COURT FILE NO.: CR-20-509-00

DATE: 20221 05 26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Tina Kim for the Crown

• and –

ANDRE MARTIN

Melody Izadi for the defendant

HEARD: March 1-4, 8-11, 2021

REASONS FOR JUDGMENT

D.E HARRIS J.

[1] The defendant Andre Martin faces an indictment charging him with attempted murder while using a firearm, aggravated assault for the same act and possession of the firearm without legal authorization. The defence concedes guilt on the third count but maintains Mr. Martin’s innocence on the other two.

[2] The victim of the alleged offences is Kerith Lewis. Lewis and Martin knew each other from their membership in the West End Kings, a chapter of the Ruff Ryders motorcycle club. On June 4, 2017, at a Ruff Ryders social event referred to in the evidence as a “Lock-Off” in a plaza at 8907 The Gore Road, Brampton, a fight broke out between the two. Lewis landed one or two punches to Mr. Martin’s face. Mr. Martin then shot a pistol once or twice. There is little dispute that one bullet hit Lewis.

[3] Martin testified. His evidence raises the defence of self-defence and accident. Specifically, he says he was fearful of Lewis and of his friends who were present, as well as of the crowd that appeared to be converging on him during the fight. He shot once into the ground as a warning. When this was ineffective, he shot towards Lewis, intending to shoot at the ground near Lewis’ feet and not to hit him. This was an act of self-defence to protect himself. Lewis went down after the shot. Mr. Martin believed that the shot may have accidentally hit Lewis in the legs. It was not Mr. Martin’s intention to shoot Lewis. In fact, the shot penetrated Lewis’ upper abdomen and caused grave injuries.

[4] The Crown’s case consisted principally of an agreed statement of fact (ASF) and hearsay evidence tendered from Lewis and Selena Mendoza. I admitted both of their evidence under the principled exceptions to the hearsay rule with reasons to follow.

[5] In this judgment, I will first explain the reasons I admitted the hearsay into evidence. I will then go through the pertinent evidence and make findings of fact. Finally, I will apply the burden of proof to the findings and to the credibility of Mr. Martin and the other defence evidence at this trial.

I. THE HEARSAY STATEMENTS

a. The Selena Mendoza Evidence

[6] Sadly, Ms. Mendoza died before trial. She had given a statement to the police on June 19, 2017, two weeks after the shooting. The statement was videotaped but was not under oath nor was what is known as a “KGB” warning administered by the police.

[7] In light of Ms. Mendoza’s death, Ms. Izadi conceded necessity. The only issue was reliability. For the Crown, Ms. Kim argued that the statement was admissible because it was corroborated in the way described in R. v. Bradshaw 2017 SCC 35, [2017] 1 S.C.R. 865 (S.C.C.). The thrust of Ms. Izadi’s submissions arguing that Mendoza’s police statement was inadmissible was that there were significant reliability concerns arising from the circumstances surrounding the giving of the statement.

[8] These are the circumstances behind the giving of the statement. On June 19, 2017, Ms. Mendoza was living in a shelter in Mississauga. The police responded to a call from the shelter that day, and upon arrival, arrested Ms. Mendoza for being intoxicated in a public place. The officer who arrested her testified that Mendoza was upset and crying. Her speech was slurred, her balance was poor, she required assistance walking and there was a smell of alcohol on her breath. It was difficult to understand what she was saying. She said that she had been drinking wine. The arrest was for her own safety and the safety of others. She was brought to 12 Division in a police cruiser arriving at 1:30 p.m. She was to be released pending her sobriety.

[9] Cst. Sherwin of 21 Division Criminal Investigation Bureau was one of the police officers who investigated the June 4, 2017 shooting of Kerith Lewis. On June 19, 2017 he was notified that there was a woman at 12 Division who had information about the shooting. He drove to 12 Division and interviewed Mendoza. He said he told her before the interview that it would be taped.

[10] The interview began at 6:40 p.m., more than five hours after she was arrested. Cst. Sherwin did not believe Ms. Mendoza was intoxicated. In summary, Mendoza said that Martin, who she knew as “Bars” and Lewis, who she knew as “Kiss” were present at an event called the “Lock-Off.” She knew both men well. She was a member of the Ruff Ryders too but the “3D” chapter, not the West End Kings chapter which Lewis and Martin belonged to. The event was a fund raiser and a BBQ with food being served out of a restaurant named something like “Caribbean Hut.” There was no dispute at trial that the real name of the restaurant was “Island Style.” There were motorcycle “stunters” at the event. Martin arrived in a Mustang or Camaro car and Lewis on his motorcycle. Martin shot Lewis and Lewis went down. They had been fighting for a long time. Martin was a West End King from the Ruff Riders motorcycle club. Lewis was, she believed, the president of the West End Kings. She knew that Martin had earlier been told to leave the club; she did not know why. Martin did not want to leave and was taking it to the club hierarchy in the United States.

[11] Mendoza was in the Island Style restaurant at the time of the shooting. It was her estimate that she was about 100 yards away from the altercation. She was surprised to see Martin there and knew there would be trouble. Mendoza saw Martin walk up to Lewis immediately after Lewis arrived on his bike. Words were exchanged. Mendoza said that Lewis hit Martin first. Right after being punched, Martin went backwards and shot Lewis once in the chest very fast, instantly. Martin pulled the gun from the back of his waist on the left side. It was a black handgun, either .22 or .45 calibre. She had seen .45 calibre handguns at Martin’s apartment several months before. There was only one shot. Everyone then ran away and made themselves “scarce.” Martin ran to his car and drove off.

[12] Much of the interview after the description of the shooting was consumed with Mendoza trying to show the officer on a map where she believed Martin lived. She said that he would shoot anyone if attempts were made to apprehend him. Mendoza also emphasized that there were people trying to find him and that if they did, they would kill him.

b. The Admissibility of The Mendoza Statement

[13] Bradshaw distinguished between procedural and substantive reliability. The circumstances in this case partake of both, although admissibility ultimately comes down to a question of substantive reliability: Bradshaw, paras. 27-32.

[14] There is only one indication of procedural reliability in this instance: the videotaping of the interview. I am convinced the complainant knew it was being videotaped. If she understood this, she was more likely to be reliable and accurate in her recollection of events. The officer testified that he told her that it was being videotaped. Although this was not in his notes and should have been conveyed during the videotaping but was not, I agree with Ms. Kim that it is confirmed by one part of the interview.

[15] After the interviewing officer left the room for a period of time, Ms. Mendoza embarked on an extended examination of stitches and scars on her belly which she had told the officer earlier were from a recent operation to remove her spleen. When this examination was complete, she looked up into the camera while chortling slightly and mouthed under her breath “Fuck You.” She simultaneously gave the camera double-barrelled middle fingers with both hands. Clearly she knew she was being watched and likely also knew she was being videotaped. She was not a stranger to the criminal justice system, having a criminal record and outstanding charges. She told the officer that she was a paralegal. She was quite clever. Whether or not the officer told her, and I believe he likely did, she knew the interview was being recorded.

[16] In reference to substantive reliability and the issue of corroboration, Bradshaw requires: 1. The corroboration must be of the material aspects of the hearsay statement; 2. Corroboration must work together with the circumstances of the giving of the statement to overcome the specific hearsay dangers present; 3. The judge must conjure up other possible explanations for the statement; and 4. Lastly, the judge must determine whether, in the circumstances, the corroboration rules out the other possible explanations: Bradshaw, paras. 44-57.

[17] There was powerful corroboration in the Crown’s case for the nucleus of Ms. Mendoza’s evidence. In the ASF of counsel it is stated,

2. The Defendant, Mr. Martin, arrived at the “Lock Off” event in his grey Mustang with Ontario marker CAWJ494.

3. At approximately 3:30 p.m., Kerith Lewis, a member of the Ruff Ryders, was involved in an altercation with Andre Martin, in the Northwest area of the parking lot. During the altercation, Mr. Lewis received a single 45 calibre gunshot wound to the abdomen.

