularly true in this case. In August, after the Café Atlantis shooting, Mr. Shillingford drove away from the shooting. He managed to drive onto the highway, evade a further attack, find his telephone and call his girlfriend. On his instructions, his girlfriend connected him with his brother. He did not call for police or for medical attention but directed his brother to his location and travelled to the hospital with his brother. There is an available inference that on that occasion, Mr. Shillingford did not call the police or the ambulance because he needed first to conceal evidence of his own illegal activity.

[120] After being shot outside the Brass Rail, Mr. Shillingford again drove away. His girlfriend, Ms. Todorovski, called him either just before or just after the shooting and the two were connected by telephone as he drove. Ms. Todorovski ran south on Yonge Street to College Street, suggesting that Mr. Shillingford communicated his location to her. In the circumstances, I cannot conclude that Mr. Shillingford would not have put his gun away after being shot and driving away. It is an available inference that Mr. Shillingford could have taken steps to conceal his gun, not realizing the seriousness of his wounds.

[121] Mr. Sparks’ post-offence conduct in allowing Mr. Mannette to take his girlfriend’s car and then going with Mr. Weekes to a location where they got rid of the gun he used, is of little assistance in this case. Mr. Sparks had been in possession of an illegal firearm and had used it. His conduct in arranging to dispose of evidence has little probative value on the issue of self-defence.

[122] I have outlined the central areas of Mr. Sparks’ account of events and my assessment of the credibility and reliability of his evidence in the context of the whole of the evidence. As I have indicated, there are areas of Mr. Sparks’ evidence that I reject. In particular, I reject his evidence that he played no part in the Café Atlantis incident and I reject his evidence with respect to the transfer of the gun on October 31st. However, having considered all of the evidence, Mr. Sparks’ testimony raises a reasonable doubt on the issue of whether Mr. Sparks faced the threat of force from Mr. Shillingford, that is, that Mr. Shillingford pointed a gun at Mr. Sparks and uttered threatening words that caused him to reasonably believe that Mr. Shillingford would shoot him.

[123] I do not find that the evidence of the eyewitnesses should cause me to reject the evidence of Mr. Sparks with respect to the shooting in light of the frailties of their evidence. Nor do I find the evidence of timing, wound paths or trajectory to be inconsistent with Mr. Sparks’ account.

[124] Mr. Shillingford’s history of animus against Mr. Sparks is supportive of Mr. Sparks’ account, as is the fact that Mr. Shillingford was armed.

[125] The evidence of Ms. Todorovski approaching Mr. Sparks and being connected by telephone to Mr. Shillingford during the encounter further supports Mr. Sparks’ account.

[126] The evidence of the path taken by Mr. Sparks’ vehicle and Mr. Shillingford’s vehicle prior to the shooting is consistent with the account of Mr. Sparks.

[127] In light of my conclusion that Mr. Sparks’ evidence raises a reasonable doubt on the question of whether he faced the threat of being shot by Mr. Shillingford, the Crown has not disproven the first element of self-defence beyond a reasonable doubt.

[128] The second element of self-defence relates to the motive or purpose of Mr. Sparks when he shot Mr. Shillingford. Mr. Sparks’ purpose when he left the car, was to scare the other driver with his gun. His purpose was offensive and not defensive. However, at the point that he fired the gun, his purpose was defensive. The Crown has conceded that if I have a reasonable doubt that Mr. Sparks was facing a threat with a gun, the second element of self-defence would not be disproven.

2. Has the Crown proven beyond a reasonable doubt that Mr. Sparks' act of shooting Mr. Shillingford was not reasonable in the circumstances?

[129] I will now turn to the third element of self-defence: Has the Crown proven beyond a reasonable doubt that the act of shooting Mr. Shillingford was not reasonable in the circumstances?

[130] The Crown argues that even if events unfolded as described by Mr. Sparks, the act of shooting Mr. Shillingford was not reasonable in the circumstances.

[131] The relevant subparagraphs of subsection 34(2) of the Criminal Code state that:

(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…

[132] The nature of the threat in this case was the threat of lethal force.

[133] The harm was imminent as the two men faced each other, each with a loaded gun. The Crown argues that Mr. Sparks could have retreated by jumping back into the car when he saw the gun. Mr. Sparks conceded in his testimony that he could have done so.

[134] I have considered whether there were other means available to Mr. Sparks to respond to the threat of force, including the opportunity to retreat. On the facts in this case, I find that even if Mr. Sparks had re-entered the car, it would not have prevented Mr. Shillingford from shooting at the car and its occupants. Moreover, the events unfolded extremely quickly, and Mr. Sparks made a split-second decision. An accused person cannot be expected to weigh perfectly all the available options in the heat of the moment. R. v. Cunha, 2016 ONCA 491

[135] The factors enumerated in subparagraphs (d) and (e), the use of a weapon and the respective physical capabilities of Mr. Sparks and Mr. Shillingford are neutral in this case. Both men had guns and there was no significant disparity between them with respect to their physical capabilities. Any disparity in physical capabilities would not, in any event, be a significant factor in light of the fact that both men held loaded guns.

