COURT FILE NO.: 028A/18 JJJJ
DATE: 20210730
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TANADE MOHAMED
Anna Tenehouse and Robert Wright, Assistant Crown Attorneys
Richard Posner and Gabriel Gross-Stein
- and -
ABDIRISAQ ALI
R. Craig Bottomley and Mayleah Quenneville
HEARD: March 22-25, 29, 31; April 1, 6, 7, 12-16, 19-23; May 3-5, 25, 27, 28; June 3 and 30, 2021
mr. Justice peter bawden
OVERVIEW... 5
THE ISSUES. 6
The factual issues. 6
The legal issues. 6
THE UNCONTENTIOUS FACTS. 7
The background and circumstances of Tanade Mohamed. 7
Tanade Mohamed’s familiarity with firearms. 7
Tanade Mohamed’s trip to Toronto. 8
The background and circumstances of Abdirisaq Ali 8
How Tanade Mohamed came to be in possession of a gun. 9
Arrival at the Rebel Nightclub. 10
Alcohol and marijuana consumption by Tanade Mohamed. 10
The background and circumstances of Tyler McLean. 11
The background and circumstances of Zemarai Khan Mohammed. 12
The incident at the hot dog stand. 12
Tanade Mohamed’s argument with the valet staff 13
Tanade Mohamed’s fight with Tyler McLean at the valet gates. 13
The movements of the Durango prior to the shooting. 14
The shooting as it appears on video. 14
The forensic evidence of the shooting. 15
The movements of the Durango after the shooting. 17
The post offence conduct of Tanade Mohamed and Abdi Ali 17
Tanade Mohamed’s statement to police. 17
GENERAL COMMENT ON THE CREDIBILITY OF TANADE MOHAMED.. 19
GENERAL COMMENT ON THE CREDIBILITY OF ABDIRISAQ ALI 22
THE CONTENTIOUS FACTS. 26
(a) Was the first shot fired from inside the Durango?. 26
The evidence of MacKenzie Cornall 27
The evidence of Detective Matt Emptage. 28
The evidence of Rasha Alnaaj 31
Analysis. 34
Conclusion. 40
(b) Was there a bang at the back of the Durango?. 41
The defence application to reopen the evidence. 42
(c) Was Tanade Mohamed blindsided by a punch from Zemarai Khan Mohammed?. 45
(d) Did Zemarai Khan Mohammed rush towards Tanade Mohamed after having struck him?. 48
(e) What did Tyler McLean do after Zemarai Khan Mohammed was shot?. 50
(f) When did Abdi Ali first realize that Tanade Mohamed had a gun?. 52
THE LEGAL ISSUES. 56
Has the Crown proven beyond a reasonable doubt that Tanade Mohamed was not acting in self defence when he killed Zemarai Khan Mohammed?. 56
The law of self defence. 56
Section 34(1)(a) - The Trigger 58
Section 34(1)(b) - The Motive. 58
Section 34(1)(c ) - The Response. 61
Conclusion regarding the defence of self defence. 64
Has the Crown proven beyond a reasonable doubt that Tanade Mohamed intended to kill Zemarai Khan Mohammed?. 64
The Crown Position. 65
The Defence Position. 65
Assessment of the evidence of Mr. Mohamed. 68
Proof of intent to kill 70
The cumulative effect of intoxication, self-defence, provocation and rage. 72
Conclusion. 72
Has the Crown proven beyond a reasonable doubt that Tanade Mohamed was not provoked when he killed Zemarai Khan Mohammed?. 72
Did Zemarai Khan Mohammed commit an assault on Tanade Mohamed?. 73
The experiences and characteristics to be ascribed to the reasonable person. 74
Would an ordinary person have lost the power of self-control in these circumstances?. 76
Verdict for Tanade Mohamed on Count 1. 78
Has the Crown proven beyond a reasonable doubt that Tanade Mohamed intended to kill Tyler McLean? 78
The Defence of Accident 78
The Evidence of Tanade Mohamed. 79
The Evidence of Abdirisaq Ali 79
The Evidence of Rasha Alnaaj 81
The video and forensic evidence. 83
Findings with respect to the defence of accident 84
Proof beyond a reasonable doubt of intent to kill Tyler McLean. 86
VERDICT FOR TANADE MOHAMED ON COUNT 2. 88
Has the Crown proven beyond a reasonable doubt that Abdi Ali was a party to the murder of Zemarai Khan Mohammed and/or Tyler McLean?. 88
The Crown’s Position. 88
Analysis. 89
The inference of guilt arising from post offence conduct 90
Has the Crown proven beyond a reasonable doubt that Abdi Ali is guilty of manslaughter as a party to the offences committed by Tanade Mohamed?. 93
VERDICT FOR ABDIRISAQ ALI ON COUNTS 1 AND 2. 95
Appendix A.. 96
OVERVIEW
[1] Tanade Mohamed and Abdirisaq Ali arrived at the Rebel nightclub at about 1:30 am. They spent an unremarkable night talking and dancing. Mr. Mohamed was drinking alcohol, but Mr. Ali was not. They had no quarrels with anyone inside the club.
[2] When the club closed at 3:00 am, Mr. Mohamed and Mr Ali left the building and joined many other patrons who were congregated in the roundabout just outside the club. They stopped at a hotdog stand where Mr. Mohamed bought a bottle of water. As Mr. Mohamed was drinking his water, Mr Ali had a very brief conversation with two young women. Tyler McLean, who had also been at the club that night, noticed the conversation and took exception to it. He told Mr Ali to back off, the girls were with him. Mr. Mohamed heard the comment and objected to the way that Mr. McLean was speaking to his friend. Mr. Mohamed and Mr McLean had an angry exchange which culminated in each telling the other ‘you are messing with the wrong guy’.
[3] Mr. Mohamed and Mr. Ali walked away from Tyler McLean and stood by the valet parking gate, waiting for their car. Mr. McLean walked past them on his way to the parking lot and said something which enraged Mr. Mohamed. Mr. Mohamed tossed his water bottle in the direction of Tyler McLean. Mr McLean turned around and strode back towards Mr. Mohamed. The two men shoved each other, and Mr McLean threw a dangerous punch which narrowly missed Mr. Mohamed’s head. Mr. McLean’s friend, Zemarai Khan Mohammed, stepped between the two combatants. A paid duty police officer noticed the commotion and pointed his Taser at Mr McLean, telling him to get in his car and go home. Tyler McLean, Zemarai Khan Mohammed and the two women walked into the parking lot on the way towards their car.
[4] The valet soon arrived with Mr Mohamed's car, a black Dodge Durango. Mr. Ali got into the driver’s seat and Mr. Mohamed sat in the front passenger seat. Although the valet parking exit was immediately in front of them, Mr Ali drove into the parking lot and parked in a spot which was two spots east of where Tyler McLean, Zemarai Khan Mohammed and the two women had stopped to talk. One minute and forty-seven seconds passed. At 3:11:45 am, there was a flash from the front passenger window of the Durango. The door opened and Tanade Mohamed came out at high speed. He returned seven seconds later, and the Durango sped off. In the seven seconds that he was outside of the car, Tanade Mohamed shot Zemarai Khan Mohammed in the head and Tyler McLean in the chest. Both men died.
[5] The bare facts of this case seem incomprehensible. The two deceased and the two accused met for the very first time at 3:03 am. They had a modest disagreement and angry remarks were exchanged. Nine minutes later, the two victims had been fatally shot and the two accused were fleeing the scene. If the entire event had not been captured on video, one would have thought it was impossible.
[6] Tanade Mohamed is charged with two counts of second-degree murder. He has testified that he was acting in self defence when he shot Zemarai Khan Mohammed and that he had no intention of killing him. If the court should reject self defence and find that he did intend to kill, he relies on the defence of provocation.
[7] Mr. Mohamed testified that Tyler McLean’s death was an accident. As he was getting back into the Durango, Tyler McLean grabbed him from behind. Mr. Mohamed turned to push Mr. McLean away and as he did, the gun in his hand fired accidentally. Mr Mohamed acknowledges through his counsel that he is guilty of manslaughter in the death of Tyler McLean.
[8] Abdirisaq Ali is also charged with two counts of second-degree murder. The Crown alleges that he knowingly assisted Tanade Mohamed to kill both Tyler McLean and Zemarai Khan Mohammed and is therefore a party to the offences perpetrated by Mr. Mohamed.
THE ISSUES
The factual issues
[9] Many of the facts relied upon by the Crown were formally admitted or, by the end of the trial, not seriously disputed by the defence. Both accused testified and many aspects of their evidence went unchallenged by the Crown. I will begin by setting out the facts which I have drawn from this uncontroversial body of evidence.
[10] The facts regarding the events in the parking lot were vigorously contested. My findings on these disputed facts are essential to deciding the legal issues and they are the focus of the judgment. The evidence and submissions raise the following questions:
a. Was the first shot fired from inside the Durango?
b. Was there a bang at the back of the Durango?
c. Was Tanade Mohamed blindsided by a punch from Zemarai Khan Mohammed?
d. Did Zemarai Khan Mohammed rush towards Tanade Mohamed after having struck him?
e. What did Tyler McLean do after Zemarai Khan Mohammed was shot?
f. When did Abdi Ali first realize that Tanade Mohamed had a gun?
[11] These are not, by any means, the only contested facts. Other areas of dispute include the number of shots fired, the degree of Mr. Mohamed’s intoxication and the credibility of the eyewitnesses. These peripheral findings will be addressed as they arise during my discussion of the legal issues.
The legal issues
[12] The legal issues are as follows:
a. Has the Crown proven beyond a reasonable doubt that Tanade Mohamed was not acting in self defence when he killed Zemarai Khan Mohammed?
b. Has the Crown proven beyond a reasonable doubt that Tanade Mohamed intended to kill Zemarai Khan Mohammed?
c. Has the Crown proven beyond a reasonable doubt that Tanade Mohamed was not provoked when he killed Zemarai Khan Mohammed?
d. Has the Crown proven beyond a reasonable doubt that Tanade Mohamed intended to kill Tyler McLean?
e. Has the Crown proven beyond a reasonable doubt that Abdi Ali was a party to the murder of Zemarai Khan Mohammed and/or Tyler McLean?
f. Has the Crown proven beyond a reasonable doubt that Abdi Ali is guilty of manslaughter as a party to the offences committed by Tanade Mohamed?
THE UNCONTENTIOUS FACTS
The background and circumstances of Tanade Mohamed
[13] Tanade Mohamed was born in Toronto in 1993. He had a difficult childhood which included physical and emotional abuse from both of his parents. He had trouble focusing at school which contributed to many behavioural problems. At the age of 6, he was diagnosed with ADHD.
[14] Mr. Mohamed’s family moved to Edmonton in 2004. The move disrupted Mr. Mohamed’s progress in school and his behaviour regressed. By grade nine, he was smoking marijuana regularly and, by his own admission, he became lazy and irritable. He was ostracized by his classmates. In grade 12, he was expelled after assaulting a vice principal.
[15] After his expulsion, Mr. Mohamed began to sell marijuana. He left home at the age of 18 and found employment doing demolition work. This led to training as a heavy machine mechanic which ended in 2014 when there was a downturn in the Alberta economy. In 2015, he started a car detailing shop in Edmonton with a cousin. The business was initially successful, but it also faltered due to fluctuations in the local economy. At the end of 2015, Mr. Mohamed began to sell cocaine.
[16] Drug trafficking brought Mr. Mohamed into contact with people who he described as leading an illegitimate lifestyle. His exposure to this group led him to make many poor decisions, including the decision to possess and carry firearms.
Tanade Mohamed’s familiarity with firearms
[17] Mr. Mohamed testified that he began to carry firearms in the fall of 2016 to protect himself while trafficking in drugs. He initially carried any gun which he could find, but, as he became educated about firearms, he armed himself with better guns made by manufacturers such as Glock, Smith & Wesson, and Sig Sauer. He went to a gun range at the West Edmonton Mall several times to practice firing handguns.
[18] Mr. Mohamed described only one occasion when he had to use a firearm to protect himself. On Valentine’s Day of 2017, he was at the Privé Nightclub in Edmonton and became involved in a fight with three other men. Mr. Mohamed ran from the fight, but the men chased him to his car. When he got to his car, he reached under the driver’s seat and pulled out a handgun. He pointed the gun at the three men and they immediately backed away.
Tanade Mohamed’s trip to Toronto
[19] On Friday, September 29, 2017, Mr. Mohamad took a late flight from Edmonton to Toronto, arriving at approximately 7:30 am. Toronto time. He described the trip as a combination of business and pleasure. He was coming to see friends but had also arranged a cocaine transaction to take place in London on Saturday afternoon.
[20] Mr. Mohamed arranged to rent a Dodge Durango in Toronto prior to leaving Edmonton. He used his brother's name to rent the car and brought a piece of his brother's identification to pick it up.
[21] Mr. Mohamed planned to stay with Abshir Olow while he was in Toronto. Mr. Olow was a close friend who Mr. Mohamed had known since he was 18 years old. Mr. Olow lived in a condominium located at 18 Valleywoods Road. Mr. Mohamed drove from the airport to his friend’s apartment and slept there for much of the rest of the day.
The background and circumstances of Abdirisaq Ali
[22] Abdirisaq (“Abdi”) Ali is the younger brother of Abshir Olow. Mr. Ali was 23 years old in October 2017, (six years younger than Abshir and one year younger than Tanade Mohamed). He is the second youngest of six siblings, all of whom grew up in the Islington and Finch area of Toronto.
[23] Mr. Ali was frequently exposed to criminal activity in the neighbourhood where he grew up. His own home had been shot up on at least two occasions and his brother, Abshir, was charged with possession of a handgun when Abdi was 12 years old. In 2014, Abshir was shot by an unknown assailant in the backyard of the family home; the shooting left his brother a paraplegic. Despite having grown up in difficult circumstances, Abdi Ali has no criminal record. He had never been arrested prior to the charges which bring him before this court.
[24] Mr. Ali attended Emory Collegiate until grade nine and then transferred to Thistletown Collegiate so that he could play basketball. He graduated high school and went on to York University where he studied human resource management for 1 ½ years. He couldn’t afford to complete his degree but found full time work as a customer service representative for a company called Money Key. He was working for that company at the time of his arrest.
[25] Abdi Ali would often stay with his brother at 18 Valleywoods to help with the few things that Abshir could not do on his own. It was also convenient for Mr. Ali to stay at Valleywoods because it was close to his workplace.
[26] Abdi Ali knew Tanade Mohamed as a good friend of Abshir’s who would come to stay at the apartment two to four times per year. Abdi considered Mr. Mohamad to be ‘a cool guy’ and was excited when he came to visit on September 29th, 2017. He testified that he did not know that Tanade Mohamed was involved in the drug trade.
How Tanade Mohamed came to be in possession of a gun
[27] According to Abdi Ali, his brother Abshir became paranoid after becoming paraplegic and acquired a handgun to protect himself. Abdi initially objected to his brother having the gun, fearing that he would be caught and sent to jail. Over time, however, Abdi became accustomed to the fact that Abshir had the gun and came to sympathize with his reasons for keeping it.
[28] Tanade Mohamed invited Abshir Olow to accompany him to London on Saturday afternoon to purchase cocaine and Abshir agreed to come. Prior to leaving the apartment, Mr. Mohamed observed that Mr. Olow was bringing his gun. Mr. Mohamed was familiar with Abshir’s gun which he described as a Glock 26, the smallest gun manufactured by Glock. Mr. Mohamed had fired the same gun or one very similar to it when he practiced shooting at the range in Edmonton.
[29] Mr. Mohamed saw Abshir rack the gun while they were at the apartment. He knew that once the gun was racked, there was a bullet in the firing chamber and the gun could be fired with a pull of the trigger. When they got into the Durango, he saw Abshir place the gun under the front passenger seat.
Plans to go to the Rebel Nightclub
[30] Mr. Mohamed and Abshir Olow drove to London to purchase cocaine and, on the return trip, met with a buyer in Etobicoke. As they were driving back, Mr. Mohamed received a message from a friend named Jamal who invited him to the Rebel Nightclub that night. Jamal had rented a booth and offered to treat Mr. Mohamed with free drinks at the club. Mr. Mohamed accepted the invitation and asked Abshir to join him. Abshir agreed and the two men drove back to the Valleywoods apartment to get ready. Mr. Mohamed noticed that when they got out of the car, Abshir left the gun under the front passenger seat of the Durango.
[31] Once they were inside the apartment, Abshir began to smoke marijuana and soon lost interest in going to the club. Mr. Mohamed wanted a designated driver and convinced Abdi Ali to accompany him to the club.
[32] Abdi Ali drove the Durango to the Rebel. Tanade Mohamed knew that Abshir’s gun was still under his seat and was glad that it was there. He testified that if Abshir had not left it in the car, he “probably would have got the gun and taken it to the club anyways”. Mr. Mohamed had been to the Rebel before and knew that he would be searched prior to entering the club. Although he could not bring the gun inside, he felt comfortable knowing that he had access to it. He did not tell Abdi Ali that the gun was in the car as this was not the sort of thing that he would discuss with his friend’s little brother.
Arrival at the Rebel Nightclub
[33] Tanade Mohamed and Abdi Ali arrived at the club at about 1:20 am. They drove to the valet parking area and stopped, momentarily stalling the movement of traffic through the roundabout. Sergeant Kraft, a paid duty officer working at the Rebel that night, walked over to the Durango to move them along. When the officer realized that they were engaging the valet service, he walked away.
[34] Tanade Mohamed was walking around the rear of the Durango as Sgt. Kraft walked by. When he caught sight of the officer, Mr. Mohamed reversed course and went around the front of the Durango to approach the driver’s door. The valet was already seated in the driver’s seat when Mr. Mohamed arrived at the driver’s door. Mr. Mohamed bent down and seemingly took something out of the driver’s side door.
[35] Both Mr. Mohamed and Mr. Ali passed through security before entering the club. Once inside, they went to an ATM where Mr. Mohamed withdrew $400 and Mr. Ali withdrew $20. The cover charge to enter the club was $20.
[36] Mr. Mohamed began to look for his friend, Jamal. When they could not see him, Mr. Mohamed sent a text message. Jamal responded and they arranged to meet.
[37] Surveillance video from the club showed Mr. Mohamed and Mr. Ali go onto a dance floor at 1:32 am and leave the floor at 1:35 am. Their whereabouts within the club from that point forward are unknown. Mr. Mohamed and Mr. Ali testified that they primarily spent the evening in Jamal’s booth. There is no evidence that either of the defendants had any contact with Tyler McLean or Zemarai Khan Mohammed inside the club.
Alcohol and marijuana consumption by Tanade Mohamed
[38] Tanade Mohamed testified that he began to use marijuana in grade 9 and his consumption had increased to the point that he required ¼ to ½ of an ounce every day in order to function. He and Abshir Olow smoked marijuana as they drove to London on Saturday afternoon and, although he did not specify how much they smoked, it was enough that they missed their exit from the highway when they arrived in London.
[39] Mr. Mohamed began to drink cognac at 18 Valleywoods as he was getting ready to go to the club. He recalled having a couple of glasses of cognac at the apartment.
[40] Mr. Mohamed did not recall exactly how much he had to drink at the club but testified that his usual practice was to have “a couple” of triple shots of cognac whenever he went to a club. He also managed to smoke some marijuana. He described himself as tipsy when he left the club, meaning that he was having “a really good night”.
[41] Both valet drivers who were working at the Rebel that night had conversations with Mr. Mohamed after he left the club. Neither observed him to be intoxicated.
[42] Sergeant Kraft did not speak to Mr. Mohamed but did see him engaged in the altercation with Mr. McLean near the valet gates. Sgt. Kraft testified that he did not notice any signs of intoxication and, as a long-time traffic services officer, he was well placed to recognize gross signs of impairment.
[43] Mr. Mohamed’s movements are captured on video for roughly six minutes. His gait is normal, his balance is very good, and he appears to be physically coordinated. This is particularly evident in his brief fight with Tyler McLean near the valet gate. In a statement which he made to Det. Singh after his arrest, Mr. Mohamed said, “if you do see me in any of the clubs that I went to, I probably have like a drink or two max. I'm not a guy that gets drunk, brother.”[^1] The evidence suggests that this was a true statement.
[44] There are indications that Mr. Mohamed’s judgment was affected by alcohol. A sober person would likely have declined any argument with Mr. McLean at the hot dog stand and would have maintained his composure during the dispute with the valet attendants. Mr. Mohamed lost his temper on both occasions. These are failings of judgment which are consistent with a modest level of impairment from the consumption of alcohol.
The background and circumstances of Tyler McLean
[45] Tyler McLean was a promoter at the Rebel and other nightclubs. He often hosted a booth at the Rebel and would invite guests to join him. On the evening of September 30th, his guests included Holly Rogalsky, Mackenzie Cornall and Zemarai Khan Mohammed.
[46] Mr. McLean was drinking heavily that night. Although his movements on the video appear to be coordinated, his behaviour suggests that he was quite intoxicated. MacKenzie Cornall testified that he was “sloppy” and dancing “all over girls... all over everyone”. At the end of the evening, Mr. McLean provoked the argument at the hot dog stand and was resistant to Mr. Khan Mohammed’s efforts to calm him down. He reignited the quarrel at the valet gates and ultimately took a very dangerous swing at Mr. Mohamed. His blood alcohol concentration at the time of his death was measured at 155 milligrams of alcohol per 100 millilitres of blood, nearly double the legal limit to drive a car.
[47] I have no doubt that Tyler McLean’s behaviour and judgment were significantly affected by the consumption of alcohol.
The background and circumstances of Zemarai Khan Mohammed
[48] Zemarai Khan Mohammed frequently attended the Rebel Nightclub. He came to the club with two friends on Saturday evening and they spent the night in Tyler McLean’s booth. He was also drinking, but not as much as Mr. McLean. His BAC at the time of death was 122.
[49] Although he had been drinking, there is no evidence that Zemarai Khan Mohammed was impaired. His gait and movements were normal and his behaviour was notably calm. Mr. Khan Mohammed acted as a peacemaker when hostilities broke out between Tanade Mohamed and Tyler McLean at the hot dog stand and then again at the valet parking gates.
[50] There is no evidence of Mr. Khan Mohammed’s size. It appears on the video that he was taller than Tanade Mohamed, but he was very slim. His build was athletic but not imposing.
The incident at the hot dog stand
[51] Tanade Mohamed bought a bottle of water at a hotdog stand outside the club. He was standing to the side of the kiosk drinking his water as Tyler McLean was lining up to buy a hot dog.
[52] Abdirisaq Ali was walking in the roundabout while Tanade Mohamed drank his water. As he was walking back to join Mr. Mohamed, Mr. Ali passed Mackenzie Cornall and Holly Rogalsky. He briefly spoke to Ms. Cornall which evidently drew the attention of Tyler McLean.
[53] Mr. McLean and Zemarai Khan Mohammed left the hot dog stand and approached Tanade Mohamed and Abdirisaq Ali. The four men formed a small circle and spoke for roughly thirty seconds. It is difficult to see Tanade Mohamed during this interval, but Tyler McLean can be seen clearly. His body movements suggest that he became more agitated as the conversation continued. His head jutted forward several times as he emphasized a point. Mr. McLean ultimately stepped out of the group, walked to where Mr. Mohamed was standing and gave him a light push on the shoulder, perhaps to get his attention. Mr. Mohamed took exception to this uninvited touch and stepped towards Mr. McLean in a confrontational manner. Although Mr. Mohamed was clearly angry, he kept his hands at his side and did not initiate a physical fight. Tyler McLean took a step back as Mr. Mohamed approached.
[54] Zemarai Khan Mohammed apparently recognized that the situation was becoming unnecessarily hostile. He put his arm around Tyler McLean’s shoulder and drew him away from Mr. Mohamed. After making a few last comments to Mr. McLean, Tanade Mohamed walked away with Abdirisaq Ali following a few steps behind. Tyler McLean continued to yell at Mr. Mohamed as he departed, but Zemarai Khan Mohammed put his hand on his friend’s chest and plainly discouraged him from any further engagement. Mr. Khan Mohammed hugged his friend and said something in his ear which seemingly mollified him. The two men then rejoined Holly Rogalsky and MacKenzie Cornall.
Tanade Mohamed’s argument with the valet staff
[55] Tanade Mohamed and Abdirisaq Ali walked across the roundabout to pick up their car from valet parking. The Durango was the last car in valet parking that night and the supervisor saw them as they walked towards his assistant. He noticed that Mr. Mohamed was agitated.
[56] The assistant told Mr. Mohamed that the valet fee was $40. When they had engaged the valet services, the same assistant had mistakenly told them that the fee was $30. Tanade Mohamed was incensed by the change. He argued with the assistant, emphasizing that he could afford to pay the $40 but there was a principle at stake. As he became angrier, Mr. Mohamed said "you're a valet - go get my fucking car". The assistant became uneasy and stepped towards the nearest pay duty officer, Sergeant Kraft.
[57] The valet supervisor approached Mr. Mohamed and calmly told him that he would have to pay the $40 to get his car but, if the fee troubled him, he was welcome to discuss it with the officer. Mr. Ali urged Mr. Mohamed to pay the fee. The supervisor testified that Mr. Ali remained relaxed throughout this encounter and it appeared that he was unhappy with Mr. Mohamed’s behaviour.