[18] It is clarified at paragraph 24 of the ASF that the wound was to the upper quadrant of the abdomen, near the chest. In Bradshaw, at paras. 52-54 Karakatsanis J. gives two examples of corroborative evidence going to the “material aspects” of the hearsay statement. The first was the semen stain on the young complainant’s clothing in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 (S.C.C.) which confirmed her hearsay statement of sexual assault to her mother. The second was the corroboration by means of a strikingly similar statement in R. v. F.(U.J..) 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764 (S.C.C.).

[19] The corroboration in this case rises to the level of these two examples. The agreement in the ASF at paragraph 3 that Lewis was shot with a .45 calibre bullet during an altercation with Martin, although not an admission that Martin shot Lewis as was said by Mendoza and is alleged by the Crown, goes a significant distance to demonstrate the substantive reliability of Mendoza’s hearsay statement. No other shooter was suggested in the evidence. In addition, it is admitted in the ASF that Lewis suffered a single bullet wound to the front stomach area, in the upper right quadrant. Identification officers found a .45 calibre bullet casing at the scene. This evidence is corroborative of the “material aspects” of Mendoza’s hearsay, namely that Martin shot Lewis, that it was in the chest area and that the gun was either a .22 or .45 calibre that Martin was wielding. I would not put much emphasis on the calibre of the firearm because Mendoza said in her statement that she was quite far away and had seen both .22 and .45 calibre handguns in Martin’s apartment a few months before the shooting.

[20] Furthermore, Mendoza’s statement is also corroborated by Lewis’ hearsay statement, to be discussed below, that Martin shot him in the chest. Caution must be exercised here however as Lewis’ hearsay statement, although I believe it to be admissible as will be discussed below, is still hearsay. Corroborating hearsay with other hearsay, like corroboration of Vetrovec witnesses by other Vetrovec witnesses, is not prohibited by a bright line but it comes with inherent risks: R. v. Spence, (2018), 360 C.C.C. (3d) 425, 2018 ONCA 427, at paras. 32, 48-50 and 53 (Ont. C.A.), leave to appeal to S.C.C. refused 2019 CarswellOnt 7442; McWilliams’ Canadian Criminal Evidence, 5th Edition, The Evaluation of Evidence: 34:80.10 — Mutual Corroboration. Very serious caution must be exercised. Corroborative evidence must itself be trustworthy: Bradshaw, at para. 50, 56, 69. Collusion can undermine the reliability of a statement: R. v. Tsega, 2019 ONCA 111 (Ont.C.A.) at para. 37. There was no evidence of collusion here. Lewis was in the hospital until well after Mendoza’s statement.

[21] Lewis’ evidence on its own may well not be sufficient corroboration to satisfy this Bradshaw criterion. Here, the Lewis statement provides some degree of additional reinforcement to the main corroboration supplied by the ASF.

[22] The third step of Bradshaw requires an investigation of other possible explanations for a hearsay statement other than its truth and accuracy. While Bradshaw uses the word “speculation” to describe the process, in my view that is not a reference to the most pejorative definition of that word as used in legal parlance: i.e., untethered imagination of potential scenarios lacking any valid evidentiary basis. Instead, Bradshaw encourages a trial judge to cast around freely to look for possible explanations that could counter the credibility and reliability of the hearsay statement, not conjure up explanations with no reasonable basis whatsoever. The intention is that this process should not be encumbered with undue stringency. The purpose is to ascertain that there is nothing of significance which could counter the reliability of the hearsay statement. The “speculation” must be plausible: R. v. McMorris, 2020 ONCA 844 (Ont. C.A.) at paras. 33-34.

[23] Ms. Kim posits several possible explanations other than truth and accuracy for Mendoza’s statement. In summary, the superficially plausible explanations she puts forward are that Mendoza heard details of the shooting from another individual, she was inebriated by drugs or alcohol when she observed the incident, she was attempting to please the police by telling them what they wanted to hear and, lastly, that she had animus towards Martin and made up a false story implicating him.

[24] Ms. Izadi’s submissions capitalized on these possibilities and, as well, advanced an argument that Mendoza’s statement was involuntary and thus inadmissible, a line of argument first established in the seminal hearsay exception case of R. v. B.(K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22 (S.C.C.) at paras.117-119. Unlike when an accused’s statement is tendered by the Crown, the burden is on the defence to prove involuntariness on a balance of probabilities.

[25] In my view, none of the explanations suggested nor the involuntariness argument can succeed. Ms. Mendoza in her statement gave an accurate, albeit quite general description of the plaza, including the Island Style. She described the entrance of Lewis and the other West End Kings on their motorcycles, an event caught by plaza surveillance and admitted into evidence at this trial. There was no evidence of any kind that Ms. Mendoza was drunk or high at the time of her observations. This was not in fact argued by Ms. Izadi.

[26] Ms. Mendoza certainly exhibited animus towards Martin in the statement but also towards Lewis on several occasions. Her disdain for both was relatively even-handed. At various times she called them each a “piece of shit” and an “asshole” and a “fucking asshole.” Overall, she seemed angrier towards the accused then Lewis, if one were to compare them, but that is insufficient to throw the reliability and accuracy of the statement into doubt on this record. Motive to fabricate was weak: Tsega at para. 35.

[27] Ms. Izadi argued forcefully that Mendoza wanted desperately to be released from the police station and was willing to say anything to be released. She argued strongly that Mendoza was still inebriated when she gave her statement. Lastly, Ms. Izadi argued that Ms. Mendoza was a Vetrovec witness and that this prohibited admission of her hearsay statement. I cannot agree.

[28] First, it is clear that Mendoza told the police soon after she was arrested that she had information about the shooting. That is why an officer with involvement in the investigation came to 21 Division. While there is no direct evidence of her desire to provide information, the circumstantial evidence makes it clear. Ms. Mendoza reached out to the police rather than they to her. That is important. She also started talking about the incident with little prompting from the officer and immediately identified the shooter as Martin and the victim as Lewis.

[29] Ms. Mendoza was very chatty with P.C. Sherwin once he arrived. She was playful, even flirtatious. She called him cute at one point. When he was out of the room on one occasion, she spun gleefully around several times on her swivel chair, stretching her legs out in front of her. There was no real indication that she was in any hurry to be released until the point after she provided the information about the shooting. Even then, although firm and repeating her request to be released often, she was not stern or seriously angry. While the officer was receptive to her pleas to be released as soon as possible, there was nothing even hinting at a quid pro quo as contemplated by R. v. Oickle 2000 SCC 38, [2000] 2 S.C.R. 3 (S.C.C.). Clearly, there was no connection between the giving of the information and her release. The implication in their conversation was that she was going to be released soon in any case because she was no longer intoxicated. That is consistent with the temporary reason she was being held.

[30] The Court in Bradshaw was skeptical that a hearsay statement from a Vetrovec witness could pass threshold reliability although stating that there is no blanket prohibition: Bradshaw, paras. 69. Ms. Izadi argued that Mendoza was a Vetrovec witness. I do not believe that Mendoza was a Vetrovec witness: see e.g. R. v. Brooks, 2000 SCC 11 (S.C.C.). Mendoza was not of critical importance to the Crown case, she was not implicated in the alleged offence, and she had no obvious reason to lie. She had outstanding robbery, assault, fail to comply, breach of probation and public intoxication charges. She had a record for break and enter and commit and fail to comply. But these offences, although involving dishonesty, were not of a high degree of seriousness. Mendoza’s evidence fell far short of requiring a Vetrovec warning.

[31] Mendoza was clearly no longer intoxicated at the time of her statement. Although she was meandering at times, when she was on a particular topic, she stuck to it with good focus and attention. She was an intelligent woman. Her mind was sharp. In the interview, she was responsive and fully coherent. Ms. Kim pointed out that at the very end of the interview, Mendoza told the officer that her advice for him was to “[d]ischarge me before using it [her statement] against [Martin] in a court…I'll tell you, 'cause I'm here under drinking in public, so you don't wanna use it that I am drunk and giving a statement...” In other words, if the police kept her because of intoxication, this would later undermine the value of the statement she had just made. Even taking into account that she had some paralegal training, there was an impressive mental operation behind this comment, looking several steps ahead. This was not the comment of a person whose faculties were impaired.

[32] Mendoza’s emotional responses were appropriate to the situation. She was genuinely saddened that Lewis was hurt, even though it was clear that she disliked him. She sobbed when she heard that Lewis would likely never ride a motorcycle again. Mendoza’s evidence was not perfect. She said that Martin has a tear drop tattoo when he clearly does not. She said the firearm was black; Lewis said it was silver. There were discrepancies on details between her and Lewis. But none of these were sufficient to undermine either the credibility or reliability of her account.

[33] In my opinion, alternative hypotheses other than the credibility and reliability of the Mendoza statement were persuasively refuted by the corroboration of Medoza’s statement. These are the reasons I concluded that the Mendoza hearsay was admissible for its truth.

THE HEARSAY STATEMENTS OF KERITH LEWIS

[34] Lewis failed to appear as a witness at this trial. There are two Lewis hearsay statements: the preliminary hearing and the statement given in the hospital four days after being shot, on June 8, 2017, right after he woke up from the coma. Counsel for Martin took the position that if the preliminary hearing transcript was admitted then, out of fairness to Martin, so should the hospital statement.

[35] In the hospital statement, Lewis said that he had an altercation and tried to punch Martin but missed. Martin fired one shot that missed. Lewis punched Martin and connected this time. Martin fired the gun again and the bullet hit Lewis in the stomach. The gun was silver; Lewis did not think it was a .45. The last time he had spoken to Martin in the winter, Martin said that the next memorial ride was going to be for him. He told Martin that he was going to “beat his ass” when he saw him next. Martin had been kicked out of the Ruff Ryders and got sour about it. He was “threatening us and saying all kinds of shit.” This happened before the winter. The last time he saw Martin was at the Bike Show in February of 2017.

[36] At the preliminary inquiry, Lewis testified that he had been a member of the Ruff Riders at the time of the shooting for about five years. He had known Martin for about two years. He arrived at the Lock-Off with six or seven five fellow members, four or five of whom were, like him, on motorcycles. He parked and then walked with his brother Andre Roye towards Martin who was about 40 feet away. Martin was with his Uncle, Omar Pandon. Lewis said to Martin, “remember all the stuff you were talking.” Martin said, “No bad thing.” Lewis said it was too late for that and swung a punch at Martin. The punch only brushed Martin’s face. He swung again and this time connected with Martin’s face. As Martin was falling back, he took out a chrome gun and shot at him. Lewis heard the shot but did not feel anything. Lewis and people in the area yelled, “Did you just shoot me with a blank?” Lewis got angry and approached Martin again with one or two steps. Martin shot again. Lewis fell to the ground; his legs were numb. There was a crowd around him. He passed out.

[37] Lewis specified that when Martin took the gun out, Martin was holding the gun straight forward, “pointed right at me, not at my feet.” Lewis had no weapons on him.

[38] The admissibility of the preliminary hearing proceedings is governed by the Supreme Court’s decision in R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043 (S.C.C.). The defence conceded necessity. The police efforts to find Lewis were laid out in significant detail during an application to obtain a material witness warrant. Lewis was served with a subpoena January 8, 2021 several months before the early March trial and then the police followed up with messages and phone calls. Lewis was quite often unresponsive and so the police went to his residence in late February, 2021. Lewis told them he was aware of the scheduled meeting with the Crown in a few days. But he did not attend that meeting. After many other efforts, Lewis was served again with a subpoena on March 2, 2021 to attend the trial on March 3, 2021. Upon being served, he stated that he had no intention of attending. When he did not attend March 3, 2021, the material witness warrant for his arrest was issued. Substantial and ongoing efforts to find him were unsuccessful.

[39] On March 8, 2021, given Lewis’ failure to attend, the Crown opted to proceed with a hearsay application. I am convinced that based on the history, necessity was made out. Lewis evaded apprehension knowing that the police were looking for him. He had previously stated that he did not intend to be present. In his hospital statement, he had said that he ought not to have been talking to the police as he was. Clearly he was a reluctant witness. Necessity was satisfied.

[40] In Hawkins, the Supreme Court held that generally, preliminary hearing testimony when the declarant has been cross-examined, is sufficiently reliable to be admissible under the principled exception to the hearsay rule. It was said,

76 … A preliminary inquiry will involve precisely the same issues and the same parties as the trial. The hearsay dangers associated with testimony in such an adjudicative proceeding are minimal. Preliminary inquiry testimony is given under oath, and is also subject to the adverse party’s right to contemporaneous cross-examination. It is only tainted by the lack of the declarant’s presence before the trier of fact.

77 ... In our view, this limited danger [of the declarant not being present before the finder of fact is more than compensated by the circumstantial guarantees of trustworthiness inherent in the adversarial, adjudicative process of a preliminary inquiry. A declarant’s statements before an inquiry are given under oath or affirmation before the adverse party, and the accuracy of the statement is certified by a written transcript which is signed by the judge. Most importantly, the statement is subject to contemporaneous cross-examination …

[41] Also see R. v. Mohamad, 2018 ONCA 966, [2018] O.J. No. 6302, 369 C.C.C. (3d) 211 (Ont.C.A.) at para. 109.

[42] As always, there is a residual discretion to exclude if the prejudicial effect of the evidence outweighs its probative value: Hawkins, para. 85. Lewis has a significant criminal record but I disagree that he could constitute a Vetrovec witness for similar reasons with respect to Mendoza. In my view, there is no reason to exclude Lewis’ preliminary hearing evidence in this case. The ASF concerning Martin’s presence and that Lewis was shot during an altercation with him, along with the other circumstances alluded to in considering the Mendoza hearsay, further bolster circumstantial guarantees of trustworthiness.

[43] The preliminary hearing evidence is admissible as is, at the request of the defence, the Lewis hospital statement of June 8, 2017.

FINDINGS OF FACT

IS IT PROVED THAT THE ACCUSED SHOT MARTIN?

[44] With respect to the Mendoza and Lewis hearsay evidence, caution is required as I did not have the opportunity to observe them while testifying: see R. v. Li, 2012 ONCA 291, [2012] O.J. No. 1989 (Ont. C.A.) at paras. 63-71. There was not one hearsay witness; there were two. Furthermore, not only was Mendoza not cross-examined, Lewis, who was cross-examined at the preliminary hearing, was not cross-examined with respect to the pertinent issues as they became focussed at this trial.

[45] Having said this, although their evidence was of general importance, their main function was to attest to Martin shooting Lewis. There were some other points of importance and one in particular from Lewis which I will refer to and consider below, but the basic fact of the shooting was the main thrust of their incriminating evidence against Martin. With respect to this factual conclusion, the ASF in the context of the other evidence had already gone most of the way towards proving that Martin shot Lewis. Martin admitted in his evidence that he had shot Lewis, albeit in self-defence and by accident. In summary, it is evident and not a matter of real contention that Martin shot Lewis and was responsible for the injuries to him. The real issue in this case is the affirmative defence of self-defence coupled with evidence and argument that the shooting into Lewis’ body was an accident.

THE EVIDENCE OF MOTIVE

[46] The evidence of motive is central in this case. Evidence of Martin’s motive against Lewis could weigh heavily against the defences raised of self-defence and accident.

[47] Motive is generally not an element of criminal offences and is not with respect to the three offences on this indictment. However, motive can be important in proof of criminality. Dickson J., as he then was, said in R. v. Lewis, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821 (S.C.C.):

27 In ordinary parlance, the words “intent” and “motive” are frequently used interchangeably, but in the criminal law they are distinct. In most criminal trials the mental element, the mens rea with which the court is concerned, relates to “intent”, i.e., the exercise of a free will to use particular means to produce a particular result, rather than with “motive”, i.e., that which precedes and induces the exercise of the will…

36 Evidence of motive is merely circumstantial evidence like any other circumstantial evidence, which may or may not be of importance, depending upon the facts of each case. But motive as a legal concept is not a necessary element of the case to be proved by the prosecution, and the prosecution is free to adduce such evidence or not.

[48] Motive can have two meanings. It can refer to the emotion prompting an act or it can mean ulterior intention, the end or object of an act: i.e. murder in order to receive an inheritance: Lewis, paras. 28-30. In this case, the pertinent sense of motive is the first one. Justice Martin in R. v. Malone, 1984 CanLII 3480 (ON CA), [1984] O.J. No. 22, 11 C.C.C. (3d) 34 (Ont. C.A.) with reference to this meaning, said:

25 As Dean Wigmore has pointed out the word “motive” in the correct sense refers to an emotion or inner feeling such as hate or greed which is likely to lead to the doing of an act. The word “motive” is also used, however, to refer to external events, for example, a previous quarrel, which is likely to excite the relevant feeling. Motive in the first sense is always relevant to prove the ensuing appropriate action from the existence of the internal feelings or emotion. (Wigmore on Evidence (3rd Ed.), vol. 1, pp. 557-58). The relevant emotion may be evidenced by:

(a) conduct or utterances expressing the emotion;

(b) external circumstances which have probative value to show the probable excitement of the relevant emotion;

(c) by its prior or subsequent existence (if sufficiently proximate). See R. v. Jackson (1981), 1980 CanLII 2945 (ON CA), 57 C.C.C.(2d) 154, at 167 (Ont. C.A.).

[49] The Supreme Court said in R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42,

That the relationship between a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leading up to a murder are highly relevant to the issue of motive because such information may afford evidence of the accused’s animus or intention to act against the victim: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319 (Ont. C.A.), at para. 31. See also R. v. Lemky (1992), 1992 CanLII 431 (BC CA), 17 B.C.A.C. 71 (B.C. C.A.), aff’d 1996 CanLII 235 (SCC), [1996] 1 S.C.R. 757 (S.C.C.).

[50] Also see R. v. Phan, 2020 ONCA 298, [2020] O.J. No. 2113 (Ont.C.A.) at para. 95; R. v. Roncaioli, 2011 ONCA 378, 271 C.C.C. (3d) 385 (Ont.C.A.) at para. 43; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139 (Ont.C.A.) at para. 52. In addition, a relationship between the accused and the complainant is explicitly referred to in the Criminal Code as a factor in determining the reasonableness of actions claimed to be in self-defence: see Section 34(2)(f).

[51] In this case, there was considerable evidence of acrimony between Martin and Lewis. Lewis said in his hospital statement of June 8, 2017, that there had been a previous “beef” between him and Martin. They were in the West End Kings together and Martin had been kicked out because he could not handle a 30 day suspension. Martin was arguing with the club and then targeted Lewis. Lewis had seen Martin at the International Bike Show in Mississauga in February, 2017. Martin was with some other people and he pretended to pull a gun on Lewis.

[52] Lewis elaborated in his preliminary inquiry evidence. He said Martin had been suspended by the chapter for 30 days because of a dispute with another member. Martin did not take the suspension lightly. After he was suspended, there were “antics” on Instagram and eventually a back and forth with Lewis. Martin was bad mouthing the chapter, calling the members all sorts of names. Because Lewis speaks his mind, he came after Martin. He told him to “man up and take your suspension” and “stop acting like a little bitch.” Before the 30 day suspension period had expired, Martin was permanently kicked out of the West End Kings.

[53] The two also had words at the Bike Show in February, a few months before the shooting. Lewis mistakenly thought that Martin was wearing a Ruff Ryders vest which was not allowed because by this time he was out of the club entirely. On Instagram, Martin had previously said that the next memorial ride would be for Lewis: i.e. he was going to die. He had also put Lewis’ head on a dead person’s body. Martin reiterated the memorial ride line when they bumped into each other at the Bike Show. Sometime after the Bike Show, Lewis sent Martin an Instagram message threatening to “beat his ass” when he saw him next. As recounted above, this antagonism continued at the Lock-Off.

[54] For her part, Mendoza referred in a general way to the dispute between the two men. I would not rely on her evidence in that regard, however, as the source of her knowledge was not clear from her statement. It could well have been unreliable hearsay generated by a rumour mill.

[55] In his evidence, Martin testified that from quite an early age, he had wanted to be a part of the Ruff Ryders motorcycle club. It meant everything to him. In 2012, he had become a prospect for one chapter but had been cut after 3 months. He had later become a prospect for the West End Kings and after the mandatory year, had been inducted as a member. He loved being a Ruff Ryder. He had two Ruff Ryder tattoos, one of them covering his entire back. Not long after induction, Martin got into a dispute with another member whom he ran a tattoo parlor with. The chapter President, who was Lewis’ brother Andre Roye at the time, suspended them both for 30 days. At this point, which was in or around November 2016, Martin had been a member for only about six months. He was permanently terminated from the club in the course of his 30 day suspension.

[56] Martin in his evidence agreed with much of what Lewis had said. He acknowledged some past anger but essentially said it had cleared up by the time of the shooting. He had stopped the Instagram back and forth at his Uncle Omar’s insistence in December of 2016. He was appealing his termination from the chapter to the head office in the United States at the time of the shooting. But Martin’s evidence was that the dispute was not major. It was just foolishness. It was true that Lewis had threatened to break his face. But he did not take this seriously because of Lewis’s friendship with his Uncle Omar and because Martin had fallen out with others before and it had never come to violence. Martin never threatened Lewis and denied the memorial ride comments that Lewis attributed to him. He did not remember pasting the picture of Lewis’ face on a dead body but it was possible he did do it. If so, it did not mean that he wished that Lewis was dead. Martin made a distinction in his evidence saying that he was upset but not angry. Martin also testified that on Instagram, Lewis called him a “rat, a little bitch and a little pussy.” Martin denied ever threatening Ruff Ryders on social media.

[57] With respect to the Bike Show incident in January or February of 2017, Martin testified that at the time his membership had been terminated. He was with several friends. As Lewis had said, Lewis came up to him thinking he was wearing a Ruff Ryder vest which was not allowed. According to Martin, he said to Lewis, “Did you not say that you were going to break my face? Well break my face!” Lewis followed him for awhile but nothing else happened between them. Martin testified in-chief that he was “egging on” Lewis.

[58] In cross-examination, Martin denied that he was “egging” Lewis on but I attribute this contradiction to the stress of testifying and put no weight on it. But the words Martin admitted using clearly show that he was taunting and daring Lewis to fight.

[59] Martin testified that he went to the Lock-Off event on June 4, 2017 to support the event. He did not know if the West End Kings would be there but he saw it as a possibility. He had not interacted with Lewis since the Bike Show. He brought Omar as a mediator in case there were problems. In cross-examination, Martin emphasized that he was not thinking there would be physical trouble. When he picked Omar up, Omar asked whether there would be West End Kings there. Martin said he did not know. When Omar asked if everything was good, Martin said he did not know and that was why he was bringing Omar along, to make sure everything was good.

[60] In my view there are two main problems with Martin’s evidence in this area. First, he attempted to downplay the antagonism between him and Lewis when, even on his own version, it was unmistakeable. There was a well-established and relatively recent history of animosity between them leading up to the shooting. For example, at the Bike Show, he was clearly taunting Lewis, in a mano a mano sort of way. His denials of ongoing animosity are contradicted by his own admissions of what he said.

[61] More importantly, I am convinced that Martin went to the Lock-Off, contrary to his evidence, for the specific purpose of confronting Lewis. This conclusion is based on the evidence of Martin’s Uncle, Omar Pandon. Pandon was called as a witness by the defence. He testified that he was well aware of the previous back and forth between Martin and Lewis on the internet. It had gone of for quite a while. He had thought it was funny originally but soon he came to believe it was ridiculous and childish. He never saw any threats from either of them. After awhile, he stopped following what they were saying. I would note that Pandon’s testimony with respect to the time of the back and forth was, based on both Lewis’ and Martin’s evidence, highly inaccurate. He testified that it was much further in the past than it in fact was.

[62] Pandon testified that Martin called him the morning of the Lock-Off and told him that there was a BBQ he wanted Pandon to come to with him. The main reason was that he wanted to “put an end” to whatever was going on between him (Martin) and Kiss (Lewis). In cross-examination, Pandon elaborated that Martin commented that he wanted to put the dispute behind him and move on with his life. The two discussed whether the West End Kings would be there and Pandon asked Martin whether everything was cool between him and them. Martin said that Pandon was the perfect mediator between him and Lewis. Pandon did not know that Martin was bringing a loaded gun to the Lock-Off.

[63] In total, Pandon’s evidence heavily favoured his nephew, Martin. That leads additional credence to this recounting of the conversation on the way to the Lock-Off. Pandon had no reason to falsify this conversation. Martin went to the Lock-Off to confront Lewis, contrary to his evidence that it was just to support the event. In the context of all the evidence, including the so-called back and forth and the acrimony between Martin and Lewis, this was consistent with the other evidence adduced. The evidence both tends to undermine Martin’s credibility and demonstrates that Martin had motive and animus at the time he shot Lewis.

[64] In summary, in my opinion there was evidence that there was ongoing bad feeling between Martin and Lewis, and, in particular, that Martin harboured significant anger towards Lewis. Martin put great stock in being a Ruff Ryder, had wanted to be for many years, and loved being one. He had been suspended and then terminated not long after gaining admission to the chapter. While he did not blame that on Lewis, from the time of the suspension he lashed out at what he felt was an injustice. In this fraught situation, Lewis scolded Martin for his negative posts. The argument between them went on for some time, at least from November, 2016 when he was suspended into the early new year. Four months before the shooting, the two had words at the Bike Show. Anger was in the air.

[65] It was with this background that Martin went to the Lock-Off specifically to have it out with Lewis. Lewis provoked Martin by approaching him and then punching him. Anger welling up in Martin, now came to the surface. Lewis was the instigator. Martin’s act of shooting Lewis immediately following the punches cannot be seen in isolation. There was a history of bad blood. Men who had been good friends had turned into dedicated enemies. The anger that Martin felt because of the history between the two men and then, on the spot, having been punched by Lewis, based on all the evidence, was a major contributor to the shooting. This animus and motive which Martin harboured against Lewis is one factor along with the other evidence tending to refute the defence argument that Martin’s act of shooting Lewis was legitimate self-defence or accidental in the course of his actions in self-defence.

CONSCIOUSNESS OF GUILT EVIDENCE

[66] There are several pieces of evidence capable of constituting consciousness of guilt evidence and adding circumstantially to the Crown’s case. They are: Martin speeding out of the parking lot in his Mustang immediately after the shooting of Lewis; according to the ASF, a man buying Martin’s Mustang in Mount Albert for $4500 from an unidentified man on June 10 or 11, 2017, about a week after the shooting; and Martin remaining at large despite the police searching from the time of the shooting right up to the time of his arrest in August 2019 at addresses specified at paragraph 20 of the ASF. In addition, Martin testified that he disposed of the firearm soon after the shooting.

[67] Martin testified that he left the scene because he was in fear of the crowd and people associated with Lewis. He sold the car because he needed the money to hire a lawyer to defend himself if and when he was apprehended.

[68] Any probative value to be derived from the after-the-fact conduct will be discussed in the conclusions part of this judgment.

THE BULLET WOUND TO LEWIS’ BODY

[69] It was agreed that Lewis received a serious wound to his upper abdomen from a .45 calibre bullet. Bullet fragments in his spinal column have rendered Lewis a paraplegic. I find that Martin, as he admitted, fired the bullet. A .45 shell casing was found very near the location of the shooting. The identification officer took pictures of Lewis’ clothing which were entered into evidence. He was wearing several layers of clothing and the photographs show that the bullet tore through all of them before going into Lewis’ body. The ASF states at paragraph 24:

The bullet entered through the front portion of his abdomen in the upper right quadrant. The bullet transferred to his liver, the duodenum, the right kidney, right ureter and passed through his spinal column and canal where the bullet fragments were then lodged in his L2 spinal column.

THE DEFENCE EVIDENCE

THE EVIDENCE OF ANDRE MARTIN

[70] The defence raised Andre Martin’s act of shooting Lewis as self-defence. In addition, there was no intention to injure Lewis. Shooting him was an accident.

[71] Andre Martin testified that he went to the Lock-Off because he wanted to support the event. He thought there was a possibility that he would see the West End Kings there and might see Lewis. He picked up his Uncle Omar in his Mustang on the way there for the purpose of keeping the peace. Martin said that he took a gun with him. He had carried a gun most of the time for about a year since a friend of his had been murdered a few years before. There had been threats on Martin’s life. Martin stressed that he did not have the gun on his person at the Lock-Off for any purpose related to it. He said that he had never shot the gun, an assertion which I find very unlikely to be true.

[72] At the plaza, he walked by a Hell’s Angels table. The men there asked if there was gong to be an issue. Martin asked them why there would be an issue, and the men asked if he was sure. Martin said he was and gave them his word. After some time, a number of West End Kings arrived on their motorcycles. Lewis was one and so was his brother, Andre Roye. Martin testified that they parked just a few feet from them but the video introduced into evidence, although from a poor vantage point and poor quality, does not support this. The men looked very angry, like pit bulls ready to pounce. Lewis came up right away, shook Omar’s hand and stepped past him to confront Martin. He said something to the effect of what are you doing here to which Martin said in patois, I am not here to be a gangster.

[73] Lewis who was very angry said it was too late for that and punched Martin in the right part of his mouth. It was hard enough to make Martin take a step back. Martin pulled out his gun from the right part of his waistband and shot straight into the ground next to his own right foot. He was trying to get people away from him. People were on every side of Martin and the crowd seemed angry. Lewis’ brother, “Silver” (Andre Roye) then President of the club and a very big man, was just behind Lewis. Another West End King, “Trips”, also a large man, was there. Omar stepped in between Martin and Lewis and told them to chill out. He held Silver back and what seemed like a wall of people.

[74] Martin testified that Lewis got around Pandon and punched Martin for the second time, this time in his right eye. This was much harder than the first blow. Martin’s head went back; the punch knocked him back one or two steps, one or two feet, and he almost fell. He knew that Silver and Martin often carried weapons. Martin said that if he punched Lewis back, more people would start attacking. Last time he was in a position like that and hit the person back, he was stabbed 13 times and was in hospital for two months. That was in 2004.

[75] Martin testified that he would have run to his car which was only 10 feet away but he was surrounded. He felt that if he ran, they would chase him down and might shoot or stab him. Omar was in front of him holding back what seemed like a wall of people trying to get at him, Martin. The gun was still in his hand but concealed under his shirt. His left arm went up covering his right eye and part of his left eye where Lewis’ second punch had landed. It was bleeding. Lewis continued to approach Martin. He knew Lewis to carry weapons. He had seen Lewis and his brother “Silver” participate in beating up a person at a strip club. Another time he was on stage at a venue (Martin testified that he is a rapper) and there was an altercation involving members from his chapter including Lewis.

[76] There was a circle of people around the two men, Martin testified. They were close. None of them stepped back or appeared to be scared. Martin said he had no other option but to shoot. When Martin fired the gun, both he and Lewis were in motion. Lewis was hit. It was an accident; he did not mean to shoot him. Martin was aiming at the ground; he believed he had shot Lewis mistakenly in the leg. Lewis fell and screamed. The wave of people including Silver ran over; Silver was extremely angry. Martin was able to run the short distance to his car and get in. Someone wearing a Ruff Ryder vest tried to get in after him but he had locked the doors. He saw Omar in his rear view mirror. It looked like he was calming people down. Martin could not wait for him and drove away at high speed. Martin testified he did not turn himself in to the police because he was saving money for a lawyer and because if he turned himself in, people who were looking for him would know where he was to be found.

[77] Martin said the injury around his right eye was quite serious, there was a scar from it afterwards. The first time Lewis punched him, they were about an arm’s length apart. Martin stepped back. In cross-examination, Martin mentioned for the first time that Lewis at this point grabbed Martin’s right wrist. Martin ripped it away and shot into the ground. Martin said he was focussed on Silver because he was afraid of him. Martin was looking at people’s faces, not their hands.

[78] In her cross-examination, Ms. Kim focussed a good deal on the distance between Martin and Lewis when Martin fired his gun the second time causing the bullet wound to Lewis. Martin said his right arm was extended. He could see out of his left eye but not out of his injured right eye. He was panicking. Martin resisted saying how far the muzzle of the gun was from Lewis’ body at the time he fired. It was not touching or almost touching Lewis. The best Martin could do is say the gun was an arm’s length or maybe a bit more from Lewis.

[79] Forensic evidence confirms the closeness of the gun to Lewis’ body and the angle of the gun at the time of discharge. Liam James Hendrikse testified for the defence. Both defence and Crown agreed that he was qualified in the field of the examination of firearms, ammunition, crime scene analysis and re-construction. I agree with the parties. Mr. Hendrikse has over 20 years experience. His resume is impressive in terms of his education, experience, and history of testifying in court. Mr. Hendrikse has testified at least 30 times in courts in the United Kingdom, Canada and the United States He gave his evidence in an impartial manner. I had no concerns of any kind with respect to his impartiality: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 (S.C.C.).

[80] The defence called Mr. Hendrikse to testify with respect to an issue that arose from Lewis’ evidence. Lewis had said in his preliminary hearing that initially Martin had fired a shot at him but Lewis did not feel it and thought that it was a blank. He yelled at Martin, exclaiming why would he fire blanks at him. The second shot that Martin fired immediately afterwards is the one that resulted in his injuries. Mr. Hendrikse testified that if there was a blank fired from a gun that was capable of firing .45 calibre bullets as this one clearly was, unlike a regular bullet casing, the shell casing from the blank would have to be manually extracted before another round could be fired. There was no evidence from anyone that a manual extraction was done. No blank casing was found at the scene.

[81] But besides the blank casing issue, there was an important aspect to the expert’s evidence. In examination in-chief of Mr. Hendrikse, it was elicited that stains on Lewis’ navy blue jacket were caused by discharge residue from a gunshot. There was a fairly large circular whiteish stain around the hole from the gunshot. It was Mr. Hendrikse’s opinion that this indicated that the muzzle of the gun was in contact or very close to contact with the jacket when it was fired. While initially, it was his view that the muzzle must have been 1-2 mm away at the most, he expanded this distance somewhat although maintaining that the gun muzzle was likely in contact or very close to contact. There was also similar white staining on the right bottom sleeve of the jacket, near the wrist. This could have been the same shot that damaged the front of the jacket. It also showed that the barrel of the gun would have been in close proximity to the jacket at the time of discharge.

[82] In cross-examination, Mr. Hendrikse testified that the symmetry of the stain on the front of the jacket tended to show that the firearm was pointed in an angle perpendicular to the jacket at the time of discharge. If it was pointed up or down in deviation from the perpendicular, the stain would have been asymmetrical because the dispersion of particles would have been more uneven below or above the tear in the fabric caused by the bullet. In re-examination, he elaborated that the gun could have been pointed up or down very slightly but was likely only off a perpendicular trajectory by 5 degrees or 5 percent. I would note that 5 degrees or 5 percent are significantly different numbers but I do not believe that the discrepancy is of any real importance on this record.

[83] The analysis of Martin’s evidence concerning the shot that entered Lewis’ upper abdomen is critical to Martin’s credibility and the viability of self-defence. The shot was from a very close distance and the angle of the gun was likely directly towards or perpendicular to Lewis’ body, clearly not aimed down at his feet. This is in stark conflict with Martin’s evidence that he intended to shoot at Lewis’ feet, an angle he said was close to 45 degrees.. Both the likely distance and the angle toll heavily against Martin’s account. The more significant the discrepancy between Martin’s stated intention to shoot into the ground and, on the other hand, the angle at which the bullet entered Lewis’ body, the more implausible is Martin’s evidence. If the distance was 10 metres, for example, a disparity between where Martin said he aimed—the ground in front of Lewis--and the actual angle of the bullet which entered Lewis’ body, would have been of less significance. But given the fact the gun, based on both Martin’s evidence and Hendriske’s evidence, could not have been more than about two or three feet away from Lewis at the time of firing, the degree of difference between the stated intention and the actual firing was very substantial.

[84] The flux of the two bodies in motion, Martin’s panic and the injury he said he suffered to his eye, together with other factors, does not adequately account for the discrepancy. That tends to contradict the possibility of accident and together with it, self-defence. It is too far from a normal range of error, even in the fluid circumstances recounted by Martin, to be reasonably plausible. Firing a gun either in actual contact with or very close to Lewis makes Martin’s evidence that he was attempting to shoot into the ground at Lewis’ feet, lacking in credibility.

[85] Lastly, this might be an opportune time to briefly examine the question of the blank shot and whether there was one shot or two. Mendoza only heard one shot. Everyone else—Lewis, Pandon and Martin—said there were two. Lewis said in his hospital statement that there were two shots, the first missed and the second one hit him and caused the injury. At the preliminary hearing, Lewis mentioned the blank shot. Martin testified with respect to the two shots, the first being shot into the asphalt in the parking lot, and the second being the one that went into Lewis. He did not refer to firing a blank cartridge.

[86] The evidence of a blank made little sense. There was no evidence that Martin extracted a blank casing from the gun. With respect to whether there were two shots or one, only one shell casing was found and of course, only one bullet hit Lewis. There may well have been a second shot and the first may have constituted a warning shot.

THE EVIDENCE OF OMAR PANDON WITH RESPECT TO THE LOCK-OFF

[87] Pandon testified, as mentioned above, that Martin asked him to go to the Lock-Off as a potential mediator between Martin and Lewis. He testified, like Martin did, that the West End Kings arrived on their motorcycles and parked very close to him and Martin, about a foot away. Lewis was one of them, as was his brother, known as Silver. In contrast, the videos introduced into evidence show the motorcyclists arriving at the plaza and getting off their bikes. Although the quality is poor, there does not seem to be anyone around them.

[88] Silver and Lewis said their hellos to Pandon but immediately afterwards Lewis went towards Martin and “got in his face.” Both Lewis and Silver were aggravated and aggressive. Pandon said he tried to calm the situation but Lewis threw a punch at Martin. Pandon continued to attempt to calm down the situation. He testified that 30-40 “consorts” of Lewis and Silver were surrounding them and were aggressive and creating a scene. Martin pulled out his firearm and told everyone to move back from him. Lewis began to rush Martin again and Martin discharged the firearm into the ground. He was trying to get everyone to back away from him. At this point, Pandon was surrounded by 10-20 people. He testified that he was in fear. Soon afterwards, Pandon heard another shot. Someone said that Lewis had been shot. He himself did not witness it, however. Martins’ car “peeled” off within 10-15 seconds of the shot. Pandon left himself by bus 10-15 minutes after the shooting. He did not go over and check on the injured Lewis despite being a very good friend of his.

[89] Pandon’s evidence is helpful to the defence primarily by reason of it corroborating Martin’s evidence with respect to the menace represented by the surrounding crowd and by Lewis. There are other incidental matters upon which it is also helpful. However, I agree with Ms. Kim that Pandon displayed a bias towards Martin that effectively undermined the weight of his evidence on this point.

[90] Several times, Pandon said in his evidence that he had urged Martin to turn himself in to the authorities after the incident because Pandon thought that Martin was not in the wrong in the situation. The problem with this is that by his own admission, Pandon did not see the second shot, the shot that went into Lewis and inflicted the injury to him. Without having seen Lewis and Martin at the time of this shot, Pandon could not have been in a position to conclude that Martin was not in the wrong. That he did arrive at this conclusion nonetheless is a clear indication of his bias in favour of Martin.

FINAL CONCLUSIONS

[91] The above constitutes my fact-finding discussion before the application of the burden of proof. To begin the weighing of the evidence and the final analysis, I will first summarize and examine the evidence favouring the Crown’s attempt to prove their case on the two counts in the indictment that are in issue. I will then examine the defence evidence.

[92] First, as held above, motive is very important in this case. The evidence of Martin’s animus and motive against Lewis starting from the back and forth on social media, through the words exchanged at the Bike Show, to Lewis punching Martin twice at the Lock-Off is strong evidence militating against the claim of self-defence and accident. The antagonism between the two men and the grievance felt by Martin against Lewis makes it more likely that the act of shooting Lewis, in all of the circumstances, was not in self-defence and that the firing of a bullet into Lewis’ body was not accidental.

[93] With respect to consciousness of guilt, Martin’s rapid departure from the scene and, most importantly, the selling of his car within days of the shooting must be examined with caution. The question should be asked whether this evidence is as consistent with self-defence and accident as it is with the deliberate, intentional shooting of Lewis in his lower chest. Due to the existence of alternative explanations, the evidence may lack probative value towards the Crown’s proof of their case. The leading case in which evidence was held to be of no probative value is R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129 (S.C.C.). In that case, the accused admitted that he had punched the victim but denied stabbing him as the Crown alleged. The Court held that the jury should have been told that they could not draw an inference from flight from the scene that the accused was guilty of the stabbing. His conduct was equally explained as being a result of punching the victim. The evidence was of no probative value: see paras. 43-45.

[94] It is difficult to catalogue the situations in which consciousness of guilt will lack probative value. The cases stress that because this type of evidence is circumstantial evidence, much depends on the live issue the evidence tends to prove. Where levels of culpability are at issue--for example, whether the accused’s acts constitute murder or manslaughter---the evidence may be of no probative value as the accused has an equal incentive to flee from a non-intentional killing as from an intentional one: see R. v. Marinaro, 1996 CanLII 222 (SCC), [1996] 1 S.C.R. 462 (S.C.C.) and for a list of the cases, see R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, 113 C.C.C. (3d) 1 (S.C.C.) at para. 45 which cites cases in which consciousness of guilt evidence was erroneously left with the jury to assist in determining the accused’s level of liability: R. v. Wiltse (1994), 1994 CanLII 822 (ON CA), 19 O.R. (3d) 379 (C.A.), R. v. Charlette (1992), 1992 CanLII 13156 (MB CA), 83 Man. R. (2d) 187 (C.A.), R. v. Murray (1994), 1994 CanLII 1692 (ON CA), 93 C.C.C. (3d) 70 (Ont. C.A.), R. v. Bob (1990), 1990 CanLII 13299 (ON CA), 78 C.R. (3d) 102 (Ont. C.A.).

[95] Other cases elaborate on the holding in Arcangioli. In R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57 (S.C.C.) the broad principle enunciated in Arcangioli was qualified. Justice Major held for the court that the Arcangioli position that the evidence is of no probative value will generally be apt where the accused admits the act in question but denies an aspect of the culpability or fault which the Crown alleges: see para. 28.

[96] In R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 (S.C.C.), the accused shot the deceased and, according to the evidence, showed no hesitancy before fleeing. The defence was accident and the issue, as a result, was whether the accused was guilty of murder or manslaughter. The majority distinguished Arcangioli on the basis that the probative worth of the evidence was the failure to hesitate, not the flight itself. This failure was said to belie the conclusion that the shooting was an accident. Most individuals would have displayed some outward sign of surprise and have hesitated: White, at paras. 69-79 per Rothstein J.; at para. 109 per Charron J. Justice Binnie dissented, finding that because the act of hesitation was equivocal, the situation was covered by Arcangioli and there was no probative value to the evidence in light of the only live issue of intent.

[97] Justice Martin in R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301 (S.C.C.) makes an admirable effort to analyze and reconcile the two White cases and Arcangioli, equating the circumstances present in Calnen to that in R. v. Rodgerson, 2015 SCC 38, 327 C.C.C. (3d) 287, [2015] 2 S.C.R. 760 (S.C.C.). Disposing of the deceased’s body in the two cases was potentially probative as it prevented forensic examination which may well have incriminated the accused. Justice Martin made this general comment:

145 Whether an inference is available is measured against what is reasonable and rational according to logic, human experience, and common sense. It is this combination which informs the determination of whether the impugned evidence makes the proposition more or less likely. This is an evaluative assessment, which is not defeated simply by listing alternative explanations. As long as the evidence is more capable of supporting the inference sought than the alternative inferences, then it is up to the fact finder, after considering all explanations, to determine what, if any, inference is accepted, and the weight, if any, to be provided to a piece of circumstantial evidence.

[98] In the case at hand, the accused admits the act element of the offence and concedes the unlawful possession of the firearm. He disputes his culpability for the shooting, however, arguing that he acted in self-defence and that the bullet hitting Lewis was accidental. The consciousness of guilt evidence tendered, in my view, is capable of rebutting this explanation and is more consistent with guilt than it is with innocence.

[99] It has been accepted that consciousness of guilt evidence may be germane to self-defence. Justice Major said in White, (1998) at para. 32,

Post-offence conduct might also be relevant in cases where the accused has admitted to committing a physical act but asserts that the act was justified in some way; in those circumstances, an act of flight or concealment might constitute some evidence from which, along with other evidence, the jury could infer that the accused was conscious that he or she had committed a culpable act and had not, for example, acted in self-defence. See Peavoy supra, at p. 241; Jacquard supra, at p. 348.

(Emphasis Added)

Also see Calnen, para. 119

[100] The immediate and rapid exit from the scene in the Mustang, the selling of the Mustang and the disposal of the gun is some evidence demonstrating that Martin was aware that he had committed a blameworthy act against Lewis. It went to self-defence and whether the injury caused to Lewis was indeed accidental as Martin testified. Martin’s explanations for his actions are weak. I reject them. Specifically, Martin’s evidence that he sold the car to gather the funds to hire a lawyer is implausible. The selling of the car in a small town just a week after the shooting was much more likely for the purpose of concealment and avoiding apprehension. The selling of the car was unlikely to have been a coincidence. Cars must be registered and plated and are relatively easy to track. If Martin was to avoid apprehension, he was much better off without the car than with it.

[101] The consciousness of guilt evidence should be evaluated as a package but the most telling aspect by far are the circumstances around the selling of the car. The evidence must be seen in the context of all the evidence and inferences in the case. Justice Martin said in Calnen,

133 The idea that the probative value of particular after-the-fact conduct may be assessed by reference to the record as a whole simply conveys that whether an inference is rational and reasonable must be assessed in context. It does not mean that no reasonable and rational inference can be drawn from the after-the-fact conduct unless there is some other direct evidence that somehow supports or corroborates it. It may be that other evidence supports a particular inference (like a body which demonstrates certain injuries were sustained),..

After-the-fact conduct is assessed in context. Its significance may be strengthened or weakened by the presence or absence of other evidence, but it is not a secondary form of evidence.

[102] For these reasons, in my view, the consciousness of guilt evidence tends, along with the other evidence, to negate the claim of self-defence and of accident. The alternate explanations available do not rob the evidence of probative value as occurred in Arcangioli. The evidence is admissible and probative. Nonetheless, the potential alternative inferences do reduce to some degree the force of the after-the-fact evidence towards the Crown’s proof of their case.

[103] Summing up on the Crown’s case, evidence that this was an intentional shooting and not in self-defence is substantial. The key focus, in light of this, must turn to the affirmative defences raised here.

[104] With respect to the defence evidence and argument, Martin’s evidence contained the problems already identified. I find that he was incredible on the issue of animus and motive. He attempted to minimize the obvious animosity he felt towards Lewis as apparent from the Bike Show encounter and its precursors. Perhaps most importantly, while Martin said that he was going to the Lock-Off to support the Ruff Ryders, Omar Pandon’s evidence makes it abundantly clear that the main reason he went was to confront Lewis once and for all. Martin’s attempt to diminish the animus he felt towards Lewis damages his credibility.

[105] The most discordant aspect is Martin’s assertion that when he shot Lewis, he was actually trying to shoot down at Lewis’ feet and simply missed. By his own evidence and the Hendriske evidence, he was at the most only two or three feet from Lewis at the time.