[136] Given my conclusion, that Mr. Sparks was not aware of the identity of Mr. Shillingford when the shooting occurred, the factors set out in subparagraphs (f) and (f.1) relating to the history between the parties are not relevant.

[137] The factor set out in subparagraph (g), with respect to the nature and proportionality of the response, favours Mr. Sparks in light of the finding that he used lethal force when he faced the threat of lethal force.

[138] I will now address the factor set out in subparagraph (c): Mr. Sparks’ role in the incident. This is a factor that was introduced by Parliament in the most recent self-defence provisions.

[139] Our Court of Appeal considered the meaning of this factor in R. v. Khill, 2020 ONCA 151. At paras. 75-76 of Khill, Doherty J.A. observed:

75 Section 34(2)(c) introduced a factor into the reasonableness inquiry that had no equivalent under the previous legislation. The court is required to examine the accused's behaviour throughout the ‘incident’ that gives rise to the ‘act’ that is the subject matter of the charge. The conduct of the accused during the incident may colour the reasonableness of the ultimate act. Placed in the context of the evidence in this case, Mr. Khill's behaviour from the moment he looked out his bedroom window and saw that the dash lights in his truck were on, until the moment he shot and killed Mr. Styres, had to be examined when assessing the ultimate reasonableness of the shooting.

76 Section 34(2)(c) renders an accused's conduct during the ‘incident’ relevant, even though the conduct is not unlawful or provocative as that word was defined in the prior self-defence provisions. The court must consider whether the accused's behaviour throughout the incident sheds light on the nature and extent of the accused's responsibility for the final confrontation that culminated in the act giving rise to the charge. It is for the trier of fact, judge or jury, to decide the weight that should be given to the accused's behaviour throughout the incident when deciding the ultimate question of the reasonableness of the act giving rise to the charge: The New Defence Against Force, at pp. 290, 293-94.

[140] In R. v. Borden, 2017 NSCA 45, the Nova Scotia Court of Appeal stated that in response to the jury asking whether “the aggressor [can] use self-defence when he starts losing a fight and believes he is in danger” the judge ought to have replied “yes”. At para. 101, the Court went on to observe: If the jury took the view that the appellant had been the aggressor in the incident or had initially assaulted the complainant, they could consider that as a factor as to whether the appellant’s actions were reasonable under s. 34(2) (c)—the appellant’s role in the incident (see: R. v. Levy, supra at paras. 107-113; R. v. Bengy, 2015 ONCA 397 at paras. 45-48). In this way, a protection is hopefully present to prevent self-defence from becoming too ready a refuge for people who instigate violent encounters, but then seek to escape criminal liability when the encounter does not go as they hoped and they resort to use of a weapon.

[141] The role of the accused in the incident is therefore not limited to the role at the moment of the act of self-defence. The context is broader and encompasses the actions of the accused leading up to the confrontation.

[142] In this case, by stopping the car and leaving the car with the intent to threaten a stranger with a loaded illegal handgun, Mr. Sparks bears significant responsibility for bringing about the circumstances that led to his need to defend himself. Mr. Sparks’ role in this incident weighs against a finding of reasonableness. However, this is only one factor to be weighed in determining if the Crown has disproved reasonableness.

[143] In weighing all of the relevant circumstances in this case, while I have serious concerns about the role of the illegal conduct of Mr. Sparks that contributed to the incident, I am not able to conclude beyond a reasonable doubt that his act of shooting Mr. Shillingford was unreasonable. I reach this conclusion because the threat that Mr. Sparks faced at the point that he pulled the trigger of his gun was the threat of death. Although he bears considerable responsibility for entering into the confrontation, I cannot conclude, given all of the other circumstances, and in particular the nature and imminence of the threat, that his response was unreasonable. I cannot conclude that he should have risked death because of his role in putting himself in the situation.

[144] Parliament has not denied access to the defence of self-defence to a person who breaks the law or conducts themselves in a dangerous manner. The role of Mr. Sparks in this case is a factor that weighs against the defence but, in light of the other factors, does not lead me to conclude beyond a reasonable doubt that his act of shooting Mr. Shillingford was unreasonable.

Conclusion

[145] For these reasons, I have concluded that the Crown has not disproven self-defence beyond a reasonable doubt. As a result, I must find Mr. Sparks not guilty.

M. Forestell J. Released: January 7, 2021