[58] Tanade Mohamed finally did pay the $40 and, having resolved the matter, embraced the supervisor in a gesture of goodwill. The supervisor left the defendants standing at the valet gates while he went to get their car. When he returned with the Durango, he pointed out the open valet gate immediately in front of them and invited them to use that exit. This was generally the fastest way to leave the parking area and was only available to those who had paid for valet service.
Tanade Mohamed’s fight with Tyler McLean at the valet gates
[59] As Tanade Mohamed and Abdi Ali stood near the valet gates waiting for their car, Tyler McLean began to walk across the roundabout. Only three minutes had passed since he and Mr. Mohamed had parted at the hotdog stand and the animosity between the two men was still evident. Tyler McLean walked directly towards Tanade Mohamed and the men glared at one another as he approached. Mr. McLean made a remark to Mr. Mohamed and gestured towards the ground. Tanade Mohamed was enraged by the remark and, as Mr. McLean passed, tossed his water bottle in his direction. Although Mr. Mohamed clearly did not intend to hit Mr. McLean with the bottle, the gesture caused Mr. McLean to turn back. The two men walked towards each another and began to shove. As Zemarai Khan Mohammed and Abdi Ali moved to separate them, Tyler McLean threw a dangerous punch which narrowly missed Tanade Mohamed's head. Zemarai Khan Mohammed immediately stepped between Mr. McLean and Mr. Mohamed and extended his arms to keep them apart. Tanade Mohamed was incensed by the punch and tried to reach Tyler McLean, but Zemarai Khan Mohammed blocked his way. Sergeant Kraft approached and as he did, Mr. McLean pointed towards Tanade Mohamed to suggest that he was responsible for the commotion. The officer had seen Mr. McLean try to punch Mr. Mohamed and was not misled. He pointed his Taser at Tyler McLean and told him to go home.
[60] Although Tanade Mohamed was unmistakably angry at Tyler McLean after the fight at the valet gates, there is nothing to suggest that he felt any ill will towards Zemarai Khan Mohammed. The two men spoke face to face with their hands at their sides for several seconds before Sergeant Kraft arrived to disperse the group.
[61] Abdi Ali was an obviously reluctant participant in the valet gate fight. When Tanade Mohamed threw the water bottle towards Tyler McLean and then began to shove with him, Mr. Ali remained rooted to his spot. He made no effort to back up Mr. Mohamed. Mr. Ali only became involved after Tyler McLean threw the punch and even then, his involvement was to restrain Tanade Mohamed, not attack Mr. McLean. Mr. Ali showed no interest in fighting.
The movements of the Durango prior to the shooting
[62] Sergeant Kraft’s intervention quickly ended the fight. Tyler McLean, Zemarai Khan Mohammed, MacKenzie Cornall and Holly Rogalsky entered the parking lot and began to meander east in the laneway which separated Rows A and B of parked cars.[^2] They stopped to talk at roughly the midpoint of the laneway.
[63] The valet returned with the Durango at 3:08:40. Mr. Ali got into the driver’s seat and Mr. Mohammed into the front passenger seat. Mr. Ali did not exit through the valet gates as he had been invited to do but instead turned north into the parking lot and drove through the aisle separating parking rows C and D. The Durango initially moved at an ordinary pace but slowed as it drew parallel with Mr. McLean’s group. Mr. Ali almost stopped, then accelerated into a parking spot which was roughly two spots east of their location. Mr. Ali pulled into the spot, then reversed a few feet so that the Durango would be aligned with other cars in the row. The Durango parked at 3:10:04 and remained in that position, with the engine running and headlights on, until 3:11:44.
The shooting as it appears on video
[64] The video shows the group of four standing together at 3:09:58, about fifteen to twenty feet west of the Durango. Tyler McLean was dressed entirely in black. Zemarai Khan Mohammed was also dressed in black but can be distinguished by his bright, white shoes. MacKenzie Cornall had bare legs and low boots. Holly Rogalsky had bare legs and high boots. Mr. McLean and Mr. Khan Mohammed were facing south, towards the two women. No one was looking in the direction of the Durango.
[65] The group began to move north and by 3:10:50, neither Mr. McLean nor Mr. Khan Mohamed can be seen on the video.
[66] At 3:11:29, Mackenzie Cornall and Holly Rogalsky were standing one parking spot west of the Durango. They remained in this position until the shooting began.
[67] The video shows a flash of light coming from the front passenger window of the Durango at 3:11:45. The door swings open and Mr. Mohamed, identifiable by his white pants, emerges at a dead run. He runs northwest in the direction that Zemarai Khan Mohammed’s body would later be found. As he runs, his image on the video is briefly obscured as he passes to the north of Mackenzie Cornall and Holly Rogalsky. He becomes visible again at 3:11:46, runs out of view at 3:11:47, and does not reappear until 3:11:49 when he can be seen to the east of the two women, running back towards the front passenger door of the Durango.
[68] By 3:11:51, Mr. Mohamed is partially in the door of the Durango, his leg still visible beneath the car door. He pauses for a fraction of a second as he boards the Durango. By the last frame of 3:11:51, his leg is no longer visible.
[69] A second flash of light appears near the front passenger door at 3:11:51. This flash was slightly farther north and higher than the first flash at 3:11:45.
[70] At 3:11:52, the front passenger door of the Durango appears to be closed and the car accelerates forward, turning to the right and driving west towards the valet exit. At 3:11:56, Mr. McLean can be seen standing in the roadway. He takes a few steps and at 3:12:01, slumps to the ground near a car parked in row A.
[71] Mr. McLean’s whereabouts from 3:10:50 to 3:11:56 were the subject of much debate at trial. The defence points out that the taillights of the Durango are momentarily obscured at 3:11:42. Defence counsel submit that this was caused by Tyler McLean walking to the back of the Durango where he banged on the back of the car. The Crown maintains that Tyler McLean never went to the back of the Durango. The Crown submits that Mr. McLean was standing with MacKenzie Cornall and Holly Rogalsky when Tanade Mohamed emerged from the Durango at 3:11:45. I will address this dispute at a later point in the judgment.
The forensic evidence of the shooting
[72] All the relevant forensic evidence is captured in a single overhead photo:
[73] The black rectangle drawn into this photograph represents the location of the Durango. The pylons mark the trail of blood left by the movement of Tyler McLean after he had been shot. The blue rectangle represents the vehicle that was in front of Rasha Alnaaj, an eyewitness to the shooting.
[74] Only one shell casing was found at the scene although at least two shots were fired. The casing was found close to the body of Zemarai Khan Mohammed and is marked in the photograph by a circle. There is no doubt that this casing was ejected at the time that he was shot. The Crown contends that any other shell casings which were produced during the homicides left the scene inside of the Durango.
[75] The blood trail caused by the injury to Tyler McLean began at roughly the midpoint of the parking spot where the Durango had been parked and continued out into the roadway in a semi-circular path.
[76] A crime scene technician testified that an ordinary parking spot is 19 feet in length and 9 feet in width. Based on that evidence, I conclude that Tanade Mohamed ran roughly 10-12 feet from the passenger door of the Durango to the spot where he encountered Zemarai Khan Mohammed. This fact reveals a distortion of the video. If one viewed the video alone, one would think that he traveled a much greater distance, but the overhead photo combined with the scene measurements establish that Mr. Mohamed was very close to both Zemarai Khan Mohammed and Tyler McLean when he left the Durango.
The movements of the Durango after the shooting
[77] Abdi Ali accelerated out of the parking spot the instant that Tanade Mohamed was back in the Durango. He turned west and drove at high speed towards the valet exit. When he arrived at the valet gate, he discovered that the gate was closed. He stopped the car, reversed, and then drove north and east through the lot at high speed before leaving the lot through the public exit.
The post offence conduct of Tanade Mohamed and Abdi Ali
[78] D.C. Oddi was a passenger in a marked scout car which was responding to a call regarding the shooting. His scout car had its lights and siren activated as it approached the intersection of Lakeshore Drive and the Don Roadway. D.C. Oddi saw the Durango and recognized that it matched the description of the suspect vehicle. D.C. Oddi yelled out and pointed at the Durango, indicating that the driver should stop. He could only see the driver in silhouette. Mr. Ali looked towards the scout car, turned away and then began to accelerate rapidly towards the Don Roadway. D.C. Oddi and his partner followed, but Mr. Ali managed to lose them and several other police cars which became involved in the pursuit. D.C. Oddi estimated that the Durango was going between 150 to 160 kph when he last saw it.
[79] As they were driving north on the Don Valley Parkway, Tanade Mohamed threw the gun into the brush at the side of the road.
[80] Abdi Ali took the Bloor Street exit from the Don Valley Parkway and went north on the Bayview Extension, looking for a safe place to abandon the car. He found a residential neighbourhood, parked the Durango and called a cab. While they waited for the cab, he checked CP24 for news about the shooting. Tanade Mohamed eventually flagged down a cab and they returned to 18 Valleywoods, entering the building through the side door.
[81] Mr. Ali installed Twitter on his phone at 4:13 a.m. and began to follow tweets from the Toronto Police Service. He accessed an online article which reported that the two victims had died, and he shared that article with Tanade Mohamed. Mr. Ali also searched for information about metal detectors and the effect of weather on fingerprints.
[82] Both Mr. Ali and Mr. Mohamed conducted numerous online searches for car detailing facilities so that they could clean the Durango and remove any evidence which might connect them to the shootings.
[83] On October 2nd, Mr. Ali drove Mr. Mohamed to 26 Lumley to pick up the Durango. He also gave Mr. Mohamed the clothes that he had been wearing at the club so that Mr. Mohamed could destroy them, along with his own. Tanade Mohamed cleaned and vacuumed the car. He testified that Abdi Ali assisted him in cleaning the car, but Mr. Ali denied this.
Tanade Mohamed’s statement to police
[84] Tanade Mohamed was arrested on October 2nd at about 9:30 pm, 1 ½ days after the shooting. When he arrived at the station, he spoke to his own counsel and reported that he was satisfied with the advice that he had received. He was taken into an interview room at 1:48 am on October 3rd to be interviewed by Det. Singh. Mr. Mohamed stated at the outset of the interview that he was aware of his right to remain silent and, although he would be glad to speak to the detective, he did not know why he was there and did not wish to say anything.
[85] Det. Singh showed him pictures of the Durango taken from the Rebel nightclub. Mr. Mohamed denied knowing anything about the car. He was then shown pictures of himself at the club. He repeatedly denied that it was him in the pictures or that he owned clothes like the ones seen in the photos. He denied having committed any crime.
[86] Det. Singh confronted him with bank records showing that his card had been used at the Rebel on the night of the shooting. Mr. Mohamed was initially reluctant to acknowledge that his bank card had been used at the Rebel, but then insisted that even if it had been used, it didn’t prove that he was at the club. He claimed that he had been with a girl named Sarah on Saturday night. He recounted having dinner with Sarah at a Keg Restaurant downtown. Mr. Mohamed said that he had a steak and drank ginger ale while Sarah had a steak and salad. Sarah paid for the dinner using a debit or credit card. After they had finished their dinner, Sarah drove him to several different clubs in her silver Toyota Camry. After spending the night clubbing, they returned to her high-rise apartment near the CN Tower where they stayed together until about 4:00 am. Sarah called a cab to take Mr. Mohamed back to Valleywoods and, by coincidence, Mr. Mohamed met Abdi Ali downtown and they shared the cab ride home. Mr. Mohamed told Det. Singh that Sarah worked as an adjustor for an insurance company, that she lived on the 24th floor of her building and parked her silver Camry in the underground parking lot. He told Det. Singh that Sarah would provide him with an alibi in court, but not with the detective.
[87] Mr. Mohamed recalled that he had arrived in Toronto on Wednesday or Thursday, knowing that he had in fact arrived on Friday. When shown photos of the Durango parked at 18 Valleywoods, he admitted that it was his rental car but falsely claimed that it was his brother who had rented the car and his brother who had picked it up from the airport. He insisted that the Durango had been parked on Saturday night while he was being driven by Sarah in her silver Camry.
[88] Tanade Mohamed volunteered at one point that one of the victims had been “a Muslim brother”. When he was asked how he knew this, he said that he had seen a GoFundMe page for a victim who was Muslim and told Det. Singh that he was acting “like an idiot” for asking such a question.
[89] Towards the end of the interview, Mr. Mohamed made an impassioned appeal to convince Det. Singh that he was innocent. He suggested that the officer was neglecting his duty to the families of the victims and endangering the public by allowing the real killer to remain at large. He expressed a concern that he might be wrongfully convicted in order to satisfy the officer’s ambition to close the file.
MOHAMED: But I'm telling you that I'm innocent. I'm telling you that the series of events that happened has nothing to do with me, and I'm promising you that whoever committed this crime is still free right now in the streets of Toronto, and me and you are sitting here right now. We're not wasting our time, because that wouldn't be a good thing to say. You -- on a route to -- to closure, is the best way of putting it for a -- for two families
DET. SINGH: Mm-hmm.
MOHAMED: ...and those two families are waiting for the closure. They're looking for you to closure. You're an important guy right now. You know what I mean? So, when you sit down with somebody, if you even have a slight feeling that that -- that's the person, the first thing that comes to mind is closure for the family; right? Closure for yourself as a detective, closure for a case. I'm telling you that my whole life is sitting in front of me right now, right, and I did not commit this crime. So, for me to be put away for this crime, or for me to even sit here and have to explain myself, I mean, it's crazy. I mean, I don't want to get emotional on you and -- and let you know that, hey, this is fucked up, but the only thing I can do is sit through it until you figure out actually what happened. And I'm hoping that you figure out what actually happened because it's important, obviously, in my life, the way things are looking right now, from your point of view, from the way that you're acting, I get a reading from you as to "I have got -- I got the right guy." You know what I mean? And I don't like that feeling because I'm not the right guy and it sucks because you have all this evidence that you're saying that you have, and I'm not sure how it could lead to me being criminally responsible. You know what I mean? And I'm -- I'm being honest with you here, I'm not fucking bullshitting you whatsoever. I'm really fucking scared at the fact that whatever happened I might get criminally charged for it for no reason. You know what I mean? Just because of the fact that you might not have your closure.
GENERAL COMMENT ON THE CREDIBILITY OF TANADE MOHAMED
[90] Credibility findings are ultimately specific to the issues of the trial. In this case, for example, Tanade Mohamed testified that he was acting in self defence when he shot Zemarai Khan Mohammed. The credibility of his testimony on that issue is primarily driven by his account of the event, not a general conclusion that Mr. Mohamed is or is not a credible witness.
[91] There is a place, however, for taking stock of the general credibility of any witness, including the accused. The Crown maintains that Mr. Mohamed is an obviously incredible witness who fabricates details and routinely changes his testimony in order to accommodate countervailing facts. These failings extend to his evidence on the essential facts of this trial. The defence acknowledges that Mr. Mohamed has lied in the past and that he deliberately attempted to mislead Det. Singh but submits that he has told the unvarnished truth at his trial.
[92] Mr. Mohamed admits that he had been selling cocaine and carrying a gun for at least a year prior to his arrest. He was on release for trafficking in a controlled substance at the time of the homicides and has since been convicted of that offence.
[93] Drug trafficking is an inherently deceitful occupation. Drug traffickers lie about the source of their income, use false identities to avoid identification and, if they are caught, frequently lie to regain their freedom.
[94] There is evidence that Mr. Mohamed engaged in this type of deceitful behaviour. Although he was on release for drug charges in Alberta, Mr. Mohamed set up a cocaine transaction in Ontario. He took possession of a handgun almost immediately after arriving in Toronto. One of the cell phones which he was carrying at the time of his arrest was registered to “Dean Bowman” of Calgary. He rented the Durango in his brother’s name and used his brother’s identification to pick up the car. As Mr. Gross-Stein pointed out, such lies are commonplace to those involved in the drug trade and, once it is accepted that Mr. Mohamed is a cocaine dealer, they have only a modest bearing on his credibility.
[95] The fact that Mr. Mohamed was involved in the drug trade explained many facets of the evidence. It accounted for how he came to be in possession of a handgun only two days after landing in Toronto and why the gun was in the Durango when he went to the Rebel Nightclub. It also explained his familiarity with guns and his willingness to point a firearm at Tyler McLean.
[96] Mr. Mohamed’s admissions demonstrate bad character, but character is not an issue in this trial. My task is to determine whether Mr. Mohamed’s testimony is believable, not whether he is a person of good character. His evidence concerning his possession of the gun was corroborated by items seized at 18 Valleywoods, the testimony of Abdi Ali and Mr. Mohamed’s own behaviour on the night of the homicide. I accept his evidence on these points.
[97] The evidence of deceitful behavior by Mr. Mohamed unfortunately extends well beyond his drug trafficking activities. It is evident in his actions before the homicides. He did not tell Abdi Ali that there was a gun in the Durango, exposing Mr. Ali to significant jeopardy if the car had been pulled over by police. He told Mr Ali to park the Durango in the parking lot without telling him that he was pursuing Tyler McLean. When Abdi Ali saw Mr. Mohamed staring at Tyler McLean and asked him what he was doing, Mr. Mohamed respond “I swear to God, I am not going to do anything”. Even as he was assuring Mr. Ali that he did not intend to do anything, Mr. Mohamed was planning to get out of the car and point a gun at Mr. McLean.
[98] When he returned to the Durango after shooting Zemarai Khan Mohammed, he told Mr. Ali that he “thought” that he had shot someone. Mr. Mohamed had shot Zemarai Khan Mohammed in the head and he knew that he had killed him.
[99] On his own evidence, Tanade Mohamed deceived Abdi Ali from the outset of the evening and those lies had nothing to do with drug dealing.
[100] Tanade Mohamed also presented as a highly malleable witness:
a. In his evidence in chief, he recalled that he had been running through snow and feared slipping on ice as he ran from assailants at the Privé nightclub. Mr. Wright confronted him in cross examination with weather reports which indicated that the weather in Edmonton on Valentine's Day of 2017 had been unseasonably warm. Mr. Mohamed’s recollections of the event changed to conform to this possibility.
b. In his evidence in chief, Mr Mohamed described meeting with Abdi Ali and cleaning the car together to remove all trace evidence. In cross examination, Mr. Bottomley suggested to Mr. Mohamed that Mr. Ali had not assisted in cleaning the car and Mr Mohamed instantly adopted this suggestion. Mr. Wright raised the discrepancy in the Crown’s cross examination and Mr Mohamed returned to his original position that Abdi Ali had helped to clean the car.
I was left with the impression that Tanade Mohamed was not genuinely trying to recall what had occurred as much as he was trying to calculate the best thing to say.
[101] Mr. Mohamed’s credibility is also severely damaged by his false statement to Det. Singh. Mr. Mohamed did not simply lie in his statement. He invented a false alibi and then fabricated a series of detailed lies to make it convincing. He told Det. Singh where he and Sarah went for dinner, what they ate, the car that Sarah drove, the location of her apartment and the time that they parted. He foresaw that police might discover that he and Abdi Ali had shared a cab back to 18 Valleywoods and fabricated a meeting downtown to explain that fact. He lied about the day that he arrived in Toronto to distance himself from the Durango and then lied in saying that his brother had also been in the city. These were calculated, strategic lies which were advanced in a confident, assertive tone.
[102] There are several aspects of Mr Mohamed’s evidence which I simply find to be false:
• Mr Mohammed testified that he knew that it was just a matter of time before police came to arrest him. All the circumstances, including particularly the false alibi, convince me that the opposite was true. Mr Mohamed thought that it was impossible for the police to identify him and he was certain that he could escape detection. He was clearly confident that Abdi Ali would not identify him.
• Mr. Mohamed testified that at the time that he made the statement, he was “high out of his mind” on marijuana and Percocet. Mr. Mohamed had been in police custody for at least four hours before the statement began. There is no sign that he was impaired in the video. On the contrary, his speech was clear and focused. He was responsive to questions asked by Det. Singh, asked well-directed questions of his own and never once complained of fatigue or an inability to concentrate. He was strategizing as he gave the statement, pressing the officer to show him the evidence which implicated him. Far from being high out of his mind, Mr Mohammed was sober and calculating.
• Mr. Mohamed testified that he did not know that the gun fired a second time, killing Tyler McLean. Gunshots are loud and handguns recoil. I am certain that his evidence on this point is false.
[103] The sum of these observations is that Tanade Mohamed does not enter the arena as a credible figure. I am satisfied that he is habitually deceitful, malleable in his testimony and prepared to lie if it will deflate incriminating evidence.
GENERAL COMMENT ON THE CREDIBILITY OF ABDIRISAQ ALI
[104] Abdi Ali’s credibility is a central issue in this trial. He testified that he did not know that Tanade Mohamed intended to harm either Zemarai Khan Mohammed or Tyler McLean and he certainly never shared any such intention. The credibility of that testimony is obviously important to resolving the charges facing Mr Ali, but it is also potentially of significance in assessing the case against Tanade Mohamed. Mr Ali does not suffer any of the testimonial weaknesses that Mr Mohammed does. He has no criminal record, was gainfully employed at the time of his arrest, and did not attempt to mislead police by making a false statement. His testimony largely supports the evidence of Tanade Mohamed and, if I do find that his evidence might reasonably be true, that finding could have important implications for the defence of Tanade Mohamed.
Bias arising from good character
[105] In Mr. Ali's case, it is necessary to guard against bias arising from good character. Mr Ali presents as a likable young man. Despite having grown up in a difficult neighborhood, he had never been arrested prior to these charges. He completed high school, went to university, and secured full time employment. He helped to care for his paraplegic brother. On the day of the homicide, he helped a friend to move and then agreed to act as a designated driver. The video from the nightclub shows Mr. Ali approaching a stranger in the roundabout ten minutes before the homicides and offering to help to collapse his wheelchair. He acted as a peacemaker when Mr. Mohamed quarreled with the valet attendants and again when Mr. Mohamed began to fight with Tyler McLean. Although Mr. Ali’s good character has not formally been put in issue, the evidence of it is has been present throughout the trial. If credibility were assessed solely based on character, it would be very difficult to reject the evidence of Mr. Ali.
[106] The Crown submits that the evidence of good character is entirely rebutted by Mr. Ali’s post offence conduct. Mr. Ali knew that Tanade Mohamed had shot someone, yet he fled when he was directed to stop and lead police on a high-speed chase. It was Mr. Ali who took charge of the escape. He was the one who decided to abandon the Durango and call for a cab. He was the first go on social media to gather information about the investigation. Although he claimed that he wanted nothing to do with Tanade Mohamed after the homicides, he sheltered him in his brother’s home and stayed in constant communication with him until his arrest. Mr. Ali collaborated with Mr. Mohamed to remove trace evidence from the Durango and falsified a parking log to hide the vehicle from police. Mr Bottomley concedes that Abdi Ali would have been convicted of being an accessory after the fact to the two homicides if the Crown had elected to lay those charges.
[107] Mr. Ali explained his post defence conduct by saying that he was concerned for his brother. The gun which Tanade Mohamed had used to kill two men belonged to Abshir and he feared that if the gun was found, his brother’s fingerprints would be found on it. Records of Mr. Ali’s Internet searches confirm this testimony. Mr. Ali conducted searches regarding the availability of a metal detector, and he researched the durability of fingerprints on a metal surface.
[108] Although Mr. Ali may have been motivated in part by concern for his brother, I believe that he vastly understates his concern for himself in explaining his post offence conduct. If Mr. Ali was primarily or even largely motivated by concern for Abshir, he would have awakened his brother immediately after arriving home in order that Abshir could dispose of any evidence tying him to the gun. Mr Ali did not tell his brother what had happened at the club until the following afternoon. Many of Mr. Ali’s Internet searches were devoted to finding information about surveillance cameras at the Rebel Nightclub. He fervently tried to destroy any evidence that would connect himself or Tanade Mohamed to the shootings. He was perfectly content to see the killing of two young men go unsolved.
[109] The Crown is right in saying that Mr. Ali’s post offence conduct entirely rebuts the evidence of good character and substantially detracts from his credibility as a witness.
Inconsistencies between Mr. Ali and Mr. Mohamed
[110] The Crown points to inconsistences between the evidence of Mr. Ali and Mr. Mohamed and suggests that the inconsistencies militate against Mr. Ali’s credibility.
[111] I agree that Mr. Ali’s testimony differed from that of Tanade Mohamed on some points, but I do not find that those differences diminish Mr Ali's credibility. For reasons provided earlier, I do not view Mr. Mohamed to be a credible figure. Where there are inconsistencies between the evidence of Mr. Mohamed and Mr. Ali, it appears to me that the inconsistencies arise from a conscious decision on the part of Abdi Ali to contradict his co-accused.
[112] Mr Ali was second on the indictment and the last witness to testify. He heard Mr. Mohamed’s evidence and no doubt recognized that he would be contradicting him on certain points. The fact that he testified in keeping with his own recollections at the risk of creating inconsistencies tends to enhance, not diminish, his credibility.
Contradictions with the video evidence
[113] Mr. Ali was cross examined extensively regarding his account of what happened at the hotdog stand and the valet gate. The Crown argues in its written factum that the video contradicts his testimony.
[114] In general, I have found it difficult to reject anyone's testimony based on what they claim to see in the video. This trial was conducted entirely by Zoom. When witnesses were asked to comment on the video, the video was being screen-shared with all observers including me. In my view, it is most unlikely that anyone would lie about what can be seen in the video in those circumstances. The trial revealed a wide range of opinion about what can be seen in the video. Neither Mr. Ali nor any witness said anything which was so out of keeping with what I saw on the video that it would justify a finding against their credibility.
Contradictions from the manner of driving the Durango
[115] The Crown also asks me to make adverse credibility findings against Mr. Ali based on the way that he drove the Durango:
a. The video shows that the Durango drove east in the parking lot at an ordinary speed but slowed for six seconds as it drew parallel with Tyler Mclean and his group. It then picked up speed and turned into a parking spot. The Crown argues that this slowing of the vehicle was inconsistent with the testimony of Abdi Ali that he thought Tanade Mohamed had seen Jamal and instead demonstrates that he shared Mr. Mohamed’s intention to stalk Tyler McLean.[^3]
b. After having pulled into a spot, Mr. Ali reversed the Durango a few feet “presumably to be in the best position to observe Mr. McLean”. [^4]
[116] I believe that there are innocent explanations for this evidence.
a. The fact that Mr. Ali slowed while he was looking to turn into a parking spot can be attributed to prudent driving. Although the aisle between Rows C and D of parked cars is only partially visible in the video, it is apparent that there were pedestrians walking throughout the lot.
b. Mr. Ali did reverse the Durango a few feet once he pulled into the parking spot, but the video shows that he reversed the car just as a group of pedestrians were walking past the front of the car. It is entirely possibly that Mr. Ali backed up the car out of courtesy to the pedestrians.[^5]
[117] One can debate whether the Crown’s arguments regarding the movements of the Durango are factually answered by the video, but the better question is whether any inference should be drawn from the unremarkable movements of a car. As Mr. Bottomley rhetorically asked in submissions, ‘what driving would have proven his innocence?’
[118] There are certain types of evidence which can provide fodder for virtually any argument. Demeanour evidence falls into this category. Evidence that an accused appeared angry, shocked, ecstatic, or unsettled might all be advanced as signs of a guilty mind. Much the same can be said of Mr. Ali’s driving. The movements of the Durango could support almost any inference as to Mr. Ali’s state of mind. Nothing can be drawn from evidence which will sustain any inference.
Conclusion
[119] Although Mr. Ali’s post offence conduct is a serious blow to his credibility, there are other aspects of his testimony which rehabilitate him in my eyes.
[120] Mr. Ali’s testimony aligns well with what can be seen in the video. Although the insulting remarks which precipitated the argument at the hot dog stand were directed at Mr. Ali, he seemingly took no part in the quarrel. He calmed Mr. Mohamed in his argument with the valet staff and was reported to be unhappy with Mr. Mohamed’s behaviour. When Tanade Mohamed moved to fight Tyler McLean, Mr. Ali did not follow. He restrained Mr. Mohamed after Mr. McLean attempted to punch him. Mr. Ali did not appear on the video to have the slightest interest in fighting with anybody.
[121] The Crown suggested to Mr. Ali in cross-examination that once he entered the Durango, he reached under his seat and handed the gun to Tanade Mohamed. That suggestion was so far out of keeping with Mr. Ali’s behaviour in the preceding moments that it bordered on being comedic. There is absolutely no reason to believe that Abdi Ali suddenly formed a murderous intent the moment that he stepped outside of the range of a camera.
[122] Mr Ali was an unguarded witness. At an early stage of his cross examination, the Crown suggested to him that Tanade Mohamed was wearing a white shirt. This assertion was potentially significant, given that Mr. Ali had testified in chief that he did not see the handgun tucked into Tanade Mohamed's waistband. His response was ‘I don't remember the colour of his shirt, but I will take your word for it’. As it happens, the Crown’s assertion was incorrect, but Mr Ali's willingness to take the Crown at her word was characteristic of him. He was certain that he did not see a gun and from his perspective, that was the only thing that mattered.
[123] Tanade Mohamed had accepted a suggestion in cross examination that he had falsified a parking log entry for the Durango at 18 Valleywoods. Mr. Mohamed did not recall falsifying the log, but he did recall moving the car and therefore accepted that he must have also falsified the log entry. Mr. Ali cleared the record. He testified that the concierge knocked on the door of his brother’s apartment to ask if they knew about a Durango which was parked in another tenant’s spot. Mr. Ali retrieved the keys from Mr. Mohamed, moved the Durango to visitor parking and then entered the false information onto the parking log. There was no benefit to Abdi Ali in contradicting the evidence of Mr. Mohamed or contributing another element to his own post offence conduct. The only explanation for his testimony was that it was the truth and he was resolved to telling it.
[124] The factor which gives me the greatest faith in Mr Ali's evidence was his willingness to accept a series of assertions which were put to him in cross examination by the Crown. Mr. Ali admitted that he subjectively knew that there was a risk that Tanade Mohamed would get out of the car and that if he did, someone would get hurt. Those admissions arguably fulfilled two-thirds of the requirements for an unlawful act manslaughter and the Crown relied on them in submitting that Mr. Ali should be convicted of that offence based on his own evidence.
[125] I pressed the Crown to explain why I should reject as incredible the evidence of a witness who was so unguarded as to admit two-thirds of the Crown's case. Mr. Ali could easily have disputed the Crown’s suggestions. He might well have answered, “I had no idea what Tanade was going to do” and that answer would have been difficult to disprove. Ms. Tenhouse posited that Mr Ali had not appreciated the legal consequences of his answers. With great respect, Mr Ali was very well represented at this trial and there was no sign that his testimony was unconsidered. The fact that he gave the true answer on these critical points went a long way towards rehabilitating Mr. Ali's credibility in my eyes.
[126] I do find that Mr. Ali is a credible witness, notwithstanding his egregious post offence conduct. His testimony was candid, in accord with other reliable evidence and reasonable. Although I cannot say that I accept everything that he said, I do find that his evidence might reasonably be true, at least as it pertains to his own actions. I am less certain about the reliability of his evidence which relates to the actions of Mr. Mohamed, but I will discuss that as it arises during my consideration of the legal issues of the case.
THE CONTENTIOUS FACTS
[127] There are six significant factual questions which I must answer in order to resolve the legal issues of the case. Mr. Mohamed and Mr. Ali gave evidence on some of these points. In considering their evidence, I must not simply choose between their testimony and that of another witness. In my ultimate consideration of the totality of the evidence, I will apply the reasoning in W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 to assess whether the Crown has met its onus. At this stage, however, I am considering individual facts which the Crown is not obliged to prove beyond a reasonable doubt. I do not propose to undertake the W.(D.) analysis with respect to the evidence of the accused on each factual matter but will only comment when I accept or reject their evidence.
(a) Was the first shot fired from inside the Durango?
[128] The Durango parked at 3:10:04. The Crown submits that in the period from 3:10:04 to 3:10:44, Tanade Mohamed was watching Tyler McLean and awaiting an opportunity to shoot him. That opportunity arose at 3:11:45 when Mr. Mohamed rolled down the front passenger window and fired two shots which missed Tyler McLean. He then left the vehicle and began to run towards Mr. McLean but was intercepted by Zemarai Khan Mohammed, who punched him in the face. He shot Zemarai Khan Mohammed and, as he returned to the Durango, also shot Tyler McLean. The Durango fled the moment that Mr. Mohamed was inside.
[129] If I were to accept that the first shots were fired from inside the Duragno, it would effectively extinguish the defences of self defence, provocation, and accident which Tanade Mohamed has advanced at trial. It would also very likely lead to the conclusion that Abdi Ali knew of Tanade Mohamed’s plans and knowingly assisted him in carrying them out.
[130] Counsel for the two defendants vigorously contest this theory of the case. They submit that none of the shots were fired from inside the car and that the first shot was fired after Zemarai Khan Mohammed punched Tanade Mohamed.
[131] The parties came to describe these competing theories as The MacKenzie Cornall Theory and The Rasha Alnaaj Theory. The titles are apt, insofar as the theories are almost entirely founded on the contradictory evidence of these two eyewitnesses.
The evidence of MacKenzie Cornall
[132] MacKenzie Cornall was only 19 years old at the time of the shootings. Her best friend from high school, Holly Rogalsky, had invited her to the Rebel Nightclub on Saturday night to join her in a booth which was being hosted by Holly’s occasional boyfriend, Tyler McLean.
[133] The two young women began to drink as they got ready to go to the club. They arrived shortly before 11:00 PM and proceeded to Mr. McLean's booth. Ms. Cornall drank heavily when she was at the club. By closing time, her stomach was upset, and she was so drunk that she was having difficulty seeing the characters on her cellphone.
[134] Ms. Cornall left the club with Tyler McLean and Ms. Rogalsky. Her plan was to catch a shuttlebus which would take her back to midtown. Mr. McLean and Zemarai Khan Mohammed were offering to drive the girls back to Tyler’s home. Ms. Rogalsky wanted to go with them, but Ms. Cornall did not. She began to text a friend to see if he would come to pick her up.
[135] The video from the hot dog stand shows Ms. Cornall briefly facing Abdi Ali and Tanade Mohamed before she was pulled aside by Ms. Rogalsky. She stood nearby as the argument between Tanade Mohamed and Tyler McLean developed, evidently taking no interest. Ms. Cornall did not mention the quarrel at the hot dog stand in her initial statement to police and, even after seeing the video for the first time at the preliminary inquiry, only had a vague memory that someone had approached her.
[136] The video from the valet gate shows Ms. Cornall walking across the roundabout beside Zemarai Khan Mohammed. She was looking down at her phone when the fight between Mr. Mohamed and Mr. McLean began. She looked up as the fight escalated and was apparently aware of it but again did not mention it in her statement to police. She testified that even after seeing the video, she has no recollection of the fight.
[137] Ms. Cornall followed Tyler McLean and Holly Rogalsky into the parking lot. She recalled that the group stopped to talk and as they were talking, she noticed a black car parked about ten to fifteen feet away. Zemarai Khan Mohammed began to walk towards the car and either he or Tyler McLean may have had some interaction with the occupants. The front passenger window rolled down, and Ms. McKenzie could see that at least one of the occupants was a person of colour. She saw a gun and then heard two ‘pop pop’ sounds. A beam of light emerged from the window. Zemarai Khan Mohammed’s head “exploded”, and he instantly fell to the ground. She turned to run and took a few steps before seeing Tyler McLean, clutching his stomach. Mr. McLean took a few steps and then he also fell.
[138] Mr. Posner and Mr. Bottomley challenged the credibility and reliability Ms. Cornall. They submit that she deliberately suppressed evidence of Tyler McLean’s provocative actions and colluded with Holly Rogalsky to fabricate a false account of seeing shots fired from the car. They submit that her evidence cannot be reconciled with the video and is manifestly unreliable. Their submissions focussed on the following testimony:
a. Ms. MacKenzie agreed in cross-examination that her eye was fixed on the black car as Zemarai Khan Mohammed walked towards it. She watched as the window rolled down, the shots were fired, the window rolled up and the car drove away. Despite having her eye fixed on the car throughout these events, she never saw anyone get out of it.
b. Ms. MacKenzie was confronted at the preliminary inquiry with the video which shows Tanade Mohamed leaving the Durango and then returning during the time that Ms. Cornall had testified that she had been watching the vehicle and no one got out. Even after seeing the video, she had no recollection of seeing anyone leave the car.
c. In her original statement to police, she recalled that the black car had been facing away from the Rebel nightclub, that the shots had been fired from the driver's side of the car and that the car drove east out of the parking lot after the shooting. Her evidence on all three points diametrically changed after seeing the video.
d. Ms. Cornall acknowledged that Holly Rogalsky called her from the hospital after Tyler McLean’s death and, in that conversation, told her that the black car had been a Mercedes-Benz. Ms. Cornall relayed that information to police in her own statement without attributing it to Ms. Rogalsky.
e. Ms. Cornall insisted that the only information which she ever received from Ms. Rogalsky was that the car was a Mercedes. She was confronted with a statement which she had made in a witness preparation meeting where she said that Ms. Rogalsky also told her which window had rolled down. Ms. Cornall did not recall having made this statement but allowed that if an officer noted it, she must have said it.
f. Ms. Cornall testified that she had never spoken to Zemarai Khan Mohammed prior to the night of the homicide but told the Crown in a witness preparation meeting that he had once tried to sell her cocaine.
g. Ms. Cornall admitted that she had deliberately deleted all her text messages prior to attending for her first police interview. When asked why, she offered the implausible explanation that she simply wanted to forget the entire night.
The evidence of Detective Matt Emptage
[139] Detective Matt Emptage of the Toronto Police Homicide Unit was one of the first investigators involved in the case. He attended the Rebel Nightclub, collected an enormous amount of video from security staff, quickly analyzed the video and provided information to other officers which assisted in identifying and arresting Mr. Mohamed and Mr. Ali within 48 hours of the homicides. No issue is taken with respect to any aspect of that work.
[140] Detective Emptage was called by the Crown to introduce the video evidence. He pointed out two light flashes which appear at the front passenger window of the Durango near the time of the shooting. The first flash appears at 3:11:45 and the second between 3:11:51 and 3:11:52.[^6] He testified that these flashes may have been caused by gun fire. The Crown did not seek to qualify Det. Emptage as an expert. The parties are agreed that I must make factual findings based on my own assessment of the video.
[141] Despite the limited nature of Det. Emptage’s role, defence counsel vigorously challenged all aspects of his testimony. They were united in the position that his investigation was incompetent, biased, and simply wrong.
[142] Cross-examination revealed the following inaccuracies and omissions in Det. Emptage’s testimony:
a. Det. Emptage was a witness at an earlier trial of this matter. He testified on that occasion that Mr. Mohamed and Mr. Ali went onto a dance floor shortly after entering the Rebel Nightclub and remained on the same dance floor, within view of the camera, until the club closed. He testified that neither of them drank any alcohol while they were at the club. Cross-examination revealed that Mr. Mohamed and Mr. Ali went onto a dance floor at 1:32 a.m. and left that floor three minutes later. Their whereabouts and activities from 1:35 am until closing time were utterly unknown. Detective Emptage not only failed to secure the video which would have shown their whereabouts but, by his own admission, had simply assumed that they stayed in the same place - not drinking - for the entire night.
b. Detective Emptage testified at the earlier trial that the first interaction between the accused and the victims occurred at the valet gates. This evidence was plainly wrong, as could easily be determined by running the video backwards from the valet gate to the hot dog stand.
c. Det. Emptage’s analysis of the video seemingly came to an end once he decided that the two flashes were caused by a gunshot. He never considered looking at the many bystanders in the parking lot at 3:11:45 to see if their reactions confirmed his hypothesis that shots were fired at that time.
d. By the time that he testified at this trial, Detective Emptage was fully aware that his evidence regarding muzzle flashes was in dispute. Despite that knowledge, he never returned to the scene to conduct experiments which might have resolved the controversy. He made no effort to test whether the firing of a gun would appear as a simple flash on the video or whether it might show colour or directionality which could distinguish gunfire from mere reflections of light. If it was impractical to fire test shots in the Rebel parking lot, something of value might have been gained by simply opening a few car doors to see how they reflected the overhead lights. Det. Emptage did not undertake any of these possible investigations.
e. Detective Emptage testified for the first time at this trial that there may have been a third muzzle flash at 3:11:54. At the outset of the case, Detective Emptage had prepared a comprehensive timeline of the shooting. That timeline made no reference to a third muzzle flash. He testified at the preliminary inquiry and again at the earlier trial without ever suggesting that there may have been a third muzzle flash. Yet, when the Crown drew his attention to a third light flash which appeared near the passenger window of Durango as it was pulling away from the scene, Det. Emptage offered that this, too, could represent a muzzle flash.
[143] Defence counsel also took the position that Detective Emptage demonstrated bias against the defendants in his evidence at the earlier trial.
a. Det. Emptage told the jury that Abdirisaq Ali had been involved in “an altercation” with the valet. Mr. Ali did not participate in any dispute with the valet and instead acted to calm the argument.
b. When asked to narrate the events at the valet gates, Det. Emptage did not mention an inflammatory gesture which Tyler McLean made as he approached Tanade Mohamed and then entirely omitted the fact that Tyler McLean attempted to punch Mr. Mohamed.
[144] Most importantly, the defence challenged Det. Emptage’s evidence that the two light flashes were caused by gunfire. It was the defence position that the flashes were caused by the reflection of light when the door to Durango was opened and closed.
[145] At 3:11 am, the last patrons of the club were getting into their cars and leaving the lot. As they opened their car doors, turned on their headlights and began to move under the five light standards in the parking lot, their cars reflected light. The video from the Channel 14 camera shows dozens of reflections which appear as flashes on the windows and sides of cars.
[146] There is nothing qualitatively different about the two flashes identified by Det. Emptage than any of the dozens of reflections which can be seen on the video in the ten minutes prior to the homicide. The flashes seen at 3:11:45 and 3:11:51 are not any bigger, longer lasting, different in colour or of greater intensity than any of the flashes which clearly were not caused by gunfire.
[147] In a very effective cross-examination, Mr. Gross-Stein demonstrated that visually similar flashes appeared whenever a reflective surface on a vehicle was struck by light.[^7] He suggested to Det. Emptage that the first alleged muzzle flash seen at 3:11:45 was caused by the front passenger door of the Durango opening. As the angle of the window changed with the movement of the door, it reflected light from an unknown source which appeared as a flash on the video. Det. Emptage did not accept this suggestion but could not identify any feature of the flash which disproved the suggestion.
[148] Mr. Gross-Stein tested the hypothesis that the flash seen at 3:11:45 was a muzzle flash by examining the reactions of bystanders in the parking lot. He drew Det. Emptage’s attention to the following:
• A group of four people were walking eastbound between Row A and B as the shootings occurred. They showed no reaction at 3:11:45 and continued to walk directly towards the Durango. At 3:11:49, they stopped suddenly and looked north in the direction where Zemarai Khan Mohammed’s body would subsequently be found.
• The Channel 15 video shows Sgt. Kraft and P.C. Isaac standing in the roundabout at the time of the shootings. They showed no reaction at 3:11:45 but both looked up suddenly in the direction of the shots at 3:11:49.
• MacKenzie Cornall can be seen on the Channel 14 video as the shootings occurred. She remained in place at 3:11:45 but began to run at 3:11:50.
[149] Det. Emptage acknowledged that these first "macro" signs of reaction from bystanders were not visible until 3:11:49 but maintained that the video would not have captured smaller, instinctive reactions such as a flinch. In submissions, the Crown argued that the shots were not immediately recognizable as gunfire and that the pedestrians had been drinking which may have dulled their reactions to the shots.
The evidence of Rasha Alnaaj
[150] Rasha Alnaaj was 29 years old when she testified at this trial. She has a business degree from Seneca College and has worked in real estate for the past ten years. She presented as a mature and insightful witness.
[151] Ms. Alnaaj had been at the Rebel Nightclub with a group of friends on the night of the shootings. She started to drink before going to the club and continued to drink heavily once she was there. In her trial evidence, she described her level of intoxication as 7-8 on a scale of 10 where 10 would represent an alcohol induced blackout. In her police statement, she described herself as “OK”.
[152] Ms. Alnaaj left the club at closing time with no plan as to how she would get home. The battery in her cell phone was dead and she was hoping to buy a charger from somebody in the parking lot. She and a friend approached several parked cars asking to buy a charger. She was standing on the west side of a car which was parked in Row C, speaking through the front passenger window, when she heard angry shouts from the other side of the car. She looked up to see Zemarai Khan Mohammed punch Tanade Mohamed in the face. Mr. Mohamed took a step back, pulled out a gun and shot Zemarai Khan Mohammed in the head. Tanade Mohamed ran back towards the front passenger door of a large black vehicle and paused as he reached the door. As he was standing in the doorway with one foot inside the vehicle, he fired two more shots towards Zemarai Khan Mohammed. He then got into the car which began to drive away. A second male, Tyler McLean, jumped onto the car as it was pulling away and began to bang on the windows. Tanade Mohamed shot Tyler McLean two or three times from either the open door or a window.
[153] Ms. Alnaaj recognized that Zemarai Khan Mohammed had been killed the moment that he was shot. She later learned that Tyler McLean also died. She was traumatized by what she had seen and went home without speaking to anyone. When she got home, she took a tablet of MDMA and smoked some marijuana to calm herself. She called the Toronto Police Service later that day to report her observations. She was interviewed over the phone by Detective Robert Choe for twenty-six minutes. The telephone statement was unsworn and did not include any caution regarding the need to tell the truth, but it was a detailed and spontaneous statement.
[154] Ms. Alnaaj attended a police station later that day and provided a second statement on video which did include a KGB caution. While giving her statement, Ms. Alnaaj drew two diagrams which closely replicated the scene as it had been diagrammed by FIS officers. At the end of the interview, Ms. Alnaaj said that she was afraid of being identified as a witness and did not want any further involvement in the case.
[155] When Ms. Alnaaj was called as a witness at this trial, she had almost no memory of the homicides. She vaguely recalled talking to someone in a car about a charger when “chaos and screaming” broke out on the other side of the car. The first thing that she could recall seeing was someone crying. She also remembered seeing a large car and knew that she had previously described the car as being black, but she could not recall any details about it. Her memory was not refreshed by reading her preliminary inquiry testimony. She was directly asked if she saw either of the two deceased being killed and she said no.
[156] Counsel requested a short recess to meet in a breakout room. When they returned, all counsel submitted that Ms. Alnaaj's two statements should be admitted as evidence of her past recollection recorded.
• The audio and video recordings were reliable.
• The statements had been made within 12 hours of the shootings.
• Ms. Alnaaj had very little current memory of the shootings.
• She did recall that she had been truthful when she spoke to police.
[157] I was satisfied that all the criteria necessary to admit the evidence as past recollection recorded had been met and the statements were admitted for the truth of their contents. (See Richardson, 2003 3896 at paragraph 24)
[158] The evidence of Ms. Alnaaj cannot realistically be reconciled with that of Mackenzie Cornall. Ms. Cornall testified that as Zemarai Khan Mohammed began to walk towards the Durango, a window rolled down, two shots were fired, Mr. Khan Mohammed fell, and the car sped away. The first sound that Ms. Alnaaj heard was an angry verbal exchange, not gunfire. She looked up to see Zemarai Khan Mohammed punch Tanade Mohamed in the face, then saw Tanade Mohamed pull out a gun and shoot Zemarai Khan Mohammed in the face. On her account, Zemarai Khan Mohammed could not have been killed by a shot fired from inside the car.
[159] Although all counsel agreed that Rasha Alnaaj’s statements should be admitted, they do not agree on the weight which should be placed on that evidence. Counsel for the defendants submit that her statements are extremely reliable and should be given great weight. The Crown agrees that parts of her evidence are reliable but cautions that Ms. Alnaaj’s evidence is wrong in some respects and her frailties as a witness cannot be ignored.
[160] I agree that Ms. Alnaaj’s evidence is wrong in the following respects:
a. Ms. Alnaaj told police that after shooting Zemarai Khan Mohammed in the head, Mr. Mohamed ran back to the Durango and stopped there to fire two more shots towards Zemarai Khan Mohammed. He then fired two or three shots at Tyler McLean. On this account, Mr. Mohamed fired a minimum of five shots. Only one shell casing was found at the scene. If five shots were fired, one would expect to see some ballistics evidence to confirm it. Witnesses in the parking lot consistently reported hearing only two or three shots.
b. Ms. Alnaaj recalled that there were three men in the Durango and that two men boarded the car after the shooting of Zemarai Khan Mohammed. Mr. Mohamed and Mr. Ali were the only occupants of the Durango and Mr. Ali did not leave the car.[^8]
c. Ms. Alnaaj recalled that Tanade Mohamed was wearing a t-shirt and blue jeans when he was in fact wearing a green jacket and white pants. She incorrectly recalled that Mr. McLean was wearing a white t-shirt.
[161] There are other reasons to question the reliability of Ms. Alnaaj’s evidence:
a. She has virtually no current memory of the events.
b. Some of her few remaining recollections of the event are at odds with what she said in her statements. Although she recalled having seen the gun and even provided a description of it to police, she testified at trial that she is certain that she never saw a gun.
c. Ms. Alnaaj testified that she smoked marijuana and took MDMA prior to making her first statement to police. When she heard the interview played back, she recognized signs that she was intoxicated. She testified that much of what she said to police no longer makes sense to her.
[162] If any party to the proceeding had wholeheartedly challenged Ms. Alnaaj’s reliability, these points might have taken on much greater significance. In the unusual circumstances of this trial, all parties found some advantage in relying on Ms. Alnaaj’s testimony and the questioning tended to diminish or explain the frailties in her evidence rather than accentuate them. Mr. Posner elicited evidence that Ms. Alnaaj had previously witnessed a man being shot to death when she lived in Lebanon and the trauma which she had suffered from that experience was revived by what she saw in the Rebel parking lot. Mr. Posner also introduced evidence that Ms. Alnaaj saw a therapist for several years after the Rebel shooting to erase her memory of the event. The object of the cross examination was to establish that Ms. Alnaaj’s lack of memory is not feigned, and I have no difficulty in accepting that.
[163] It is impossible to account for the psychological trauma which this incident must have occasioned to both MacKenzie Cornall and Rasha Alnaaj. Two men were shot to death before their eyes. MacKenzie Cornall recalled seeing Zemarai Khan Mohammed’s head “explode”. Rasha Alnaaj described the odour of burnt gunpowder and the terror of hearing gunshots fly past her. It is remarkable to me that either of them can relay any coherent observations concerning such a terrifying and unexpected ordeal.
[164] It does not trouble me that Ms. Alnaaj tried to calm herself with drugs after the shooting or that she sought therapy to dispel the event from her memory. Ms. Alnaaj contacted the police on her own initiative the day of the shooting. She gave two highly detailed and remarkably insightful statements. There are aspects of her evidence which conflict with known facts, but those errors are easily identified. The bulk of her testimony is corroborated by the video and forensic evidence. The Crown has rightly reminded me not to lose sight of the frailties of her evidence, but there is no doubt that Ms. Alnaaj’s two statements are highly reliable.
Analysis
[165] I have no difficulty in understanding why the police pursued The Mackenzie Cornall Theory or why the Crown has advanced it at trial. Ms. Cornall described having seen the front passenger window of the Durango roll down and shots being fired from inside the car. Cross examination has alerted me to the fact that Holly Rogalsky made a similar observation. Flashes on the video arguably corroborate this evidence. There was no compelling reason to question Ms. Cornall’s credibility and the detail of her recollection seemingly precluded any error in perception.
[166] In my view, however, the evidence falls far short of proving that the first shots were fired from the Durango. Ms. Cornall was a profoundly unreliable witness and there is no objective evidence which supports her account of events. The following is a non-exhaustive list of factors which cause me to find that the first shot was fired after Zemarai Khan Mohammed punched Tanade Mohamed.
The reactions of bystanders
[167] The purported muzzle flash identified by Detective Emptage occurred at the cusp of 3:11:45. There is no visible reaction from any bystander in the parking lot at that time, including the four pedestrians who were walking between Rows A and B. This group, which was within forty feet of the Durango, continued to walk eastbound towards the car for four seconds after the alleged gunshots. They abruptly stopped at 3:11:49 and turned to look north.
[168] The Crown points out that virtually all the witnesses described the gunshots as a “pop pop” sound. Even Sgt. Kraft did not immediately recognize that the sound was caused by gunfire. The Crown argues that this is not the type of sound which would illicit an immediate response from bystanders but rather was “a sound that took persons an extra second or two to respond to”.[^9]
[169] People react instinctively to loud and unexpected sounds. The video from Channel 15 shows Sergeant Kraft and P.C. Isaacs simultaneously looking up towards the parking lot at 3:11:49, the very moment that the group of four pedestrians stopped in their tracks. These portions of the video capture an instinctive response to a loud sound, whether it was instantly recognizable as gunfire or not.
[170] The Crown submits that a hot dog vendor on Polson Street turned to look in the direction of the shooting at 3:11:46.[^10] Exhibit 28(P) is a screenshot which captures the moment when the hot dog vendor first looked north; the time reflected on the screenshot is 3:11:48, not 3:11:46. It is impossible to know what drew the hot dog vendor’s attention to the parking lot at 3:11:48 but given his close proximity to the lot, it is entirely possible that his attention was drawn by the same verbal exchange which caught Rasha Alnaaj’s attention. The hot dog vendor did not turn to look north at 3:11:45, the moment that the Crown submits that the first shots were fired.
[171] The visible reaction of bystanders is an imprecise indicator of the timing of a gunshot. The Crown argues that the reactions may have been slowed by the consumption of alcohol, but it is unlikely that the reactions of numerous bystanders, (including two sober police officers), would have been delayed by the identical four second space. I have scrutinized the reactions of pedestrians visible in the Channel 14 video from 3:11:40 to 3:11:58 and found that only a few people visibly reacted to the shots, but those that did reacted at 3:11:49, not 3:11:45. I could not find any visible reaction from any bystander at 3:11:45.
The observations of Rasha Alnaaj
[172] The Crown attempted in oral submissions to reconcile the evidence of Rasha Alnaaj and MacKenzie Cornall. In her evidence at trial, Ms. Alnaaj testified that her attention was first drawn to the scene by the sound of “chaos and screaming” on the other side of the car. She saw someone crying, possibly a girl. Based on Ms. Alnaaj’s trial evidence, the Crown submits that Ms. Alnaaj may not have heard the two shots being fired from the Durango at 3:11:45. Her attention was instead drawn by the aftermath of that shooting, which included the horrified responses of Ms. Cornall and Ms. Rogalsky.
[173] I respectfully reject this submission. Rasha Alnaaj was a remarkably astute witness. In his written submissions, Mr. Bottomley listed sixteen observations made by Ms. Alnaaj which were confirmed by independent sources.[^11] Unlike Ms. Cornall, she was familiar with the sound of gunfire. It is utterly implausible to me that Ms. Alnaaj failed to hear two gunshots fired less than thirty feet away.
[174] I also reject the suggestion that I should prefer any aspect of Ms. Alnaaj’s trial evidence to the statements which she made to police. Ms. Alnaaj’s testified that she deliberately erased her memory of these events with the assistance of a therapist and her trial testimony demonstrates the success of that effort. Where there is any conflict between her initial statements and her trial testimony, I rely unreservedly on her initial statements.
[175] In my view, there is simply no way of reconciling Ms. Cornall’s evidence with that of Ms. Alnaaj.
The unreliability of MacKenzie Cornall
[176] MacKenzie Cornall’s credibility and reliability were both tested at this trial. While I am satisfied that Ms. Cornall was doing her best to tell the truth, I have serious concerns about the reliability of her evidence.
[177] Defence counsel argued that Ms. Cornall intentionally omitted any mention of Tyler McLean’s provocative behaviour when she spoke to police and colluded with Holly Rogalsky to provide a common but false account of the shooting. Ms. Cornall said nothing to police about the fight at the valet gate where Mr. McLean took a dangerous swing at Tanade Mohamed’s head. She erased all her text messages before meeting with police, an action which strongly suggests that she had something to hide.
[178] I do not accept that Ms. Cornall deliberately tried to mislead the police or provide false evidence to the court. At the time of these events, she was very young and dangerously inebriated. Through no fault of her own, she was witness to six seconds of sheer horror. Her best friend was with her in this terrifying moment and, not surprisingly, they turned to one another for solace. Some of Ms. Cornall’s actions do not stand up well to scrutiny three years after the event, but they were within the range of behaviour which one would expect from such a young person faced with terrifying circumstances. I believe that MacKenzie Cornall was doing her best to tell the truth.
[179] I cannot, however, place any reliance on her testimony. Ms. MacKenzie’s account of the shooting is simply impossible. She testified that she saw the window of the Durango roll down, two shots were fired, Zemarai Khan Mohammed fell, and the car drove away. She never took her eye off the car and never saw anyone leave it. This account is conclusively disproven by the Channel 14 video and the evidence of Ms. Alnaaj.
[180] Ms. Cornall’s evidence concerning the direction of the car, the source of the gunshots and the direction of escape all changed after seeing the video. Although these points are not controversial in themselves, the change in her evidence is telling. It suggests that she does not have an independent recollection of what occurred and was predisposed to incorporating information from other sources into her own account of events.
[181] The greatest cause for concern is the possibility that her recall has been tainted by her conversations with Holly Rogalsky. Ms. Cornall acknowledged that Ms. Rogalsky told her that the suspect vehicle was a Mercedes but insisted that this was the only fact which she learned from her friend. She was confronted in cross examination with a previous statement in which she admitted that Holly also told her the window from which the shots had been fired. She had no recollection of this having occurred or ever having made that statement.
[182] Any realistic possibility that Ms. Cornall’s evidence was tainted by conversations with another witness can seriously undermine the reliability of her testimony. The basis for the concern is explained in Clause, 2016 ONCA 859 at paragraph 81:
[81] Collusion can arise both from a deliberate agreement to concoct evidence, as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events: R. v. B. (C.), 2003 32894 (ON CA), [2003] O.J. No. 11, 167 O.A.C. 264 (C.A.), at para. 40. As this court noted in R. v. F. (J.), 2003 52166 (ON CA), [2003] O.J. No. 3241, 177 C.C.C. (3d) 1 (C.A.), at para. 77, the "reliability of a witness's account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people's stories, which can tend to colour one's interpretation of personal events or reinforce a perception about which one had doubts or concerns".
[183] In my view, there are grounds to believe that Ms. Cornall’s evidence has at least unconsciously been tainted by Ms. Roglasky. This is a failing which can occur with the best-intentioned witnesses. I have no doubt that Ms. Cornall wanted to assist the police by providing any information known to her. Her explanation for how she came to tell police that the suspect vehicle was a Mercedes demonstrates that she did not distinguish between observations and hearsay. Such an error may seem implausible to those who deal in evidence every day, but it is an error which well-intentioned witnesses such as Ms. Cornall make frequently. It is for this reason that courts must be alert to the possibility of unconscious tainting.
The timing disclosed by the video
[184] The Channel 14 video recorded at a rate of ten frames per second.[^12] At 3:11:44 and 6/10 seconds, there is a slight reflection on the front passenger door of the Durango which suggests that the door was starting to open. The first flash identified by Detective Emptage as a possible muzzle flash occurs 4/10th’s of a second later at 3:11:45.[^13] At 3:11:45 and 6/10th seconds, Tanade Mohamed’s leg appears outside of the car.
[185] If Detective Emptage is correct that the flash seen at 3:11:45 was a muzzle flash, it would mean that after firing the gun twice, Mr. Mohamed closed the window, opened the car door and was outside of the car in 6/10th’s of a second.
[186] Rasha Alnaaj told police that she saw Tanade Mohamed pull the gun out of his shirt before firing it at Zemarai Khan Mohammed. Mr. Mohamed testified that he held the gun in his waistband and that aspect of his evidence was not challenged. If the first two shots were fired from inside the Durango, Mr. Mohamed would have had to fire the shots, close the window, and secure the smoking gun in his waistband before exiting the Durango. Putting aside the improbability of placing a smoking hot gun directly into his waistband, Mr. Mohamed would have had to complete all these actions within the 6/10th’s of a second which passed from the time of the flash until he can be seen outside of the car. The Crown argues that this might be accomplished by someone who is as familiar with handguns as Mr. Mohamed, but I find that it is impossible.
The evidence of Detective Emptage
[187] The Crown argues that corroboration of MacKenzie Cornall’s evidence can be found in Detective Emptage’s testimony concerning the muzzle flash at 3:11:45 on the Channel 14 video. Before entering a discussion of Det. Emptage’s evidence concerning the flashes, it is necessary to acknowledge his failings as a witness.
[188] There is merit to all the defence challenges to Det. Emptage’s testimony. The failure to secure pertinent video in a homicide investigation is unusual. Failing to review the available video to track the movements of the accused is very surprising. But testifying that the accused remained in one spot and drank nothing throughout the entire evening when their actual whereabouts and activities were unknown is incomprehensible. An error of this magnitude would cause any reasonable observer to be wary of Detective Emptage’s testimony.
[189] Defence counsel also submit that Det. Emptage demonstrated bias against the accused. They argue that his omissions in the narrative which he presented at the first trial could not have been memory lapses but demonstrate a conscious effort to minimize the provocative behaviour of Tyler McLean and to vilify the actions of both accused.
[190] While I accept that there is an unusually solid foundation for the defence suspicions, I do not believe that he was a consciously biased witness. In my view, it is more likely that Det. Emptage came to a premature conclusion about how these homicides occurred and he overlooked evidence which did not support his theory of the case. His testimony does appear to be biased, but I believe that this is the product of tunnel vision rather than conscious bias.
[191] Detective Emptage was not called as an expert witness. He may have anticipated that he would identify the seized video, point out a few salient details and be on his way. If so, he was badly mistaken. His failings as a witness, however, have had no effect on my assessment of the evidence. While it would have been helpful to have had a rigorous and unbiased analysis of the video by a trustworthy witness, I have instead had the benefit of very astute submissions from all counsel. As a result of their efforts, I am confident that my conclusions concerning the video are reliable.
The identification of muzzle flashes on video
[192] The defence position is that the flash seen at 3:11:45 was caused by Mr. Mohamed opening the door. As the position and angle of the window changed, it reflected light from an unknown source which appeared on the Channel 14 video as a flash. The Crown challenges this argument, pointing out that if the flash was caused by light reflecting from the window of the Durango, there would be a corresponding reflection when the door closed and there was none. Moreover, the second flash at 3:11:52 appears at a different location than the one at 3:11:45. If the flashes were caused by the opening and closing of the door, they would appear in the same location. The Crown submits that the video from 3:08 shows a true reflection of light caused by the opening door of the Durango and it does not at all resemble the flashes seen at 3:11:45 and 3:11:52.
[193] The first two arguments rest on the assumption that any light source which could have caused the reflection was itself stationary. That is an unjustifiable assumption. There were many cars moving in the Rebel parking lot and adjacent taxi lane, and they all had their headlights on. Any one of those mobile light sources could have provided a source of light which reflected from the passenger window of the Durango at 3:11:45. The source of light which caused a reflection at 3:11:45 may well have moved by 3:11:52 such that the closing of the door did not give rise to an identical reflection.
[194] The Channel 14 video at 3:08 does illustrate a true reflection of light caused when the door of the Durango is opened at any ordinary speed under a stationary, overheard light. In that case, the reflection can be seen moving around the door frame as the door opens and closes.
[195] When Mr. Mohamed opened the door of the Durango at 3:11:45, he was moving at high speed. A frame rate of 10 frames per second is adequate to capture ordinary human movements, but not quick ones. The video of Mr. Mohamed running out of the Durango is intermittent because he was running too fast for the video to show his movement continuously. If ten frames per second cannot properly capture rapid human movement, it is hopeless to expect that it will provide a reliable representation of the movement of light. While the Crown’s argument appears to make intuitive sense, there are too many variables to conclude that the 3:11:45 flash could not be caused by the movement of the door. When the video is played at ordinary speed, the flash appears a fraction of a second before Mr. Mohamed is seen outside the car. On timing and appearances alone, it seems more likely that the flash is a reflection than a gunshot.
[196] The last consideration is the absence of a comparable flash at 3:11:45 on the Channel 13 video. The Channel 13 video distantly shows the movements of the Durango and it is possible, with maximum magnification, to see Tanade Mohamed emerge from the Durango at 3:11:45. Although the resolution of the video is very low, the presence or absence of light appears to be reliably captured. The Channel 13 video does not show any sign of a flash at 3:11:45 on the passenger side of the Durango. If the flash seen on the Channel 14 video truly was an intense light generated by the firing of a gun, one would expect that the same flash would be evident at any camera angle. The absence of any comparable flash at 3:11:45 also suggests that the flash seen on Channel 14 was a reflection rather than a muzzle flash.
Conclusion
[197] The final consideration, (to which I give the least weight), is my own impression of the video. I have watched the video of the first flash innumerable times. I believe that the flash coincides with the front passenger door of the Durango swinging open as Tanade Mohammed first emerges. When the video is played at normal speed, the confluence of the flash and Mr Mohamed’s leg emerging from the vehicle is so close that Mr Mohammed would have had to have been firing the gun and opening the door simultaneously. Based on all the evidence, that is an improbable scenario. I am quite certain that the first shot was fired after Tanade Mohammed left the car.
[198] The Crown may well wonder how I can find that MacKenzie Cornall is a credible witness and yet entirely dismiss her evidence. If Ms. Cornell was an honest witness, how can her observations possibly be so wrong?
[199] My answer to that difficult question is that presumptions about the reliability of human perception and recall must sometimes be set aside when a witness is exposed to terrifying circumstances. MacKenzie Cornell was young, hopelessly drunk and preoccupied with trying to find her way home. She was suddenly witness to six seconds of sheer terror which caused her to turn and run for her life. Experience teaches us that perceptions and memories of such events can be astonishingly unreliable, no matter how steadfastly they may be held.
[200] Experience also teaches that there are rare witnesses who can provide remarkably reliable evidence concerning highly stressful events. Rasha Alnaaj appears to have been one such witness. Many of the details which Ms. Alnaaj provided in her statements were proven true by video and forensic evidence. Beyond simply being accurate, however, Ms. Alnaaj’s statements provide insights which one would have thought impossible from a witness who only saw the last four seconds of what transpired. She told police that she did not think that the parties knew one another, and she recognized that the driver of the Durango was screaming in surprise when the first shot was fired. These insights were counterintuitive to the situation which played out before her, yet, as I now know the evidence, they were completely accurate. It took me five weeks of evidence to confirm what Ms. Alnaaj discerned in four seconds.
[201] I am convinced that the first shot was fired when Tanade Mohamed was outside of the car and that was the shot that killed Zemarai Khan Mohammed.
(b) Was there a bang at the back of the Durango?
[202] Tanade Mohamed testified that he sat in the Durango for 1:45, waiting for an opportunity to point his gun at Tyler McLean. As he waited, he rolled a joint and played on his cell phone. He momentarily took his eyes off Mr. McLean and, when he looked up, couldn’t see him. He suddenly heard one loud bang at the back of the Durango which scared him. He looked back and saw Tyler McLean standing near the back corner of the car. He became enraged and bolted out of the car to push Mr. McLean away and point his gun at him.
[203] Abdi Ali testified that there were three loud bangs at the back of the Durango. He looked in the rear-view mirror to see what had caused the bangs but before he was able to see anything, Tanade Mohamed ran out of the car.
[204] Defence counsel urge me to find that the testimony of the two defendants is confirmed by the Channel 14 video. The Durango had prominent taillights which were visible when the car was parked in the lot. There is a moment when the taillights are obscured 3:11:44, one second before Tanade Mohamed left the Durango at 3:11:45. Defence counsel urge me to find that the lights were obscured by Tyler McLean walking to the back of the Durango to bang on the window.
[205] The Crown submits that there was no bang on the back of the Durango. Tyler McLean would have had no way of knowing that the man who he had tried to punch at the valet gate had followed him into the parking lot. He could not have recognized the Durango and the tinting on the windows would have prevented him from seeing inside the car. Tyler McLean had no cause to bang on the back of the Durango. Moreover, MacKenzie Cornall testified that Tyler McLean was standing beside her near the front of the Durango when Zemarai Khan Mohammed was shot. The Crown maintains that a dark figure standing near Ms. Cornall at 3:11:45 was Tyler McLean. The evidence of a bang on the back of the Durango is a fabrication designed to explain Mr. Mohamed’s unprovoked attack on Zemarai Khan Mohammed and Tyler McLean.
[206] The presence or absence of a bang is potentially significant to the defences of self defence and provocation raised by Mr. Mohamed. His counsel submits that by banging on the Durango, Mr. McLean and Mr. Khan Mohammed “evinced a desire to draw Mr. Mohamed into a violent altercation”.[^14]
The defence application to reopen the evidence
[207] The Crown argued in submissions that the windows of the Durango were tinted to a degree that it would have been impossible for Tyler McLean to have seen that Tanade Mohamed was seated in the Durango. D.C. Oddi testified that he was only able to see a silhouette of the driver when he saw the car near the Don Roadway. Ms. Cornall testified that she could not see inside the car beyond recognizing that there was a driver and passenger.
[208] Mr. Gross-Stein disputed the Crown’s submission that the windows were tinted and sought to re-open the evidence after the Crown’s submissions to introduce a single photograph taken by the FIS officer who examined the Durango. He submitted that the photograph would settle the dispute and that it was necessary in the interests of justice that the court receive it.
[209] Counsel provided me with the cases of G.(S.G.), 1997 311 (SCC), [1997] 2 S.C.R 716 and Hayward, (1993) 14679 (ON CA), 86 C.C.C. (3d) 193 on the issue of re-opening. Hayward considered a defence application to re-open and is the more pertinent of the two authorities. In considering an application to reopen the evidence, trial judges should consider:
• Whether the evidence is relevant and material to an issue at trial.
• The potential prejudice to the opposing party.
• The effect of permitting re-opening on the orderly and expeditious conduct of the trial.
• The stage of the trial when the application is made.
• The probative value of the proposed evidence.
• Any explanation offered for the failure to call the evidence at an earlier stage of the trial.
• Whether the failure to call the evidence earlier could be viewed as a tactical decision.
• Whether the refusal to permit reopening risks any miscarriage of justice.
[210] I denied the defence application with reasons to follow. These are my reasons:
a. The evidence includes many photographs of the Durango which leave me in a good position to assess whether it was possible to see inside the car.
b. The degree of tint on the windows has only tangential relevance to the fact in issue, whether there was a bang at the back of the Durango. The tint on the windows is a relevant consideration, but it is far from determinative.
c. To permit the reopening would have caused a significant disruption in the trial. Although the photograph could have easily been admitted, the Crown indicated that if the application was granted, they would recall D.C. Oddi and D.C. Healey to give further evidence. A matter of very limited significance threatened to consume a disproportionate amount of time and attention.
d. Although I do not suggest any lack of diligence on the part of the defence, the issue could have been foreseen. The evidence of MacKenzie Cornall and D.C. Oddi should have alerted the defence to the Crown position that it was difficult to see inside the Durango when the windows were closed. Knowing that their own client would testify that Tyler McLean banged on the back of the car, the defence was able to challenge the Crown position during the evidential phase of the trial. In my view, the Crown’s position regarding visibility into the vehicle was in play before submissions.
The video evidence in support of a bang on the Durango
[211] The taillights of the Durango are momentarily obscured on the video just before Tanade Mohamed emerges. Defence counsel urge me to find that this was caused by the movement of Tyler McLean. The Crown argues the opposite. This is one of many occasions where the parties have completely contradictory positions regarding what can be seen in the video.
[212] The Channel 14 camera was located atop a light standard in the southwest corner of the Rebel parking lot. There is no formal evidence regarding the specifications of the camera, but a few features can be discerned from viewing the video. The frame rate of the video is ten frames per second and the optimal viewing radius appears to be about 150 feet. As the viewing area extends beyond that radius, distortions develop. The video also inexplicably fades out at times, particularly when it is viewed under extreme magnification.
[213] I have concluded that I must be extremely guarded in drawing conclusion based on what I believe that I can see in the video. As my understanding of the facts of this case evolved, I found that my perceptions of what I saw in the video continually changed. Things that I was certain that I had once seen disappeared; things which I was certain were not in the video would appear. What I saw depended in large measure on what I expected to see. No effort to maintain absolute objectivity could defeat this phenomenon.
[214] In the end, I place great weight on the timing of events which can be discerned from the video. I also rely on the video where it corroborates evidence from other sources that I do find to be reliable. But where a requested factual finding turns solely on what counsel submit can be seen on the video, I have generally not made the finding. I do not have enough confidence in my own impressions of the video to put significant weight on them.
[215] On this occasion, I do not find that the video assists me in making a factual finding. I agree that the taillights of the Durango are momentarily obscured, but I find that it would be too speculative to ascribe that to the movements of Tyler McLean. By the same token, I cannot find that Mr. McLean was standing beside Ms. Cornall as the Crown alleges. There have been occasions when I have viewed the video at extreme magnification and thought that I could see a figure standing beside Ms. Cornall, and other times when I was sure that I could not.
Mr. Mohamed’s evidence regarding the bang
[216] Tanade Mohamed testified that he was focused on Tyler Mclean for 1:45, looking for an opportunity to point his gun at him, when he was suddenly moved to act by the sound of a bang. I have some difficulty in accepting this evidence. He was armed and his victims were not. If his only object was to frighten Tyler McLean by pointing the gun at him, he could have done so at any time. Mr. Mohamed did not explain what he was waiting for and no obvious explanation comes to mind.
[217] If Mr. Mohamed was carefully contemplating a plan to point the gun at Mr. McLean, I also wonder why he did not unload the gun. Pointing a firearm is an inherently dangerous act but it becomes many times more dangerous if the gun is loaded. Mr. Mohamed was experienced with firearms and he certainly knew that the gun was loaded. I have difficulty believing that he spent 1:45 contemplating how he would merely point a gun.
Conclusion
[218] I do, rather guardedly, find that there was a bang at the back of the Durango.
[219] Tanade Mohamed rocketed out of the Durango for some reason. I asked Crown counsel in submissions if they could offer any possibility other than the bang to explain why he would have left the car at a dead run. Ms. Tenhouse responded that Mr. Mohamed foresaw that he someone might interfere with his plan to attack Mr. McLean, (as had occurred when he tried to fight Mr. McLean at the valet gates), and he had to move quickly to ensure that he would not be stopped.
[220] With the greatest respect, I can’t agree. If there is any satisfaction to be had in pointing a gun, it arises from the sense of complete control. Racing out of the car, flashing the gun, and then running back to the car would have had no satisfaction for Mr. Mohamed. It would rather have made him seem weak and fearful. If his plan was to terrorize Tyler McLean, I have no doubt that Mr. Mohamed would have lingered over the event. The only explanation which arises in the evidence to explain Mr. Mohamed’s haste is the bang.
[221] I also reject the Crown submission that Tyler McLean could not have banged on the back of the Durango because he was standing beside McKenzie Cornell at the time of the alleged bang. If Mr. McLean was standing beside Ms. Cornall, it would mean that Mr. Mohamed ran right past him and ran directly towards Zemarai Khan Mohammed. All the evidence indicates that this would be an improbable path for Mr. Mohamed.
[222] Abdi Ali corroborates Tanade Mohamed’s evidence that there was a bang at the back of the car, (although he recalls three bangs rather than one.) He also confirms that Mr. Mohamed ran out of the Durango immediately after the bangs. For reasons previously stated, I find that Mr. Ali was a generally credible witness and his evidence on this point is in accord with evidence that I have drawn from other sources.
[223] On a balance of probabilities, I do find that there was a bang at the back of the Durango.
(c) Was Tanade Mohamed blindsided by a punch from Zemarai Khan Mohammed?
[224] Mohamed testified that after hearing a bang on the back of the Durango, he bolted out of the car towards Mr. McLean. As he ran towards the back of the Durango, he was struck by a blow that came out of nowhere, striking him in the right temple. He never saw it coming and did not know who or what had hit him. He blacked out momentarily and stumbled off to the side. He was dazed for a few seconds but then looked up to see someone rushing towards him. Instinctively, he took out the gun and shot in the direction of the oncoming assailant.
[225] Ms. Alnaaj told police that there was a verbal exchange between the shooter and the victim before the punch was thrown. She did not report any sign that the shooter was disoriented after the punch. On the contrary, she described an immediate, precise, and purposeful response to the punch.
[226] There is little doubt that Tanade Mohamed was surprised when Zemarai Khan Mohammed punched him. If he had expected the punch, it is unlikely that it would have hit him in the face. But there is a difference between being surprised and being blindsided to the degree described by Tanade Mohamed. The difference is important in this case to the issues of self defence, intent and provocation.
Ms. Alnaaj’s evidence
[227] Ms. Alnaaj was talking to the occupants of a car parked in Row C when her attention was drawn to the other side of the car by an angry verbal exchange. She described the exchange as follows:
First Statement (Audio)
Page 5 “…when I heard like guys like, they were raising their voices, I kinda like looked up…”
Page 8 “… a black truck just pulls up, a guy jumps out and he starts talking to him and then, um, the victim punches the guy in the face…”
Page 13 “They were just like screaming at each other, like – like, the guy was like “you, what the”, like, “what the fuck?”
Page 22 “…by the time I saw him, he was already outside, like they were like already in… each other’s faces.”
Page 44 “Q. Okay. And did you hear them say anything except, “what the fuck”, like what about the shooter?
“A. No.
Q. Did you hear him say anything?
A. No… he didn’t say one word.”
Second Statement (Video)
Page 6 “I heard somebody say, ‘what the fuck’. I looked up; a guy had punched somebody…”
Page 10 “Q. …what draws your attention to this area…? A. Loud noises like they were like arguing. Q. What did you hear? A. “What the fuck”, that’s all I heard.
[228] The repetition of evidence by a witness does not add to its credibility or reliability, but it can provide clarity. Ms. Alnaaj was nervous and agitated when she gave her statements. She was occasionally imprecise in her language and corrected herself from time to time when she had misstated her evidence. In my view, it could be misleading to extract a single excerpt from either of her statements and rely on it as her evidence. Her statements must be read contextually rather than literally. If she said the same thing several times or made a clear response to a direct question, it is likely safe to put weight on the answer. A single statement which is not supported by any context is not as reliable and should be viewed with caution.
[229] Ms. Alnaaj consistently and emphatically said that she heard a verbal exchange between the deceased and the shooter. The only aspect of her statements which gives me any pause on this point occurs at page 44 of the first statement. Ms. Alnaaj was asked if the shooter said anything apart from ‘what the fuck’ and she said “no… he didn’t say one word”. If I were to consider the statement “no… he didn’t say one word” in isolation, it might cause me to wonder whether Ms. Alnaaj had heard the shooter involved in the exchange. Considered in the context of all her evidence on the point, I have no doubt that Ms. Alnaaj meant that the shooter was involved in the initial exchange but said nothing after being punched.
The video and forensic evidence
[230] The door of the Durango opened at 3:11:45. Based on Exhibit 15(b) and the evidence of Mr. Schofield, I conclude that Tanade Mohamed ran 10-14 feet from the passenger door of the Durango to the spot where he encountered Zemarai Khan Mohammed. He was punched, stepped back, took out his gun, fired the shot that killed Zemarai Khan Mohammed, ran 10-14 feet back to the Durango, paused briefly at the door of the car and was back in the front passenger seat at 3:11:52 when the car began to accelerate out of the parking spot.
[231] Mr. Gross-Stein submits that the Channel 14 video shows Mr. Mohamed stumbling back after being punched. I have scrutinized the video for any sign of Mr. Mohamed stumbling backwards. Although I do not by any means reject Mr. Gross-Stein’s statement that he can see it, I cannot.
Analysis
[232] The reliability of Ms. Alnaaj’s evidence is not disputed. Indeed, it was strongly endorsed by counsel for Mr Mohamed on the issue of whether the first shots were fired from the Durango.
[233] Mr. Posner submitted that Ms. Alnaaj’s evidence does not establish that Mr. Mohamed and Zemarai Khan Mohammed were engaged in the verbal exchange. The exchange might have been between Mr. Mohamed and Mr. McLean. Or Zemarai Khan Mohammed and Mr. McLean might have been yelling ‘what the fuck’ and Ms. Alnaaj mistakenly thought this was an exchange with the shooter. Or Mr. Mohamed may have been yelling ‘what the fuck’ as he ran out of the Durango, (something which he did not mention in his testimony), but this exclamation was not part of any exchange.
[234] I respectfully reject all these arguments. The passages quoted above from Ms. Alnaaj’s statements leave no doubt that she heard a verbal exchange between the shooter and the victim. Ms. Alnaaj did not even notice the third man, (Tyler McLean), until she saw him jump onto the escaping Durango. Ms. Alnaaj’s evidence cannot be reconciled with Mr. Mohamed’s evidence that he was utterly blindsided by the punch.
[235] Mr Mohamed’s evidence is also contradicted by the video. Mr Mohamed testified that he was running towards the back of the Durango when he was blindsided by a blow to the right temple. I do not accept that testimony. Despite my reservations about relying on my own impressions of the video, I am certain that Mr. Mohamed ran northwest when he left the car, directly towards where Zemarai Khan Mohammed’s body would later be found. If he had run towards the rear of the Durango, his white pants would have been visible against the black car and they were not.
[236] The timing of the events also contradicts Mr. Mohamed’s evidence that he blacked out for a moment after the blindside punch. When one considers all that occurred in only seven seconds, there is no realistic possibility that Mr. Mohamed was dazed or blacked out. His actions had to be immediate and precise in order to have caused so much mayhem in such a short period of time.
[237] I do not believe Mr. Mohamed’s evidence on this point and I do not believe that it could reasonably be true. I find that Mr. Mohamed engaged in a brief verbal exchange with Mr. Khan Mohammed and was surprised when he punched him, but the punch did not injure him or cause him to black out.
(d) Did Zemarai Khan Mohammed rush towards Tanade Mohamed after having struck him?
[238] Tanade Mohamed testified in chief that as he emerged from the daze caused by the punch, he became aware that someone was rushing towards him. He took out his gun and fired in the direction of the oncoming assailant. He did not know at the time who was rushing at him but knew that it had to have been the same person who had punched him. In cross-examination, he said:
A. In that moment, I had meant to prevent whatever was rushing towards me. I meant to try to keep him distanced and away from me. And when my hand shot the gun, I hadn't put in any thought into doing it, it was just something that I had reacted, and it was like a reflex when it had happened.
Cross-examination of Tanade Mohamed, April 21, 2021 at Page 36, lines 10-15
[239] Rasha Alnaaj said that Zemarai Khan Mohammed did not move after he punched Tanade Mohamed. The difference between the two witnesses is stark. If the issue was only ‘did Zemarai Khan Mohammed move towards Tanade Mohamed after the punch?’, it would be a difficult question to answer. Whether Zemarai Khan Mohammed moved slightly forward or stood utterly could be dismissed as a matter of perspective. But here, the difference is between Zemarai Khan Mohammed rushing forward or standing completely still. The video is of no assistance in deciding the point.
The evidence of Rasha Alnaaj
[240] In her first statement, Rasha Alnaaj described the events immediately after the punch on four occasions. On each occasion, she said that the shooter took one step back, pulled out his gun and fired. She never described seeing the victim rush towards the shooter.
First Statement (Audio)
Page 2 “And then an altercation broke out where a man – I saw a man punch a guy in the face, and the guys took a step back and pulled out a gun and basically, shot him in – in the head.”
Page 5 “I look-, looked up, and I saw the guy punch him in the face. The other guy took a step back… pointed the gun at the guy and like shot…”
Page 8 “… the victim punches the guy in the face and the guy takes like literally, one step back and pulls it out and everybody was like screaming. And he just like shot him right in the head.”
Page 17 “…and then he punched him, and then the guy like just went back and like – I thought he was gonna punch him back, right? Like, it didn’t look like, you know, and then out of where, this…
“Q. When he s-, when he said – when you say he went back, what do you mean, he went back?
“A. Like, he took a step back.
“Q. He took a step back, okay.
B. He put one step back – he put one foot back… He, literally, just put one step back. His foot was in front, put one step back and he just like, his aim was like, honestly, like if he even moved a little bit, like a lot of people would’ve...”
[241] In her second statement, Ms. Alnaaj was directly asked if the victim had moved towards the shooter after punching him and she said that he did not.
Second Statement (Video)
Page 12 “The person with the gun moved back… when he… got struck he moved back, the person with the gun, but the person that hit him, which was the one that was killed, he didn’t move.”
Other evidence
[242] Zemarai Khan Mohammed acted as a peacemaker at the hot dog stand and again at the valet gate. Tanade Mohamed acknowledged that Zemarai Khan Mohammed never threatened him or said anything negative to him.[^15]
[243] The Crown submits that the only reason that Zemarai Khan Mohammed punched Tanade Mohamed was to protect himself and Tyler McLean when Mr. Mohamed bolted out of the Durango. An inference can be drawn from Zemarai Khan Mohammed’s peaceful demeanour in the earlier conflicts that he did not rush towards Tanade Mohamed after the punch but instead stood still, presumably hoping that the punch had subdued Mr. Mohamed.
Analysis
[244] Mr. Khan Mohammed stepped between Mr. McLean and Mr. Mohamed at the valet gates, placing himself at risk if the fight had continued. When Sergeant Kraft arrived, Zemarai Khan Mohammed momentarily stayed to speak Mr. Mohamed. They stood face to face with their arms at their sides, obviously speaking in peaceful terms. Although evidence of demeanour rarely permits any absolute inferences, it does seem unlikely that Zemarai Khan Mohammed would have pursued a fight with Tanade Mohamed after the punch.
[245] That inference is strongly supported by the direct evidence of Rasha Alnaaj. She never recounting having seen Zemarai Khan Mohammed even move towards Tanade Mohamed, let alone “rush” towards him.
[246] I have no doubt that if Zemarai Khan Mohammed had wanted to attack Tanade Mohamed, he could have done so in the time that Mr. Mohamed stepped back, reached into his waistband, and pulled out the gun. Ms. Alnaaj said that they were separated by only a few feet when the shot was fired. Zemarai Khan Mohammed would undoubtedly have covered that short distance if he had rushed towards Tanade Mohamed after punching him. I do not accept Tanade Mohamed’s evidence that Zemarai Khan Mohammed rushed towards him after the punch and I do not think that it could reasonably be true.
[247] Defence counsel raised the possibility in their factum that Mr. Mohamed may have mistakenly believed that Zemarai Khan Mohammed was rushing towards him. I will address this submission when I come to the issue of self defence.
(e) What did Tyler McLean do after Zemarai Khan Mohammed was shot?
[248] Many arguments were raised at trial regarding the whereabouts of Tyler McLean when Zemarai Khan Mohammed was shot. The defence maintained that he was near the rear passenger side of the Durango, having just banged on the back of the car. The Crown adamantly disputes that suggestion and maintains that a shadowy figure seen standing near MacKenzie Cornall was Mr. McLean.
[249] Mr. McLean’s whereabouts after he was shot was also debated. The Crown argued at various times that he was clinging to the back of the Durango, running behind it, or hanging onto the side of it. All these suggestions were plausible.
[250] There are some aspects of this case which are unknowable, and I have concluded that the precise location of Mr. McLean is one of them. I have scrutinized the video dozens of times at every magnification and speed and I cannot find any reliable sign of him. Mr. McLean was wearing black clothing and the Durango was black. There are points in the video when I am certain that Mr. McLean must have been beside the car and yet I cannot see any sign of him. The video is helpful in many ways, but distinguishing black against black is not one of them.
[251] I am left to draw inferences from other evidence that I do consider reliable.
[252] Zemarai Khan Mohammed and Tyler McLean were close to one another from the time that they first appeared on video at the hot dog stand until they both went out of view of the Channel 14 camera at about 3:10:50. There is no evidence that either of them were speaking to anyone outside of their group in the parking lot and no witness has come forward to suggest that he or she was with Tyler McLean when Zemarai Khan Mohammed was shot. I infer that Zemarai Khan Mohammed and Tyler McLean were standing close to one another when Tanade Mohamed ran out of the Durango.
[253] Rasha Alnaaj heard an angry exchange and looked up to see the punch and then the shooting. She did not mention seeing Tyler McLean until Tanade Mohamed had retreated to the Durango and she then saw Tyler McLean jump onto the side of the car and bang on the passenger side windows. She heard Mr. McLean yell ‘yo, what the fuck are you doing?’[^16] Ms. Alnaaj’s account of seeing Tyler McLean holding onto the side of the Durango is strongly corroborated by the blood trail seen in the scene photographs. The Durango did have a sideboard which Mr. McLean could have been standing on as he clung to the side of the car.
[254] Abdi Ali testified that he could see Tanade Mohamed running back to the car and “he looked like he was being chased by somebody”. When he arrived at the car, “it looked like he was fighting with somebody.” I do not find Mr. Abdi’s evidence on this point to be reliable for reasons which will be provided when I come to discuss Mr. Mohamed’s claimed that he accidentally killed Mr. McLean.
[255] The video does show that Tanade Mohamed paused momentarily at the open door of the Durango with one leg visible below the bottom of the door. There is no sign that he was struggling with anyone.
[256] I find the following facts regarding Mr. McLean’s movements at the time of the shootings:
• Tyler McLean was close to Zemarai Khan Mohammed when he was shot, likely less than ten feet away.
• Mr. McLean saw that Zemarai Khan Mohammed had been shot in the head and, like MacKenzie Cornall and Rasha Alnaaj, instantly recognized that the shot had been fatal.
• Mr. McLean did not immediately chase after Tanade Mohamed for fear of being shot himself but, as he saw Mr. Mohamed boarding the vehicle and about to escape, he ran forward to jump on the side of the car.
• Tanade Mohamed momentarily paused as he was about to get into the Durango and that pause was related to the presence of Tyler McLean.
• Tyler McLean remained on the passenger side of the Durango as the car was driving away, likely standing on the running board and holding onto the rear door handle.
(f) When did Abdi Ali first realize that Tanade Mohamed had a gun?
[257] The Crown argues that Mr. Ali must have seen Tanade Mohamed take a gun out from under the passenger seat of the Durango as they drove through the parking lot. This is a crucial element in the Crown’s argument that Mr. Ali knowingly assisted Tanade Mohamed to kill both Zemarai Khan Mohammed and Tyler McLean.
[258] Mr. Ali testified that when they got into the Durango, it seemed that Tanade Mohamed had calmed down and did not want to fight anymore. He knew that they were supposed to meet with Jamal and, when Mr. Mohamed directed him to drive into the parking lot, he assumed it was because they were going to meet Jamal there. As they drove through the lot, Mr. Mohamed directed him to slow down and then pull into a parking spot. Mr. Ali assumed that Mr. Mohamed had seen Jamal. Mr. Ali did not notice Mr. Mohamed reach under his seat as they were driving. The first time that he realized that Mr. Mohamed had a gun was after the shootings when he saw the gun on his lap.
[259] The Crown challenged the credibility of Mr. Ali’s testimony on the following points:
• Mr. Ali testified that he was tired after helping a friend to move on Saturday and that he had to be at work at 8 am on Monday morning. Why would he have wanted to continue to party at Jamal’s home after the Rebel shutdown at 3 am?
• On Mr. Ali’s own evidence, Tanade Mohamed was riled up and hard to control when the fight occurred at the valet gate. Why would Mr. Ali want to continue to party with Mr. Mohamed when he was in such a state?
• When the valet turned over the Durango to Mr. Ali, he told him that he was welcome to use the nearby valet exit. Why would Mr. Ali not take advantage of this readily available exit and instead drive towards the public exit which would ordinarily be congested at closing time?
• Why would Mr. Ali have expected to meet with Jamal in the parking lot when he had not seen him in the roundabout and there was no plan to meet in the middle of the parking lot?
• Mr. Ali knew that his brother’s friends carry guns and that guns are frequently placed underneath car seats. How could he possibly have missed Tanade Mohamed “rummaging” under the passenger seat to find the gun?
• Mr. Ali sat beside Tanade Mohamed for 1:45 after parking the car. He watched Mr. Mohamed roll a joint in his lap. How could he possibly have failed to notice that Tanade Mohamed had a handgun tucked into his waistband, particularly when was contemplating the possibility that Mr. Mohamed could get out of the car and harm someone?
[260] The Crown argues that these implausible aspects of Mr. Ali’s testimony, considered individually or collectively, preclude any possibility that he did not know that Tanade Mohamed had a gun. There is obviously no determinative answer to all the questions posed by the Crown. Most can only be assessed in terms of probabilities.
[261] The Crown questions why Abdi Ali would be interested in continuing the night at Jamal’s house after he had spent the evening helping a friend to move, needed to go to work on Monday, hardly knew Jamal and was saddled with a riled up Tanade Mohamed. The Crown has certainly satisfied me that many reasonable people would choose to end the night at 3 am, but I cannot conclude that a 23-year-old man in Mr. Ali’s circumstances would feel the same. The fact that he had to be at work at 8 am on Monday morning would not, in my view, preclude Mr. Ali from wanting to go to an after party when the Rebel closed.
[262] I accept Mr. Ali’s evidence that he and Mr. Mohamed expected to meet Jamal outside the club. The Channel 15 video shows Mr. Ali wandering in the roundabout while Mr. Mohamed stood by the hot dog stand, drinking a bottle of water. If they had intended to leave the club immediately, they would have gone to their car. It seems likely that they were looking or waiting for someone. There is nothing which would cause me to reject Abdi Ali’s testimony that when he got in the Durango, he still believed that they were going to meet up with Jamal.
[263] The Crown argues that Mr Ali had to have seen Mr. Mohamed retrieve the gun from under the passenger’s seat. There were no obstructions between them, the black handle of the gun would have been readily visible against Mr. Mohamed’s white pants and Mr. Ali could hardly have missed Mr. Mohamed “rummaging” beneath his seat to find the gun. These arguments overlook several important facts:
a. There is no evidence that Tanade Mohamed had to rummage under his seat to find the gun. Mr. Mohamed agreed in cross examination that the seats of the Durango were upright, (unlike the seats in a sportscar), and that he did have to “really” reach down to get the gun. He could not say how far under the seat the gun was but accepted that it must have been tucked far enough under the seat that it would not have been visible to the valet attendants. It was not suggested to him that he had to “rummage” to find the gun and Mr. Mohamed did not recount having any difficulty in laying his hand on it.
b. Mr Mohammed testified that he took the gun out while Mr Ali was driving through the parking lot. The Crown submits that driving the car would not have prevented Mr. Ali from seeing what Tanade Mohamed was doing. Mr. Ali drove in the laneway separating Rows C and D of parked cars. The Channel 14 video does not clearly depict that laneway, but there were many pedestrians walking between rows A and B, and it stands to reason that there were also people walking between Rows C and D. There was also a steady stream of cars moving toward the public exit. There is nothing implausible about Mr. Ali’s evidence that he was paying attention to driving the car.
c. The Crown suggests that the black butt of the gun would have been obvious, set against the white of Mr Mohamed’s pants. This submission overlooks the fact that Mr. Mohamed was also wearing a black belt and a waist length green jacket. It is not only possible but likely that the jacket would have covered Mr. Mohamed’s waistline from the view of someone sitting in the driver’s seat of the car.
d. Rasha Alnaaj testified that she saw Tanade Mohamed remove the gun from a concealed place before shooting Zemarai Khan Mohammed. If Mr Ali was aware that Mr. Mohamed had the gun, there would have been no reason for Mr Mohamed to have concealed it while he was sitting in the car. The only person that he needed to hide it from was Mr. Ali.
[264] The Crown stressed in cross examination and submissions that Abdi Ali knew that his brother carried a gun, that his brother's friends carry guns and that Tanade Mohamed hung out with many of the same people as his brother. Ms. Tenhouse challenged Mr. Ali’s claim that he did not know that Tanade Mohamed was a drug dealer and, by implication, suggests that he must have been alert to the possibility that Tanade Mohamed had a gun.
[265] I share the Crown’s skepticism that Abdi Ali did not know that Tanade Mohamed was involved in the drug trade. The fact that Mr. Mohamed had the resources to fly from Edmonton as many as four times a year would have caused most observers to wonder where he got his money. I do not accept, however, that a suspicion or even knowledge that Tanade Mohamed was involved in the drug trade would have caused Abdi Ali to suspect that Mr. Mohamed had a gun in the car. Mr. Ali knew that his brother kept a gun for his own protection. The evidence does not disclose any reason for him to suspect that his brother would have loaned the gun to Mr Mohamed, especially when Mr. Mohamed was only going to a club. Mr. Ali had been to the Rebel Nightclub before and knew that patrons were searched before entering the club. If Mr. Mohamed brought a gun, it would have had to leave it in the car. The fact that Mr Mohamed turned the car over to valet attendants would have discouraged any suspicion that he was keeping a gun in the car.
[266] One point which did not arise during the evidence of Mr. Mohamed but which I consider to be significant is that Mr. Mohamed initially walked to the driver’s seat of the Durango when the car was returned by the valet attendant.[^17] He never came close enough to retrieve anything from the car and, with the valet attendant just getting out of the vehicle, he could not have been moving to retrieve a gun from under the driver’s seat. Mr. Mohamed seemed to approach the driver’s seat as though he were going to take the wheel, but then thought better of it and walked instead to the passenger’s side. I believe that Mr. Mohamed initially contemplated driving the car into the parking lot himself, but then realized that he would not be able to retrieve the gun from under the passenger’s seat without Mr. Ali’s knowledge and so decided to let Mr. Ali drive.
[267] The Crown’s argument turns in some measure on the submission that it had to have been obvious to Mr. Ali that Tanade Mohamed had a gun. Mr. Mohamed was livid after the fight at the valet gate.[^18] He directed Mr. Ali to drive into the parking lot and then told him to park in a spot where he could see Mr. McLean. Mr. Ali implored Mr. Mohamed to leave, recognizing that Mr. Mohamed might get out of the car and knowing that someone would be hurt if he did. Mr. Ali grew up in a neighbourhood where guns were prevalent. His family home had been shot up on more than one occasion and his own brother routinely carried a firearm. Anyone with the life experiences of Abidrisaq Ali would have realized that Tanade Mohamed had armed himself for a confrontation with Tyler McLean and Zemarai Khan Mohammed.
[268] As the trier of fact, I must guard against hindsight bias. Looking at these events retrospectively, it may appear obvious that Mr. Mohamed had armed himself. In assessing what Mr. Ali knew, it is necessary to consider the events prospectively, as they developed before his eyes that night.
[269] Mr Ali exchanged a few words with Mackenzie Cornell and Holly Rogalsky near the hot dog stand. He spoke to them for, at most, ten seconds. The contact evidently sparked the ire of Tyler McLean and a quarrel developed. The duration of the conflict, from the start of the hot dog stand argument to the end of the valet gate fight, was less than five minutes. The fight had been broken up by a police officer and the two strangers were sent to their cars. Mr. Mohamed’s car arrived from the valet and Mr. McLean wandered off into the parking lot in search of his own car. It defies all common sense and ordinary experience that anyone would arm himself with a handgun to continue such a meaningless conflict.
[270] Rasha Alnaaj was an eyewitness to the shooting. She saw Mr. Ali, seated in the driver’s seat of the Durango, in the instant after Zemarai Khan Mohammed had been shot in the head. She said the following to Det. Choe:
“…even the driver… was screaming… like, it was like a surprise. Like, it was like – like it was like the randomest thing, like he would’ve never expected somebody pull out a gun. I’m like, where did it come from?”
Audio Statement of Rasha Alnaaj at pages 40-41
[271] An independent witness who experienced these events prospectively, as Mr. Ali experienced them, recognized the sheer impossibility of what was occurring before her and, quite remarkably, noticed that Mr. Ali was equally amazed.
THE LEGAL ISSUES
Has the Crown proven beyond a reasonable doubt that Tanade Mohamed was not acting in self defence when he killed Zemarai Khan Mohammed?
[272] The Crown’s first obstacle is to prove that Zemarai Khan Mohammed's death was unlawful. If the Crown is unable to disprove self defence, Zemarai Khan Mohammed's death would not be unlawful and Tanade Mohamed would be acquitted outright on the first count on the indictment. There would be no need to consider whether the killing was intentional.
[273] Tanade Mohamed testified that he heard a loud bang at the back of the Durango and, when he looked back, he saw Tyler McLean standing near the back of the car. He bolted out the car and began to run towards McLean, intent on pushing him away from the car and then pointing the gun at him. Out of nowhere, Zemarai Khan Mohammed punched him in the right side of the head. Everything went black momentarily and he stumbled to the side. He felt fear, anger, and confusion. He looked up and saw Zemarai Khan Mohammed rushing towards him. He pulled the gun out of his waistband, pointed it in the direction of Khan Mohammed and fired.
[274] Defence counsel submit that I should accept Mr. Mohamed’s evidence or at least find that it might reasonably be true. Mr. Mohamed faced an immediate threat of serious bodily harm after having been struck in the head by a heavy blow. He was outnumbered by Tyler McLean and Zemarai Khan Mohammed, both of whom were intoxicated and had already acted violently towards him. When he reached for his gun, he was physically and psychologically vulnerable as a result of the blow to his head. Although shooting Zemarai Khan Mohammed in the head might seem disproportionate to having only been punched, the defence relies on the classic caution in Baxter (1975) 1510 (ON CA), 27 C.C.C. (2d) 96 at page 111 (CA). The onus is on the Crown to disprove self defence and the evidence here discloses at least a reasonable doubt.
The law of self defence
[275] The elements of self defence are set out in section 34 of the Criminal Code:
34 (1) A person is not guilty of an offence if
o (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;
o (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
o (c) the act committed is reasonable in the circumstances.
Factors
(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:
o (a) the nature of the force or threat;
o (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;
o (c) the person’s role in the incident;
o (d) whether any party to the incident used or threatened to use a weapon;
o (e) the size, age, gender and physical capabilities of the parties to the incident;
o (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;
o (f.1) any history of interaction or communication between the parties to the incident;
o (g) the nature and proportionality of the person’s response to the use or threat of force; and
o (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
No defence
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
[276] The three elements of self defence were defined by the Ontario Court of Appeal in R. v. Khill, 2020 ONCA 151 at para. 42:
The Trigger: the accused must believe, on reasonable grounds, that force is being used or threatened against him;
The Motive: the act of the accused said to constitute the offence must be done for the purpose of defending himself; and
The Response: the act said to constitute the offence must be reasonable in the circumstances.
[277] The defence fails if the Crown can disprove at least one of the three elements beyond a reasonable doubt.
Section 34(1)(a) - The Trigger
[278] The first element of the defence is that Mr. Mohamed believed on reasonable grounds that force or the threat of force was being used against him. There are subjective and objective elements to this component of the defence. Mr. Mohamed must have subjectively believed that he was acting in self defence and that belief must be objectively reasonable. (Khill, at para. 44)
[279] I have previously concluded that I do not accept Tanade Mohamed’s evidence that Zemarai Khan Mohammed rushed towards him after the punch. Although I have rejected Mr. Mohamed’s evidence, I must also consider whether other evidence which I do accept raises a reasonable doubt.
[280] I make the following findings concerning this aspect of the defence:
a. Zemarai Khan Mohammed was surprised and angry when he realized that Tanade Mohamed had followed his group into the parking lot. His verbal exchange with Tanade Mohamed before the punch was loud, angry, and profane.
b. Zemarai Khan Mohammed was the first to strike with a hard punch to a vulnerable part of Tanade Mohamed’s body. There were other physical options open to Mr. Khan Mohammed if he was only seeking to defend himself. He could have tackled Tanade Mohamed or struck a less vulnerable part of his body. The fact that he resorted immediately to a hard blow to a vulnerable area could cause a reasonable person to apprehend that he intended further violence.
c. Zemarai Khan Mohammed did not retreat after throwing the punch. The fact that he stood his ground would cause a reasonable person to infer that Mr. Khan Mohammed was not motivated by self defence but was instead inclined to engage in a fight with Tanade Mohamed.
[281] Based on these factors, I am satisfied that there is a reasonable possibility that an ordinary person in the place of Tanade Mohamed would have believed that Mr. Khan Mohammed posed a threat of further violence and that Tanade Mohamed subjectively believed the same. Accordingly, there is a reasonable doubt on the first element of the defence.
Section 34(1)(b) - The Motive
[282] The second component of self defence focuses on the reason why the accused took the action that he did. This is an entirely subjective inquiry. Mr. Mohamed has testified that his purpose in shooting Zemarai Khan Mohammed was to defend himself from the threat of force presented by Mr. Khan Mohammed. If I believe that evidence or find that it might reasonably be true, the second element of the defence will be satisfied. Even if I reject Mr. Mohamed’s evidence and find that it cannot reasonably be true, I still must consider all the evidence that I do accept in assessing whether I am satisfied beyond any reasonable doubt that Mr. Mohamed shot Mr. Khan Mohammed for some purpose other than self defence.
The evidence of Mr. Mohamed
[283] Tanade Mohamed testified that after he was punched in the head, everything went black and he stumbled back in a daze. He felt angry and scared, not knowing what had hit him. As he recovered, he saw Zemarai Khan Mohammed rushing towards him and, fearing for his own safety, he reached into his waistband, pulled out the gun and fired a shot. Although the shot hit Zemarai Khan Mohammed in the head, Mr. Mohamed testified that he did not aim the shot. He pointed the gun in the direction of the oncoming threat and fired.
[284] In their written submissions, defence counsel have suggested other factors which could support a finding that Mr. Mohamed was acting in self defence. Counsel submit that by banging on the back of the Durango, Tyler McLean had “evinced a desire to draw Mr. Mohamed into a violent altercation”. When he was outside of the car, Mr. Mohamed was outnumbered 2:1 by the two deceased who had “significant” physical capability and posed a substantial risk to Mr. Mohamed. Moreover, Mr. Mohamed had been rendered physically and psychologically vulnerable by the blow to the head.
[285] None of these considerations emerged from the testimony of Mr. Mohamed. Mr. Mohamed testified that the bang on the back of the car initially scared him, but then he became angry. He never testified that it caused him to think that he was being drawn into a violent encounter. In explaining his reasons for shooting Zemarai Khan Mohammed, he did not mention any concern about being outnumbered or the physical capabilities of the deceased. Mr. Mohamed testified that he fired the shot because he had been struck by an unknown person and he saw that person rushing towards him. In assessing this entirely subjective aspect of the defence, my focus must be on the actual evidence of the accused.
[286] I have already explained my reasons for rejecting Mr. Mohamed’s testimony that he was incapacitated by the blow to his head and that Zemarai Khan Mohammed rushed towards him after the punch. In my view, that testimony cannot reasonably be true.
Mistake of fact
[287] Counsel have argued that if I were to accept Ms. Alnaaj’s evidence that Mr. Khan Mohammed did not move after the punch, I might nevertheless find that Tanade Mohamed perceived that Mr. Khan Mohammed was rushing towards him and if so, could find that his purpose in shooting was self defence based on a mistaken belief that his life was in danger. I agree that the necessary subjective belief could be formed based on a mistake of fact, but I reject the proposition that Mr. Mohamed made that mistake. For reasons previously expressed, I reject Mr. Mohamed’s evidence that he was to any degree incapacitated by the punch. His actions immediately after the punch do not show any lack of acuity. I have no cause to believe that Mr. Mohamed’s faculties were affected to the extent that he would mistakenly believe that a man who was standing still was rushing towards him.
[288] I will return to the issue of mistake of fact in discussing the third element of self defence, the reasonableness of Mr. Mohamed’s actions.
The use of post offence conduct to rebut self defence
[289] The Crown submits that Mr. Mohamed’s false statement to Detective Singh permits an inference that he was not acting in self defence when he killed Zemarai Khan Mohammed. There is abundant authority for the proposition that giving a false statement, (particularly a false alibi), has especial value in rebutting a claim of self defence.[^19] It is universally understood that the law permits citizens to defend themselves from attack. An act committed in self defence is lawful and one who has genuinely acted to defend his own life would have no cause to falsely claim that he had not committed the act. The strength of this inference will vary from case to case but as a rule, a false alibi is not easily reconciled with a legitimate claim of self defence.
[290] I have considered the post offence conduct in this case and have concluded that it does not support the line of reasoning recommended by the Crown. It is impossible to draw a straight line between Mr. Mohamed’s false alibi and the claim of self defence advanced for the killing of Zemarai Khan Mohammed. Mr. Mohamed killed two people using an illegal firearm. He had any number of reasons why he may have wanted to mislead police in their investigation. The false statement could have been motivated by a realization that even though he had acted in self defence in shooting Zemarai Khan Mohammed, he was nevertheless culpable for the death of Tyler McLean. Mr. Mohamed’s false statements have an obvious bearing on his credibility, but that is as far as their value goes. The facts of this case afford too many alternative explanations for the post offence conduct for them to have any value in undermining any individual defence.
Conclusion regarding motive
[291] My conclusion concerning the application of post offence conduct ultimately has no bearing on my findings. I reject Mr. Mohamed’s evidence that he shot in self defence and I find that his evidence in this regard could not reasonably be true. The evidence that I do accept does not give rise to any reasonable doubt. Mr. Mohamed did not shoot Zemarai Khan Mohammed out of any fear for his own safety. He shot in vengeance for having been punched.
a. Tanade Mohamed watched Tyler McLean for 1:45, planning how he would terrorize him with a gun. He knew that Tyler McLean and Zemarai Khan Mohammed had not yet reached their car so there was no possibility that they were armed.
b. The bang on the back of the Durango may have startled Mr. Mohamed, but it did not cause him to be fearful. On the contrary, it caused him to be angry and triggered his decision to take revenge against Tyler McLean.
c. Tanade Mohamed knew that there would be a physical confrontation when he ran out of the Durango because he intended to initiate it by pushing Mr. McLean away from the car and pointing his gun at him. Mr. Mohamed had no fear of provoking a fight because he had a loaded gun and the victims were unarmed.
d. Mr. Mohamed may not have foreseen that Zemarai Khan Mohammed would be the first to physically confront him, but he was fully prepared to respond to any confrontation which presented itself. His actions do not display a trace of self defence. He could have simply revealed that he had the gun and any threat of further violence would have ended. He could have retreated to the waiting car. The fact that Mr. Mohamed did not take advantage of any of the many available opportunities to extricate himself from a purportedly dangerous situation reflects the fact that he had no concerns for his safety.
e. I have no doubt that Mr. Mohamed shot Zemarai Khan Mohammed in vengeance for the punch and not out of any perceived need to defend himself.
[292] There is no reasonable doubt on the second branch of the test for self defence.
Section 34(1)(c ) - The Response
[293] The final consideration under section 34 is the reasonableness of the accused’s action. If the act of the accused which was motivated by self defence was reasonable in all the circumstances, it is not a criminal offence. The onus is on the Crown to prove that the act was not reasonable.
[294] The test under section 34(1)(c) blends subjective and objective considerations. The court may consider any mistake of fact made by the accused which caused him to believe that his actions were reasonable but the reasonability of the mistake itself must be weighed. An understandable mistake of fact may contribute to the grounds to believe that the act was reasonable, and an unjustifiable mistake will do the opposite.
[295] In deciding whether the shooting of Zemarai Khan Mohammed was reasonable, I must assess the relevant circumstances of Mr. Mohamed, Mr. Khan Mohammed and the events which led up to the shooting. Section 34(2) lists a series of factors which must be considered. The weight to be applied to the various factors depends upon my own view of the evidence.
[296] In my view, none of the nine factors listed in s. 34(2) support a conclusion that Tanade Mohamed was acting reasonably when he shot Zemarai Khan Mohammed in the head.
The nature of the force or threat
[297] Tanade Mohamed exited the Durango at high speed, knowing that his presence would at least alarm if not frighten the four people in Mr. McLean’s group. In response, Zemarai Khan Mohammed punched him once in the face. The punch did not cause any injury to Tanade Mohamed and it was not followed by any further force. The punch was almost certainly an act of self defence by Zemarai Khan Mohammed and any reasonable observer would have recognized that Zemarai Khan Mohammed did not represent any further threat to Mr. Mohamed if he desisted in his own threatening behaviour.
[298] The restrained nature of the force applied by Zemarai Khan Mohammed detracts from the reasonableness of Mr. Mohamed’s lethal response.
The imminence of the anticipated force and whether there were other means of response
[299] Mr. Mohamed testified that he saw Zemarai Khan Mohammed rushing towards him after the punch. I have rejected that evidence and found that it could not reasonably be true. Defence counsel have suggested in the alternative that Mr. Mohamed may have mistakenly perceived that Zemarai Khan Mohammed was rushing towards him and, if so, this could contribute to the reasonableness of his act.
[300] If Mr. Mohamed did mistakenly perceive that Zemarai Khan Mohammed was rushing towards him, the error was not a justifiable one. In the time that Mr. Mohamed stepped back, retrieved his gun, pulled the gun out of his waistband, pointed it, and fired, Tanade Mohamed had time to consider his actions. Zemarai Khan Mohammed had not threatened him and had behaved peacefully in their earlier encounters. If Zemarai Khan Mohammed intended to rush at him, he could have done so in the time that it took for Tanade Mohamed to retrieve the gun and he had not. Mr. Mohamed knew that Zemarai Khan Mohammed was unarmed so there was no need to fire before Zemarai Khan Mohammed could retrieve a weapon.
[301] In my view, there was time and opportunity for Tanade Mohamed to assess whether Zemarai Khan Mohammed presented any risk of further violence before shooting him. If he acted on a mistaken impression, the fault for that misperception lies entirely with him. A momentary pause would have satisfied him that Zemarai Khan Mohammed presented no threat of further force. The mistake, if there was one, was utterly unreasonable.
[302] Mr. Mohamed had any number of other avenues available to escape any apprehended force from Zemarai Khan Mohammed. The most natural course would have been to run back to the Durango. He could have pointed the gun without firing, fired a warning shot or, in the most extreme circumstances, fired a shot at a non-lethal part of Zemarai Khan Mohammed’s body. Mr. Mohamed did not even utter a warning to Zemarai Khan Mohammed before he fired the fatal shot.
[303] This factor strongly suggests that Tanade Mohamed’s act was unreasonable.
Tanade Mohamed’s role in the incident
[304] This subsection requires the trier of fact to consider the role that the accused played in bringing about the conflict. In some circumstances, conduct by the accused which is lawful and not inherently provocative may trigger a violent encounter. If so, the role of the accused would favour a claim to self defence. At the other end of the scale, there is conduct by the accused which was unlawful or deliberately provocative which detracts from self defence.
[305] Mr. Mohamed’s role in this incident falls at the extreme end of the unlawful and provocative scale. He brought a loaded handgun to a nightclub for no discernible reason. He became involved in a senseless quarrel with another patron at the club and followed the victim into a dark parking lot to terrorize him. Mr. Mohamed was a criminal provocateur at every stage of these events. His role in the incident seriously undermines any claim that the shooting of Zemarai Khan Mohammed was reasonable.
Whether any party used or threatened to use weapons
[306] Mr. Mohamed was the only party to use or threaten to use a weapon. The weapon that he possessed, a loaded restricted firearm, is a deadly weapon which is easily concealed and commonly employed in street fights. Mr. Mohamed deliberately took advantage of the fact that his victims were unarmed when he set out to dominate them using an illegal firearm.
The size and physical capabilities of the parties
[307] No evidence was called on this point. The video does not disclose any obvious disparity between the physiques of Zemarai Khan Mohammed and Mr. Mohamed. There is no cause to find that Mr. Mohamed resorted to shooting Zemarai Khan Mohammed because he feared that he would be physically outmatched. Mr. Mohamed did not suggest in his testimony that this was a factor in his decision to shoot and there is no other evidence which would support that conclusion.
The nature of the relationship between the parties including any prior use of force or threat to use force
[308] Mr. Mohamed had known Zemarai Khan Mohammed for all of nine minutes before he killed him. During that nine-minute space, Zemarai Khan Mohammed had twice intervened to calm angry encounters between Tyler McLean and Tanade Mohamed. He spoke to Tanade Mohamed in an unthreatening manner. In his statement to Detective Singh, Tanade Mohamed described Zemarai Khan Mohammed as “a Muslim brother”.
[309] The complete absence of any basis for Tanade Mohamed to feel fear or animosity towards Zemarai Khan Mohammed strongly discourages any finding that the shooting was reasonable.
The nature and proportionality of the accused’s response to the threat of force
[310] Counsel submit that the classic statement in Baxter concerning the measure of force to be used in self defence should be applied in this case. Respectfully, I disagree.
[311] The disparity between the threat offered by Zemarai Khan Mohammed and the corresponding act of Tanade Mohamed is so great that it cannot be dismissed as an overreaction. The defence case at the very highest is that Zemarai Khan Mohammed punched Tanade Mohamed in the face and was advancing towards him. The punch caused no injury to Mr. Mohamed and did not even knock him to the ground. Mr. Mohamed knew that Zemarai Khan Mohammed was unarmed and presented no realistic threat of force. A gunshot to the head is a grossly disproportionate response to being punched.
Whether the act was in response to a use of force or threat of force that the accused knew to be lawful
[312] Tanade Mohamed knew that his own actions were profoundly illegal. It is unlikely that he turned his mind to the fact that Zemarai Khan Mohammed had been acting in his own self defence when he punched him. He should have considered it. The fact that Zemarai Khan Mohammed’s action was almost certainly lawful further contributes to the conclusion that Tanade Mohamed’s act was unreasonable.
Conclusion regarding 34(2)
[313] My review of the mandatory considerations under section 34(2) as well as all the circumstances of the case lead me to conclude that the shooting of Zemarai Khan Mohammed was an utterly unreasonable act on the part of Tanade Mohamed. The Crown has met its onus of disproving this element of the defence beyond a reasonable doubt.
Conclusion regarding the defence of self defence
[314] The Crown has disproved two of the three elements of self defence. I am satisfied beyond a reasonable doubt that Tanade Mohamed was not acting in self defence when he shot and killed Zemarai Khan Mohammed.
Has the Crown proven beyond a reasonable doubt that Tanade Mohamed intended to kill Zemarai Khan Mohammed?
[315] The intent requirement for the offence of murder is set out in section 229(a) of the Criminal Code:
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;
[316] In order for Mr. Mohamed to be found guilty of murder, the Crown must prove beyond a reasonable doubt that Tanade Mohamed subjectively intended to kill Zemarai Khan Mohammed or that he intended to cause him bodily harm which he subjectively knew to be of such a nature that it was likely to result in his death. The focus of s. 229(a)(ii) is whether the accused knew that the death was likely. The mental element contemplated in the section is virtually the equivalent of an intentional killing.
The Crown Position
[317] The Crown submits that Tanade Mohamed became angry after the fight at the valet gate and directed Abdi Ali to drive into the parking lot in order that he could gain revenge against Tyler McLean. He waited for 1:47 before firing a shot from the passenger window of the Durango which missed Tyler McLean. He then emerged from the car to pursue Mr McLean but was stopped by a punch from Zemarai Khan Mohammed. Tanade Mohamed took a step or two back from Zemarai Khan Mohammed, removed his gun from his waistband, aimed the gun at Mr. Khan Mohammed's head and pulled the trigger. He was less than six feet away from Zemarai Khan Mohammed when he fired the shot.
[318] The Crown acknowledges that Tanade Mohamed was not sober but submits that he was not heavily intoxicated. Whatever his level of intoxication, it did not deprive him of an understanding of the natural consequences of firing a bullet at someone's head from such close range. It is obvious that such an action will cause bodily harm which is likely to cause death. Mr Mohamed acknowledged as much in cross examination.
The Defence Position
[319] Tanade Mohamed testified that he did not intend to kill Zemarai Khan Mohammed. He described the shooting as a reflexive response to being punched and claimed that he did not contemplate the consequences of his actions.
[320] Mr Mohammed explained that he suffered from low self esteem due to childhood abuse and, as a result, he overreacted to the provocative conduct of Tyler McLean. His plan to intimidate Mr. McLean by pointing a gun at him was a product of his own psychological and emotional malfunctioning. Counsel submits that when Mr. Mohamed burst out of the Durango armed with a handgun, his only intention was “to demonstrate superior machismo and cause the other (Mr. McLean) to surrender.”[^20]
[321] Mr. Mohamed’s evidence on the issue of intent is captured by the following excerpts from his cross-examination:
Q. You aimed the gun at him and pulled the trigger.
A. I had been hit, and I pointed the firearm in the location of where I thought the threat rushing me was coming and I shot, I wasn't aiming anywhere in that situation, sir.
Q. You did aim the gun at his head. Aiming and pointing are the same thing.
A. I would disagree with you on that, sir.
Q. You pointed the gun at his head, and pulled the trigger. And you said because - you said just a second ago, you saw the threat and you pointed it at the threat.
A. Yes, I did.
Q. Right.
A. But the person who is coming towards me, is - is an object right? So, I mean it's a full object, I wouldn't say I had pointed on purpose at his head. I mean, I didn't intend to shoot him in the head, sir.
Q….I said, you meant to shoot him.
A. Yes. But I - I gathered my thoughts or had come to a conclusion as to where I would have been shooting and it was just a reaction. I mean impulsive reaction. It was just how I reacted to being hit at that moment.
Q. I appreciate that, but in that moment, you meant to shoot him because he was coming at you?
A. I meant to shoot. I did not mean to shoot him.
Q. Why would you shoot somewhere other than him, if what you're afraid of is him coming at you?
A. I hadn't really thought before I shot, sir, so I wouldn't call it a calculated move that was - that was done. It was just how I reacted to being hit.
Q. Certainly. And I think we differentiate between something you had thought through in advance, and something you're doing in the moment, but in that moment, you meant to shoot him because you saw him as a threat.
A. In that moment, I had meant to prevent whatever was rushing towards me. I meant to try to keep him distanced and away from me. And when my hand shot the gun, I hadn't put in any thought into doing it, it was just something that I had reacted, and it was like a reflex when it had happened.
Q. You pointed the gun at his head. You won't agree with me on that?
A. Unfortunately, that's the way you say it but I didn't point it at his head on purpose, sir.
Q. You pulled the trigger on purpose.
A. I remember pulling the trigger. I wouldn't say I planned it on purpose.
Q. So, you pointed the gun at him, not intending to pull the trigger.
A. I had pointed the gun at him, and I pulled the trigger, but I hadn't thought about what I was doing, when I was doing it, it was more so a reflex, sir.
Cross-Examination of Tanade Mohamed, April 21, 2021 at pages 34-37
[322] Mr. Gross-Stein submits that the video shows that Mr Mohamed was punched just before 3:11:47 and the first shot was fired at 3:11:48. On this chronology, Mr Mohamed retrieved and fired the gun less than two seconds after receiving a hard, unexpected blow to the head. The timing does not permit any opportunity for contemplation of the consequences of his act and rather confirms Tanade Mohamed's testimony that the shooting was entirely reflexive. Mr. Gross-Stein relies on the following passages from Justice Martin's decisions in Campbell and Trecoce:
Provocation may, of course, inspire the intent required to constitute murder. There may, however, be cases where the conduct of the victim amounting to provocation produces in the accused a state of excitement, anger or disturbance, as a result of which he might not contemplate the consequences of his acts and might not, in fact, intend to bring about those consequences.
R. v. Campbell (1977), 1191 (ON CA), 38 C.C.C. (2d) 6 at pp 15-16 (Ont. C.A.)
That is not to say, of course, that a jury, if they consider that the accused was honestly defending himself, may not entertain a reasonable doubt whether acting instinctively in the excitement of the moment he really contemplated the consequences of his actions and actually had the requisite intent for murder even though that inference might normally be drawn from his acts apart from the circumstance that he was defending himself.
R. v. Trecoce (1980), 2854 (ON CA), 55 C.C.C. (2d) 202 at 211 (Ont. C.A.)
[323] The same principle was recognized more recently in Shand, 2011 ONCA 5:
[152] Vague realization that death is possible will not be
sufficient. Similarly, if the dangerous act was done as a
reaction, and out of panic, this may tend to show that the
required subjective foresight of death was not present at the
time that the act was committed.
[324] In assessing whether Mr Mohamed formed the necessary intent in such a short time frame, I must also consider the cumulative effects of intoxication, and any element of self defence and/or provocation which may collectively raise a doubt as to whether Mr. Mohamed intended to kill Zemarai Khan Mohammed.
Previous factual findings
[325] At earlier points in this judgment, I made the following factual findings which are relevant to the issue of intent:
a. Tanade Mohamed did not shoot at Tyler McLean prior to leaving the Durango. He fired the first shot after being punched by Zemarai Khan Mohammed.
b. Tanade Mohamed was not intoxicated at the time of the shooting. His judgment was likely affected by the consumption of alcohol, but the effect was minor.
c. Tanade Mohamed did not intend to kill anyone when he left the Durango, but he knew that there would be a physical confrontation with Tyler McLean and possibly Zemarai Khan Mohammed. He concealed a loaded handgun in anticipation of that confrontation.
d. Tanade Mohamed became involved in an angry verbal exchange with Zemarai Khan Mohammed but did not expect Zemarai Khan Mohammed to strike him. He was not dazed, blacked out or incapacitated by the punch.
e. Zemarai Khan Mohammed did not rush towards Tanade Mohamed after punching him.
f. Tanade Mohamed took one step back after the punch, removed his gun from his waistband, pointed the gun towards Zemarai Khan Mohammed and fired a shot. The bullet entered through Zemarai Khan Mohammed’s left cheek, perforated the skull, brainstem and cerebellum, and lodged in his neck.
g. The range of time between the punch and the shot was 1-2 seconds.
h. The shot was fired from less than six feet.
i. Tanade Mohamed was experienced with firing handguns and had practiced firing at targets. He was familiar with the gun which he used to kill Zemarai Khan Mohammed and had fired it, or a similar gun, at the shooting range.
Assessment of the evidence of Mr. Mohamed
[326] If I believe Mr Mohamed that he did not intend to kill Zemarai Khan Mohammed or find that his evidence might reasonably be true, he must be acquitted of murder. Even if I reject his evidence and find that it cannot reasonably be true, I still must be satisfied based on the evidence that I do accept that his guilt is proven beyond a reasonable doubt.
[327] Some aspects of Mr. Mohamed’s testimony raised the issue of unintentional discharge of the firearm. He ultimately acknowledged, however, that he did pull the trigger with the intention of defending himself from whatever was rushing towards him and counsel did not press the issue of unintentional discharge in submissions. Mr. Gross-Stein focused on the absence of proof that Mr. Mohamed appreciated the consequences of his act.
[328] I begin from the premise that Tanade Mohamed is not a credible witness. He habitually lied in order to earn income through drug trafficking and lied several times to Mr. Ali on the night of the homicides. He made a determined effort to destroy all evidence of his crime and, when that failed, he fabricated an alibi. When his false alibi was admitted into evidence, he falsely claimed that he had been “high out of (his) mind” when he made the statement. The record satisfies me that Tanade Mohamed is a habitual liar.
[329] Mr. Mohamed testified that he was stunned by the punch. He felt fear, anger, and confusion. Reaching for his gun and firing was an unconsidered reflex. He didn’t even aim the gun, but merely pointed it in the direction of some onrushing object. When he pulled the trigger, it was not on purpose. His hand shot the gun, but he didn’t put any thought into doing it.
a. For reasons previously stated, I do not accept that the punch stunned Mr. Mohamed. He anticipated a physical encounter when he left the Durango. The punch did not cause him to fall to the ground, did not cause any injury and left his executive functioning sufficiently intact that he could instantly retrieve his gun, point it, fire, and then retreat at top speed to a waiting car.
b. I reject Mr. Mohamed’s evidence that the shooting was a reflex. A reflex is an action which occurs without conscious thought. When Mr. Mohamed ducked to avoid Tyler McLean’s punch at the valet gate, that was a reflex. When MacKenzie Cornall turned to run from gunshots at 3:11:49, that was a reflex. Reaching into one’s waistband, pulling out a handgun, pointing the gun at a vulnerable part of a man’s body and firing is not a reflex. It’s a decision.
c. Mr. Mohamed testified that he did not aim the gun but pointed it in the direction where someone was rushing towards him. Rasha Alnaaj described Mr. Mohamed aiming the gun:
He, literally, just put one step back. His foot was in front, put one step back and he just like, A his aim was like, honestly, like if he even moved a little bit, like a lot of people would've ... been, you know ...[^21]
Detective Choe asked Ms. Alnaaj how far Mr. Mohamed was from the deceased when he fired the shot. She looked at the officer who was seated on the other side of a small interview table and said, “from you to me”. Mr. Mohamed was experienced in shooting handguns and had practiced hitting targets at a range. It was not an accident that Zemarai Khan Mohammed was shot in the head.
d. Mr Mohamed ultimately admitted that he pulled the trigger but would not go so far as to say that he did it on purpose. When he described firing the gun, he used the passive voice saying, “when my hand shot the gun, I hadn't put any thought into doing it”. Hands do not fire guns on their own volition and purpose is required to pull a trigger. Mr. Mohamed’s efforts to distance himself from his intentional acts is patently false.
e. Mr. Mohamed claimed that he did not fire the gun at a person but rather at an object that was rushing towards him. Mr Mohamed had engaged in an angry verbal exchange with Zemarai Khan Mohammed prior to the punch. He knew that he was shooting a person.
f. Mr Mohamed claimed to be fearful when he fired the gun. Zemarai Khan Mohammed was unarmed, and the door of the Durango was wide open. There is no reality to the suggestion that Tanade Mohamed was in fear of anyone when he had a loaded gun in his hand.
[330] I entirely reject Mr. Mohamed’s evidence that he did not intend to kill Zemarai Khan Mohammed. The evidence is not true and not capable of being true.
[331] Having rejected the evidence of the accused and found that it does not give rise to a reasonable doubt, I turn to the evidence that I do accept to determine if I am satisfied beyond a reasonable doubt that Mr Mohamed intended to kill Zemarai Khan Mohammed or cause him bodily harm which he knew was likely to cause death and was reckless whether death ensued.
Proof of intent to kill
[332] The core of the defence argument is that Tanade Mohamed could not have formed the necessary intent to kill in such a short period. Mr. Gross-Stein argues that it is impossible for Mr. Mohamed to have contemplated the consequences of his actions in the one second interval between receiving a hard blow to the head and firing the fatal shot. The fact that he was intoxicated, agitated, and frightened make it all the less likely that he could have undertaken the necessary reasoning to appreciate the consequences of his act.
[333] The Crown is obliged to prove that Mr. Mohamed contemplated the consequences of his act, but the law does not require that the consequences be contemplated for any duration. Very little contemplation is required to appreciate the consequences of shooting someone in the head.
[334] The defence submission narrows the evidence of intention to the 1-2 seconds between the punch and the shot being fired. In my view the evidential field is much wider than that. There is a long list of evidence that demonstrates that Tanade Mohamed was thinking intentionally and appreciating the consequences of his actions before and after the shooting of Zemarai Khan Mohammed:
a. When Tyler McLean pushed Mr. Mohamed’s shoulder at the hot dog stand, Mr. Mohamed was immediately affronted and took a few aggressive steps towards him. Although he was obviously angry, Mr. Mohamed kept his hands by his sides and did not strike Mr. McLean. He was angry, but capable of restraint. This occurred seven minutes before the homicides.
b. Tanade Mohamed argued vociferously with the valet drivers but he did not touch either of them. He embraced the supervisor at the end of the argument, demonstrating that he could act reasonably and reconcile disputes. This was five minutes before the homicides.
c. Tyler McLean made an insulting remark to Tanade Mohamed as he walked by him at the valet gate. In response, Mr. Mohamed deliberately threw his water bottle over Mr. McLean’s head. Mr. Mohamed agreed that this was intended to be a “warning shot”. Throwing the water bottle was an immediate response to Mr. McLean’s insulting remark, but it was a tempered act. Even though he was very angry, Mr. Mohamed was able to recognize the potential consequences of his acts and modulate his behaviour accordingly. This was four minutes before the homicides.
d. Once he was in the Durango, Mr. Mohamed quickly formed a plan to follow Tyler and directed Abdi Ali to drive into the parking lot. He intentionally hid the fact that he had retrieved the gun from Mr. Ali because he foresaw that if Mr. Ali would not follow his directions if he knew that he had a gun.
e. As he sat in the Durango staring at Tyler McLean, Mr. Mohamed was contemplating a plan to commit a serious criminal offence. This necessarily involved considering potential courses of action and weighing the consequences of those actions.
f. When he heard the bang at the back of the Durango, Mr. Mohamed instantly formed a plan to get out of the car, push Tyler McLean away from the car and terrorize him. Four seconds prior to shooting Zemarai Khan Mohammed, Mr. Mohamed was making instantaneous decisions and contemplating the consequences of his action.
g. After shooting Zemarai Khan Mohammed, Mr. Mohamed instantly turned to run back to the Durango and ordered Mr. Ali to drive. His flight to the Durango was motivated by a desire to escape from the scene before he could be identified by nearby officers. Within a fraction of a second of having shot Zemarai Khan Mohammed, Tanade Mohamed was demonstrating intentional thought and an appreciation of consequences.
[335] The defence position is that the one “blindside” punch from Zemarai Khan Mohammed had an effect so great that it should raise a doubt as to Tanade Mohamed’s intentions. I cannot accept that argument. Rasha Alnaaj described Tanade Mohamed taking a step back after being punched, pulling out his gun, pointing it at Zemarai Khan Mohammed’s head and firing. His reaction to the punch was sufficiently delayed that she believed that he was going to punch him back.
[336] Although taking a gun in hand and firing is not a highly complex action, it does require cognition, decision-making and a degree of physical dexterity. The same can be said of running quickly back to the car and giving urgent instructions to Mr. Ali. All this evidence satisfies me beyond any reasonable doubt that Tanade Mohamed had the ability to form intentions after the punch, that he did form intentions and that he contemplated the consequences of his acts.
The cumulative effect of intoxication, self-defence, provocation and rage
[337] In assessing whether the Crown has met its burden, I must also consider the cumulative effects of intoxication, fear, provocation, and rage. (See Cudjoe, 2009 ONCA 543 at para. 104)
[338] I have addressed each of these considerations individually and dispelled them. The factors which I have cited in explaining my findings on intent equally explain why a consideration of these factors collectively does not give rise to a reasonable doubt.
[339] There is no evidence that Mr. Mohamed was appreciably impaired by the consumption of either alcohol or marijuana. Although he undoubtedly did drink at the club, neither of the valet attendants perceived him to be intoxicated. Mr. Ali immediately recognized that Tyler McLean was intoxicated and urged Mr. Mohamed not to argue with a drunk person, but Mr. Ali never suggested that Tanade Mohamed himself was drunk. The video does not show any sign of impairment.
[340] Mr. Mohamed was certainly not acting out of fear when he shot Zemarai Khan Mohammed. He may well have been enraged by being punched, but rage standing alone does not negate the intent for murder. His anger did not impact on his ability to act in a purposeful manner or to appreciate the consequences of his act. Mr. Mohamed did not show any signs of an uncontrollable rage which might result from a flagrantly provocative act by the deceased. On the contrary, his response to the punch was precise, deliberate, and final.
[341] The cumulative consideration of all the factors at play in these events does not give rise to any doubt about Mr. Mohamed’s intent to kill Zemarai Khan Mohammed.
Conclusion
[342] The Crown has satisfied me beyond a reasonable doubt that Mr. Mohamed had the necessary intent for murder under either s. 229(a)(i) or (ii).
Has the Crown proven beyond a reasonable doubt that Tanade Mohamed was not provoked when he killed Zemarai Khan Mohammed?
[343] Tanade Mohamed relies on the partial defence of provocation. There are four components to the defence:
(1) There must be some conduct on the part of the victim which would constitute a criminal offence punishable by five years or more imprisonment.
(2) The conduct of the victim must be sufficient to deprive an ordinary person of the power of self-control.
(3) The accused must have acted in response to the provocation.
(4) The accused must have acted on the sudden before there was time for his passions to cool.
[344] I accept that Mr. Mohamed has met the last two criteria of the defence. There is no doubt that he shot Zemarai Khan Mohammed as an immediate response to having been punched in the head. The “suddenness” component of the defence is not as clear, but I do find that it has been made out. Tanade Mohamed knew when he got out of the Durango that he was going to be involved in a fight, so the punch hardly caught a mind unprepared for it. But Mr. Mohamed may not have expected a fight with Zemarai Khan Mohammed and the fact that the punch hit him squarely in the face supports a finding that the blow was a surprise. I find that Mr. Mohamed’s evidence regarding the suddenness of the provocative act might reasonably be true and am therefore satisfied that the two subjective components of the defence have been established.
Did Zemarai Khan Mohammed commit an assault on Tanade Mohamed?
[345] The defence maintains that Zemarai Khan Mohammed's punch to the face of Tanade Mohamed was an assault which is an indictable offence punishable by five years imprisonment. The unusual onus which falls on the Crown is to prove beyond a reasonable doubt that Zemarai Khan Mohammed could not be convicted of assault in these circumstances.
[346] The Crown submits that the only reasonable explanation for the punch was that Zemarai Khan Mohammed was acting in his own defence or in defence of Tyler McLean and his conduct was therefore lawful.[^22] If any other reasonable inference can be drawn from the evidence, Mr Mohamed will have satisfied the first arm of the provocation defence.
[347] I agree with the Crown that it is highly likely that Zemarai Khan Mohammed was acting in self defence. Mr. Khan Mohammed consistently acted as a peacemaker and Tanade Mohamed agreed that Zemarai Khan Mohammed never said anything to him which was negative or threatening. It is most unlikely that Zemarai Khan Mohammed’s attitude suddenly changed in the parking lot to such a degree that he would punch Tanade Mohamed in the face without cause. When Tanade Mohamed bolted from the Durango and began to run towards Tyler McLean, Zemarai Khan Mohammed was almost certainly alarmed. Striking Mr. Mohamed to subdue him was a rational response to the threat which he presented.
[348] There is, however, another possible motive for the punch which I cannot dismiss as unreasonable: Zemarai Khan Mohammed may have had enough of Tanade Mohamed.
[349] The video from the hotdog stand shows that Mr. Khan Mohammed had to go to significant lengths to calm Tyler McLean after his first quarrel with Tanade Mohamed. Mr. Khan Mohammed didn’t even try to calm Mr McLean after the valet gate fight, electing instead to speak to Tanade Mohamed. Mr. Khan Mohammed undoubtedly believed that the affair was over when Sergeant Kraft told the parties to go to their respective cars. No reasonable person would anticipate that Tanade Mohamed would follow Mr. Mclean into the parking lot to continue such a senseless fight.
[350] There were several options open to Zemarai Khan Mohammed when Tanade Mohamed came racing out of the Durango. The first and most natural would have been to yell “lookout” to Mr. McLean and begin to retreat himself. He could have tackled Mr Mohamed or punched him in a less vulnerable part of his body. The fact that Zemarai Khan Mohammed punched Tanade Mohamed in the head when less violent alternatives were available permits an inference that Zemarai Khan Mohammed's punch was not motivated by self defence but was instead motivated by frustration and anger over Tanade Mohamed's persistence in pursuing his quarrel with Tyler McLean.
[351] This remote but reasonable inference causes me to find that the first criteria of the provocation defence has been met. It is reasonably possible that Zemarai Khan Mohammed committed an assault on Tanade Mohamed when he punched him in the face.
[352] The same inference defeats the Crown's argument that Zemarai Khan Mohammed had a legal right to strike Tanade Mohamed. Under section 232(3), an act by the deceased cannot be provocation within the meaning of the section if the deceased had a legal right to act as he did. If it is reasonably possible that Zemarai Khan Mohammed committed an assault on Tanade Mohamed, it follows that he may not have had a legal right to act as he did.
[353] The final consideration under section 232(3) is whether Mr Mohamed incited Zemarai Khan Mohammed to punch him in order to provide himself with an excuse to kill or cause bodily harm to him. Tanade Mohamed did incite Zemarai Khan Mohammed to punch him, but he did not do so for the purposes of providing himself with an excuse to kill him. Mr. Mohamed did not expect to be punched by Zemarai Khan Mohammed and until he was punched, it is unlikely that he intended to kill him. Mr. Mohamed’s conduct did incite the punch, but not for the forbidden purpose.
The experiences and characteristics to be ascribed to the reasonable person
[354] People are expected to control themselves, even in difficult and stressful circumstances. The provocation defence is only available when a person is provoked beyond the level of tolerance of an ordinary person. The defence submits that the Crown has failed to prove beyond a reasonable doubt that a reasonable person with the experiences of Tanade Mohamed would not have lost his power of self control as a result of the provocative act of Zemarai Khan Mohammed.
[355] The first question to consider is whether the reasonable person standard to be applied in this case should include the life experiences of Mr. Mohamed.
[356] Tanade Mohamed testified that his father was in and out of his life and had little involvement in his upbringing. His mother worked long hours and had difficulty coping with his poor behaviour. She told him at one point that he was a curse to her life, and she wished that he had never been born. Both of his parents physically and verbally abused him. As a result of these experiences, Mr. Mohamed had very little self esteem as he grew up. He felt that he needed to be respected and when he wasn’t respected, he would act out with anger and aggression. These tendencies were accentuated when he drank.
[357] Tanade Mohamed was not challenged on this evidence and I don't have much difficulty in accepting it. Mr Mohamed was expelled from high school after assaulting a vice principle. He was unable to find steady employment and adopted a criminal lifestyle which, by the time of his arrest, included routinely carrying a handgun. This is a sadly common trajectory for those who suffered abuse or neglect as a child.
[358] The defence relies on the recent decision in Land, 2019 ONCA 39 for the proposition that the reasonable person standard which is applied in this case should include these life experiences of Mr. Mohamed.
[359] In Land, the accused had been sexually assaulted as a child and had seen others in his family similarly abused. He was repulsed by the sexual abuse of children and had on numerous occasions attacked those who he knew to be committing such offences. Expert psychiatric evidence was called to establish that the accused suffered from post traumatic stress disorder and that, combined with other factors, increased the likelihood that he would experience intense aggressive reactions which would deprive him of the power of self control.
[360] The deceased in Land was involved in a romantic relationship with a 14-year-old girl. The incident which led to the victim's death was initiated by the accused when he confronted the deceased about having a sexual relationship with a child. The deceased rebuffed the defendant, telling him “I can do whatever I want with my life”. This remark provoked the accused to attack the deceased. The court found that Mr. Land’s experience as a sexual assault survivor was relevant to the suddenness of his response and whether the provocation would have been sufficient to deprive an ordinary person of the power of self-control. The confrontation arose as a result of the deceased’s sexual abuse of a child. The accused’s reaction to that conduct could only be understood if the jury were aware of his own life experiences. (Land, at para. 94)
[361] The Court quoted Justice Cory in Thibert:
[T]he ordinary person must be taken to be of the same age, and sex, and must share with the accused such other factors as would give the act or insult in question a special significance. In other words, all the relevant background circumstances should be considered.
Thibert, at para. 14 [Emphasis Added]
[362] In my view, there is no sustainable analogy between Land and the case at bar. In Land, there was a clear connection between the experiences and circumstances of the accused and the provocative conduct of the deceased. It was fundamental to the provocation defence that the jury consider the life circumstances of the accused in order to appreciate the special significance of the deceased’s comment that he would continue his sexual relationship with a minor. The reasonable person test had to include that background in order that the jury could understand and assess the circumstances which the accused faced.
[363] In Mr. Mohamed’s case, there is no comparable connection between the abuse that he suffered as a child and the provocative effect of being punched by Zemarai Khan Mohammed. Mr. Mohamed testified that he suffers from low self esteem which causes him to be particularly sensitive to personal slights. He feels the need to be respected and tends to overreact when he feels disrespected. His beliefs about the connection between his abusive childhood and his adult tendency to overact to slights has not been supported by any expert testimony. These are not circumstances which would lend any “special significance” to his response to being punched by Zemarai Khan Mohammed.
[364] The ordinary person is not someone who is exceptionally excitable or pugnacious. (Hill, 1986 58 (SCC), [1986] 1 S.C.R. 313 at p. 331) If I were to ascribe the relatively common personal characteristics described by Tanade Mohamed to the reasonable person, the test would cease to have its objective value and would effectively become a subjective test based on the personal circumstances of Mr. Mohamed. (See Tran, 2010 SCC 58 at paragraphs 31-35 and Cairney, 2013 SCC 55 at para. 40)
Would an ordinary person have lost the power of self-control in these circumstances?
[365] The Crown must prove beyond a reasonable doubt that the punch administered by Zemarai Khan Mohammed would not have deprived an ordinary person of the power of self-control. Most of the authorities on this issue relate to the application of the air of reality test. In this case, I must decide if the evidence gives rise to a reasonable doubt.
[366] In answering that question, I consider the following:
a. This is a case of self-induced provocation. The dispute between Tanade Mohamed and Tyler McLean should have ended at the valet gates when Sgt. Kraft directed them both to go home. Tanade Mohamed would not let it go. He followed Tyler McLean into the parking lot and then watched him, waiting for the best opportunity to attack. The defence has argued that banging on the back of the Durango was a precipitating act by Tyler McLean. I do not accept that argument. Assuming that it was Tyler McLean who struck the car, no reasonable person would undertake a gunpoint encounter in response to such a modest stimulus. It was Tanade Mohamed’s actions in bolting out of the car which precipitated the purportedly provocative act of Zemarai Khan Mohammed. The defence of provocation is available in cases where the accused initiated the fatal confrontation, but such actions tend to undermine the defence. In this case, it significantly undermines the defence. (See Land, at para. 61-62)
b. Tanade Mohamed was prepared for a physical confrontation when he left the Durango. In fact, he was deliberately inciting it.
c. A reasonable person would have foreseen that Tyler McLean and/or Zemarai Khan Mohammed would respond physically when Tanade Mohamed ran directly towards Mr. McLean. This was obvious to Abdi Ali, who testified that he knew that someone would be hurt if Mr. Mohamed got out of the car.
d. Zemarai Khan Mohammed's punch was a measured application of force which was proportionate to the threat posed by Tanade Mohamed. The act was not accompanied by any aggravating factors such as a racial slur or gratuitous violence.
e. Mr. Khan Mohammed did not move towards Tanade Mohamed after the punch.
f. Zemarai Khan Mohammed had been a peacemaker through all the preceding events. A reasonable person would not have lost control when an unthreatening and peaceful intervenor acted to prevent him from committing a criminal offence.
[367] Public policy considerations also do not favour Tanade Mohamed's claim to provocation. This conclusion is illustrated by considering the contrasting facts in Land.
[368] Mr Land was an Indigenous man who had a significant history of drug and alcohol abuse which led to cognitive impairment. His confrontation with the deceased was precipitated by his profound aversion to the sexual abuse of children and his desire to spare a 14-year-old girl from abuse at the hands of the deceased. In circumstances such as this, public policy overwhelmingly favored permitting the trier of fact to consider whether the killing of the deceased might reasonably have been the product of human frailty.
[369] Mr Mohamed, by contrast, was a drug trafficker who habitually carried a handgun. This habit was so ingrained that he took a gun with him even when he was out for the night in Toronto with no plans to sell cocaine. After becoming involved in a minor confrontation with a stranger, Mr. Mohamed took his gun in hand, followed the stranger into a dark parking lot and paused to contemplate how best to terrorize him. He had previously threatened a group of strangers with a gun in Edmonton and, in his view, that had been a success. Mr. Mohamed fully anticipated a physical confrontation but expected that he would be in control of the confrontation. When an unanticipated confrontation developed, Mr Mohamed produced his concealed handgun and shot an unarmed man in the head.
[370] There is no public policy consideration which favors the contemplation of human frailty in these circumstances. The circumstances which led to the death of Zemarai Khan Mohammed were manufactured by Tanade Mohamed. He is responsible for every step in the chain. If it could be imagined that a reasonable person had set all these events in motion, that reasonable person would surely not have lost self-control when he was struck by Zemarai Khan Mohammed. A reasonable person would have recognized the virtual certainty that either Tyler McLean or Zemarai Khan Mohammed would strike him in self defence or anger, and that response would neither have surprised nor caused that reasonable person to lose his self-control. (See Gibson, 2001 BCCA 297, at para. 86 and Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 51 and 64.)
[371] The evidence does not raise any doubt at all in my mind regarding the objective component of the provocation defence.
Verdict for Tanade Mohamed on Count 1
[372] I am satisfied beyond a reasonable doubt that Tanade Mohamed was not acting in self defence when he killed Zemarai Khan Mohammed.
[373] I am satisfied beyond a reasonable doubt that the killing was intentional within the meaning of section 229(a) of the Code
[374] I am satisfied beyond a reasonable doubt that the partial defence of provocation is not available to Mr. Mohamed
[375] Accordingly, I find Tanade Mohamed guilty on Count 1, the second-degree murder of Zemarai Khan Mohammed.
Has the Crown proven beyond a reasonable doubt that Tanade Mohamed intended to kill Tyler McLean?
The Defence of Accident
[376] Tyler McLean died as a result of a single gunshot wound to the mid-right chest. The bullet passed through his right lung and the right atrium of his heart before exiting from the mid-right back. There is no pathological or ballistics evidence which establishes the range from which the shot was fired.
[377] Tanade Mohamed acknowledges that he caused Tyler McLean’s death. He testified that he was struggling with Mr. McLean at the front passenger door of the Durango when the gun in his hand accidentally discharged. He did not hear or feel the gun firing and did not initially know that he had caused Mr. McLean’s death. His evidence raises the defence of accident as to the actus reus of the offence. (See Mathisen, 2008 ONCA 747 at para. 70)
[378] If I am left in a state of reasonable doubt based on the evidence of accident, Mr. Mohamed would be acquitted of the second-degree murder of Tyler McLean but convicted of the included offence of manslaughter. Mr. Mohamed has acknowledged through his counsel that he was engaged in an unlawful act, (possession of a loaded, restricted firearm), and that it was objectively foreseeable that his actions risked bodily harm that was neither trivial nor transitory. (Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3.)
[379] If the defence of accident does not give rise to a reasonable doubt, the onus nevertheless rests on the Crown to prove beyond a reasonable doubt that Mr. Mohamed had the necessary intent for murder.
[380] The Crown disputes Mr. Mohamed’s evidence that he struggled with Tyler McLean at the front door of the Durango. If there was such a struggle, there would certainly be some sign of it in the video and there is none. Neither Rasha Alnaaj nor MacKenzie Cornall describe having seen a struggle and there was no time for one to have taken place. The Crown contends that Mr. Mohamed has fabricated a struggle in order to provide some explanation for how the gun could have fired accidentally.
The Evidence of Tanade Mohamed
[381] Mr. Mohamed’s evidence in chief concerning the death of Mr. McLean was succinct. He testified that after shooting Zemarai Khan Mohammed, he “freaked out” and turned to run back to the Durango:
…I started running back towards the Durango, and while running towards the Durango and I was halfway in the car and I was halfway out of the car and I turned to close the door and Tyler jumped at me. And as soon as I saw him, I was just even more in shock. I just pushed him off me. I just pushed him off of me and I closed the door so I could try to get away. I was only trying to get away and I know now that I had to have shot him. I remember that I pushed him, I just don't remember shooting him…
I just don't remember pulling the trigger when Tyler had jumped at me. I don't remember pulling the trigger. I just - I don't remember. I pushed him off of me. I remember trying to get away. I remember trying to close the door. I don't remember how the gun went off. I remember trying to get away. I remember trying to close the door. I don't remember how the gun went off at that door when I was trying to close it.
Evidence in Chief of Tanade Mohamed, April 20th, 2021 – Page 51, Lines 7-16 and 20-25
[382] Mr. Mohamed testified that he got in the car door and screamed at Abdi Ali to drive. As they drove away, Abdi Ali asked what had happened and Mr. Mohamed told him that he had been struck and “I think I shot somebody”. Mr. Ali insisted that he had heard two shots, but Mr. Mohamed told him that he only fired once. He did not hear or feel the gun go off a second time. Mr. Mohamed testified that he was having difficulty hearing the conversation with Mr. Ali because his ears were ringing.
Evidence in Chief of Tanade Mohamed, April 20th, 2021 – Page 55, Lines 4-7
[383] In cross-examination, Mr. Mohamed testified that he turned to shut the door and Tyler McLean came upon him, jumped on him, and tried to pull him out of the car. Mr. McLean was pulling on his right-hand side where Mr. Mohamed was holding the gun. Mr. Mohamed initially agreed that the struggle must have taken a couple of seconds but then said that he didn’t know how long it took.
Cross Examination of Tanade Mohamed, April 21st, 2021 – Page 44, Line 10 to Page 45, Line 21.
The Evidence of Abdirisaq Ali
[384] In his examination in chief, Mr. Ali said the following concerning Mr. Mohamed’s return to the Durango:
I could see Tanade's running back to the car so quick and - and he (sic) looked like he was being chased by somebody, and then he got in the car and he was screaming "drive". And when he got in the car and it looked like he was fighting with somebody and I couldn't see - I couldn't see the person because Tanade was - his foot was out of the door and his back was facing me so I - I couldn't see the person that he was fighting with. I drove [indiscernible] and - and that's when I heard the second shot.
Evidence in Chief of Abdirisaq Ali, April 22nd, 2021 – Pages 106-107
[385] I have listened to the digital recording of Mr. Ali’s examination in chief and have concluded that the transcript is inaccurate in quoting Mr. Ali to have said “he looked like he was being chased by somebody”. Mr. Ali testified that “it looked like he was being chased by somebody”.
DRD Recording of April 22nd, 2021 at 2:52:57 p.m.
[386] In cross-examination, Mr. Ali confirmed that the passenger door of the Durango was still open when he began to drive. The transcript reads as follows:
Q. Okay. They still remained open from when Tanade had what - gone out the first time?
A. Yes, he was trying to close the door from [indiscernible] because having [indiscernible]
Cross-Examination of Abdirisaq Ali, April 23rd, 2021 – Pages 115, Lines 15-25
DRD Recording of April 23rd, 2021: 1:07:30 to 1:07:45 p.m.
[387] Although the transcript states that Mr. Ali’s response is indiscernible, I was able to hear his complete response on the DRD. Mr. Ali was asked if “it”, (the door) had remained open after Tanade Mohamed left the car. Mr. Ali’s response was “Yes, he was trying to close the door but he couldn’t because Tyler McLean was at the door then”.
[388] For reasons previously stated, I generally find that Mr. Ali was a credible witness. There are aspects of his testimony, however, which I find less credible and those largely pertain to his evidence which touches on the defence of Tanade Mohamed.
[389] Mr. Ali undoubtedly recognized that his testimony could have a significant impact on Mr. Mohamed’s defence. His evidence generally corroborated that of Mr. Mohamed, but Mr. Ali was equivocal on a few important points. In his evidence in chief, Mr. Ali did not purport to have seen Tyler McLean chasing Tanade Mohamed to the door of the Durango and then struggling with him. He testified that it looked like someone was chasing Tanade Mohamed to the car and it looked like he was fighting with someone. This evidence changed in cross-examination, where he did recall that Tanade Mohamed was trying to close the door and was prevented from doing so by the presence of Tyler McLean.
[390] I find the equivocation and inconsistency to be telling. Although Mr. Ali was seated only a few feet away and could only have been looking towards Mr. Mohamed as these events occurred, his corroboration of Mr. Mohamed was unconvincing. I do not find Mr. Ali’s testimony about those events to be reliable and it does not assist me in deciding whether there was a struggle at the door of the Durango.
The Evidence of Rasha Alnaaj
[391] As I indicated earlier, Ms. Alnaaj was agitated when she gave her statements. Her language was sometimes imprecise, and she occasionally contradicted herself. It was not possible to clarify her evidence because she has no present recollection of the events.
[392] I have extracted all Ms. Alnaaj’s references to the shooting of Tyler McLean and included them as Appendix A to this judgment. I draw the following evidence from those statements:
a. After shooting Zemarai Khan Mohammed, Mr. Mohamed returned to Durango and, while standing in the open door with one foot on the ground, he fired two more shots at Mr. Khan Mohammed. Ms. Alnaaj commented that these shots were unnecessary in her view because it was obvious that Zemarai Khan Mohammed was already dead. After firing the shots, Mr. Mohamed got into the Durango and it began to drive away.
b. Tyler McLean jumped on to the Durango after it started to move. He was hammering on the passenger side windows and yelling ‘what the fuck are you doing?’
c. Mr. Mohamed shot Mr. McLean two or three times while he was hanging on to the side of the moving car.
d. Ms. Alnaaj was unsure whether the shots directed at Tyler McLean came from an open window or the open door of the Durango.
e. Ms. Alnaaj never described seeing Tyler McLean near the front door of the Durango while it was open or any physical contact between Mr. McLean and Mr. Mohamed.
f. Although she primarily said that she did see Tyler McLean being shot, Ms. Alnaaj also said that she only heard him being shot. She told Det. Choe that she deliberately looked away at some point after the shooting of Zemarai Khan Mohammed out of fear for her own safety.
[393] Ms. Alnaaj was cross-examined concerning evidence which she gave at the preliminary inquiry on October 24th, 2018. She agreed that her recollection was better at that time and she adopted the following portions of her earlier testimony:
Q. So in terms of the timing of the banging on the window, versus the timing of the, the two gunshots that were close together, you’re not, you’re not certain about which one comes first, right?
A. That’s right.
Q. It’s possible that the banging on the window happens before the, those last gunshots, right?
A. Yes.
Q. And it’s possible it’s after, right?
A. Yes.
Preliminary Inquiry Evidence of Rasha Alnaaj, October 24th, 2018 at page 116
Q. All right. And you think it, it - is it possible that those - the, the second - those two shots that are close together, it’s possible that those shots are fired outside of the car but, but near it, like near the door?
A. Yes.
Q. As the shooter is kind of retreating into the car?
A. Yes.
Q. And the banging is happening at, like, at around the same time, it’s all kind of mashed together?
A. Yes.
Preliminary Inquiry Evidence of Rasha Alnaaj, October 24th, 2018 at page 117
[394] The cross-examination at the preliminary inquiry highlighted an anomalous aspect of Ms. Alnaaj’s evidence. She said in both of her statements that after having been shot in the head, Zemarai Khan Mohammed got up from the ground. Ms. Alnaaj told Det. Choe that this appeared to be “a body reflex”, since it was obvious to her that he had been killed by the first shot.[^23] She said that Tanade Mohamed paused at the front door of the Durango and, with one foot still on the ground, fired two more shots at Zemarai Khan Mohammed. He got into the car and it began to move, at which point Tyler McLean jumped onto the car and began to bang on the windows. Two more shots followed while Mr. McLean was on the side of the car.
[395] It is an agreed fact that Zemarai Khan Mohammed died as a result of a gunshot wound which entered through the left cheek, perforated the skull, brainstem and cerebellum and lodged in the neck. There was blood in Mr. Mohammed’s conducting airways and hemoaspiration in his lungs which indicates that he was alive for a short period of time following the gunshot, although he may not have been conscious. There is no evidence as to whether he would have been capable of rising from the ground after being shot, as Rasha Alnaaj described.
[396] There is no ballistics evidence to confirm Ms. Alnaaj’s evidence that two more shots were fired towards Zemarai Khan Mohammed from the door of the Durango. If those shots occurred, there is no sign of it in the video. Other witnesses described hearing two or three shots, not five.
[397] The portion of the preliminary inquiry evidence which Ms. Alnaaj adopted in cross-examination does not include any reference to the parts of her statements where she repeatedly said that the shots that Mr. Mohammed fired while he was standing in the doorway of the Durango were directed at Zemarai Khan Mohammed, not Tyler McLean. These passages also do not refer to her repeated statements that two further shots were fired when Mr. Mohamed was in the car and Tyler McLean was holding onto the side of it.
[398] The absence of context to the preliminary inquiry evidence prevents me from putting any weight on it. The excerpted testimony can be read both consistently and inconsistently with Ms. Alnaaj’s statements. Given the ambiguity in the adopted testimony, I find that Ms. Alnaaj’s initial statements provide the most reliable account of her evidence.
The video and forensic evidence
[399] The video settles some of the questions which arise from the eyewitness testimony.
[400] The principle difficulty in relying on the video is that it is not possible to know if Tyler McLean is visible against the black side of the Durango. I cannot see him at anytime between 3:11:45 and 3:11:52. The natural inclination is to think that if a struggle occurred, there must be some sign of it in the video but many frame-by-frame reviews have convinced me that this is not so. The video cannot prove or disprove Mr. Mohamed’s evidence that a struggle occurred at the doorway of the car.
[401] The video does permit the following findings regarding the timing of events:
3:11:50 and 0/10 Tanade Mohamed approached the open passenger door
3:11:50 and 3/10 Mr. Mohamed had one leg inside the Durango
3:11:51 and 7/10 Mr. Mohamed is fully inside the car
3:11:51 and 8/10 A flash appears at the side of the Durango
3:11:51 and 9/10 The Durango begins to move
[402] The flash which occurs at 3:11:51 and 8/10’s of a second is in a different location than the first alleged muzzle flash at 3:11:45. (See Exhibit 26). There are many factors which caused me to find that the first flash was a reflection rather than a gunshot. Those factors are absent for the second flash. The timing and location of the second flash generally corroborate Rasha Alnaaj’s evidence that Tyler McLean was shot after he jumped onto the Durango and just as it began to move away. I am satisfied that the second flash was caused by the shot which killed Tyler McLean.
[403] The only shell casing which was found at the scene was found near the body of Zemarai Khan Mohammed. Detective Noto testified that it is possible that a second shell casing was removed from the scene in the tire treads of an emergency vehicle, but she viewed that as a remote possibility. The far more likely explanation is that it left the scene inside the Durango. The evidence of Ms. Alnaaj and the flash at 3:11:52 convince me that this is what occurred. The shot that killed Mr. McLean was fired from the area just inside the open passenger door of the Durango and the casing was ejected into the Durango. Mr Mohamed testified that he did not see a shell casing when he cleaned the Durango. I do not trust his evidence on this point, but it is possible that the casing was removed when he vacuumed the car and he never saw it.
[404] The blood trail is obviously an imprecise means of determining where Mr. McLean was when he was shot, but it is also consistent with the evidence of Ms. Alnaaj. The first blood drops are roughly at the midpoint of the parking space occupied by the Durango which coincides with her evidence that Mr. McLean was shot as he was holding onto the side of the moving car.
Findings with respect to the defence of accident
[405] Tanade Mohamed testified that he was trying to escape when Mr McLean jumped on him and attempted to pull him out of the car. He pushed Mr. McLean away and the gun in his hand accidentally went off. If I believe Mr Mohamed’s evidence or find that it might reasonably be true, he must be acquitted of murder.
[406] There is a host of evidence which makes Mr Mohamed’s account of events extremely unlikely:
a. Rasha Alnaaj described seeing Mr. Mohamed run back to the car, pause in the doorway with one foot on the ground and then jump into the car. All those observations were verified by the video. There is absolutely no doubt that Ms. Alnaaj was watching as those events occurred and she never saw Mr. McLean at the door of the Durango or any physical contact between Mr. McLean and Mr. Mohamed.
b. I do not believe that Tyler McLean physically attacked Mr. Mohamed knowing that he was armed with a gun and had just killed Mr. Khan Mohammed.
c. There is no evidence that a properly functioning firearm would discharge without an intentional pull of the trigger. Mr. Mohamed demonstrated his confidence in the proper functioning of this firearm when he placed it in his waistband with a bullet in the chamber. The gun had belonged to Abdi Ali’s brother for some time prior to the homicides and there is no evidence that it had ever accidentally discharged.
d. When guns fire, they make loud sounds and recoil. Mr. Ali testified that when the gun went off beside him, it was “so loud”. He immediately began to question Mr. Mohamed and according to him, Mr. Mohamed responded. I do not accept that Mr. Mohamed was unable to hear a gun firing in his own hand yet was immediately able to maintain a conversation with Mr. Ali.
e. The defence submits that Mr. Mohamed’s statements to Mr. Ali that he “thought” that he had only shot one person is res gestae evidence to support his defence of accident. Putting aside the legal question of whether it would be admissible for that purpose, I find that the statement was a lie. Mr. Mohamed absolutely knew that he had shot and killed Mr. Khan Mohammed, a conclusion which is easily drawn from the observations of MacKenzie Cornall and Rasha Alnaaj regarding his death. In my view, these statements do not at all support Mr. Mohamed’s defence of accident and rather provide yet another demonstration of Mr. Mohamed’s astonishing proclivity to minimize and deny responsibility for his actions.
[407] The only evidence which supports the defence of accident is Mr. Mohamed’s own testimony. His evidence was noticeably inconsistent between his examination in chief and cross-examination. He initially said that Mr. McLean had jumped on him. In cross-examination, he added that Mr. McLean tried to pull him from the Durango. This led to the suggestion that the struggle must have occupied a few seconds. Mr. Mohamed agreed that this must be so, but then backed away and said that he did not know how long the struggle took. The video shows that Mr. Mohamed had one foot outside of the car for only 1.4 seconds, a very short period for the struggle which he described.
[408] In assessing the credibility of Mr. Mohamed’s claim that the shooting was accidental, I must consider all his testimony. When he was describing the killing Zemarai Khan Mohammed, Mr. Mohamed testified that he did not aim his gun but rather pointed it in the direction of whatever was rushing towards him. He distanced himself from any conscious decision to fire the gun, saying “when my hand shot the gun, I hadn't put any thought into doing it”.
[409] Mr. Mohamed similarly distances himself from any responsibility for the shooting of Mr. McLean. The gun went off on its own. He can’t even remember pulling the trigger. He has no idea how it happened. It never would have happened if Tyler McLean hadn’t attacked him and tried to pull him out of the car.
[410] Ms. Alnaaj testified that Mr. McLean jumped onto the Durango as it began to drive away and then he was shot. That is the only scenario which makes any sense. Mr McLean saw Mr. Mohamed shoot Zemarai Khan Mohammed and undoubtedly tried to avoid being shot himself. As Mr. Mohamed retreated into the Durango, Mr McLean jumped onto the sideboard and began to slam his hands against the windows, likely hoping to slow the escape or at least draw attention to the vehicle. Mr. Mohamed responded by firing at Mr. McLean from the still open passenger door.
[411] The flash seen on the video at 3:11:52 was a gunshot fired from the open door of the Durango which was aimed at Mr. McLean. The shot hit him in the chest, causing an almost immediate loss of blood. The most northerly blood drops seen in Exhibit 15(b) represent the approximate location of Mr. McLean when he was shot.
[412] When Mr. Mohamed was arrested two days after the homicides, he was told that he didn’t have to say anything. He understood that. He decided to speak anyway and fabricated a false alibi, insisting that he had nothing to do with these crimes and berating the detective for allowing the real killer to go free. I cannot infer from that false statement that Tanade Mohamed intentionally killed Tyler McLean, but I can and do rely on it in assessing his credibility when he claims that the killing was an accident.
[413] I reject Mr. Mohamed’s testimony and find that it cannot reasonably be true. His evidence is contrary to common sense and all the objective facts.
Proof beyond a reasonable doubt of intent to kill Tyler McLean
[414] Although I have rejected the defence of accident, the Crown still must satisfy me beyond a reasonable doubt based on the evidence that I do accept that Mr Mohamed intended to kill Tyler McLean.
[415] The Crown's principle position is that Tanade Mohamed fired at Mr McLean prior to leaving the Durango. I have rejected that theory.
[416] The Crown alternatively submits that the evidence of Ms. Alnaaj proves that Mr Mohamed intended to kill Tyler McLean. Although I have found that Ms. Alnaaj’s evidence is highly reliable, there are some aspects which are either wrong or ambiguous and those aspects include the shooting of Tyler McLean. My concerns are as follows:
a. Ms. Alnaaj accurately described Tanade Mohamed pausing at the door of the Durango with one foot on the ground, but then said that he fired twice more at Zemarai Khan Mohammed from this position. I do not believe that this happened, which leads me to conclude that Ms. Alnaaj’s evidence is demonstrably inaccurate concerning an event which occurred less than two seconds before the shooting of Tyler McLean.
b. Ms. Alnaaj testified that the car was moving when Tanade Mohamed jumped on and he was shot while the car was in motion. The only flash which appears on the passenger side of the Durango during this period occurred at 3:11:51 and 8/10’s of a second. The Durango was not moving at that time, although it did begin to move 1/10th of a second later.
c. Ms. Alnaaj acknowledged that she deliberately looked away at about the point when Tyler McLean jumped onto the Durango out of fear for her own safety. She told Detective Choe that she saw Tyler McLean being shot but subsequently said that she only heard it. She was unable to say if the shots were fired from the window or the door of the Durango.
d. There are occasions in her statements where Ms. Alnaaj reported an inference as though it were an observation. For instance, Ms. Alnaaj stated in her first statement that Mr Mohammed got out of the front passenger seat of the Durango. Later in the interview, Detective Choe asked her how she knew that he came from that door and she explained that she saw him run back to it. I do not fault Ms. Alnaaj for having drawn inferences and I recognize that her inferences may have evidential value, but it causes me to be cautious in relying on her statement that Tyler McLean was shot two or three times while he was hanging on the side of the Durango. The concern is exacerbated by her acknowledgement that she was looking away when he was shot and only heard the shots.
[417] It is fair to ask whether these uncertainties matter. Does it really matter if the fatal shot was fired 1/10th of a second before the Durango began to move instead of while Tyler McLean was clinging to the side of the moving car? The shot was fired from very close range and struck Mr McLean in the chest. The location of the injury inescapably leads to the inference that the shooter intended to cause grievous bodily harm which he knew was likely to cause death. The court can safely conclude that Mr Mohamed, being both sane and sober, intended the natural consequences of his act.
[418] I have concluded that these factual uncertainties do matter. I do not believe that Tanade Mohamed wanted to kill anyone when he ran out of the Durango. He wanted to start a fight with Mr. McLean and then terrorize him by producing a gun. When Zemarai Khan Mohammed interceded, Mr Mohamed became enraged and shot him in the head. This was not the plan. A meaningless quarrel outside of a club had caused Mr. Mohamed to shoot a stranger in the head and I have no doubt that he was panicked by what he had done. At that moment, his only thought was to get away. All thoughts of pursuing Tyler McLean were over.
[419] Although Tyler McLean must have initially feared that Mr. Mohamed would come for him next, he quickly realized that Mr. Mohamed was about to escape and as he was climbing into the Durango, Mr. McLean began to run towards the car. The evidence does not disclose exactly what happened next.
[420] If I were to rely solely on the video, I would likely conclude that Mr Mohamed was halfway into the vehicle when he yelled “drive” to Mr. Ali. Mr McLean ran to the side of the car and began to bang on the windows, hoping to call attention to the vehicle. As he was just about to close the door, Mr. Mohamed shot at Mr. McLean, perhaps to induce him to get away from the car. If I were to rely solely on Ms. Alnaaj’s testimony, I would find that Tyler McLean jumped onto the Durango as it was moving and was shot as it was turning out into the laneway. If this is correct, it means that the flash at 3:11:51 and 8/10th’s of a second was not a gunshot and that the shot which killed Tyler McLean cannot be seen on the video. It would also mean that Tanade Mohamed was firing from the open door of a rapidly accelerating vehicle towards a moving target.
[421] It is possible to cobble together a version of events from the video and Ms. Alnaaj’s testimony which would support an inference of intent to kill. One could easily say that the flash at 3:11:51 and 8:10th’s of a second was the shot that killed Mr McLean and Ms. Alnaaj was mistaken in thinking the shot was directed at Zemarai Khan Mohammed. If that were the case, it would mean that even after sustaining a fatal chest wound, Tyler McLean jumped onto the car as it began to drive away and banged on the windows until his injury overcame him. On this version of events, Ms. Alnaaj would be incorrect regarding the timing and number of shots but would have accurately described the movements of Tyler McLean.
[422] Although it is tempting to assemble a set of facts in this fashion, picking and choosing the most reliable evidence to construct what appears to be a likely account of events, it is not a proper approach to finding facts. My object is to find the facts as they are disclosed by the evidence, not assemble my own most likely version of what occurred based on a piece meal consideration of disparate evidence.
[423] I am certain that Tanade Mohamed was panicked after killing Zemarai Khan Mohammed. He raced back to the Durango, intent on escape, and discovered that Tyler McLean intended to frustrate or slow his escape. Mr Mohamed fired one shot through the open door of the Durango, hitting Mr. McLean squarely in the chest. It is reasonably possible that the vehicle was moving or beginning to move when the shot was fired. It is obviously most likely that he intended to kill Mr. McLean, but there are other rational inferences available including the possibility that he was firing to scare Mr. McLean so that he would let go of the car. I find that there is a reasonable doubt regarding his intent to kill Tyler McLean.
VERDICT FOR TANADE MOHAMED ON COUNT 2
[424] I find Tanade Mohamed not guilty of murder, but guilty of manslaughter on count number two of the indictment.
Has the Crown proven beyond a reasonable doubt that Abdi Ali was a party to the murder of Zemarai Khan Mohammed and/or Tyler McLean?
The Crown’s Position
[425] Mr. Ali’s liability as a party to the offences committed by Mr. Mohamed is said to arise from his assistance in committing the offences of murder, rather than any unlawful enterprise which he may have undertaken with Tanade Mohamed. Thus, his only basis of liability arises under section 21(1) of the Code. (See Alexis, 2020 ONCA 334 at para. 47 and 52.)
[426] The Crown submissions concerning Mr. Ali’s culpability for murder track the reasons of the Supreme Court of Canada in Briscoe, 2010 SCC 13. I draw the following from Briscoe:
a. The actus reus of aiding is doing something or omitting to do something that assists the perpetrator to commit an offence.
b. The mens rea of aiding is to have rendered assistance for the purpose of aiding the perpetrator to commit the offence. It is not enough that the act of the accused did assist the perpetrator: the Crown must prove beyond a reasonable doubt that the accused knew the intentions of the perpetrator when he provided assistance and that he intended that his action would assist to commit the offence.
c. The Crown is not obliged to prove that the aider desired that the offence be successfully completed. The aider does not have to share the perpetrator’s intention to commit the offence, so long as it is proven that the aider knew that the perpetrator intended to commit the offence and acted to assist him.
d. The Crown is not required to prove that the aider knew precisely how the offence would be committed.
e. If the Crown can prove that the accused was willfully blind to the intentions of the perpetrator when he rendered assistance, the subjective mens rea of the aider is established.
[427] The Crown submits that Mr. Ali must have seen Tanade Mohamed rummaging under his seat to retrieve the gun and, despite knowing that Mr. Mohamed was armed, Mr. Ali followed his directions to slow down as he drove through the parking lot. Mr. Ali did slow down for six seconds, during which time he became aware that Mr. McLean and his group were in the next aisle of parked cars. By slowing the car and then parking at the direction of Tanade Mohamed, Mr. Ali became a party to the offence.
[428] Mr. Ali questioned Mr. Mohamed about his plans. He knew that if Tanade Mohamed got out of the car, things would not go well, and there was a good chance that someone would get hurt. He agreed that people who carry guns could use them and that guns kill people.
[429] Mr. Ali did not drive away when he heard the first gun shot. He waited for Mr. Mohamed to return to the car and then turned to the right, the direction where the shots had just been fired. He would not have driven towards the shots unless he knew that Mr. Mohamed had been the shooter.
[430] Mr. Ali’s post offence conduct leaves no doubt that he was a party to the plan to kill Tyler McLean and Zemarai Khan Mohammed. He successfully evaded police in a high-speed chase, then had the foresight to abandon the Durango in a residential neighbourhood and take a cab back to 18 Valleywoods. He was searching for information about the shooting within minutes of leaving the Durango and subsequently assisted Tanade Mohamed to dispose of evidence and obstruct the police investigation. These efforts are completely out of keeping with his testimony that he knew nothing of Tanade Mohamed’s intentions and is blameless in the deaths of the two victims.
[431] If Mr. Ali did not know that Tanade Mohamed had a gun and intended to kill the victims, it is only because he was willfully blind to those facts. Willful blindness will suffice to establish the necessary subjective mens rea to be a party to the murders.
Analysis
[432] I have made four findings which largely defeat the Crown's argument that Abdi Ali was a party to either of the murders:
a. Abdi Ali did not know that Tanade Mohamed had a gun until after the shootings had occurred.
b. The first shot was fired after Zemarai Khan Mohammed struck Tanade Mohamed.
c. Tanade Mohamed first formed the intention to kill Zemarai Khan Mohammed after he had been struck.
d. There is a reasonable doubt whether Tanade Mohamed intended to kill Tyler McLean.
[433] If I had been satisfied that Abdi Ali knew that Tanade Mohamed had armed himself and was following