[106] How anyone could or would shoot at his antagonist’s feet from extremely close range makes no logical sense. First, on a physical level it would be exceedingly difficult to do this, particularly if his arm was outstretched as Martin said his was. Second, there would be a very high risk of the shooter firing into their own feet or legs. As a warning shot fired by Martin, there is no logic to this. Furthermore, based on Mr. Hendriske’s evidence, the gun was virtually perpendicular to Lewis’ body when fired. The major deviation from the approximately 45 degree angle shooting down at Lewis’ feet that Martin testified to and the approximately 90 degree shot he actually accomplished, persuasively rebuts Martin’s account. Martin would have had to spectacularly miss his target and, sadly, instead of shooting the ground, mistakenly shoot into his enemy. I would also make reference here to Lewis’ preliminary hearing evidence in which he said that when Martin shot the gun, he was holding it straight forward, “pointed right at me, not at my feet.” In the end, Martin’s evidence that he was shooting at Lewis’ feet and tragically missed is implausible. In the context of all of the evidence, I entirely reject it.

[107] The reasons for the rejection of the accident evidence leads me to also reject the self-defence evidence closely associated with it. Martin testified that the Lewis was a threat because he sometimes carried firearms as did Lewis’ brother Silver. In the two instances he himself cited of prior violence of Lewis, as Ms. Kim points out, Lewis was not in fact armed nor was his brother. After the Lock-Off shooting, it was discovered that Lewis was not armed. And, of course, Martin did not say he saw Lewis or anyone else armed during their altercation at the Lock-Off.

[108] The idea that the crowd was perceived as a threat was suggested by both Pandon and Martin. Mendoza did not mention such a crowd. She was not asked specifically about it. Her vantage point based on the evidence was about 70 to 100 metres away. I would put little weight on her evidence in this regard as a result. Based on my findings against both Martin’s and Pandon’s credibility, I reject the evidence that the crowd was an actual or perceived threat. I also reject that Lewis was a threat beyond the threat that he might punch Martin again.

[109] This case was not a pure credibility contest as was R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.) and cases of that ilk. The Crown’s evidence was not premised mainly on credibility, although the defence evidence was. It was not a “she said, he said” case in that sense. But the danger which W.(D.) is aimed at is nonetheless present in a case like this, although perhaps not in as acute a form. A finder of fact may be misled into choosing which version of events he or she prefers and anchor guilt on this foundation. That is erroneous as it omits the third alternative, that is, being left in a state of reasonable doubt: R. v. Nimchuk, 1977 CanLII 1930 (ON CA), [1976] O.J. No. 1258 (C.A.) at para. 7. It is not a binary, either\or decision.

[110] Combining steps one and two of W.(D.), based on the observations I have made above, I do not believe Martin nor, in the context of all the evidence, do I have a reasonable doubt with regard to his evidence that he was acting in self-defence and that the injury caused was accidental. I reject his evidence on grounds of logic and credibility. Turning to the Crown’s evidence and the third step, the Crown, for the reasons I have articulated, has met its burden to prove beyond a reasonable doubt that Martin was not acting in self-defence and the firing into Lewis’ torso was not an accident. It was intentional.

[111] The self-defence provision in Section 34 of the Criminal Code reads,

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

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

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

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

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

(a) the nature of the force or threat;

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

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

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

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

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

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

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

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

[112] In this case, the Crown has disproved to the high degree of certainty required by the beyond a reasonable doubt standard, both subsections (b) and (c) under ss. 1. It has been proven beyond a reasonable doubt that Martin did not shoot Lewis for the purpose of self-defence: R. v. Khill, 2020 ONCA 151, 149 O.R. (3d) 639 (Ont.C.A.) at para. 54, leave granted [2020] S.C.C.A. No. 97 (S.C.C., Aug 6, 2020). Instead, retaliation and aggression was behind the act of shooting. I also find that the force used, the shooting of Lewis, was not reasonable within ss. 1(c). Reasonableness is to be assessed under the non-exhaustive factors in ss. 2 and has both subjective and objective elements: Khill at paras. 56-63. If the defence had been able to get past ss. 1(b) of Section 34, they would nonetheless have foundered on the reasonableness requirement in ss. 1(c). The Crown has proved beyond a reasonable doubt that the shooting was not a reasonable response because, amongst other observations, the threat was not imminent under ss. 2(b) and, of paramount importance, under ss. 2(g) the force used was disproportionate to the threat faced. The deadly force of shooting a firearm could not be legitimate and reasonable self-defence in these circumstances.

[113] Martin did not see Lewis or anyone else with a firearm (see ss. 2(d)). The threat posed by the crowd and by Lewis, even on Martin’s own evidence, could not justify the use of deadly force. The fact that Martin had been attacked in 2004 had no real bearing on this situation more than 10 years later. To equate the two situations was clearly unreasonable. The history and relationship between the two men, a history of acrimony, is also of major importance (see ss. 2(f)) in rejecting self-defence. On my findings of fact and the rejection of Martin’s evidence, the use of deadly force was not proportionate or reasonable to what Martin was facing. I also reject that Martin subjectively believed it to be so.

[114] I conclude beyond a reasonable doubt that the shooting of Martin was not accidental. The motive evidence, the closeness of the shot when fired to Lewis’ body, all viewed in the context of the rejection of Martin’s evidence, leaves no reasonable doubt on this question. The only reasonable inference is that the shooting into Lewis’ body was intentional.

IS MARTIN GUILTY OF ATTEMPTED MURDER?

[115] I therefore conclude beyond a reasonable doubt that Martin shot Lewis with no justification and not for reasons of self-defence. It was not accidental; it was intentional. The next question is whether Martin is guilty of attempted murder as alleged in count 1. The Crown must prove beyond a reasonable doubt that he intended to kill Lewis when he shot him. No lower mental element will suffice: R. v. Ancio 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225, 6 D.L.R. (4th) 577 (S.C.C.) at pp. 248-249; R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752 (Ont. C.A.) at paras. 129-130, leave refused [2018] S.C.C.A. No. 258.

[116] These are the major factors which, together with the animus evidence discussed above, tend to support a conclusion of an intention to kill:

a) Martin shot Lewis with a high calibre handgun, a .45 calibre pistol.

b) The shot was fired from very close range, about 2 or 3 feet.

c) The bullet was aimed at and entered Lewis’ torso, the upper right quadrant of his abdomen. This is a part of the body where the vital organs lie, a generally understood fact.

[117] On the other hand, despite the underlying animus, the shooting was relatively spontaneous and in response to being punched by Lewis. For the Crown, Ms. Kim does not urge that Martin went to the Lock-Off with the intention to shoot Lewis. Of course he was armed with a loaded firearm, which suggests that he was prepared to use the firearm depending on the circumstances. Once he was punched by Lewis, Martin’s anger boiled over. I agree with this description. The formation of the intention to shoot Lewis occurred in a very short space of time. A matter of seconds elapsed between the punches and the shooting. This is a relevant circumstance in evaluating whether the Crown has proved that the intention to kill is the only reasonable inference available.

[118] However, despite this, I am nonetheless convinced beyond a reasonable doubt and find it is the only reasonable inference that when Martin fired a bullet from the .45 calibre handgun into Lewis’ torso from close range, it was with the intention to kill him. An intention to kill, particularly when supported by underlying animus as it was in this case, can be formulated on the sudden. Shooting the gun from point blank range into Lewis’ torso is powerful evidence of an intent to kill.

[119] For these reasons, I find Andre Martin guilty of count 1, attempted murder of Mr. Lewis with a firearm, and count 3, possession of a loaded firearm with no legal authorization. Subject to the views of counsel, the aggravated assault in court 2 will be conditionally stayed pursuant to the Kienapple principle.

D.E HARRIS J.

Released: May 26, 2021

COURT FILE NO.: CR-20-509-00

DATE: 20221 05 26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

• and –

Andre Martin

REASONS FOR JUDGMENT

D.E HARRIS J.

Released: May 26, 2021