Court File and Parties

Case File No: 12-30000305 Date: 2021-03-05 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Nicholas Walker

Counsel: Maureen Pecknold and Kathleen Farrell, for the Crown Monte MacGregor and Nader R. Hasan, for Nicholas Walker

Reasons for Judgment

MacDonnell, J.

[1] The defendant Nicholas Walker is charged that he did, on or about the 28th day of March 2011, commit the first degree murder of Clifenton Ford. He was tried by a jury on that charge in 2014, and a verdict was rendered, but in 2019 the Court of Appeal ordered a retrial. Pursuant to s. 473(1) of the Criminal Code, both the Attorney General and the defendant have consented to the retrial proceeding before me without a jury. The defendant is before the court today for verdict.

I. Overview of the Positions of the Parties

[2] At 2:13 a.m. on Monday, March 28, 2011, 38-year-old Clifenton Ford walked through the front door of G’s Chill & Grill, a restaurant that catered to the GTA Caribbean community, made his way through the crowd, took up a position in the middle of the bar located toward the rear of the premises, and ordered a drink. Sixteen minutes later, at 2:29 a.m., while Mr. Ford was standing at the bar, surveying the crowd, a lone gunman opened fire on him from his left with a 9 mm semiautomatic pistol. The first shot struck Mr. Ford on the left side of the head, in the area of his left ear. Mr. Ford collapsed to the floor in front of the bar, where the gunman, still standing to Mr. Ford’s left, fired five more shots into him before calmly walking away and exiting by way of the front door.

[3] The allegation of the Crown is that the shooter was the defendant and that the shooting was the upshot of acrimony that had been simmering for several months. The Crown alleges that the defendant had arrived at G’s Chill & Grill at 1:33 a.m., about 40 minutes earlier than Mr. Ford. When the defendant saw Mr. Ford come in, he abruptly walked out of the restaurant, ran across the parking lot to his car, and then, 90 seconds later, returned and proceeded directly to a stairwell that was perhaps 10 to 15 feet to the side and rear of where Mr. Ford was standing. According to the Crown, the defendant had gone to his car to get his gun, and he went into the stairwell, an area that was off-limits to the customers of the restaurant, because it provided him with privacy as he loaded and prepared the gun for firing. The defendant then secreted the gun inside his jacket, left the stairwell, went to the corner of the bar, 5 or 6 feet to the left of Mr. Ford, and poured himself a glass of Hennessey Cognac and cranberry juice. Approximately 7½ minutes later, the Crown alleges, the defendant opened fire on Mr. Ford, causing his death.

[4] The position of the Crown is that the killing of Mr. Ford was not only murder, it was planned and deliberate murder. The plan had been formed, the Crown says, by the time the defendant ran across the parking lot to get his gun, which was 12 minutes before the shooting began. The Crown submits that those 12 minutes afforded the defendant ample time to deliberate the killing before the shooting commenced.

[5] The defence submits that the primary issue in this case is identification and that the evidence relied on by the Crown on that issue falls far short of proof beyond a reasonable doubt. The defence does not dispute that the defendant was present at G’s Chill & Grill in the hour leading up to the shooting. However, the defence argues, the Crown has not proven that he was the shooter or that he participated in the shooting. Nor has the Crown proven that the defendant was the person who left the restaurant and ran across the parking lot and then returned, or the person who proceeded into the stairwell shortly before the shooting. The defence further submits that if the court were to find that the defendant was the shooter, and that he committed murder, the evidence does not prove that it was a planned and deliberate murder.

[6] In support of its position that the shooting of Mr. Ford was a planned and deliberate murder and that the defendant was the shooter, the Crown relies on a body of circumstantial evidence:

(i) evidence of prior acrimony between the defendant and Mr. Ford.

(ii) video footage that, the Crown says, establishes that less than three minutes after Mr. Ford arrived at the restaurant, the shooter exited, raced across the parking lot, returned 90 seconds later, and proceeded directly into the rear stairwell where he manipulated a handheld object in front of his body in a manner consistent with loading a gun.

(iii) evidence from Lester Coore, a friend of both the defendant and Mr. Ford, that the person seen in the stairwell video footage is the defendant.

(iv) evidence placing the defendant at the corner of the bar counter, 5 or 6 feet to the left of Mr. Ford, shortly before the first shot was fired.

(v) evidence that a partially full drinking glass, with the defendant’s fingerprint on the side and his DNA on the rim, was placed on the bar counter a foot or two to Mr. Ford’s left five seconds before the first shot was fired.

(vi) evidence from Clinton Hall, a long-time acquaintance of the defendant, who testified that he believed the shooter to be the defendant after viewing the footage of the shooter captured by one of the security cameras.

(vii) evidence of the conduct of the defendant in the ten days after the shooting.

[7] The defendant did not testify, nor did he call evidence in his defence.

II. The Scene of the Shooting

[8] G’s Chill and Grill was located on the main floor of a building in a strip mall along the north side of Eglinton Avenue East in Scarborough. A sketch of the interior is attached to these reasons as Appendix A. There were two entrances to the premises. The public entrance was from the parking lot to the south. A second entrance, which was not meant for public use, afforded access from a lower level on the north side by way of a rear stairwell.

[9] The interior of the restaurant was rectangular. The southern three-quarters constituted the public area. To the north of the public area was the bar, which ran across the premises from the west wall. Behind the bar was the kitchen. The rear stairwell was on the east side of the kitchen. It consisted of a short hallway leading away from an open area on the east side of the bar to a set of stairs that descended along the east wall to a landing in front of the rear entrance door. To the west of the landing was a further set of stairs down to a storage area and the apartment of the owner of the restaurant, Clinton Hall. The stairwell was accessible from the restaurant through the open area to the east of the bar, but it was considered to be off-limits for customers.

[10] On the morning of the shooting, there were three functioning security cameras within the restaurant. For the most part, it would be fair to describe the video footage they provided as grainy. Because they were infrared cameras, the color range of the footage is limited to shades of black, white and grey. Those shades do not always provide an accurate sense of what the human eye would perceive the true colors to be.

[11] Camera 1 faced west from inside and above the entrance to the service area of the bar. It captured the service area itself, perhaps three quarters of the surface of the bar counter, and customers standing or sitting at the west half of the bar. Anyone at the eastern half of the bar counter was outside Camera 1’s field of view. At the time he was struck by the first gunshot, Mr. Ford was standing at about the middle of the bar counter, facing south. The footage from Camera 1 captured the muzzle flash of the gun, and a view of Mr. Ford’s left side, but because the shooter was to Mr. Ford’s left, to the east, neither the shooter nor his gun were visible.

[12] Camera 2 faced south-east from above the north-west corner of the bar counter. It captured most but not all of the public area of the restaurant south of the bar. Importantly, it did not capture the area immediately in front of the bar, which was more or less directly below the camera, nor the open area on the east side of the bar, south of the entrance to the stairwell. It also did not capture part of the public area on the east side of the restaurant south of the open area. Throughout the trial, the parties have referred to those areas of the restaurant as being in “the blind spot”. I will be making repeated reference to the blind spot in these reasons.

[13] Because Mr. Ford was immediately in front of the bar when he was shot – both before and after he fell to the floor – no images of him were captured by Camera 2. When the first shot was fired, the shooter was also within the blind spot, but as he continued to shoot at Mr. Ford he moved out of the blind spot into the field of view of Camera 2.

[14] The third security camera, Camera 4, was inside the rear stairwell, above the doorway into the open area beside the bar. It faced north and captured a few feet of the short hallway leading from the area beside the bar to the top of the stairs, the stairs themselves, the landing at the foot of the stairs, and the rear exit door. The video footage from Camera 4 shows that at 2:21 a.m., eight minutes prior to the shooting, a male entered the stairwell with his back to the camera and began to use both hands to manipulate an object in front of his body. The Crown alleges that this person was the shooter and that the object he was manipulating was his gun.

[15] There was one additional security camera that provided some of the video footage for this trial. It was located outside the restaurant and appears to have been mounted on the side of one of the businesses to the west of the restaurant. It faced to the east and captured the area immediately in front of the restaurant, including a portion of the parking lot.

III. The Evidence

[16] I turn now to a discussion of the evidence that the Crown relies on in support of its allegation that the defendant is guilty of the first degree murder of Mr. Ford.

(a) The recognition evidence of Clinton Hall

[17] Clinton Hall had testified at the first trial of this matter and he was subpoenaed by the Crown for the retrial. When he failed to respond to the subpoena, a material witness warrant was issued, but Mr. Hall could not be found. On consent, the audio recording of his testimony from the first trial, together with a transcript, were received as part of the evidence in this trial.

[18] Mr. Hall was the only witness to identify the defendant as the shooter. He did so on the basis of a purported recognition of the defendant as the person who can be seen on the Camera 2 video footage firing at the victim and then walking out the front door of the restaurant. He also testified to a recognition of the defendant at four other points on the Camera 2 footage prior to the shooting.

[19] The Crown has characterized the opinions that Mr. Hall provided as ‘positive identifications’. If by positive the Crown meant ‘favorable to the prosecution’, the characterization might be accurate, but positive can also mean ‘certain’ and Mr. Hall was manifestly not certain about any of his recognition opinions.

[20] With respect to the critical footage of the shooting from Camera 2, the essence of Mr. Hall’s testimony was ‘it looks like the defendant but I’m not sure it’s him, it may or may not be him’. His opinion was not materially stronger in relation to any of the four other instances where he said he recognized the defendant. At no point was he able to identify any particular feature of the defendant’s appearance that assisted him. Apart from generic references to clothing, his opinions amounted to bare assertions that the person he was looking at was the defendant. At the end of cross-examination, he agreed with the suggestion that “there are a lot of people there that look alike, and that’s why… that’s why it’s virtually impossible for you to identify Nicholas Walker”.

[21] Mr. Hall had known the defendant for many years. Based on that prior acquaintance he was in a better position than I am to form an opinion with respect to whether the defendant appears in the video footage. It was on that basis that I ruled that the test for the admissibility of his opinion was met. In making that ruling, I noted that his opinion that the defendant ‘looked like’ the shooter was capable of being of assistance in the ultimate determination of the issue of identity. I did not decide whether it should be given weight in making that determination.

[22] A bare conclusory opinion of a person long and closely familiar with a defendant that he recognizes the defendant in video footage of a crime in progress may have substantial value, even where the witness cannot articulate the particular features or idiosyncrasies that underlie the recognition: R. v. Behre, 2012 ONCA 716, at paragraph 22. However, an inability to go beyond a bare assertion will be relevant to a determination of the ultimate reliability of the witness’s opinion: see, e.g., R. v. M.B., 2017 ONCA 653, at paragraph 47. Generally speaking, the inability will have greater significance where, as here, the quality of the video footage is imperfect.

[23] The inability of Mr. Hall to point to particular features of the defendant’s appearance that informed his recognition of him is not the only concern with his opinions. At one point during the preliminary inquiry, when he was shown a portion of the Camera 4 footage of himself going down the rear stairs, Mr. Hall misidentified himself as the defendant. At another point, he misidentified a male who went down to the lower landing to speak to Mr. Coore as the defendant.

[24] More significantly, at trial Mr. Hall allowed that there were four different persons in the Camera 2 video footage who could be the defendant. One person, of course, was the shooter, who, Mr. Hall said, ‘looked like’ the defendant. A second person was someone who appeared in multiple clips and who has been referred to as the ‘man in plaid’, based on his distinctive shirt. Mr. Hall’s opinion as to whether this person was the defendant ran the gamut from ‘don’t think so’, to ‘nearly looks like him, but I’m not sure’, to ‘it looks like him, but I’m not 100 percent.’ A third person on whom Mr. Hall was asked to focus was a male who arrived at 1:33:40 a.m. and who could be seen moving away from the vicinity of the shooting right after it occurred, at 2:29:03 a.m. With respect to the footage at those two points, Mr. Hall’s evidence, slightly paraphrased, included ‘it nearly looks like the defendant’, ‘I’m not sure’, and ‘it could be him’. Mr. Hall also thought, at least initially, that a fourth person might be the defendant, a male with a hoodie who was part of a group of four individuals who left the blind spot at the east side of the bar after the shooter departed.

[25] Mr. Hall’s opinion that the defendant was the shooter was pitched at a higher level than his opinion with respect to whether he might be one of the other three persons, but the difference in his certainty was merely a matter of degree. In addition, as I have said, at the preliminary inquiry he added another person who, in his opinion, could be the defendant – the person who went down to the lower landing to speak to Lester Coore.

[26] Based on his prior acquaintance with the defendant, Mr. Hall was in a better position than I am to recognize him in the video footage, and I approach his evidence on that basis. But in light of (i) the manifest uncertainty in his opinion that the defendant was the shooter; (ii) the fact that at the time of trial he thought that not only the shooter but three other people in the video footage might be the defendant; (iii) the fact that prior to the trial he had also thought that two others might be the defendant; (iv) his inability to articulate any particular feature of the defendant that helped him say that the defendant was shooter; and (v) the imperfect quality of the video footage, I conclude that it would be dangerous to place any weight on the recognition opinions of Mr. Hall. Accordingly, I set those opinions aside in their entirety.

(b) The after the fact conduct

[27] The shooting occurred in the early morning hours of Monday March 28, 2011 in Scarborough. The defendant was arrested ten days later, on April 7, 2011, in Pickering. The Crown submits that the defendant’s conduct in the interval between those dates constitutes circumstantial evidence that he was the shooter. In this respect, they submit that he engaged in the following conduct:

(i) in the hours after the shooting, he was ‘laying low’, unable to be reached by his girlfriend, Niquae Bailey.

(ii) although he had been present at the time of the shooting, he initially made no mention of it to Ms Bailey; when she asked him about it, after seeing a news release naming him as a suspect, he denied involvement but said nothing further.

(iii) he purchased new clothing in the week following the shooting.

(iv) he disguised his usual appearance (a short, almost bald hairstyle) with a dreadlock wig and hat and large sunglasses; on the day of his arrest, he was observed putting the wig on just prior to exiting a car to enter a public place.

[28] The Crown submits that “as a matter of common sense and human experience, these behaviours, taken individually and cumulatively, are consistent only with the conduct of someone who was conscious of his participation in the offence being investigated.”

[29] In my opinion, the inferences that the Crown urges the court to draw from the defendant’s conduct following the shooting cannot be supported on a fair and reasonable reading of the evidence.

(i) Laying low

[30] The sole basis for the allegation that the defendant was ‘laying low’ in the hours following the shooting is Ms. Bailey’s testimony that for most of March 28 she was unable to contact him to arrange for the return of a rental car. The Crown submits that it was out of character for him not to be available and that he had no explanation for being out of touch. The Crown further submits that although the defendant and Ms Bailey normally saw each other daily, they did not get together on this day.

[31] It is true that Ms. Bailey and the defendant saw each other regularly, but they did not live together and what evidence there is about their relationship falls short of suggesting that it was out of character for him to be out of touch for a few hours. Ms. Bailey never said that it was. Further, there is no evidence that he had no explanation – Ms. Bailey was never asked anything about that. In addition, her evidence was not that they did not see each other on March 28 – she said that she did not recall whether they did or did not. She testified that they did speak later in the day on March 28, but as the rental agency had by then closed, they took the car back the following day.

(ii) The failure to mention the shooting to Ms. Bailey

[32] The Crown submits that as a matter of common sense and experience, the reaction of an innocent bystander to a traumatic event, such as a shooting, would be to talk about it with someone close. The defendant did not share any information about the shooting with Ms. Bailey before or after she confronted him with a news release naming him as a suspect. The Crown submits that “the only reasonable inference available is that Mr. Walker failed to tell a very close person in his life about the shooting because he was conscious of his involvement and did not want her to suspect him or turn him in.”

[33] I accept that the reaction of many innocent bystanders to a shooting would be to confide in those close to them. I do not accept, however, that a failure to confide falls outside a ‘normal’ range of reaction to such a situation. There is virtually no evidence about the extent to which the defendant and Ms. Bailey normally shared their life experiences, and no basis upon which an inference might be drawn that the defendant’s failure to talk about the shooting was, for them, usual or unusual.

(iii) The purchase of clothing

[34] There is evidence that in the days following the shooting the defendant purchased clothing. The Crown submits that “the clothing he purchased was both non-descript, unlikely to attract attention, and different from the clothing he wore at G’s Chill and Grill on March 28”. The Crown says that the only reasonable inference is that the defendant bought the new clothing because he was conscious of his involvement in the death of Mr. Ford. The Crown also points to clothing found in the trunk of Ms. Bailey’s car that is said to resemble clothing worn by the shooter at the time of the shooting.

[35] There was nothing unusual about the shooter’s style of dress. Indeed, one of the difficulties for the Crown in this case is that so many persons who were at the restaurant at the material time were dressed in a similar fashion. In addition, the video footage does not permit an opinion as to whether the clothing purchased by the defendant was different in style from the clothing worn by the shooter. The assumption underlying the Crown’s submission seems to be that the defendant’s wardrobe was so limited that if he were deprived of what he was wearing on March 28, he would have had nothing left to wear. There is no basis for such an assumption.

(iv) The wig and sunglasses

[36] There is more force in the Crown’s submission concerning the dreadlock wig and large sunglasses that the defendant was wearing at the time of his arrest. I accept that wearing those items had the effect of disguising his usual appearance. However, whether that supports an inference of awareness of involvement in the March 28 shooting depends to a large extent on whether the defendant only began wearing those items after the shooting.

[37] The only evidence with respect to timing came from Ms. Bailey. In examination in chief, she said that she believed that the defendant started wearing the wig in the week before his arrest, maybe a couple of days before. In cross-examination, however, she agreed that it may have been a month earlier. The Crown submits that I should accept what Ms. Bailey said in examination in chief and reject what she said in cross-examination. It is open to me to do that, but apart from the fact that the answers Ms Bailey gave in cross-examination were unhelpful to the Crown I see no basis upon which I should do so.

[38] There is no evidence with respect to the sunglasses other than the testimony of the officers who were surveilling the defendant that he was wearing them while driving, just prior to his arrest. There is no evidence as to whether he had worn them before the shooting, nor, if so, how often. Immediately before his arrest he had been driving a woman’s car in a westerly direction on a late April afternoon. In those circumstances, wearing sunglasses, even if they were a woman’s sunglasses, would not be unusual per se.

[39] I have addressed the items of after the fact conduct pointed to by the Crown individually, but I appreciate that, as with all circumstantial evidence, after the fact conduct is to be considered cumulatively and as a whole and in light of all of the evidence in the case. Only after approaching it in that way can a determination be made as to what the conduct shows.

[40] Included in ‘all the evidence’ in this case is evidence that in the week leading up to his arrest the defendant’s relationship with Ms. Bailey continued in the same manner as it had before. He borrowed her car and picked her up at work just as he had prior to the shooting. He continued to accompany her when she took her son to day care. They went to the movies together and they took the children swimming on a Saturday. She said that there was nothing out of the ordinary in the defendant’s actions and that she had no sense that he was trying to evade, or hide, or be secretive from anyone. Further, his relationship with Ms. Bailey was not a secret. While he did not turn himself in after learning that the police were looking for him, neither did he make it difficult for them to find him.

[41] Evidence of a defendant’s after the fact conduct can only be used, along with other evidence, to support an inference of guilt if the trier of fact has rejected any other explanation for the conduct, considered as a whole. For the foregoing reasons, I cannot say that there is no other explanation. The suspicions raised by the conduct pointed to by the Crown are counterbalanced by the evidence that the defendant carried on with his life in public in the same manner as he had prior to the shooting. Accordingly, I do not draw any inference that assists the Crown in relation to the identity of the shooter from the defendant’s conduct subsequent to the shooting.

(c) Evidence of prior acrimony between the defendant and Mr. Ford

[42] The Crown alleges that at the time of the shooting there was bad blood between the defendant and Mr. Ford as a result of conflict between the defendant and Mr. Ford’s girlfriend Jonell Walker and, to a lesser extent, Jonell Walker’s mother. To put the allegation of acrimony between the defendant and Mr. Ford into context, I permitted evidence to be led in relation to what was said to have happened between the defendant and Ms. Walker.

[43] Ms Walker testified that the first interaction that she had with the defendant was in October 2010, about six months prior to the shooting. She and her mother were at a Scarborough bar, Little Ochie. She testified that the defendant was walking through the crowd and that she felt him grab her bottom as he passed behind her. She said that this made her angry and that she turned toward the defendant, who smiled at her as he kept walking. She told her mother what had happened, but nothing further came of this incident that night. When she next spoke to Mr. Ford, she did not tell him about it.

[44] Ms. Walker testified that the following weekend she and her mother went to another Scarborough bar and that the defendant was again present. She testified that her mother spoke to the defendant and told him to leave her daughter alone. She said that the defendant reacted angrily to this, but that nothing further developed. Once again, she did not tell Mr. Ford what had happened.

