COURT FILE NO.: CR-18-200

DATE: 2021-09-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

Crown

• and -

Jermaine Dunkley

Defendant

COUNSEL:

Andrew McLean and Steve Kim, for the Crown

Nathan Gorham and Karen Lau-Po-Hung, for Jermaine Dunkley

HEARD at Hamilton, Ontario: May 10-31, June 2-4, and July 29, 2021

RESTRICTION ON PUBLICATION

By court order made under section 486.5 of the Criminal Code, information that may identify a person described in this judgment may not be published, broadcast, or transmitted in any manner. This judgment complies with this restriction so that it can be published.

The Honourable Justice J. R. Henderson

TRIAL DECISION

INTRODUCTION

[1] The primary question in this case is: Did Jermaine Dunkley shoot and kill Michael Parmer?

[2] On September 8, 2005, Michael and four of his friends drove from their homes in Niagara Falls, New York, to CD’s Bar on Ottawa Street in Hamilton, Ontario, for an evening of music and dancing.

[3] After CD’s Bar closed, Michael and his friends and many other patrons of CD’s Bar continued to socialize in the plaza parking lot that was about one-half block away from the nightclub.

[4] At approximately 3:00 a.m. on September 9, 2005, as Michael and his friends were about to leave the parking lot, someone shot Michael in the eye thereby causing his death. The Crown alleges that Jermaine Dunkley was the shooter.

[5] Mr. Dunkley is charged with committing first-degree murder contrary to s.235(1) of the Criminal Code. With the consent of all parties, this trial was conducted by way of a video conference hearing before a judge without a jury.

THE LEGAL PRINCIPLES

[6] In order to prove its case, the Crown must first prove beyond a reasonable doubt that it was Jermaine Dunkley who shot Michael in the parking lot.

[7] If the Crown is able to prove that Mr. Dunkley was the shooter, then in order to prove that the offence was murder, the Crown must prove that Mr. Dunkley meant to cause Michael’s death or that Mr. Dunkley meant to cause Michael bodily harm that he knew was likely to cause death. Finally, for first-degree murder, the Crown must prove that the murder was both planned and deliberate.

[8] It is important to recognize that for all elements of the offence, the onus is on the Crown to prove its case beyond a reasonable doubt.

[9] Another legal principle arises in this case because Mr. