COURT FILE NO.: CRIM(P) 1929/19 DATE: 2021 03 12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN K. Holmes and Theo Sarantis, for the Crown

- and -

MARKO TUBIC and KENNETH CLIFFORD R. MacDonald and K. Danyon, for the defendant Marko Tubic L. Shemesh and M. Little, for the defendant Kenneth Clifford

HEARD: January 11, 12, 13, 14, 15 and 18, 2021, in Brampton

REASONS FOR JUDGMENT

André J.

1In August 2018, the Peel Regional Police Service charged Mr. Marko Tubic and Mr. Kenneth Clifford with the first degree murder of David Fiedler on December 2, 2017, contrary to section 235(1) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown’s case against both accused is largely based on the testimony of Abdul-Aziz Ahmed (“Mr. Ahmed”) who was with the two men on December 1 and 2, 2017, and forensic and surveillance evidence which the Crown maintains confirm material aspects of Mr. Ahmed’s testimony. Neither accused, who have both pled not guilty, testified during the trial.

SUMMARY OF THE CROWN’S EVIDENCE

Joan Fiedler

2On December 3, 2017, Joan Fiedler reported to the police that her son, David Fiedler, who was in poor health, was missing. He had left her home at approximately 1:00 p.m. on December 1, 2017. She had loaned him her debit card to deposit some money into her bank account. He called her later that day and told her that he was at the home of a friend called Pete, whose address is 3056 Parkerhill Road, Mississauga. He called her again and told her that he was going to his bank. She told him that he had left his bank card at home. He asked her for a $200 loan. He used her card to obtain the money.

3David later called her and said that he was going to sleep at Pete’s home. He also said that he had given Pete the keys of his van and that Pete refused to give him back the keys. Ms. Fiedler spoke to Pete, who told her he would return the keys to David the next morning. Joan Fiedler phoned her son numerous times the next day but got no response.

Testimony of Abdul-Aziz Ahmed

4Mr. Ahmed testified that on or about December 2, 2017, he saw a body being thrown over a bridge by both accused. He testified that the person was alive at the time. He met the accused at a shelter in October or November 2017. He started to hang out with them. He owned a grey Nissan Altima at the time. The rear-view mirror on the driver’s side of the car was broken. One of the accused asked him if he wished to make money driving them around. He agreed to do so.

5Mr. Ahmed drove the accused to Shoppers Drug Mart and to a mall. He later found out that they were stealing products such as razor blades from drug stores and selling them. In return for driving them, they paid for his gas, bought him cigarettes, and gave him cocaine and crack cocaine. On the day he saw the accused dump the body, he was drinking and smoking cocaine virtually every day or every other day.

6Mr. Tubic and Mr. Clifford lived at 3056 Parkerhill Road in Mississauga. Mr. Ahmed went to this address with the two men and drank and smoked crack cocaine there which he got from both. A number of persons would come and go from the house. Mr. Ahmed met Mr. Fiedler there.

7On or about December 1, 2017, Mr. Ahmed saw Mr. Fiedler’s van in the driveway of the home when he returned there with both accused. Mr. Tubic went to the driver to find out why the driver was there. Mr. Ahmed and Mr. Clifford went into the residence, followed by Mr. Tubic and Mr. Fiedler a few minutes later.

8A commotion then started. Mr. Ahmed heard a lot of yelling and swear words back and forth. A fight broke out. Mr. Clifford and Mr. Ahmed then went upstairs. Before Mr. Ahmed did so he saw “grabbing back and forth” and “pushing back and forth” between Mr. Tubic and Mr. Fiedler.

9Mr. Ahmed went to the driveway and had a cigarette. He then got into his car. Mr. Clifford did the same and the two were “conversating for a while”.

10Mr. Tubic then came outside and asked Mr. Ahmed to reverse his car to the entrance of the basement. Mr. Ahmed did as he was told. Mr. Tubic then asked him to open his trunk which Mr. Ahmed did. Mr. Clifford got out of the car and went towards the trunk. The two men then got into the car.

11Mr. Ahmed then drove to get some beers at the beer store. They then went to Scotiabank. Mr. Tubic told him to park away from the bank. He parked his car at the side of a building. Mr. Tubic got out of the car and later returned. They then went back to the Parkerhill residence.

12They later left the house. Mr. Tubic directed him to get on the highway. Mr. Ahmed drove. He drank some alcohol while driving on Highway 400. They stopped at a gas station where Mr. Ahmed purchased some snacks. Mr. Tubic used the pay phone to call someone.

13Mr. Ahmed continued driving for 45 minutes to an hour until he pulled into a driveway in a small town. Mr. Tubic exited the car and spoke to an unknown male. He then returned to the car and gave Mr. Ahmed “a beer or two”.

14Mr. Clifford and Mr. Ahmed remained in the car. A male exited the house and entered his truck. Mr. Tubic asked Mr. Ahmed to follow the male.

15He then drove along winding roads until he stopped behind the male’s vehicle on a wooden bridge which had huge green hydro beams. Mr. Tubic exited the car and walked over to the male. Mr. Tubic returned to the car and the male then drove off.

16Mr. Tubic then asked Mr. Ahmed to open the trunk of the car. Both accused then exited the car and went to the trunk. Mr. Ahmed saw the men through the passenger side-view mirror of his car.

17“All I could see is someone being grabbed”, he testified. He saw the feet of the person. He saw the feet kicking. “It happened so quickly”, he testified. He looked through the rear passenger window and saw that Mr. Tubic held the feet of a person. Mr. Ahmed then saw the men throw the body over the bridge from the passenger side of the car.

18The accused got back into the car. Mr. Tubic said, “Let’s go”.

19While returning to the highway, Mr. Clifford became upset. He was saying to Mr. Tubic: “Why did you do this; what the fuck?”

20When they returned to 3056 Parkerhill Road, Mr. Tubic got into Mr. Fiedler’s van and asked Mr. Ahmed to follow him. On the way, Mr. Ahmed asked Mr. Clifford who was it that got thrown over the bridge. Mr. Clifford replied that “it was the same guy that was there”. Mr. Clifford kept saying that Mr. Tubic never told him about the male over the bridge.

21Mr Ahmed followed Mr. Tubic to a parking lot where the accused parked Mr. Fiedler’s van.

22Mr. Tubic asked Mr. Ahmed to drive him to a plaza. Mr. Tubic got out of his car and spoke to a teenager, who then left and returned with an item from a grocery store. Mr. Ahmed later found out that the item was bleach. They returned to the house where Mr. Tubic started to dismantle the couch and end table. He then took the pieces to a fire pit in the backyard where he started a fire. After approximately ten to fifteen minutes, firefighters came to the house. Mr. Tubic told the firefighters they were just having a bonfire. The fire took place either on the same day Mr. Tubic went to a grocery store or the day after the body was thrown over the bridge.

23Mr. Ahmed remained at the Parkerhill residence for a couple of hours before returning to the shelter where he remained for two to three days.

24A few days later Mr. Tubic and Mr. Clifford visited him. They went for a drive. Mr. Tubic then told him he had to give up his car. Mr. Ahmed asked why. Mr. Tubic then repeated what he had said. Mr. Ahmed gave the keys of the car to him.

25Mr. Ahmed returned to the Parkhill residence about a week and a half later. While there, police officers attended the residence. They showed him a picture of Mr. Fiedler and asked him if he had seen Mr. Fiedler. Mr. Ahmed replied that he had not.

26The police arrested him on July 19, 2018. He did not initially tell the police the truth about Mr. Fiedler on that date because he was scared. He asked to speak to his mother and aunt who both attended the division where he was being held. He then gave a statement to the police about what he had witnessed. The police granted Mr. Ahmed full immunity in exchange for his statement.

AGREED STATEMENT OF FACTS

27The Agreed Statement of Facts (“ASF”) includes the following admissions:

The Evidence of Derek Snowden

1. On December 3, 2017, David’s friend, Derek Snowden, went to look for David at 3056 Parkerhill, after hearing from Joan Fidler that David was missing. Derek was aware of the friend David was said to have been visiting, Peter Clifford and the house – having been there before. By the time he got there David’s distinctive orange camper van, was not in the driveway. Derek was denied entry by occupants of the basement who seemed to be cleaning with bleach. They would not let him speak with Peter or come inside the house.

3056 Parkerhill Avenue, Mississauga

2. 3056 Parkerhill Avenue is an address well know to the police as a hang out for local drug users and traffickers who: share, sell, buy and consume drugs – including crack cocaine, heroin and fentanyl. First responders have attended the residence on multiple occasions, both before and after David’s disappearance, as a result of drug overdoses. At least two such overdose have led to fatalities. First responders have observed numerous hypodermic needles and other drug paraphernalia throughout the house.

3. 3056 Parkerhill has also historically had a significant bed bug problem. Police have been aware of this problem as early as March 2016 and have provided that information as a caution to first responders attending the residence.

The Bank Evidence

4. David Fiedler used Joan Fiedler’s debit card to withdraw $200.00 on Friday December 1, 2017 at 6:55 pm at an ATM at the Scotiabank branch located at 3295 Kirwin Avenue, Mississauga.

5. The Scotiabank is close to a beer store. David Fiedler purchased beer from the store at 7:06 pm on December 1, 2017. The following is a surveillance photo of him during that transaction.

6. The next morning, on December 2, 2017 between 7:11 am and 7:18 am, the bank card was used at the same bank machine and was unable to withdraw any money despite repeated attempts using the correct PIN because there were not sufficient funds. Surveillance footage at the ATM shows a tall, thin, white male with his face mostly covered by a hood, using the card. This male is not David Fiedler. A car can be seen in the bank parking lot.

David’s Abandoned Van

7. Police located David’s van in a parking lot at 2300 Confederation Parkway, Mississauga, on December 5, 2017. A trespass notice had been placed on it by property management that morning.

8. Video surveillance from 101 Queensway Road, Mississauga, on December 2, 2017 at 5:10 pm, shows David’s van driving southbound on Confederation Parkway and entering the south entrance of 2300 Confederation Parkway, Mississauga. The van is followed into the parking lot by a grey four door sedan.

9. A cell phone associated to Marko Tubic (437) 925-9721, was in the area of the parking lot at 5:11 pm on December 2, 2017.

The Bonfire at Parkerhill

10. On December 8, 2017 police and fire were dispatched for reports of a large fire behind 3056 Parkerhill at 11:35 pm.

11. The phone associated to Marko Tubic was in the area of Parkerhill around the time the police were called about the fire.

12. On December 13, 2017, during execution of a search warrant conducted at 3056 Parkershill, police found a burnt carpet near a fire pit, outside the home. Police seized the burnt carpet. It was sent to the Centre of Forensic Sciences and the chemical indications of blood were found on the carpet although no samples of DNA could be developed and the presence of blood could not be confirmed.

The Damaged Nissan Altima

13. On March 29, 2018, police conducted NICHE and MTO inquiries into a four door, grey, Nissan Altima with reported damage. A 2015 Grey Nissan Altima bearing Ontario plates CCFV029 and VIN # 1N4AL3AP5FN348564 was identified.

14. Between June 14, 2017 and January 22, 2018 it belonged to Abdul-Aziz Ahmed.

15. On November 6, 2017, Jomar Mapili was working as a loss prevention officer at Winner’s located at 3900 Grand Park Drive, Mississauga. At approximately 4:15 pm, two white suspects, entered the store and stole a bottle of fragrance. They were observed fleeing in a grey Nissan Altima bearing Ontario License plate CCFV029.

16. On November 25, 2017 Abdul-Aziz Ahmed was pulled over by a Toronto police officer in the Altima. His driver’s side mirror was missing.

17. Amra Forto operates a bakery at 5168 Dundas Street West, Toronto, and lives above it. On or about December 9, 2017 she left her apartment at 6:30 am and noticed a grey, four door, car abandoned behind her building. She had never seen it before and after four-five days she reported it to Toronto police who had it removed.

18. A cell phone associated to Marko Tubic connected to a cell phone tower located at 5236 Dundas Street West, Toronto, on December 9, 2017 at 1:00 am, in close proximity to where the Altima was found abandoned.

19. On December 13, 2017 at 4:20 pm the Altima was towed from 5168 Dundas Street West, Toronto, upon the request of Toronto Parking Enforcement. It arrived at Classic Towing’s secured compound at 4:46 pm and notes were made regarding damage to the vehicle. On January 3, 2018 the vehicle was released to Diligent Bail Services.

20. In January 2018, the vehicle was repossessed and delivered to Adesa Auction House. The auction house documented damage along both sides, including a missing driver’s side mirror.

21. The vehicle was sold by Adesa Auction House on February 3rd, 2018 to Club Prestige Auto in Saint Eustache Quebec. It was repaired and sold to Auto 3R located at 6825 Boulevard-des-forges, Trois Riviere, Quebec. In consultation with Peel Police the Trois Riviere police located the vehicle at that address and sealed the doors and trunk and secured the vehicle in their police facility.

22. On April 3, 2018, Peel police officers attended at the Trois Riviere Police located at 2250 Boulevard-des-forges, Trois Riviere, Quebec. They located the sealed vehicles and followed it while it was being towed by the Peel Regional Police Forensic Identification Bureau. It was secured in a locked examination bay.

David’s Blood in the Trunk of the Altima

23. On April 9, 2018 an officer followed it being towed from the Peel Regional Police Identification Bureau to the Centre of Forensic Sciences. The seals were still intact. It was secured in Bay # 5 and turned over to the Centre of Forensic Sciences.

24. At the Centre of Forensic Sciences, two drops of blood suitable for DNA analysis were found in the trunk liner of the Altima. David Fiedler was the source of that blood.

The Cellular Phone Evidence

David Fiedler

25. David Fiedler’s cell phone records dated December 1, 2017 – December 13, 2017 were obtained. David’s cell phone number was (647-701-5559.

26. David Fiedler’s phone was active throughout the day on December 1, 2017 until December 2, 2017 at 4:41 am. Tower locations place the phone belonging to David Fiedler around 155 Hillcrest Avenue, Mississauga. This is in close proximity to 3056 Parkerhill. For Freedom Mobile, David’s provider, this is the closest tower location to 3056 Parkerhill. The only other tower location that David Fiedler’s phone pinged off in the evening of December 1, 2017, was between 6:52 pm and 7:26 pm where tower locations place his phone in the area of 15 Fairview Road, Mississauga. This tower location is consistent with David attending at the Scotiabank and beer store. Between 4:17 am and 4:41 am on December 2, 2017, David’s phone had three contacts with phone number (416) 270-3171. This number is associated to a drug trafficking network, whereby multiple drug dealers operate the phone. It is known to police as the “Bobby phone” as whoever answers it will go by the name “Bobby”. Following contact with the “Bobby phone”, David’s phone made no further outgoing calls or text messages.

27. David Fiedler’s phone remained on and received several more incoming calls (which went to voicemail) and texts in the area of 155 Hillcrest Avenue, Mississauga until December 4, 2017 at 3:48 am – when it is assumed that it either ran out of batteries or was turned off. This tower location is near 3056 Parkerhill.

28. Although no outbounds calls or texts were ever recorded after 4:41 am December 2, starting on December 5 some calls appear to start connecting although they did not register any cell tower locations. The explanation for a call connecting but not registering a tower location could be one of two things. Firstly, the call could be roaming on another carrier’s network. David’s phone was with Freedom mobile. Freedom mobile phones would be roaming when outside of the GTA. The second possibility is that somebody could have been using voice over wifi, such that if the call started on wifi, a cell tower location would not register.

Jeffery Caissey

29. Telephone number (705) 205-3422 is registered to Jeff Caissey of 1123 Campbell’s Road, Bracebridge, Ontario. Results were obtained for December 1, 2017 – December 9, 2017.

30. In addition to showing that Jeff Caissey had phone contact with the phone associated to Marko Tubic and Jason Taby on December 2, 2017, Jeff Caissey’s phone records reveal that he received a call from a Bell Payphone on December 2, 2017 at 11:03 am which lasted 78 seconds.

31. The phone number for the pay phone is (705) 645-9053 and it is located in an Esso Station parking lot at 440 Ecclestone Drive in Bracebridge, close to Jeff Caissey’s house.

32. Video surveillance from nearby 500 Ecclestone Drive, Bracebridge from December 2, 2017 shows that at approximately 11:05 am a grey Nissan Altima, drives from the direction of the payphone towards the road, approximately one minute after the call from the payphone to Jeff Caissey’s number disconnected.

Jason Raby

33. Telephone number (519) 328-0361 is associated to Jason Raby – a mutual friend of Marko Tubic and Jeff Caissey.

34. He had phone contact with both Marko Tubic and Jeff Caissey on December 2, 2017.

Cell Phone Associated to Marko Tubic

35. A cell phone with the number (437) 925-9721 was associated to Marko Tubic. It was used by Marko Tubic to call his mutual friends Jason Raby and Jeffrey Caissey in the morning hours on December 2, 2017. Jason Raby provided police with the number (437) 925-9721 as the number he had saved for Marko Tubic who he would receive calls from once in awhile. However, by February 4, 2018 when he heard from Marko it was from a different number.

36. Between 5:21 am and 8:29 am on December 2, 2017 the phone number associated to Marko Tubic, connected to a Tower located at 2590 Argyle Road, Mississauga. This tower location is in close proximity to 3056 Parkerhill. For Roger’s, the phone provider used by the phone associated to Marko Tubic, this is the closest tower to 3056 Parkerhill. While at the tower location near Parkerhill, the phone associated to Marko Tubic had, in part, the following contact. Between 5:21 am and 8:08 am, it had multiple contacts with the “Bobby phone” which was the same number as David’s last call.

37. At 7:58 the phone associated to Marko Tubic called Jason Raby but he did not answer. Between 7:59 am and 8:29 am the phone number associated to Marko Tubic called Jeff Caissey four times. Following the 8:29 am phone call to Jeff Caissey despite receiving incoming telecommunications the number associated to Marko Tubic did not register any tower information until 1:45 pm on December 2, 2017. This approximately 5 hr and 15 minute gap was not typical when compared to this telephone’s usage in the days before or after. This suggests the phone may have been turned off during this period of time.

38. The phone associated to Marko Tubic called Jeff Caissey at 1:47pm on December 2, 2017 and Jeff Caissey called the phone associated to Marko Tubic back at 1:55pm. Between 4:42 pm and 5:08 pm on December 2, 2017 the phone associated to Marko Tubic connected to a cellular tower in the area of 2590 Argyle Road, Mississauga. The next tower location was at 5:11 pm in the area of 2100 Sherobee Road, Mississauga. At 5:15 pm the telephone returned to 2590 Argyle Road, Mississauga. David’s van was on video entering the parking lot at 2300 Confederation Parkway, which is located between the above two towers. For Roger’s a phone in the area of 2300 Confederation Parkway could connect with either tower.

39. On December 8, 2017 cellular tower data places the phone associated to Marko Tubic in the area of Parkerhill between 10:56 pm and 11:15 pm. The police responded to a bonfire at the back of 3056 Parkerhill. A search warrant was later executed and burnt carpet was found in a fire pit at the sight of the bonfire.

40. On December 9, 2017 around 1:00 am the cell phone associated to Marko Tubic connected to a tower in the area of 5236 Dundas Street West, Toronto. Abdul-Aziz Ahmed’s damaged Altima was found abandoned at the rear of a business located at 5168 Dundas Street West, Toronto later that morning.

41. David Fiedler’s cell phone records are admitted as an exhibit.

42. Jeff Caissey’s cell phone records are admitted as an exhibit.

43. Jason Raby’s cell phone records are admitted as an exhibit.

44. The records for the cell phone associated to Marko Tubic are admitted as an exhibit.

45. A table compiling the production order results is admitted as an exhibit. The phone number associated to Marko Tubic appears in blue, David Fiedler’s phone number appears in red, the drug network “Bobby phone” appears in orange, Jeff Caissey’s number appears in green and Jason Raby’s number appears in purple.

46. A Powerpoint comprised of information obtained through the production orders in relation to the cell phone evidence and tower locations is admitted and will be introduced and made an exhibit.

POSITION OF THE PARTIES

The Crown’s Position

28The Crown concedes that Mr. Ahmed is a Vetrovec witness whose testimony is replete with internal inconsistencies, is inconsistent in many respects with his prior statements and preliminary hearing testimony, and is inconsistent in some respects with the testimony of other Crown witnesses. However, the Crown submits that I must look to “confirmatory evidence”, as defined in the applicable jurisprudence, to accept Mr. Ahmed’s evidence. Such evidence does not have to implicate both the accused; it can implicate one but not the other. Furthermore, confirmatory evidence does not have to relate to contentious issues, merely to material ones. Such evidence restores faith in Mr. Ahmed’s evidence.

29The Crown submits that the following evidence confirms Mr. Ahmed’s evidence:

1. Cellphone records show that Mr. Fiedler and Mr. Tubic were at the Parkerhill residence on December 1, 2017;

2. Cellphone records show that both Mr. Fiedler and Mr. Tubic were calling the number of a drug seller, who identified himself as “Bobby”;

3. Mr. Tubic uses the correct PIN number of Joan Fiedler’s bank card, which he could only have gotten forcefully from Mr. Fiedler;

4. Mr. Tubic went to great lengths, by wearing a hoodie, to hide his identity while using the bank card at Scotiabank;

5. The bloodstains found in Mr. Ahmed’s car confirm that Mr. Fiedler was in the trunk of the car. It also confirms Mr. Ahmed’s testimony that he reversed to the entrance of the Parkerhill residence at Mr. Tubic’s request;

6. Mr. Ahmed stated that Mr. Tubic entered the Scotiabank. The surveillance evidence shows that a male with the same build and facial hair as Mr. Tubic tried to withdraw money from Ms. Fiedler’s bank account. The Bank’s records confirmed the attempted withdrawals from the account;

7. Mr. Ahmed’s testimony that Mr. Tubic used a payphone along the highway is confirmed by the phone records, which show that Mr. Tubic called his friend Jeff Caissey from the payphone at 11:03 am on December 2, 2017;

8. Mr. Ahmed testified that he drove to a male’s house and peed outside. Mr. Caissey confirms that this occurred;

9. Mr. Ahmed testified that he drove to a bridge by following the male. Mr. Caissey confirms this testimony;

10. Mr. Ahmed testified that a young person purchased bleach for Mr. Tubic. The ASF indicates that the Parkerhill residence had been cleaned up with bleach;

11. Mr. Ahmed testified that Mr. Tubic broke up furniture and burnt the pieces in a firepit in the yard of the Parkerhill residence. The police found a partially burnt carpet at the firepit; and

12. Mr. Ahmed testified that Mr. Tubic asked him for his keys after the body was dumped. Cellphone records put Mr. Tubic at 1:00 p.m. on December 9, 2017 at the location where Mr. Ahmed’s car was abandoned.

30The Crown submits further that:

1. Mr. Tubic told Mr. Caissey that they needed to get rid of something and he, Mr. Tubic, then made a gun gesture;

2. Mr. Caissey called Mr. Tubic months later and told him that Peel homicide was asking about him. Mr. Caissey testified that Mr. Tubic told him not to worry about it.

31The Crown submits that Mr. Clifford is guilty of first degree murder even if he didn’t plan to kill Mr. Fiedler until he assisted Mr. Tubic in throwing Mr. Fiedler over the bridge. He would be guilty of first degree murder if he had joined the murder at that point: see R. v. Almarales, 2008 ONCA 692, 237 C.C.C. (3d) 148, at paras. 63-73; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 19-25.

32Alternatively, Mr. Clifford could be found guilty of constructive murder if Mr. Fiedler was killed while being confined. To the extent that Mr. Fiedler was killed while being confined, then both Mr. Tubic and Mr. Clifford would be guilty of first degree murder: see R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at paras. 43-54; R. v. White, 2014 ONCA 64, 305 C.C.C. (3d), 449, at paras. 46-60; R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at paras. 37-39; R. v. Kimberley (2001), 56 O.R. (3d) 18, at paras. 108-110; and R. v. Harbottle, [1993] 3 S.C.R. 306, at pp. 324-325. The Crown further submits that a non-criminal explanation does not clarify how Mr. Tubic got Mr. Fiedler’s PIN number: see R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 106-139, 150.

33Finally, the Crown submits that even if Mr. Fiedler was dead when Mr. Tubic and Mr. Clifford threw him over the bridge, the post offence conduct of both is probative of their intent to kill.

Position of Mr. Tubic

34Mr. MacDonald, counsel for Mr. Tubic, submits that the Crown’s case is based on “suspicion, speculation and supposition”. He dismisses Mr. Ahmed as a “deplorable witness” whose evidence should be rejected as being unworthy of belief.

35He submits that the evidence called by the Crown is capable of supporting competing inferences. For example, an inference could be drawn that Mr. Fiedler’s disappearance was the result of his dealing with the “Bobby” phone. He submits further that the undisputed evidence is that the Parkerhill residence is a drug den and that accordingly, the ways Mr. Fiedler met his demise are “numerous”. He also submits that Mr. Tubic could have gotten rid of Mr. Fiedler’s body because he likely died at his residence. Furthermore, he submits that the cause of Mr. Fiedler’s death is unknown.

36Mr. MacDonald relies on the case of R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 35 and 55, for the proposition that where the Crown case is a circumstantial one, the Court, in order to find Mr. Tubic guilty of the offence charged, must find that Mr. Tubic’s guilt is the only reasonable inference to be drawn from the evidence.

Bank Evidence

37Mr. MacDonald submits that it is unclear whether the person who unsuccessfully attempted to withdraw money from the bank was Mr. Tubic, given that the Crown has long theorized that it was not. Furthermore, it is possible that Mr. Fiedler gave Mr. Tubic his PIN number.

38Second, while it was suspicious that Mr. Tubic ditched Mr. Fiedler’s van and Mr. Ahmed’s car, doing so was not inconsistent with Mr. Fiedler having died at the Parkerhill residence by someone else’s hand.

39Third, regarding the use of bleach to clean up the residence, the ASF indicates that a number of persons were involved in the clean up. Additionally, the clean up could have been precipitated by the bed bug problem at the Parkerhill residence.

40Fourth, the act of throwing a body over the bridge is consistent with a number of innocent explanations other than one which suggests that Mr. Tubic was responsible for Mr. Fiedler’s death.

41Fifth, Mr. Tubic’s use of the phone is consistent with the fact that someone could have asked him to get rid of the body.

42Sixth, there is no credible evidence that Mr. Tubic killed Mr. Fiedler at his residence.

43Seventh, Mr. Ahmed’s evidence should be rejected because of its numerous inconsistencies and his conflicting police statements and testimony at the preliminary hearing.

Position of Mr. Clifford

44Ms. Shemesh, counsel for Mr. Clifford, submits that if the Court finds that Mr. Fiedler was thrown over the bridge, the Crown’s evidence is equally consistent with a finding that he was already deceased at that time. She submits that there is no credible evidence that Mr. Fiedler was alive when thrown over the bridge.

45Ms. Shemesh relies on the cases of R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 32, and R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at para. 79, for the factors that are relevant to the assessment of Mr. Ahmed’s credibility. She identifies the following factors that render Mr. Ahmed’s testimony as being unworthy of belief:

1. His patent inability to recall events accurately;

2. The fact that he had not slept the whole evening and earlier;

3. Mr. Ahmed’s use of cocaine and his consumption of copious amounts of alcohol over the 24 hours preceding the trip to Bracebridge;

4. Mr. Ahmed’s limited view of the incident he described which allegedly took place on the bridge; and

5. The numerous inconsistencies in his testimony.

46She also submits that with respect to Mr. Clifford, the Crown adduced:

a) no evidence regarding his involvement with Mr. Fiedler;

b) no evidence that he attended Scotiabank with Mr. Fiedler’s bank card;

c) no evidence that he knew anyone was in the trunk of Mr. Ahmed’s car; and

d) no evidence that Mr. Clifford was involved in any act after the Bracebridge trip.

47Furthermore, Ms. Shemesh relies on Mr. Ahmed’s evidence that Mr. Clifford had nothing to do with Mr. Fiedler’s death.

48Ms. Shemesh also submits that the following discrepancies between the testimonies of Mr. Ahmed and Mr. Caissey further compromise Mr. Ahmed’s credibility:

a) Mr. Ahmed testified that Mr. Caissey drove onto the bridge while Mr. Caissey denied that he ever did so;

b) Mr. Ahmed told the police that the bridge identified by Mr. Caissey as the bridge he drove up to was not the bridge where he saw a body being thrown over. Mr. Ahmed testified that it was a wooden bridge with no water;

c) Mr. Ahmed testified that Mr. Clifford got out of the car while Mr. Caissey testified that Mr. Clifford did not do so; and

d) Mr. Ahmed negotiated the terms on which he gave a statement to the police including blanket immunity, bail, a quantum of money and involvement in the witness protection program.

49Ms. Shemesh concedes that if I find that Mr. Clifford helped throw a live body over a bridge, then the Crown has proven beyond a reasonable doubt that he is guilty of first degree murder.

ANALYSIS

50The Crown bears the burden of proving Mr. Tubic and Mr. Clifford’s guilt of first degree murder or of any included offence beyond a reasonable doubt. To the extent that the Crown is relying on circumstantial evidence to prove the guilt of the accused of first degree murder or of any included offence, I can only find either or both of the accused guilty if the guilt of either or both is the only reasonable inference to be drawn from all the evidence that I accept.

51The Crown’s case against Mr. Tubic and Mr. Clifford rests largely on the evidence of Mr. Ahmed. The Crown agrees with both accused’s counsel that Mr. Ahmed is a Vetrovec witness and as such, his testimony should be treated with extreme caution. While all parties agree with this assessment of Mr. Ahmed’s evidence, it is appropriate to restate the principles, enunciated in Brooks, at para. 79, that require a trier of fact to place special scrutiny on the testimony of a Vetrovec witness. The Supreme Court of Canada quoted approvingly the following passage from M. Rosenberg (as he then was), “Developments in the Law of Evidence: The 1992-93 Term: Applying the Rules” (1994) 5 S.C.L.R. (2d) 421, at p. 463. Rosenberg noted the following in determining whether a Vetrovec warning was necessary in a jury trial:

The judge should first in an objective way determine whether there is a reason to suspect the credibility of the witness according to the traditional means by which such determinations are made. This would include a review of the evidence to determine whether there are factors which have properly led the courts to be wary of accepting a witness’s evidence. Factors might include involvement of criminal activities, a motive to lie by reason of connection to the crime or to the authorities, unexplained delay in coming forward with the story, providing different accounts on other occasions, lies told under oath, and similar considerations. It is not then whether the trial judge personally finds the witness trustworthy but whether there are factors which experience teaches that the witness’s story be approached with caution. Second, the trial judge must assess the importance of the witness to the Crown’s case. If the witness plays a relatively minor role in the proof of guilt it is probably unnecessary to burden the jury with a special caution and then review the confirmatory evidence. However, the more important the witness the greater the duty on the judge to give the caution. At some point, as where the witness plays a central role in the proof of guilt, the warning is mandatory. This, in my view, flows from the duty imposed on the trial judge in criminal cases to review the evidence and relate the evidence to the issues.

52The factors identified by Rosenberg “to determine whether there are factors which have properly led the courts to be wary of accepting a witness’s evidence” include the following:

a) involvement in criminal activities;

b) a motive to lie by reason of connection to the crime or to the authorities;

c) unexplained delay in coming forward with the story;

d) providing different accounts on other occasions; and

e) lies told under oath.

53To these factors could be added the following:

i) material inconsistencies with the evidence of other witnesses; and

ii) the witness’ level of sobriety at the time he made the observations which form the subject of his testimony.

54I will now assess each of these factors in the context of Mr. Ahmed’s testimony.

Involvement in Criminal Activities

55Mr. Ahmed’s criminal record spans from 2006 to 2019. He has been convicted of sixteen offences of failing to comply and of theft under $5,000 on three separate occasions. He has also been convicted of drug trafficking in a controlled substance (i.e. marijuana), fail to appear, obstruct police and assault.

Motive to Lie by Reason of Connection to the Alleged Offence

56It is indisputable that Mr. Ahmed is connected to the disappearance and, from the Crown’s perspective, the murder of David Fiedler. He allegedly transported the accused to Bracebridge to dispose of Mr. Fiedler, he drove Mr. Tubic to the Scotiabank, and allegedly followed Mr. Tubic while he drove Mr. Fiedler’s van and abandoned it.

57Additionally, the police initially charged Mr. Ahmed with the murder of Mr. Fiedler. This charge was withdrawn in exchange for Mr. Ahmed’s cooperation in the prosecution of both accused. Mr. Ahmed also received $20,203.45 from the police while in their witness protection program and conceded that he was homeless and unemployed when he entered the program. The fact that he left the program a few months later does not alter the fact that he received a benefit in exchange for his cooperation with the prosecution of both accused.

Unexplained Delay in Coming Forward with His Story

58Mr. Ahmed testified that the accused threw a kicking Mr. Fiedler over a bridge on or about December 2, 2017. He did not contact the police about what he had seen. Instead, the police arrested Mr. Ahmed outside a library on outstanding warrants on July 19, 2018. Mr. Ahmed initially denied any knowledge of Mr. Fiedler’s whereabouts.

59Additionally, Mr. Ahmed had an even earlier opportunity to tell his story to the police about Mr. Fiedler’s disappearance. He testified that a few days following the throwing of Mr. Fiedler over the bridge, police officers attended the Parkershill residence and showed him a photograph of Mr. Fiedler. Mr. Ahmed denied knowledge of Mr. Fiedler’s whereabouts.

Providing Different Accounts on Other Occasions

60Defence counsels’ cross-examination of Mr. Ahmed revealed that there are numerous inconsistencies between his trial testimony, his statements to the police and his testimony during the preliminary hearing in this matter on October 21 and 22, 2019. The following is a list of the most important inconsistencies between Mr. Ahmed’s trial testimony, his police statements and his preliminary hearing testimony:

i) He testified during the trial that he only recalled drinking alcohol on the night of December 1, 2017 but testified on October 22, 2019 that he had spent the whole night smoking cocaine.

ii) He testified during the trial that it was not possible that someone other than Mr. Tubic had asked him to turn his car around but conceded that he testified at the preliminary hearing that Mr. Clifford had asked him to do so.

iii) He testified during the trial that Mr. Tubic asked him to open the trunk of the car but testified at the preliminary hearing on October 21, 2019 that Mr. Clifford had asked him to do so. When confronted with the inconsistency, he reiterated that Mr. Tubic has asked him to do so.

iv) At trial, he denied that he smoked crack cocaine while driving on the way to Bracebridge but conceded that he testified during the preliminary hearing on October 22, 2019 that he had done so. He also agreed that he told the police in his July 19, 2019 statement to the police that “we were drinking” on the way to Bracebridge.

v) Mr. Ahmed testified in-chief during the trial that he had seen a tussle between Mr. Tubic and Mr. Fiedler at the Parkerhill residence on December 1, 2017. However, he testified on October 21, 2019 during the preliminary hearing that he had been on the front lawn of the residence when the fight had started. Defence counsel put to Mr. Ahmed that he testified at the preliminary hearing on October 21, 2019 that there was no way he had seen the fight. He maintained however, that he did see the “tussle”. He also conceded that on October 22, 2019, he testified that he had been outside the residence when the fight took place. Under cross-examination by Ms. Shemesh, Mr. Ahmed conceded that he testified on October 21, 2019 that he saw “maybe a few punches” and that Mr. Fiedler was getting “beat up”.

vi) Mr. Ahmed maintained that he saw “pushing back and forth” and that it was not possible he had merely seen a yelling match. However, he also testified at the preliminary hearing that it was possible it had just been a yelling match he had witnessed.

vii) Mr. Ahmed testified during the trial that he saw Mr. Fiedler’s feet through the tinted passenger side rear window and that the dumping of the deceased happened very fast. Defence counsel, Mr. MacDonald, however, put to him that during his October 22, 2019 testimony during the preliminary hearing, he testified that he made his observations by looking through the front passenger mirror and then through the rear-view mirror of his car. Mr. Ahmed however, testified under cross-examination in the trial that he could not see anything through his rear-view mirror. He repeatedly testified that he saw feet dangling, kicking and fighting, through the side-view mirror. He also agreed that he saw the feet of the deceased dangling “a split second or two”.

viii) Mr. Ahmed testified that he saw the feet kicking and fighting but testified at the preliminary hearing that “I couldn’t see what was making the legs move”.

ix) When asked in cross-examination about the body when it was thrown over the bridge, Mr. Ahmed agreed that the body was neither moving nor squirming.

x) Mr. Ahmed testified in cross-examination during the trial that it was just him who followed Mr. Tubic who drove Mr. Fiedler’s van, and that he was wrong when he testified on October 21, 2019 that Mr. Clifford was with him.

xi) Mr. Ahmed denied during his trial testimony that he ever went to the trunk of the car and that there was a discussion about someone in the trunk of his car. However, in a recorded statement he made on July 19, 2018, after he left the interview room to have a cigarette, Mr. Ahmed told the interviewing officer that:

ABDUL: Yes. Yes, because the guy-, we, we got to the place, he went to the back, opened the trunk and talked to him, and I’m like, what the fuck? Why is there-, this guy’s there, I thought you, you were taking him somewhere else or you’re dropping him, or I didn’t think it was gonna go this far. And they opened the trunk, and he told the guy shut up or fuck off or something like that, and the other guy, we followed him. And I didn’t even know what they were gonna do because he never told anybody what was gonna happen. And then we get there, he just-, okay, just wait a second. I waited, I opened the trunk thinking that they’re gonna beat him up or something and just leave him there.

OFFICER: Yeah.

ABDUL: And they take him, and they throw him. Like I could see like through my sideview mirror.

xii) Mr. Ahmed testified that on their way to Bracebridge, Mr. Clifford sat in the front seat. Mr. Jeff Caissey testified however, that Mr. Clifford was sitting in the rear passenger seat when he saw him while Mr. Tubic occupied the front passenger seat.

Material Inconsistencies with the Evidence of Other Witnesses

61I have already identified inconsistencies between Mr. Ahmed’s testimony and that of Jeff Caissey. For example, Mr. Caissey testified that Mr. Ahmed pulled up right beside the deck of his house, while Mr. Ahmed testified that he pulled up in the driveway. Second, Mr. Ahmed denied that the bridge identified by Mr. Caissey as the location where he led Mr. Ahmed’s car was the one where he drove to. Third, Mr. Ahmed testified that Mr. Tubic exited his vehicle and went to speak to Mr. Caissey, who testified that this never happened. Fourth, Mr. Ahmed testified that Mr. Clifford occupied the front passenger seat of his vehicle, while Mr. Caissey testified that Mr. Tubic was the front passenger “the whole time”.

Mr. Ahmed’s Level of Sobriety when he made the Observations Which Form the Subject of his Testimony

62Based on his own testimony, Mr. Ahmed was very much under the influence of alcohol, cocaine and crack cocaine for much of December 1 and 2, 2017. He testified under cross-examination that the period from November to December 2017 was the heaviest period of crack usage in his life. He was up during the evening of December 1, 2017 smoking cocaine and consuming alcohol. He consumed alcohol while driving to Bracebridge and consumed two more beers at the home of Jeff Caissey. He also testified during the trial that it was possible that he was very, very intoxicated when he arrived in Bracebridge. While he denied that his inability to recall certain details was on account of his consumption of crack cocaine, it is reasonable to conclude that his state of inebriation, coupled with fatigue, likely affected his perception of what transpired on December 1 and 2, 2017.

CONFIRMATORY EVIDENCE

63Is there evidence from another source or sources that tend to show that, despite the untrustworthiness of Mr. Ahmed’s testimony, the court can conclude that he is telling the truth regarding the guilt of the accused?

THE LAW

64In Khela, at para. 39, the Supreme Court of Canada noted the following:

Common sense dictates that not all evidence presented at trial is capable of confirming the testimony of an impugned witness. The attribute of independence defines the kind of evidence that can provide comfort to the trier of fact that the witness is telling the truth. Where evidence is “tainted” by connection to the Vetrovec witness it can not serve to confirm his or her testimony. [Citations omitted.]

65The Court further noted, at paras. 40-43:

40…In Kehler, the Court confirmed that evidence, to be considered confirmatory, does not have to implicate the accused. We maintain that position here.

41Individual items of confirmatory evidence need not implicate the accused. As Dickson J. explained in Vetrovec:

The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth. Evidence which implicates the accused does indeed serve to accomplish that purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice.

42However, when looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to the jury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence. Again in Vetrovec, Dickson J. thus noted, with respect to evidence capable of being confirmatory:

All of this incriminating evidence, when considered together, strongly strengthens the belief that Langvand was telling the truth regarding the participation of Vetrovec and Gaja. It rebuts any suggestion that he is falsely implicating innocent individuals.

43This passage was cited with approval in this Court’s unanimous judgment in Kehler, where the Court concluded that confirmatory evidence must be capable of restoring the trier’s faith in relevant aspects of the witness’ account. As a matter of logic, where the only issue in dispute is whether the accused committed the offence, the trier of fact must be comforted that the impugned witness is telling the truth in that regard before convicting on the strength of that witness’s testimony. [Citations omitted, emphasis in original]

66Furthermore, in R. v. Roks, 2011 ONCA 526, at para. 66, Watt J.A. noted that:

It is worth reminder [sic] that a trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence of confirmatory evidence where the trier of fact, cautioned about the danger of doing so, is satisfied that the witness is telling the truth. [Citations omitted.]

APPLICATION OF THE LAW TO THE FACTS

67Is there independent confirmatory evidence in this trial that provides comfort that Mr. Ahmed is telling the truth? In my respectful view, there is. I will now detail the evidence that confirms material aspects of Mr. Ahmed’s evidence.

Mr. Ahmed’s Evidence about Witnessing a “Tussle” or Pushing Between Mr. Tubic and Mr. Fiedler

68Mr. Ahmed testified in the trial that he saw a tussle between Mr. Tubic and Mr. Fiedler at the Parkerhill residence. He insisted that he saw it even after being confronted with his testimony from the preliminary hearing that he never saw a fight and that he was on the front lawn when the fight had started. In response, he testified that he saw the tussle before coming upstairs. He denied under cross-examination that he had merely heard a yelling match as he testified at the preliminary hearing. He responded that it was not possible that all he had heard on the date in question was a yelling match. Mr. Ahmed also testified that after returning from Bracebridge, Mr. Tubic had asked a teenager to purchase bleach at a grocery store for him.

69Is there confirmatory evidence that provides comfort that Mr. Ahmed is truthful about witnessing a tussle between Mr. Tubic and Mr. Fiedler? In my view, there is.

70First, the ASF states in paragraph one that on December 3, 2017, Derek Snowden, a friend of Mr. Fiedler, “was denied entry by occupants of the basement who seemed to be cleaning with bleach. They would not let him speak with Peter or come inside the house.” Admittedly, the occupants could have had an innocent explanation for cleaning the residence with bleach. Indeed, Mr. MacDonald submits that they could have been using bleach to clean because of the bed bug problem at the residence.

71I suppose that using bleach to get rid of bed bugs may not be unusual, but within the context of this case, the use of this chemical to clean the residence is significant. The cleaning occurred on the very day that Joan Fiedler reported her son missing. Mr. Ahmed testified that he had witnessed an altercation between Mr. Fiedler and Mr. Tubic and testified further that after returning from Bracebridge, Mr. Tubic got some teenager to purchase bleach for him. The Parkerhill residence was not known by the police for its tidiness or cleanliness. On the contrary, the ASF states at paragraph two that “[f]irst responders have observed numerous hypodermic needles and other drug paraphernalia throughout the house.”

72There is also confirmatory evidence of a physical altercation in the residence before the trip to Bracebridge. Mr. Ahmed testified that after they returned home following the trip to Bracebridge, Mr. Tubic started to “take things apart” such as the couch and end table. He testified that in addition to Mr. Tubic, Mr. Clifford and himself, he believed that “one of the roommates” was at the residence at the time. He testified that Mr. Tubic then took the pieces of the furniture he had broken up to a firepit in the backyard and started a fire.

73To be sure, Mr. Ahmed’s recollection of dates when events occurred is sometimes inaccurate. For example, the ASF states that on December 8, 2017, “police and fire were dispatched for reports of a large fire behind 3056 Parkerhill at 11:35 p.m. The police found remnants of a burnt carpet near the firepit. Tests conducted by the Centre of Forensic Sciences determined the presence of blood on the carpet although no samples of DNA could be developed and the presence of blood could not be confirmed.”

74There is other confirmatory evidence that a violent physical altercation took place at the Parkerhill residence on or about December 1, 2017. Mr. Ahmed testified that Mr. Tubic asked him to back up to the entrance of the basement or lower level of the residence. He did so and then Mr. Tubic asked him to “pop” his trunk. It was put to Mr. Ahmed that he had testified during the preliminary hearing that it was Mr. Clifford who had asked him to open the trunk. He insisted however, that it was Mr. Tubic who had done so. He also testified that both Mr. Tubic and Mr. Clifford had gone to the back of his car. He did not see what, if anything, had been placed in the trunk.

75Under cross-examination, Mr. Ahmed testified that he could not discern any change in weight in the car after his trunk had been closed or while driving to Bracebridge. Significantly however, the ASF confirms that “two drops of blood suitable for DNA analysis were found in the trunk liner of the Altima” and that “David Fiedler was the source of that blood”. This evidence, in my view, confirms the truthfulness of Mr. Ahmed’s testimony that Mr. Fiedler had been placed in the trunk of the car. However, it does not confirm whether he was dead or alive at the time.

76Cell phone records confirm Mr. Ahmed’s testimony that he drove to Bracebridge, where they went to an address which turned out to be Jeff Caissey’s home. These records confirm that Jeff Caissey received a call from a Bell payphone on December 2, 2017, at about 11:03 a.m. and that the payphone is located at a gas station in Bracebridge. Video surveillance also showed that on that date, at 11:05 a.m., a grey Nissan Altima drove from the direction of the payphone towards the road after the call from the payphone ended.

77Jeff Caissey, whose credibility and reliability as a witness was never impeached, confirms Mr. Ahmed’s testimony in a few material respects. He confirmed that Mr. Tubic called him on December 2, 2017 from a payphone. He also confirmed that Mr. Tubic arrived at his residence without invitation while accompanied by two persons, one a “tall skinny black guy”, which matches the general description of Mr. Ahmed. Mr. Caissey also confirmed that Mr. Ahmed got out of the car to urinate and that he did so outside his residence. Asked about his conversation with Mr. Tubic, Mr. Caissey testified that Mr. Tubic told him that he needed to get rid of something before they got back to “Sauga”. Mr. Tubic had made a hand sign, with “two fingers and a thumb”, which Mr. Caissey took to mean that he wanted to get rid of a pistol. He also testified that he drove his vehicle, followed by Mr. Ahmed’s vehicle, to the hydro bridge, where he turned left and returned to his home without driving on the bridge.

78There is some divergence between Mr. Caissey’s testimony and that of Mr. Ahmed. For example, Mr. Ahmed stated that the bridge to which he drove was a wooden bridge without water. Mr. Ahmed also testified that the bridge identified by Mr. Caissey was not the bridge to which he had driven. Finally, Mr. Caissey testified that he never spoke to Mr. Tubic on the bridge.

79However, Mr. Caissey’s testimony is more reliable on these issues for the following reasons. First, Mr. Caissey had lived in the area for a number of years and was therefore more familiar with it than Mr. Ahmed. Second, Mr. Ahmed had been under the influence of alcohol and cocaine which, in my view, would have impaired his perception of events to some degree. Third, Mr. Caissey confirmed Mr. Ahmed’s testimony in another respect. He said he used an unpaved road to approach the bridge while Mr. Ahmed similarly testified that they approached the bridge on an unpaved road. Fourth, Mr. Ahmed testified that the bridge had big green hydro beams, which matches the bridge identified by Mr. Caissey.

Other Confirmatory Evidence

80Mr. Ahmed testified that Mr. Tubic asked him for his car a few days after their trip to Bracebridge. On December 13, 2017, his car was found abandoned at 5168 Dundas Street West in Toronto. A cellphone associated to Mr. Tubic, according to the ASF at paragraph 23, “connected to a cellphone tower located at 5236 Dundas Street West, Toronto, on December 3, 2017… in close proximity to where the Altima was found abandoned”.

81Mr. Ahmed testified that he drove Mr. Tubic to a Scotiabank in Mississauga on or about December 2, 2017. The Crown relies on bank surveillance records which show that a male matching the description of Mr. Tubic entered the bank and made unsuccessful attempts to withdraw money from Joan Fiedler’s account using the PIN number for that account.

82The Crown relies on surveillance records which show that the male who unsuccessfully tried to withdraw money from the account wore a distinctive red shirt, which Mr. Tubic had been seen to have worn at a Winners store, and a pair of white shoes with black laces. This male also wore a light grey hoodie with a black inner layer and stitching around the hood and had a similar growth of beard as Mr. Tubic when he was photographed by the police.

83Mr. MacDonald submits that the Crown had long theorized that this male was not Mr. Tubic and therefore has no basis to regard the bank surveillance records as confirmatory evidence. In my view however, the items of clothing worn by the male, his shoes and general appearance collectively constitute cogent evidence that the male is in fact Mr. Tubic.

84Second, Mr. MacDonald submits that even if the bank records confirm that the male who tried to withdraw money from Mr. Fiedler’s account, a reasonable explanation is that Mr. Fiedler could have simply given Mr. Tubic his PIN number.

85While it is possible that Mr. Fiedler gave Mr. Tubic his PIN number, in my view, it is highly improbable that he did. Joan Fiedler testified that Mr. Fiedler asked her, on December 1, 2017, to lend him $200. He did so rather than simply using the PIN number to gain access to her account without her permission. In these circumstances, it is highly unlikely that Mr. Fiedler would simply have given Mr. Tubic the PIN number to withdraw money from his mother’s account. Further, there is evidence of an altercation between Mr. Tubic and Mr. Fiedler in which Mr. Fiedler suffered an injury or injuries. It makes no sense that he would have voluntarily given the PIN number to Mr. Tubic in these circumstances.

The Throwing of Mr. Fiedler Over the Bridge

86Is there confirmatory evidence that restores the court’s faith that Mr. Ahmed is both a credible and reliable witness regarding his testimony concerning what happened at the bridge? As all parties freely acknowledge, I can accept all, part or none of any witness’ evidence. Even if I am prepared to accept Mr. Ahmed’s evidence that there was a physical altercation between Mr. Tubic and Mr. Fiedler at the Parkerhill residence, and that Mr. Tubic, at the very minimum, placed Mr. Fiedler in the trunk of Mr. Ahmed’s car, I must still decide whether, based on the totality of the evidence I accept, Mr. Fiedler was alive when he was thrown over the bridge.

87First, I have no difficulty accepting Mr. Ahmed’s testimony that Mr. Tubic and Mr. Clifford threw Mr. Fiedler over the bridge. There is no other reasonable explanation why Mr. Tubic would have requested Mr. Ahmed to drive out of town to a town where he had a friend called Jeff Caissey. Mr. Caissey testified that Mr. Tubic had never visited him in the past. There is no other reasonable explanation why he would have told Mr. Caissey that he needed to get rid of something. This was no sightseeing trip hours away from Mississauga; it was a trip to get rid of evidence – in this case, to get rid of Mr. Fiedler.

88The evidence that Mr. Fiedler was alive when thrown over the bridge rests upon Mr. Ahmed’s testimony. I can accept his evidence even without confirmatory evidence. However, I do have some concerns about this part of his testimony.

89First, Mr. Ahmed testified that after Mr. Caissey departed the bridge, Mr. Tubic and Mr. Clifford exited his car. Mr. Tubic asked him to open the trunk, which he did. Mr. Tubic held onto Mr. Fiedler’s legs while Mr. Clifford held onto Mr. Fiedler’s upper body. They quickly proceeded to the railing of the bridge and threw Mr. Fiedler over it. Mr. Ahmed testified that he saw Mr. Fiedler’s feet dangling and kicking before he was thrown over the bridge. Despite intense cross-examination, Mr. Ahmed insisted that he distinctly saw Mr. Fiedler’s feet kicking before Mr. Tubic and Mr. Clifford dumped him over the bridge.

90However, I must consider this evidence along with all the other evidence in this trial. Mr. Ahmed testified that he saw feet kicking while he looked through the front passenger mirror and the rear passenger window. He testified that he viewed the scene for a mere two seconds. He could not recall whether or not there were socks or shoes on the feet. At the preliminary hearing, he testified that he had seen the incident while looking through his rear-view mirror, something which he denied at trial.

91Additionally, Mr. Ahmed made his observations after consuming copious amounts of alcohol and using cocaine since the previous day. He did not see any sign of life when the two men took Mr. Fiedler to the bridge. He never heard anyone pounding or shouting in the trunk. He agreed that his truck had a safety latch which permitted someone to open it from the inside. Mr. Jeff Caissey also testified that Mr. Ahmed’s car pulled up right beside the deck of the house, yet he never heard any thrashing or yelling from the trunk. Mr. Ahmed also testified that while driving on the highway to the town he never heard any noises or commotion coming from the trunk.

92This evidence raises questions about whether Mr. Fiedler was alive when he was thrown over the bridge. He could have either been unconscious, deceased, or even alive for that matter.

93Additionally, Mr. Ahmed made a statement to the police in July 2018 to the effect that Mr. Tubic had gone to the trunk of the vehicle where he had talked to Mr. Fiedler. He told the officer that he, Mr. Tubic, “told the guy to shut up or fuck off or something like that”. Under cross-examination, Mr. Ahmed denied that he had overheard any such conversation.

94Based on the above testimony, I am left in some doubt regarding whether Mr. Fiedler was alive when he was thrown over the bridge. He may very well have been, but the evidence falls short of persuading me that he was alive when removed from the trunk. I find that is equally consistent with a conclusion that Mr. Fiedler was dead at the time as it is with an inference that he was alive.

Is either accused guilty of murder if Mr. Fiedler had been dead when he was thrown over the bridge?

The Law

95To the extent that Mr. Fiedler died following the altercation with Mr. Tubic, the question arises whether Mr. Tubic had the intent to kill Mr. Fiedler and whether his post-offence conduct can be used to determine his intent.

96In Calnen, at para. 119, the Supreme Court of Canada noted that:

Contrary to certain suggestions made in the courts below, there is no legal impediment to using after-the-fact conduct evidence in determining the accused’s intent. The jurisprudence of this Court is clear: after-the-fact conduct evidence may be relevant to the issue of intent and may be used to distinguish between different levels of culpability. [Citations omitted.]

97In the same paragraph, the Court quoted the following from R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42:

Whether or not a given instance of post-offence conduct has probative value with respect to the accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial.

98Is it necessary for the Crown to adduce evidence of the nature and extent of the deceased’s injuries before an inference can be drawn from post-offence conduct? In response to this question, the Supreme Court noted at para. 132 in Calnen that:

It is not the law that an offence must be separately established before after-the-fact conduct evidence can be used by the trier of fact to determine an accused’s intent; after-the-fact conduct evidence is not merely complementary evidence.

99The Supreme Court also noted the following in paragraphs 136 and 137 of Calnen:

136Other cases have recognized that the absence of a body does not preclude an inference on intent. In R. v. Teske, the Ontario Court of Appeal considered the relevance of after-the-fact evidence of concealment to the issue of the accused’s intent. In that case, the accused admitted to cremating his wife’s body. He claimed that his wife had died during an altercation during which she was punching and kicking him; he pushed her, and she fell down the stairs, hit her head, and died. He stated that after he cremated his wife’s body in the backyard of their home, he spread her ashes on the river — later, he admitted that he had actually dumped her ashes in a ditch. A police search of the ditch revealed the victim’s ashes, bones, and teeth, as well as carpet from the accused’s vehicle. Further, a forensic examination of the home exposed significant efforts to clean up evidence of bloodstains and blood spattering.

137The Ontario Court of Appeal concluded that the accused’s after-the-fact conduct could be admitted as evidence of his intent to commit murder. The court recognized that “[t]he evidentiary value of this evidence depends on the reasonable inferences that a trier of fact can draw from it when considered in the context of the entirety of the evidence and the issues raised at trial”. As a matter of common sense and human experience, when viewed in the entire evidentiary context, some after-the-fact conduct may be “reasonably capable” of supporting an inference as to the accused’s state of mind at the relevant time. The court described the reasonableness of the inference sought, in that case, as follows:

The trial judge found that the appellant’s course of conduct from the time he killed his wife on Sunday evening until his arrest some four days later was consistent with the conduct of a person who had intentionally inflicted serious injuries on his wife and then went to great length to try to cover up what he had done and to develop an “innocent” explanation for his wife’s disappearance. For example, the trial judge’s conclusion that the appellant’s cremation of his wife’s body, which took several hours and created a strong stench, was a calculated and risky attempt to ensure that the police would be unable to determine the cause of Mrs. Teske’s death and the exact nature of her injuries. Proof of those facts could have gone a long way to determining whether the appellant acted with the intent required by s. 229(a)(ii) when he caused his wife’s death. As a matter of common sense, it is reasonable to infer that someone who destroys a body after causing the death of that person does so because he knows that the victim suffered injuries that are inconsistent with a non-intentional cause of death.

The appellant engaged in an elaborate cover-up of his wife’s killing. Faced with this evidence, the trial judge inferred that the appellant had engaged in this concerted effort to cover up his wife’s death because he had deliberately inflicted serious bodily harm likely to cause death. I think this was an eminently reasonable inference. More to the point, once it is acknowledged that the inference could be drawn, it was for the trier of fact to decide whether the inference should be drawn. [Citations omitted.]

APPLICATION OF THE LAW TO THE FACTS

100Unlike in R. v. Teske, 202 O.A.C. 239 (C.A.), there are no admissions by Mr. Tubic that he physically assaulted Mr. Fiedler, nor is there evidence of the nature and extent of Mr. Fiedler’s injuries. Indeed, the defence points to the fact that there are other reasonable explanations for Mr. Tubic’s death. They point to Joan Fiedler’s testimony that her son was in a weakened state prior to his death. He had been diagnosed on December 22, 2016 with throat cancer and was scheduled for a hip replacement. He could not go for a walk on account of his condition. Furthermore, police had found drug paraphernalia in his room following his disappearance. Additionally, Mr. Fiedler had called the “Bobby” phone in the early morning hours for drugs, thereby raising the possibility that he could have had an altercation with a drug dealer associated with this source or alternatively, that a drug dealer had tasked Mr. Tubic to dispose of Mr. Fiedler’s body. Mr. MacDonald also points to the fact that there had been fatal drug overdoses at the Parkerhill residence in the past and that Mr. Fiedler could have died at the residence on account of a drug overdose.

101First, there is no evidence that Mr. Fiedler had an altercation with anyone else at the residence. Neither is there any evidence that he owed money to anyone associated with the “Bobby” phone. Third, while there had been a number of cases of drug overdoses at the Parkerhill residence, emergency personnel had been summoned to the residence to deal with the overdoses. Fourth, it is a matter of common sense that if Mr. Fiedler had simply been a victim of a drug overdose, Mr. Tubic would not have gone to such great lengths to get rid of his body.

POST OFFENCE CONDUCT

102The evidence I accept in this trial indicates that Mr. Tubic went to extraordinary lengths not only to ensure that Mr. Fiedler was not found but also that Mr. Fiedler’s disappearance would not be linked to him. This evidence includes the following:

1. The placing of Mr. Fiedler in the trunk of Mr. Ahmed’s car;

2. Mr. Tubic’s direction to Mr. Ahmed to drive to a location hours away from the Parkerhill residence;

3. Mr. Tubic’s enlisting of Mr. Caissey’s help for a location where he could get rid of “something”, presumably without the likelihood of the object or thing being found;

4. Mr. Tubic’s purchase of bleach following his return from Bracebridge;

5. Mr. Tubic’s dismantling of a couch and table in the residence;

6. The use of bleach to clean the lower section of the residence by Mr. Tubic and others;

7. The burning of items of furniture and a rug at the back of the residence;

8. The removal of Mr. Fiedler’s van from the Parkerhill residence;

9. The request to Mr. Ahmed to give Mr. Tubic his car, the discarding of the car in Toronto and cellphone records linking Mr. Tubic’s cellphone to the general location where the car was found; and

10. Mr. Tubic’s attempts to mask his appearance when he unsuccessfully tried to withdraw money from Joan Fiedler’s bank account.

103In my view, Mr. Tubic would not have taken such elaborate steps to conceal his interaction with Mr. Fiedler or to be linked to his death.

Is Mr. Tubic Guilty of Second Degree Murder of Manslaughter?

Murder

104Section 229 of the Criminal Code reads as follows:

229 Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or

(c) if a person, for an unlawful object, does anything that they know is likely to cause death, and by doing so causes the death of a human being, even if they desire to effect their object without causing death or bodily harm to any human being.

Murder reduced to manslaughter

105The relevant portions of section 232 of the Criminal Code read as follows:

232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

What is provocation

(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

Questions of fact

(3) For the purposes of this section, the questions

(a) whether the conduct of the victim amounted to provocation under subsection (2), and

(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

Application of the Law to the Facts

106The direct evidence of Mr. Ahmed and the circumstantial evidence, particularly the blood found in the trunk of Mr. Ahmed’s car, the decision to travel a long distance to, in the words of Jeff Caissey, to get rid of something, the dumping of Mr. Fiedler over the bridge and the steps taken to clean up the location of the altercation, collectively support a conclusion that Mr. Tubic either meant to cause the death of Mr. Fiedler or meant to cause him bodily harm that he knew was likely to cause his death and was reckless whether death ensues or not. Alternatively, Mr. Tubic is guilty of culpable murder if, for the purpose of robbing Mr. Fiedler by forcing him to disclose his PIN number, he physically assaulted Mr. Fiedler in a manner that he knows or ought to have known was likely to cause death, notwithstanding that he desired to effect his unlawful object of robbing Mr. Fiedler without causing death or bodily harm to Mr. Fiedler. In my view, Mr. Tubic is guilty of second degree murder either under s. 229(a) or s. 229(c) of the Code.

Is Mr. Clifford Guilty of Murder?

107There is no evidence that Mr. Clifford was involved in any altercation with Mr. Fiedler. Mr. Ahmed testified that Mr. Clifford was listening to music in his car when Mr. Tubic was in the house with Mr. Fiedler. Mr. Ahmed testified that Mr. Clifford went to the back of his car after Mr. Tubic asked him to open the trunk. Mr. Ahmed did not see Mr. Clifford placing Mr. Fiedler in the trunk of the car.

108Mr. Ahmed testified that Mr. Clifford assisted Mr. Tubic in dumping Mr. Fiedler over the bridge. To the extent that Mr. Fiedler was deceased when this occurred, Mr. Clifford would then be implicated in this act as an accessory after the offence. However, Mr. Clifford has not been charged with this offence and in my view, this offence is not a lesser and included offence of first degree murder.

109Additionally, the Crown’s evidence indicates that Mr. Clifford was not involved in Mr. Fiedler’s death or the plan to dispose of his body. Mr. Ahmed testified that on their way back to Mississauga, Mr. Clifford repeatedly berated Mr. Tubic after they had thrown Mr. Fiedler over the bridge. He repeatedly testified that Mr. Clifford was not involved in Mr. Fiedler’s death. Furthermore, Mr. Clifford was not involved in anything after the drive to Bracebridge. He was not involved in the disposal of Mr. Fiedler’s truck, the purchase of bleach or the disposal of Mr. Ahmed’s car.

110Based on the above, I have a reasonable doubt that Mr. Clifford was involved in Mr. Fiedler’s death. This doubt must be resolved in his favour.

111Accordingly, I find Mr. Clifford not guilty of first degree murder.

André J.