[45] On a subsequent occasion, Ms Walker and her mother attended a party at Little Ochie. Ms. Walker testified that at the end of the evening, while her mother was in the washroom, the defendant came up to her and asked why she had been spreading rumors that he had been touching her. She testified that his tone was aggressive, that he was yelling and swearing, and that he was up in her face. When she gestured for him to back up, he threw his drink at her. She said that she went after him, trying to hit him, and that in response he picked up some pool balls and started throwing them toward her. One of them accidentally hit her mother as she emerged from the washroom. She testified that “there was blood everywhere”.

[46] Ms. Walker testified that the morning after the pool ball incident, she talked to Mr. Ford for the first time about her issues with the defendant. She testified that what she told Mr. Ford made him upset.

[47] In itself, the conflict between the defendant and Jonell Walker and her mother is irrelevant. It does not matter whether the incidents Ms Walker described actually happened, nor, if they did, who was at fault. I make no finding one way or the other in that respect. What is relevant is the impact of what Ms. Walker told Mr. Ford on his relationship with the defendant. Further, regardless of who was at fault as between the defendant and Ms Walker, the issues between them were part of the context for a subsequent public confrontation between the defendant and Mr. Ford.

[48] Ms. Walker testified that one night in January 2011 she and Mr. Ford went a Scarborough restaurant, Clarendon Wildflower. She said that when they went up to the bar, she saw the defendant. She knew Mr. Ford as “Al”. She testified: “Al and I ordered our drinks, and I’m looking at Mr. Walker, and he’s staring at us with an evil look on his face, this angry look on his face… After we got our drinks, we were still kind of standing at the bar, and Al asked me if the guy was here” (referring to the defendant). “I told him yes, and he asked me to describe where he was and what he was wearing, just to describe who the guy was.” She told Mr. Ford where the defendant was standing and what he was wearing, but she did not point him out.

[49] She testified that the bar was getting crowded, and so after they got their drinks, she suggested to Mr. Ford that they move to another spot in the restaurant. They began to walk down a hallway beside the bar. She testified that the defendant “is standing by the doorway inside the bar, I guess he sees us walking past down the hallway and he comes from outside the bar now and steps in front of Al, like blocking him. [Al] was in front of me walking, so Mr. Walker came and blocked him from walking. Mr. Walker says to Al, like he’s talking loud, he’s yelling, ‘What up’, you know, ‘Do you have a problem with me?’ And Al responds…and tells him to go suck his mom.”

[50] She testified that at this point the defendant and Mr. Ford were about a foot apart. She testified: “After that, Mr. Walker looked Al up and down and he had this angry look on his face, he looked Al up and down, and stepped toward him, getting closer to Al, and then like I said the place was packed so there was people around them, and getting in between them, and separated them”. She said that the two men continued “going at it” verbally, but they were speaking in patois, which she did not understand.

[51] After the defendant and Mr. Ford were separated, Ms Walker testified, she and Mr. Ford left the restaurant. She said that on their way home, they talked about what had happened, and that Mr. Ford “was upset, he was swearing, he was yelling, he wasn’t happy.”

[52] Ms Walker testified about two occasions, subsequent to the public confrontation between the defendant and Mr. Ford, when the defendant made an apology to her or to her mother. The first was at the end of a party at Clarendon Wildflower that she attended with her mother. She said that the defendant came over to them and said to her mother, apparently in relation to the pool ball incident, that he was sorry, that he had been drunk that night, and that he had daughters and would not want anyone to harass them. Ms Walker agreed that the defendant repeated this apology to her mother on subsequent occasions. The second apology occurred toward the end of another party in February. She said that the defendant came over to her and said “he wants everything to be done”, that “…he was just coming out of jail and he did not want to do life”. She testified that his tone of voice was aggressive, that “he was yelling [and] it sounded more like a demand than an apology”. She took what he said as a message to Mr. Ford that he did not want any more problems. After he said what he said, he just walked away.

[53] Mr. Ford was not with Ms Walker on either of the occasions when the defendant apologized. Ms Walker spoke to Mr. Ford about the apology to her on the night when it happened. She said that Mr. Ford “wasn’t accepting it, the more I spoke about it the more he got upset”. Even though she took what the defendant said to be more a demand than an apology, she wanted the conflict to be over, and so she told Mr. Ford that she had to forgive the defendant, that she did not want any more problems, “but [Mr. Ford] did not want to hear it.”

[54] With respect to whether the acrimony between the defendant and Mr. Ford continued up to the time of the shooting, the defence places a great deal of weight on the testimony of Lester Coore about an interaction that he observed at Clarendon Wildflower, where Mr. Coore was working as a cook. Mr. Coore testified that he did not remember who came in first, but he did recall the defendant talking to Mr. Ford about the insult ‘go suck your mother’. He recalled that the defendant, speaking politely and calmly, asked Mr. Ford if he was going to stop saying that to him, and that Mr. Ford angrily said that he was not going to stop. Mr. Coore agreed that the defendant did not respond to this with anger, that “he just seemed more annoyed with it, like ‘why are you doing this? why don’t you stop doing this?’.”

[55] Because Mr. Ford looked like he wanted to fight, Mr. Coore went to find the owner of the bar, a man called Bada Bada. When Bada Bada arrived, he took the defendant and Mr. Ford into the washroom where they remained for about 10 minutes. Mr. Coore was busy in the kitchen, cooking, and he did not hear anything that was said in the washroom. When the defendant and Mr. Ford emerged from the washroom, they went their separate ways without further incident. Mr. Coore agreed with the suggestion that both parties seemed fine, that it seemed to be over and resolved.

[56] The position of the defence is that, taken together, the apologies to Jonell and her mother, the evidence of Mr. Coore about the washroom discussion, and the absence of evidence of any further conflict between the defendant and Mr. Ford in the month or so preceding Mr. Ford’s death establish that the acrimony between the defendant and Mr. Ford had been defused, and thus that as of the date of Mr. Ford’s death the defendant no longer had a motive to cause him harm.

[57] I do not agree that the evidence goes that far. Although the defendant had apologized to Jonell Walker and her mother, those apologies were in relation to his conflict with them, not Mr. Ford. There is no evidence of any apology from the defendant to Mr. Ford, or from Mr. Ford to the defendant. Further, it would be a stretch to conclude from the mere fact that the defendant and Mr. Ford came out of the washroom and left without further conflict that the meeting had resolved the acrimony. Mr. Coore, the only witness to what occurred on that occasion, did not hear anything that was said in the washroom, and he had no idea what had happened there.

[58] Furthermore, the evidence of Ms. Walker, which I accept, was that, at least from Mr. Ford’s perspective, the acrimony had not been resolved, either by the apology to her or by the washroom meeting. She testified that Mr. Ford remained upset both after she told him about the apology and after the washroom meeting. She said that Mr. Ford did not believe that his issues with the defendant had been resolved. I appreciate that what Mr. Ford said to Ms Walker in that respect is only evidence of his state of mind, not the defendant’s, but the fact that Mr. Ford remained upset and angry with the defendant is inconsistent with the suggestion that the washroom discussion had resolved the acrimony.

[59] While cross-examining Jonell Walker and Lester Coore, the defence elicited evidence that Mr. Ford had been making a conscious effort to avoid Scarborough bars in the months preceding his death. The suggestion seemed to be that he was doing so because he knew that “others” were after him, and that they may have been after him as a result of his involvement in selling marihuana. There is nothing in the evidence to support that suggestion. There is no evidence about the extent of Mr. Ford’s drug dealing, no evidence that he sold anything other than marihuana, no evidence of any acrimony that he had encountered in selling marihuana, and no evidence that the decreased frequency of his attendance in bars had anything to do with a concern for his safety. Jonell Walker said that it was simply a personal choice to go to the bars less often. Lester Coore suggested that it was because the deceased was ‘not a party guy’. The absence of evidence is not evidence of absence, of course, but in the end there was no evidence that Mr. Ford had an acrimonious relationship with anyone other than the defendant.

[60] The defence also argued that the insult uttered by Mr. Ford – ‘go suck your mother’ – was too petty to give rise to a motive for murder. Regardless of where that particular insult sits on an objective scale of offensiveness, it is clear that it bothered the defendant. When it was first uttered, only the intervention of others prevented a physical altercation. The fact that the defendant subsequently confronted Mr. Ford with respect to whether he was going to persist in insulting him in that way suggests that it was of continuing significance to him. Furthermore, to have probative value, animus does not have to be at a level where it would predict the occurrence of an offence. How a person will react to unresolved acrimony is unpredictable. But where identity is in issue in a homicide case, the fact that the defendant bore ill-will toward the victim is a circumstance that makes it more likely that the defendant was responsible for the death than would be the case if the defendant did not have such feelings.

(d) The video footage

[61] The video footage from Camera 4 shows that at 2:21:08 a.m., approximately 8 minutes before the shooting, a male left the open area on the east side of the bar and entered into the rear stairwell. He stopped at the top step and appeared to remove something from his left jacket pocket and to use both hands to manipulate it in front of him, at about waist-level. He continued to do this for 14 or 15 seconds. He then again moved his left hand to the area of his left front jacket pocket, as if putting something inside. While he was doing this, Lester Coore arrived from behind, leaned over the male’s right shoulder, and they appeared to briefly speak. The male used his right hand to extract an object from within the left side of his jacket. He flashed the object for Mr. Coore to see and then put it back inside. He then turned and went back into the open area on the east side of the bar.

[62] The object that the person in the stairwell showed to Mr. Coore is only visible in the video footage for a split-second. The Crown concedes that it cannot be determined from that split-second glimpse, standing alone, whether the object is a handgun. However, the Crown submits, the evidence as a whole establishes beyond a reasonable doubt that the person in the stairwell is the person who, 7½ minutes later, opened fire on Mr. Ford, and that what the stairwell footage captures is the shooter preparing his gun for the shooting. The Crown further submits that the person in the stairwell is the defendant.

[63] In the latter respect, the Crown relies heavily on the testimony of Mr. Coore, which I will discuss in more detail later. In essence, Mr. Coore testified that he had only one interaction with the defendant that morning, that the interaction occurred in the rear stairwell, and that the Camera 4 video footage described above captured that interaction.

[64] The defence argues that two alternative innocent inferences are available in relation to Mr. Coore’s testimony. The first is that Mr. Coore is simply mistaken that the defendant is the person in the stairwell video, and that his interaction with the defendant occurred elsewhere in the restaurant and earlier in the morning. The second is that although the defendant is the person in the stairwell, the person in the stairwell is not the shooter.

[65] I will consider the second of those suggested inferences first. For the reasons that I will now develop, I am satisfied that a careful review of the video footage establishes beyond a reasonable doubt that the person with whom Mr. Coore interacted in the stairwell was the shooter. I am also satisfied that less than three minutes after Mr. Ford arrived at the counter of the bar, the shooter made a quick trip to the parking lot, and that upon his return he proceeded almost immediately into the stairwell.

[66] For the most part, it is accurate to describe the video footage as grainy. It would be dangerous to attempt to decide whether the defendant appears in the footage based only on a comparison of it with the defendant’s appearance in the courtroom or in a photograph. Further, because the footage from inside the restaurant was produced by infrared cameras, the images it contains are false color images. That is, the human eye would perceive many of the apparent colors differently.

[67] Neither of those limitations forecloses the analysis that I have undertaken. The comparisons that I have made were not between a video image of a person and the appearance of a person in court or in a photograph. What I have done, rather, is compare one video image to another, in an effort to discern similarities and dissimilarities in the appearance of the persons in the images. The graininess of the footage makes such comparisons challenging but it does not preclude them. As I will demonstrate, the quality of the video footage is sufficient to permit individuals who appear in the footage to be distinguished from one another.

[68] The fact that infrared cameras produce false color images would present an issue if the comparisons were between images in the video footage and appearances in reality, i.e., as perceived by the human eye. Again, however, that is not the kind of comparison I have made. Rather, the comparisons have been between infrared images. After watching the more than three hours of video footage in this case multiple times, I am satisfied that although the colors in the video footage may be false, they are false in a manner that is consistent. That is, a cap that appears, falsely, to be white in one portion of the footage will continue to appear to be white in another.

[69] I turn, then, to what the video footage shows.

1:33:27 a.m.

[70] A clean-shaven male with a medium build and short hair enters the restaurant by way of the front door. He is wearing a dark waist-length jacket, a light-colored baseball cap, light-colored pants and white shoes. The jacket is open, revealing a shirt or sweater that is open near the neck with what looks like a white shirt underneath. The shirt or sweater immediately under the jacket seems to have something resembling a shawl collar that extends over the front of the jacket in the area of the collar bone, more prominently on the right side than on the left. The shirt or sweater is several inches longer than the jacket and hangs down below it to the mid-hip area. From time to time, as the male walks north through the restaurant and into the blind spot on the east side of the bar, something on the left side of his jacket reflects the lighting of the restaurant. Whatever is causing the reflection does not appear to be a different color than the jacket itself.

1:36:15 a.m.

[71] After the person who came into the restaurant at 1:33:27 a.m. entered the blind spot on the east side of the bar, no one matching his description emerged from the blind spot until 1:36:15 a.m., when a person moved toward a serving tray near the middle of the bar counter. This person has very short hair and is clean shaven. He is wearing a dark jacket, a light-colored baseball cap, and a shirt or sweater with a shawl collar effect that is more prominent on the right side than on the left. The shirt or sweater is open below the neck, revealing a white shirt underneath. His lower body cannot be seen, but there are no dissimilarities between the appearance of this person and that of the person who arrived at 1:33:27 a.m. As he moves toward the serving tray, he goes back into the blind spot directly in front of the bar.

1:40:08 to 1:40:55 a.m.

[72] Since the person described in the last paragraph moved back into the blind spot, no one matching the description of the person who arrived at 1:33:27 a.m. has come out of the blind spot. At 1:40:08 a.m., a person emerged from the area of the east wall, crossed the dance floor in front of the bar, and proceeded to a point just past the television on the west side of the room. He spoke to someone and then came back across the dance floor and disappeared back into the blind spot at the east side of the bar. He has short hair, a medium build and no apparent facial hair. He is wearing a dark waist-length jacket, a light-colored baseball cap, light-colored pants and white shoes. The jacket is open, revealing a shirt or sweater with a shawl collar effect matching what was seen on the person(s) described at 1:33:27 a.m. and 1:36:15 a.m., including that the effect is more prominent on the right side than on the left. His shirt or sweater is longer than his jacket and hangs down below it to the mid-hip level. It is open at the top, revealing another shirt underneath. There are no dissimilarities between the appearance of this person and the appearance of the person(s) at 1:33:27 and 1:36:15 a.m.

2:12:43 to 2:12:57 a.m.

[73] In the 32 minutes that elapsed after the person described in the previous paragraph returned into the blind spot, no one matching his description (or the descriptions of the persons at 1:33:27 and 1:36:15 a.m.) emerged from that area. Then, at 2:12:43 a.m., a male came out, walked half-way down the restaurant, waved to someone, then turned and walked back into the blind spot on the east side of the bar. His appearance matches that of the persons I have previously described. He is of medium build and he appears to have short hair and to be clean-shaven. He is wearing a jacket, baseball cap and shoes that are indistinguishable from those worn by the previously described person(s). He is also wearing a shirt or sweater with the same shawl collar effect, which is again more prominent in the area of the right collarbone, and the shirt or sweater hangs down below his jacket to the mid-hip level.

2:13:18 to 2:14:49 a.m.

[74] At 2:13:18 a.m., Mr. Ford entered the restaurant at the south end and made his way through the crowd. At 2:14:49 a.m. he arrived at the middle of the bar counter, where he would remain until he was shot to death, just over 14 minutes later.

2:17:35 to 2:17:48 a.m.

[75] In the five minutes that elapsed since the person described at 2:12:43 a.m. disappeared from view, no one matching his description has come out of the blind spot. Now, at 2:17:35 a.m., a person emerged, walked briskly across the floor and went out the front door of the restaurant. Although he can only be observed from behind, he appears to have short hair, no obvious facial hair, a light-colored baseball cap, light-colored pants, and white shoes. He is wearing a dark waist-length jacket and a shirt or sweater that hangs below his jacket to the mid-hip level. The footage from the outside security camera shows that once this person reached the outside of the restaurant, he broke into a run across the parking lot. About ninety seconds later, footage from the same camera appears to show him returning to the front door of the restaurant.

2:19:19 to 2:19:28 a.m.

[76] One minute and 31 seconds after the person described above exited from the restaurant, a clean-shaven male with short hair wearing a black waist-length jacket, a light-colored baseball cap, light-colored pants and white shoes entered the restaurant. He is wearing a shirt or sweater under his jacket, with the same noticeable shawl collar effect described earlier, and once again it is more prominent on the right side than the left. The shirt or sweater is longer than the jacket and hangs down below it to the mid-hip level. He walked briskly through the crowd and disappeared into the blind spot on the east side of the bar. As he walked north across the room, there was a brief flash of light on the left breast of his jacket, in the same place as was noticed with the person who had entered at 1:33:17 a.m. In the interval between 2:17:48 and 2:19:19, no one matching the description of this person had left the blind spot.

[77] I am satisfied that the person who entered the restaurant at 2:19:19 a.m. is the same person who had exited at 2:17:48 a.m., and that the person who exited at 2:17:48 is the same person who was seen at 1:33:27, 1:36:15, 1:40:08, and 2:12:43 a.m. The descriptions that I have noted of the person seen at all those times are strikingly similar. Further, at all those times, the person described was either heading into or coming out of the blind spot on the east side of the bar.

2:21:08 to 2:21:37 a.m.

[78] At 2:21:08 a.m., one minute and forty seconds after the person who had returned from the parking lot disappeared from view into the open area on the east side of the bar, the Camera 4 video footage shows a person entering into the rear stairwell from the north side of the open area. The person remained in the stairwell for 29 seconds. For most of that time he had his back to the camera. It is apparent, however, that he is a clean-shaven male with very short hair, and that he is wearing a light-colored baseball cap, light-colored pants, white shoes, a black waist-length jacket, and a shirt or sweater that hangs down to the mid-hip level – perhaps as much as half a foot below the back of the jacket. Either the shirt or the jacket gives the appearance of a shawl collar, which is more visible and prominent in the area of the collar bone on the right side than on the left.

[79] At paragraph 61 of these reasons, I described what this person did while in the stairwell. After about 20 seconds, he was joined by Lester Coore. In the course of their interaction, the person produced something from his left side with his right hand and showed it to Mr. Coore. He then put the object within his jacket, on the left side, at breast level, using his left hand to open the jacket to permit the object to be deposited. At 2:21:37 a.m. he turned and went back into the blind spot on the east side of the bar.

[80] I am satisfied that the person who interacted with Mr. Coore in the stairwell video is the same person who had returned from the short trip outside to the parking lot at 2:19:19 a.m., and who had been seen at the various earlier points that I have reviewed. The appearance of the person in the stairwell is strikingly similar to the appearance of the person seen at all those other times. Once again, it is significant that the person seen on all the earlier occasions was either coming or going from the blind spot on the east side of the bar. Further, he spent the time between those sightings inside the blind spot, when last seen, at 2:19:28 a.m., he was heading north into the blind spot, and the rear stairwell is directly north of the blind spot. In addition, as I will explain, there was only one person who emerged from the blind spot between 2:19:28 a.m. and the arrival of the police whose appearance matched that of the person in the stairwell and/or the person last seen at 2:19:28.

2:19:28 to 2:29:03 a.m.

[81] The first shot was fired at Mr. Ford at 2:29:03 a.m., 9 minutes and 35 seconds after the person in the stairwell had returned from the parking lot and disappeared into the blind spot. I have no doubt that at the time of the first shot he was still in the blind spot. There were only two ways by which he could have left: down the back stairs and out the rear exit door, or across the dance floor and through the front door. The video footage from Camera 4 makes it clear that, apart from a woman who apparently went out to smoke at 1:29 a.m., no one exited through the rear door in the almost 90 minutes preceding the shooting or in the six minutes that followed. Furthermore, anyone leaving the blind spot to proceed across the dance floor would necessarily be seen in the video footage from Camera 2. I have closely watched the entirety of that footage between 2:19:28 a.m. and the time of the first shot; no one matching the description of the person in the stairwell left the blind spot in that interval. Every person who emerged from that area in that time frame is distinguishable from the person in the stairwell.

2:29:07 to 2:29:20 a.m.

[82] Camera 1 was pointed from east to west into the bar service area. It captured an image of Mr. Ford being struck by the first shot at 2:29:03 a.m. Neither the shooter nor the gun can be seen in the Camera 1 footage because the shooter was to the east of Mr. Ford, to his left and out of Camera 1’s field of view. Camera 2 did not capture images of the first shot or of the shooter firing that shot because both Mr. Ford and the shooter were in the blind spot below the camera. However, at 2:29:07, as he continued to fire, the shooter walked into Camera 2’s field of view. Although only his right side and back can be seen, it is apparent that he is clean-shaven and that he has short hair. He is wearing a black waist-length jacket, a shirt or sweater that extends below the jacket to the mid-hip level – perhaps half a foot below the jacket. The shirt or sweater has a shawl collar effect like that previously described, although it is hard to say whether the effect is more prominent on the right because the shooter’s left side is not in clear view. He is wearing white shoes, a light-colored baseball cap and light-colored pants.

[83] All those descriptors match the descriptors provided earlier of the person in the stairwell (and of the person seen at 1:33:27, 1:36:15, 1:40:08, 2:12:43, 2:17:48 and 2:19:28). In addition, there is a similarity between the manner in which the person in the stairwell secreted the hand-held object that he showed to Lester Coore and the manner in which the shooter put away the handgun after the shooting: the person in the stairwell used his left hand to open his jacket so that his right hand could put the object inside on the left side at about breast level. As the shooter walked away after the shooting, he too used his left hand to assist as his right hand put the gun inside his jacket on the left side at about breast level.

[84] Those considerations point compellingly to the conclusion that the person in the stairwell was the shooter. But as I will now explain, there is an even more convincing consideration in that respect, namely that after the shooting, as the blind spot emptied out, the only person to emerge from it whose appearance matched that of the person in the stairwell was the shooter.

2:29:03 to 2:35:20 a.m. (the arrival of the police)

[85] As I stated earlier, I am satisfied, based on a close viewing of the Camera 2 video footage from 2:19:28 a.m. to 2:29:03 a.m., that the person in the stairwell video was still in the blind spot at the time of the shooting. Very quickly after the shooting, the restaurant emptied out. By the time the police arrived, at 2:35:20 a.m., almost 6½ minutes after the shooting, everyone who had been in the blind spot was gone. The footage from Camera 4 shows that no one had left by the rear exit. Accordingly, everyone who had been in the blind spot, including the person in the stairwell, had to have passed through the field of view of Camera 2 as they left the restaurant. I have closely watched the video images of each of those persons.

[86] Five persons left after the first shot was fired but ahead of the shooter. One of those persons was the male I describe in footnote 6, who left the blind spot to go to the washroom at 2:24 a.m. and who returned to the east end of the bar counter at 2:28 a.m. It is clear that he is not the person who was in the stairwell: his hat is darker, it has a very noticeable and prominent logo above the brim that is missing from all the images of the person in the stairwell between 1:33:37 and 2:21:37 a.m., his jacket is clearly longer than waist-length, and his shirt or sweater is not hanging down by as much as half a foot below the back of his jacket. Unlike, one might add, the shooter, who can be seen in close proximity to this person in the post-shooting footage and whose appearance does match that of the person in the stairwell.

[87] This male was in fact the third person from the blind spot to exit ahead of the shooter. The first can be partially seen at the extreme left of the Camera 2 video footage at the time of the first shot. As he leaves, it is apparent that he is wearing a toque that is baggy at the back. The second person appeared in front of the washroom door one second after the first shot was fired: he has dark pants, dark shoes, and a thigh-length grey coat. Two other people came into view immediately after the shooting from the blind spot at the west end of the bar. One had a had a black hat with long white stripes, and the other was a woman named Debbie, who had been sitting at the east end of the bar all morning.

[88] Based on those descriptions, I have no doubt that none of the five people who left the blind spot ahead of the shooter was the person in the stairwell.

[89] After the shooter left, so did everyone else who had been in the blind spot. First was a group of four persons who came into view at 2:29:15 a.m. Everyone in that group can be eliminated: the first person had a coat that was thigh-length, covering his buttocks; the second had a toque, not a baseball cap; the third had a very noticeable hood extending over the back of his jacket; the fourth appeared to be a woman, and she had a white coat, dark pants and nothing on her head.

[90] Next, at 2:29:19 a.m., was a male with dark pants and dark shoes, carrying a long coat. He put the coat on before he exited; it extended down over his hips; he might also have had a beard. Right behind him, at 2:29:20 a.m., was a man with no coat, a dark hat, dark pants and dark shoes. He was followed, at 2:29:33 a.m., by a male who was carrying a dark jacket, but he had dark shoes; when he put the jacket on, it extended down to his thighs. He was followed by another male, but this person did not have a black jacket, he was wearing glasses, and his hat was not a baseball cap.

[91] At 2:29:39 a.m., another person emerged from the blind spot, a male with a dark jacket. But the jacket was well below waist-length, he had dark shoes, and he was wearing a toque, not a baseball cap. He was followed by a person with dark shoes and a noticeably two-toned jacket. At 2:29:51 a.m., a male came out of the washroom. He had dark shoes and either long hair or a hoodie. At 2:30:39 a.m., the last person to leave the blind spot emerged. He had a very long ponytail and was wearing a white coat.

[92] In sum, in addition to the shooter, 17 people came out of the blind spot after the shooting. Apart from the shooter, every one of them can be readily distinguished from the person in the stairwell video. Accordingly, unless the person in the stairwell video vanished into thin air, he was the shooter.

[93] The defence submits that the quality of the video footage is too poor to support the distinctions between individuals that I have made and the conclusions that I have reached. They note, correctly, that the footage is too grainy to permit a Nikolovski-style comparison between anyone in the footage and the appearance of the defendant in court or in the photographs that are in evidence. They remind me, again correctly, that because the footage was captured by infrared cameras, the colors are false colors that do not necessarily comport with what would be observed with the human eye. They also suggest that the video footage distorts the images of the people in it.

[94] The analysis I have conducted is not a Nikolovski analysis. I have not tried to compare the appearance of someone who is not in the video footage with someone who is. Whether the colors in the footage are true colors is largely irrelevant for the purpose of the comparisons I have made. Having compared the images of Clinton Hall and Lester Coore that appear in the footage from both Camera 2 and Camera 4, I see no basis for a suggestion that the false colors will be different depending on which camera took the footage, or for a suggestion that the same object will appear to be different colors at different points in footage from the same camera. That is, there is no reason to think that what appear to be white shoes on Camera 4 will appear to be black shoes on Camera 2, or that they will appear to be white at one point in the Camera 2 video but black at a later point.

[95] There is nothing to support the suggestion that the images are distorted. The footage is grainy, and it is hard to make out fine details, but it is adequate for the purpose for which I have used it. There is no basis, for example, to think that the footage could have made a waist length jacket appear to be a coat that extended down over the hips, or that it could have made a tam or beret appear to be a baseball cap. Again, a comparison of the images of Clinton Hall and Lester Coore in the Camera 4 footage to the images of them in the Camera 2 footage offers no support for such a suggestion.

[96] As I said at the beginning of this section of my reasons, the defence suggested that two innocent inferences might be drawn in relation to Lester Coore’s evidence about the stairwell video. The first was that Mr. Coore was mistaken in his opinion that the person he interacted with in the video was the defendant; the second was that the person in the video was the defendant, but that person was not the shooter. For the reasons I have explained, I am satisfied beyond a reasonable doubt that the person in the stairwell video was the shooter. The question that remains, of course, is whether that person was the defendant.

(e) The drink glass on the counter

[97] At the time the first shot was fired, Mr. Ford was standing in the middle of the bar counter, facing south into the crowd. There is no dispute that the gunman was to Mr. Ford’s left, somewhere in the Camera 2 blind spot. Mr. Ford suffered six gunshot wounds, two of which were to his head. Having regard to the opinion of the pathologist with respect to the track of the wounds within the body, I infer that the first shot struck Mr. Ford in the left ear while he was standing and that the others hit him after he had fallen to the floor. The wound to the left ear tracked through Mr. Ford’s head from left to right, slightly back to front and downward, fracturing two cervical vertebrae and perforating the cervical spinal cord before exiting on the right side of the chin.

[98] As part of its case that the defendant was the person who opened fire on Mr. Ford, the Crown relies on evidence concerning a plastic drinking glass that was placed on the bar counter a foot or two to Mr. Ford’s left five seconds before the first shot was fired. The placing of the glass was captured by video footage from Camera 1, but the person who placed it was almost completely out of the field of view of the camera; all that can be seen is a left hand reaching out and putting the glass on the counter.

[99] The glass was partially full of a red liquid. The liquid was not analyzed, but there is undisputed evidence that the defendant was drinking Hennessey Cognac mixed with red cranberry juice that morning and that the Hennessey bottle he was drinking from and a carafe of cranberry juice were in a tray near the east corner of the bar counter, perhaps five or six feet to Mr. Ford’s left. There is also evidence from Clinton Hall – on which, for different purposes, both parties seek to rely – that just before the first shot was fired the defendant was standing at the east corner of the bar.

[100] The glass was examined by Forensic Identification officers. Only one fingerprint was found, on the upper part of the glass near the rim. It was determined to have been left by the defendant’s left index finger. The footage from Camera 1 shows that the left index finger of the hand that placed the glass on the bar was on the upper part of the glass. As the defence correctly points out, the fact that only one print was found on the glass does not mean that only one person touched it. Touching an object with a bare hand will not always leave fingerprints. For example, only 7 of the 92 drinking glasses that the police recovered from the restaurant had any fingerprints on them.

[101] The glass was sent to the Centre of Forensic Sciences (CFS) for DNA testing. A swab was run around the entire circumference of the rim, both inside and outside. No swab was taken from anywhere else. The swab was analyzed and a DNA profile was developed, which was determined to be from a single source; that is, from a single individual. A DNA sample was also obtained from the defendant, and the DNA profile developed from his sample was compared to the DNA profile from the rim of the plastic glass. The profiles matched at all 15 STR loci. Based on that result, the CFS concluded that the defendant could not be excluded as the source of the DNA from the rim of the plastic glass. The CFS further concluded that “the probability that a randomly selected individual unrelated to [the defendant] would coincidentally share the observed DNA profile [from the glass] is estimated to be 1 in 230 quadrillion.”

[102] Gerald Alderson, a DNA expert with the CFS, explained that DNA can be transferred from bodily fluids – blood, saliva or semen – but also by touch; that is, by holding an item in one’s hand. He agreed that DNA testing can indicate that the donor was proximate to the place where the DNA was found, but that it cannot say how it got there nor, in this case, what the source was – e.g., touch, saliva etc. He agreed that nothing in the testing conducted at the CFS rules out the possibility of multiple persons having handled the glass.

[103] In their final submissions, the defence acknowledged that the presence of the defendant’s fingerprint and DNA profile on the glass is strong circumstantial evidence that the defendant was at the bar “especially when considered with the testimony of witnesses who remember seeing Mr. Walker at the bar that evening”. But, the defence submitted, “it is speculative to assume that the presence of Mr. Walker’s DNA and fingerprint on the cup means that he is the one whose arm can be seen putting the cup down in the video. As both the Crown’s fingerprint expert and the DNA expert acknowledged, just because you touch something does not mean that there will be DNA or fingerprints on it. The fact that Mr. Walker’s DNA and fingerprint were on the cup neither confirms nor negates the possibility that others may have held the cup as well or that someone else may have been the one to put the cup down.”

(f) The testimony of Lester Coore

[104] Lester Coore was about 43 years of age at the time of the shooting. He knew Mr. Ford and the defendant, and he had a good relationship with both of them. He was at G’s Chill & Grill on the morning of March 28, 2011. He was dressed in a distinctive manner and he can be readily identified in the video footage from both the public part of the restaurant and the rear stairwell. The footage from Camera 2 shows him arriving at the restaurant at 1:12 a.m. and leaving, 71 minutes later, at 2:23 a.m. Shortly after his arrival, he hung his coat on the door leading from the blind spot into the rear stairwell. Not long after, his friend Aretha, whom he had agreed to drive home, also hung her coat on the door.

[105] Mr. Coore testified that he had only one interaction with the defendant at the restaurant that morning, and that it occurred when he was about to leave. He testified that he saw the defendant “on the stairs like he was – I don’t know if he was going to fall or whatever and I said ‘Nick, you okay’, and he said leave him alone, I just leave him alone and just leave.” Mr. Coore added: “I asked him if him okay, cause I don’t know if he was drinking or what but I asked if him was okay, and he said ‘yeah, just leave him alone’, I just leave.” Mr. Coore said that he headed out to the parking lot, where he had a smoke while he waited for Aretha, who wanted to use the washroom before leaving. When Aretha came out, they headed across the parking lot. As they were approaching his car, he heard gunshots.

[106] Mr. Coore was shown the Camera 4 video footage of the rear stairwell between 2:20:53 a.m. and 2:21:45 a.m. He confirmed that it shows him collecting his coat from where it was hanging on the door and then leaving the stairwell. Eight seconds later, at 2:21:08 a.m., another person entered the stairwell. As I described earlier, at paragraph 61, this person stopped at the top step of the stairs and began manipulating an object in front of his body. Twenty seconds after that, at 2:21:28 a.m., Mr. Coore returned to the stairwell, leaned over the other person’s shoulder, and they had a brief nine-second exchange in the course of which the other person showed Mr. Coore an object that he was holding in his right hand. The person then turned and, at 2:21:37 a.m., exited out of the stairwell back into the restaurant. With respect to this footage, Mr. Coore was asked:

Q. Do you recognize what we just saw here Mr. Coore?

A. I take my jacket and I see Nick and ask Nick if he’s okay and he said leave me alone, so I just walk out and I leave

Q. So is this the event that you just described to us a few moments ago?

A. Yes, ma’am.

[107] Mr. Coore testified that he could not see what the object was that the defendant was showing him because the rear stairwell was dark.

[108] It is common ground that Mr. Coore’s identification of the defendant in the stairwell video was not made on the basis of a recognition of the defendant per se but rather on his identification of the transaction. That is, his evidence was that he knew that the person in the video was the defendant because he recognized the interaction in the video as the one that he had with the defendant.

[109] The defence does not dispute that Mr. Coore accurately identified himself in the nine seconds of video footage between 2:21:28 and 2:21:37 a.m., but the reliability of his testimony that those nine seconds depicted an interaction that he had with the defendant was forcefully challenged. The fact that Mr. Coore did have a conversation with the defendant around the time he was leaving, and that it amounted to an inquiry in relation to whether the defendant was alright, was not directly disputed. Rather, the suggestion put to Mr. Coore, and the position taken by the defence in its written submissions and in oral argument, was that while Mr. Coore may have had that conversation, he was honestly mistaken as to where and when it occurred. It was put to him that it occurred in the blind spot inside the restaurant, not in the stairwell, and that it occurred earlier, before 2:20:53 when he went to get his coat, not at 2:21:28 after he had collected it.

[110] In an effort to undermine Mr. Coore’s testimony that the person with whom he interacted in the stairwell was the defendant, the defence made, inter alia, the following submissions:

(i) at least four times in his statement to the police, about 3½ weeks after the shooting, and at the first trial, Mr. Coore stated that he spoke to the defendant before he got his jacket; the conversation in the stairwell video occurred after he got his jacket; therefore, the defence submitted, the conversation in the video could not be the conversation that Mr. Coore had with the defendant.

(ii) in examination in-chief, Mr. Coore said that his attention was attracted to the defendant because “he passed me like he was going downstairs and I see like he’s stumbling, so I ask him if him is ok”; the defence suggested that at no point in the stairwell video did the person with whom Mr. Coore interacted appear to stumble; the defence submitted that once again, therefore, the conversation in the video could not be the conversation that Mr. Coore had with the defendant.

(iii) Mr. Coore agreed that when he was interviewed by the homicide detectives, he already knew that the defendant was the suspect and that the police were looking for him; he was told by the police that they had video of him (Coore); it was suggested that because of that he assumed that the video that they showed him was the interaction he had with the defendant, and that it was this assumption, rather than a recognition of the interaction, that caused him to believe that the defendant was the person in the stairwell video.

(iv) the defence submitted that Mr. Coore’s recollection of the events in the restaurant that morning is so poor as to render his evidence that the stairwell video captured his interaction with the defendant manifestly unreliable.

[111] I will address each of those submissions in turn.

(i) The sequence re the jacket

[112] The Camera 4 video footage shows that the nine-second interaction that Mr. Coore had with the person in the rear stairwell began about 30 seconds after Mr. Coore had retrieved his jacket from the door. At least four times in his police statement, and in his evidence at the first trial, Mr. Coore stated that the interaction occurred before he collected his jacket.

[113] In my opinion, the inconsistency between his prior statements and what the video shows in this respect is not of great significance. It seems to me that what was important to Mr. Coore in situating when the interaction occurred was that it was at the end of the night, as he was getting ready to leave. Whether he got his jacket immediately before or immediately after the interaction with the defendant had nothing to do with why the interaction occurred or what was said in the course of it. It was merely an incidental feature of the narrative.

(ii) The stumble

[114] In cross-examination, the defence lasered in on the fact that Mr. Coore had described the defendant as stumbling. They argued that the person in the stairwell video never appeared to stumble, and thus that there is reason to doubt that the defendant is the person with whom Mr. Coore interacted.

[115] In examination in chief in relation to this issue, Mr. Coore testified, in part, as follows:

Q. Before we actually get to the part where you’re talking to him in the back stairwell, I asked you if you saw him going to the back stairwell and you said he passed you, and then I didn’t quite catch what you said that he was doing?

A. Okay, when I take down my jacket to leave, he passed me… but like you know, I was here, he passed me like he was going downstairs and I see like he’s stumbling, so I ask him if him is ok.

Q. Sorry, I just want to stop you right there. You say he’s stumbling?

A. Like, he stopped at the step, and he’s going over something like that and I said ‘you okay’

Q. Okay. So you say he stopped at the step and he’s like going over, and you gestured like he was leaning forward?

A. Yeah, like he was going to fall over, I don’t know what’s going on so I just asked him if he’s ok.

Q. Did he appear to be intoxicated to you?

A. Well, everybody’s become drinking so that is why I was so like you know.

[116] In cross-examination, Mr Coore testified, again in part, as follows:

Q. So now this morning you described a sequence of events… first you were standing, correct? And as Nick walked past you he stumbled, correct? That’s what you said this morning when Ms. Pecknold asked you what happened, right?

A. Nick was on the stair, and I thought the man was gonna drop off because everybody’s having drinks, and I said I went over to him and asked if him okay and him say okay(inaudible) leave me alone, and I just leave. That means him supposed to be alright…

Q. …You said you were standing first of all and Nick walked past you and stumbled. That is what you said this morning, correct?

A. Did I say he stumbled? I say I saw him on the stairs like he was gonna fall off so I asked him a question, ‘you okay?’, cause everyone was drinking

Q. … I’m just trying to confirm what you said, sir. You’re standing and Nick walks past you and stumbles almost falling down, right?

A. He was on the stairs, he’s on the first step on the stairs, I don’t know what he was doing, and I said to him “Nick, you okay?”, and he say leave me alone and I just leave because….if I’m on the street and I see something is going wrong I ask anybody if ok, and then I leave, and that’s it, that’s me.

Q. Okay, but there’s clearly a stumbling and a falling that you observed and you thought he was going to fall.

A. Yeah, he looked like he was gonna fall, and that’s why I asked him, I don’t know if he’s red [i.e. intoxicated], I don’t know if something wrong with him.

Q. So clearly there was a falling action and you were concerned he was going to fall down the stairs. Or fall down. That’s what you’re saying?

A. Yeah

Q. And that’s why you went up to him to say are you okay?

A. Yes

Q. And he says I’m okay, leave me alone, right?

A. Yes, sir

[117] The ordinary meaning of ‘stumble’ is to trip or to momentarily lose one’s balance while walking. It is correct to say that stumbling in that sense cannot be seen in the stairwell video. However, it seemed to me that Mr. Coore realized almost immediately that he was probably using the wrong word. When asked about his use of the word ‘stumbling’ in examination in chief, he gave a description of how and where the defendant was standing, not how the defendant was walking. When defence counsel asked about stumbling in cross-examination, Mr. Coore interjected – “Did I say stumbling?” – and again described the defendant standing at the top of the stairs.

[118] Having watched the stairwell video multiple times, I would not have described the person standing at the top step as being on the verge of falling. However, the video is not completely without support for a misperception in that respect. As Mr. Coore pointed out, the defendant had gone into the stairwell as if he was going to go down the stairs but he had stopped at the top step. He stood there alone, looking down, moving his arms and hands in front of his body, in an area that is generally off limits for customers. When he entered the stairwell, he had bumped into the door on the right (Mr. Coore had entered shortly before and did not bump into the door). Over the next 20 seconds, as he stood at the top of the stairs, he shifted his weight twice, and on one of those occasions his right foot took a bit of a step forward, as if to balance himself. Just before Mr. Coore came in to speak to him, the person’s body had a bit of a sway. More than once in his evidence, Mr. Coore linked his perception of the defendant to his awareness that he had been drinking. For example, in testimony already referenced, he said “I thought the man was gonna drop off because everybody’s having drinks, and I said I went over to him and asked if him okay”. He said that he went up to the defendant because “I don’t know if he’s red [i.e. intoxicated], I don’t know if something wrong with him.”

(iii) What the police showed him

[119] The implicit suggestion made to Mr. Coore was that because the police told him they had video, and because he knew that they suspected that the defendant was the shooter, he assumed that the video they showed him was video of his interaction with the defendant:

Q. Okay. Because when you went to speak to the police, you were told by Detective Banks that they had audio and video of what had occurred, right?

A. Yes sir.

Q. And your only recollection of what you had experienced with Nicholas that night was the one conversation you’d had with him, right? That brief little hey are you okay after he stumbled and you thought he was going to fall, right?

A. Yes, sir.

Q. So you were under the belief that what they were showing you was you talking to Nicholas, right?

A. Yes, sir.

Q. Because you thought they had the audio even of your conversation, right?

A. Well, them police said audio and video so I don’t know.

[120] I did not take Mr. Coore’s agreement that he was “under the belief that what they were showing you was you talking to Nicholas” to be anything more than an Fagreement that when the police showed him the video, he recognized what he was seeing. I did not take it, as the defence suggests, to have been an agreement that he only believed that the video depicted his conversation with the defendant because, as it were, ‘why else would they be showing me this?’

(iv) The reliability of Mr. Coore’s memory

[121] No doubt, the cross-examination of Mr. Coore demonstrated that in many respects his memory was not perfect. It was somewhat startling, for example, to hear him say that he had no memory of being at the Scarborough court for the preliminary inquiry. However, he did recall telling his story to the police in April 2011 and to the court at the first trial in 2014, and, in fairness, the fact he also told it at a preliminary inquiry might be more memorable to lawyers than to lay persons. Still, I acknowledge that the imperfections in his memory are relevant to an assessment of the reliability of his account of the interaction he had with the defendant prior to leaving G’s Chill & Grill on the morning of the shooting.

[122] It should be said, however, that on many things Mr. Coore seemed to have pretty good memory. Indeed, in relation to the issue of whether there was acrimony between the defendant and Mr. Ford, the defence places a great deal of weight on Mr. Coore’s memory of the specific words said by the defendant to Mr. Ford at Clarendon Wildflower just before the washroom meeting.

[123] That Mr. Coore’s memory was generally intact about what happened around the time of the stairwell interaction was demonstrated by his account of how he and his friend Aretha left the restaurant. The video footage from Camera 4 shows that earlier in the morning Mr. Coore and Aretha had both hung their coats on the stairwell door, Mr. Coore at 1:28 a.m. and Aretha at 1:33 a.m. As Aretha hangs up her coat it is apparent that she is a bit stocky, that she is wearing what appears to be a light-grey full-length coat, dark knee-high boots, and a sleeveless top with a wide belt around the waist, that she has a purse on a strap over her left shoulder, and that her long hair is in a pony tail.

[124] The interaction in the stairwell video ended at 2:21:37 a.m. and the last sighting of Mr. Coore on the Camera 4 footage was at 2:21:47 a.m. Two minutes later, at 2:23:48 a.m., an arm can be seen reaching into the stairwell hallway and removing Aretha’s coat. In the cross-examination of Mr. Coore, it was suggested that this indicated that he was still around the stairwell at that time. Mr. Coore denied it. He testified: “No, I remember she [Aretha] said she wanted to use the washroom, so I go outside and smoke a cigarette until she comes”.

[125] The video footage from Camera 2 confirms Mr. Coore’s recollection. At 2:23:35 a.m., he can be seen walking across the dance floor on his way to the front door. At 2:24:06 a.m., 18 seconds after Aretha’s coat was collected from the stairwell door, a woman with a stocky build, a long ponytail, a wide belt around her waist and carrying something that may have been a coat emerged from the direction of the rear stairwell and entered the door to the washrooms. Just over two minutes later, a stocky woman emerged from that door. Her long hair was in a ponytail, she was carrying something over her left shoulder, she was wearing a grey full-length coat and she headed for the front door. I am satisfied that the woman who went to the washroom at 2:24 a.m. is the woman who emerged two minutes later and left the restaurant, that she was Aretha, and that she was doing exactly what Mr. Coore recalled her doing when they were about to leave.

[126] Whether Aretha needed to use the washroom before leaving and whether Mr. Coore decided to go out front for a smoke while he waited for her are not particularly relevant to the issues in this trial. The point is simply that, notwithstanding the passage of time, Mr. Coore retained an accurate memory of things that were going on in the restaurant in the same time frame as the stairwell conversation.

[127] There is no evidence that Mr. Coore was intoxicated at the time of the stairwell interaction. He agreed that he had been drinking at the restaurant, but there is no evidence that he had been drinking before he got there, and he was only there for 71 minutes. He said he was being careful because he was driving. He said that he smoked marihuana twice a day but he did not agree that this has affected his long-term memory and there is no evidence that it has. Some time was spent in cross-examination in relation to whether he was smoking marihuana as well as drinking that morning. His position is captured at page 468 of the Defence Compendium: “I smoke my weed. I told you I smoke my weed, but I don’t remember if that specific night I was rolling something or burn something”. Assuming that he was smoking marihuana during the time he was at the restaurant, there is no evidence as to how much he smoked nor as to any impact that it had on him.

[128] There are frailties in Mr. Coore’s recollection of what occurred around the time of the stairwell conversation, and those frailties are relevant, but I am satisfied that he does recall having a conversation with the defendant just before he left the restaurant, and that he left the restaurant just before the shooting. I am satisfied that he does recall where the conversation occurred, namely at the top step of the stairs in the rear stairwell. At times in counsel’s fair but forceful cross-examination in relation to whether he collected his jacket before or after his conversation with the defendant, Mr. Coore retreated into repeated assertions that he could not remember, but in the end he maintained his position that the conversation occurred in the rear stairwell:

Q. You have to agree with me that that’s not the case. That’s not Mr. Walker at the back stairwell, on the video?

A. It’s not Mr. Walker on the back stairs on the video?

Q. That’s right. You think its him because you remember yourself standing there talking. Correct?

A. I remember talking to Mr. Walker at the back of the stairs.

[129] I have watched the entirety of the video footage of the rear stairwell from the time Mr. Coore arrived at the restaurant at 1:12 a.m. until he left at 2:23 a.m. Over the course of that 71-minute span, Mr. Coore was in the stairwell five times. Only twice did he speak to a male, at 1:32 a.m. and at 2:21:28 a.m. Those were two different males. The first conversation was at the bottom of the stairs, and the male approached Mr. Coore, not the other way around. Mr. Coore did not have an interaction with anyone at the top of the stairs or in the hallway leading to the top of the stairs prior to the interaction that began at 2:21:28 a.m. Nor did he have an interaction with anyone in the rear stairwell following that interaction. Therefore, if Mr. Coore did interact with the defendant in the rear stairwell, at the top of the stairs, as to the end he insisted that he did, the interaction was the one recorded in the stairwell video.

[130] As I said earlier, the fact that Mr. Coore had a conversation with the defendant around the time he was leaving, and that it amounted to an inquiry as to whether the defendant was alright, was not directly challenged. Rather, the suggestion put to Mr. Coore, and the position taken by the defence in its final submissions, was that Mr. Coore was honestly mistaken as to where and when the conversation occurred.

[131] The difficulty that the defence faces in making that suggestion is that the location of the conversation – within the stairwell, at the top step of the stairs – was integral to the purpose and content of it. Mr. Coore testified that the entire reason why he approached the defendant was because he was standing at the top of the stairs, and that the brief conversation that followed was in relation to a concern arising from his presence there. Acceptance of the suggestion that the conversation occurred elsewhere than in the stairwell would require that everything that Mr. Coore said about the purpose and content of the conversation be stripped away. It would mean that not only was Mr. Coore mistaken about where he spoke to the defendant, he either consciously or unconsciously made up the details concerning what the conversation was about. Notwithstanding the frailties in Mr. Coore’s evidence, I am completely satisfied that that did not happen.

[132] The reliability of Mr. Coore’s recollection was vigorously challenged, but there was no serious attack on his credibility. He was friends with both the deceased and the defendant. I sensed no effort to shade his evidence to assist the Crown. Indeed, in many ways his evidence was helpful to the defence in resisting inferences sought by the Crown. On the issue of animus toward Mr. Ford, for example, his evidence was favorable to the defendant. His account of speaking to the defendant in the stairwell is uncontradicted and the video evidence is consistent with his description of the conversation. After careful consideration of all the matters that the defence has pointed to, I am convinced that he did have the conversation with the defendant that he described and that he had it in the rear stairwell. To put it another way, I am satisfied beyond a reasonable doubt that the person with whom he interacted in the stairwell video was the defendant.

Was the defendant wearing a tam?

[133] From the time that he arrived at the restaurant, at 1:33 a.m., until he walked out, at 2:29 a.m., the shooter was wearing a baseball style cap. At no time was he wearing anything that could be described as a tam or a beret.

[134] The only witnesses who said that they saw the defendant at the restaurant that morning were Lester Coore, Clinton Hall and Alvin Gardner. Mr. Coore was questioned about whether the defendant was wearing a tam, and he responded: “I don’t recall that.” Mr. Hall’s evidence on this point was confusing. It was suggested, and he agreed, that it was the “baseball cap” that helped him recognize the defendant. He had given inconsistent statements to the police in that respect. He did not dispute making those prior statements but neither did he adopt them. In his testimony at trial, he never said that the defendant was wearing a tam or a beret, and the defence never suggested that he had said so in the past.

[135] Mr. Gardner was sure that the defendant was not wearing a baseball-style cap, but rather that it was something like a tam or beret. Obviously, if Mr. Gardner is right, his evidence undermines the allegation that the defendant was the shooter. I will return to his evidence shortly.

IV. Conclusions on the Issue of Identity

[136] There is no dispute that in the early morning hours of Monday, March 28 2011, as Clifenton Ford was standing at the bar at the north end of G’s Chill & Grill, facing south and surveying the crowd, a lone gunman, standing to his left, opened fire on him with a 9 mm semiautomatic pistol. The first shot struck Mr. Ford on the left side of the head, in the area of his left ear. Mr. Ford collapsed to the floor where the gunman, still standing to Mr. Ford’s left, fired five more shots into him, one of which was to the back of his head. The gunman then calmly walked away and left the restaurant by way of the front door.

[137] The allegation of the Crown is that the gunman was the defendant, and that the shooting was the upshot of acrimony that had been simmering for several months.

[138] None of the witnesses who testified in this trial saw the shooting and thus none of the evidence on the issue of identification is evidence of direct observation. One witness, Clinton Hall, offered an opinion as to who the gunman was based on the video footage of the shooter firing at Mr. Ford after he had fallen to the floor, but for the reasons I have explained I place no reliance on that aspect of Mr. Hall’s testimony. In relation to identity, the Crown also points to the conduct of the defendant in the ten-day interval between the shooting and his arrest. The Crown submits that the conduct supports an inference of consciousness of guilt. As I have explained, I reject that submission.

[139] In the absence of Clinton Hall’s recognition evidence and the after-the-fact conduct, the Crown’s case rests on the balance of the circumstantial evidence that I have reviewed in these reasons.

[140] When considered in isolation, items of circumstantial evidence may prove nothing. Considered individually, they may be consistent with many rational inferences other than guilt. However, the proper approach to circumstantial evidence is to consider the circumstances not in isolation but cumulatively and as a whole, and in the context of all the evidence in the case. ‘All the evidence in the case’ includes more than the evidence relied upon by the Crown. In a case based on circumstantial evidence, a court can only return a verdict of guilty if it concludes that guilt is the only reasonable inference that can be drawn from the evidence as a whole.

[141] I have no doubt that the person who can be seen interacting with Lester Coore in the stairwell video at 2:21 a.m. is the shooter. I have no doubt that he arrived at the restaurant at 1:33 a.m., 58 minutes before the shooting, and that he remained within the restaurant, socializing, until 2:17 a.m., when he abruptly left and ran across the parking lot. About 90 seconds later, at 2:19 a.m., he returned to the restaurant and strode directly across the floor toward the blind spot immediately to the south of the rear stairwell. At 2:21 a.m. he entered the stairwell and began manipulating an object in front of him. When Mr. Coore came into the stairwell, the shooter showed him the object. An image of the object only appears in the video footage for a split-second. Standing alone, that brief glimpse is insufficient to identify the object, but in light of what happened to Mr. Ford, less than 8 minutes later, there is no doubt that the object was a handgun and that the shooter was in the stairwell for the purpose of preparing the handgun for the shooting.

[142] The question that remains is whether the Crown has proved beyond a reasonable doubt that the shooter was the defendant. In that respect, the evidence of Lester Coore is at centre stage. Based on his testimony, I am satisfied beyond a reasonable doubt that the person with whom he was interacting in the stairwell video was the defendant.

[143] Although Mr. Coore’s testimony is sufficient to prove beyond a reasonable doubt that the defendant was the person in the stairwell, and thus that he was the shooter, his testimony does not stand alone. There is, in addition, the evidence of the acrimony that had arisen between the defendant and Mr. Ford in the two to three months preceding the shooting. I accept that the source of the acrimony was a mundane dispute, albeit one that had festered. The acrimony was not so serious as to make a shooting predictable, but out-of-proportion responses to run-of-the-mill aggravations are not unheard of. The prior acrimony between the defendant and Mr. Ford assumes greater significance in the context of the evidence that 2 minutes and 45 seconds after Mr. Ford arrived at the bar and ordered a drink, the shooter made a quick trip to the parking lot to get his gun, and then returned and went into the stairwell to prepare it for shooting.

[144] In addition to Mr. Coore’s testimony and the evidence of prior acrimony, there is also the evidence of Clinton Hall, which I accept, that very shortly before the shooting the defendant was standing at the east corner of the bar counter, five or six feet to the left of Mr. Ford. Further, at the east corner of the bar was a tray with a bottle of Hennessy Cognac, together with a carafe containing a red liquid. The evidence of both Mr. Hall and Mr. Coore is that the defendant was drinking Hennessey mixed with cranberry juice that morning. Five seconds before the gunman opened fire, a drink glass was placed on the bar counter immediately to Mr. Ford’s left. The glass was partially filled with a red liquid, it had the defendant’s fingerprint on the side, and it had his DNA, and only his DNA, on the rim. The defence is correct in its submission that the presence of the defendant’s fingerprint and DNA on the glass does not exclude the possibility that someone else may have put the glass on the bar. However, for the presence of the defendant’s fingerprint and DNA to have cogency as a piece of a circumstantial puzzle, that possibility does not have to be excluded.

[145] In considering the cumulative effect of the circumstances relied on by the Crown, all of the evidence must be considered, including the evidence of Alvin Gardner, who saw the defendant at the restaurant that morning, and who testified that he was sure that he was wearing a tam or beret, not a baseball cap. There is no doubt that the shooter was not wearing a tam or beret.

[146] However, there is evidence that the defendant often wore a tam or a beret, and that Mr. Gardner had seen the defendant at G’s Chill & Grill on prior occasions. Mr. Gardner had no dealings with the defendant on the morning of the shooting: his evidence went no further than to say that when he came into the restaurant, he saw the defendant at the west end of the bar. On the other hand, there is compelling evidence to the contrary of Mr. Gardner’s recollection, namely Lester Coore’s identification of the defendant as the person in the baseball cap in the stairwell video. In light of the totality of the circumstances pointing to a conclusion that the defendant was the shooter, I am satisfied that Mr. Gardner’s recollection that the defendant was wearing a tam or beret on this particular morning is mistaken. His evidence does not leave me with a reasonable doubt with respect to whether the defendant was the person who shot Clifenton Ford.

[147] In my opinion, the only rational inference to be drawn from the circumstantial evidence, considered cumulatively and as a whole, and in light of all of the evidence in the case, is that the defendant was the shooter.

V. Is the Defendant Guilty of Murder?

[148] In causing Mr. Ford’s death, the defendant committed homicide. There is no suggestion of a lawful justification or excuse for the shooting. It was manifestly an unlawful act, and thus it was a culpable homicide.

[149] Culpable homicide is either murder, manslaughter or infanticide. Culpable homicide is murder where the person who causes the death of a human being either means to cause his death or means to cause him bodily harm that he knows is likely to cause his death and he is reckless whether death ensues or not. In other words, to prove that the defendant committed murder, the Crown must prove beyond a reasonable doubt that when he shot Mr. Ford, he either intended to kill him, or he intended to cause him bodily harm that he knew was so dangerous and serious that it was likely to kill him and he proceeded despite his knowledge of that likelihood.

[150] There is no question but that the shooting of Mr. Ford was intentional. The fact that it was intentional and that it resulted in Mr. Ford’s death does not necessarily mean that the defendant meant to cause death or that he meant to cause bodily harm that he knew was likely to cause death. In deciding what the defendant meant to do, all the relevant circumstances must be taken into account. In this case, the relevant circumstances include the following:

(i) there was bad blood between the defendant and Mr. Ford;

(ii) very shortly after Mr. Ford arrived at the restaurant, the defendant made a quick trip to the parking lot and when he returned he went to the rear stairwell where he prepared his handgun for firing;

(iii) there is no evidence of any altercation, argument or disturbance that might have triggered an impulsive use of the gun without an intention to cause the predictable consequences of that use;

(iv) Mr. Ford was shot six times;

(v) two of the shots, including the first, were to Mr. Ford’s head;

(vi) after firing the six shots, the defendant calmly put the gun back into his jacket and walked away.

[151] When those circumstances are considered as a whole, the only rational inference is that the defendant meant to cause Mr. Ford’s death. After shooting Mr. Ford six times, twice in the head, he calmly walked away because he had done exactly what he intended to do.

[152] I am satisfied beyond a reasonable doubt that the defendant is guilty of murdering Mr. Ford.

VI. Was the Murder First Degree Murder?

[153] Pursuant to ss. 231(2) of the Criminal Code, murder is first degree murder when it is both planned and deliberate.

[154] A murder committed on a sudden impulse and without prior consideration, even with an intention to kill, is not a planned murder. A planned murder is one that is committed as a result of a calculated scheme that has been previously formulated or designed and carefully thought out. The consequences of the scheme have been considered and sized up and the commission of the murder is the implementation of the scheme. The scheme does not have to be complicated, nor does it have to be sensible.

[155] I am satisfied beyond a reasonable doubt that the defendant’s murder of Mr. Ford was planned. It was the implementation of a relatively simple but calculated scheme to obtain vengeance for the insult to his mother that Mr. Ford had thrown in his face, and for Mr. Ford’s refusal to desist from repeating that insult. The defendant embarked on that scheme after seeing Mr. Ford arrive at the bar. Almost immediately, he headed out to his car to retrieve his gun, and when he returned he went into the rear stairwell to prepare for the shooting. He then left the stairwell and took up a position at the corner of the bar counter, 5 or 6 feet to Mr. Ford’s left, and waited another 7½ minutes before making his move. At the time he was shot, Mr. Ford was facing south, into the crowd, not looking toward the defendant. The shooting was not an impulsive act. It was not an act triggered by an argument, altercation or disturbance and without prior consideration. After shooting Mr. Ford 6 times, twice in the head, the defendant calmly returned the gun to his jacket and walked away, demonstrating that he had done exactly what he had been planning to do for the previous 12 minutes.

[156] “Deliberate” means “considered, not impulsive”, “carefully thought out, not hasty or rash”, “slow in deciding”, “cautious”. A deliberate act is one of which a person has taken time to weigh the advantages and disadvantages. Between the time when the plan to murder Mr. Ford was formed, at 2:17 a.m., and the implementation of that plan, at 2:29 a.m., 12 minutes elapsed. In the course of those 12 minutes, the defendant retrieved his gun and went to the privacy of the rear stairwell to ready it for the shooting. He did not immediately proceed to implement his plan to murder Mr. Ford. Instead, he went to the corner of the bar counter, poured himself a drink, and waited. The shooting did not commence until 7½ minutes later. I have no doubt that while he waited the defendant was thinking over what he was about to do. He was considering it. When he acted, it was not on an impulse. He acted only after he had taken the time to think it through. I am satisfied beyond a reasonable doubt that in addition to being planned, the murder of Mr. Ford was deliberate.

VII. Verdict

[157] For the foregoing reasons, the defendant is found guilty as charged of first degree murder.

MacDonnell, J. Released: March 5, 2021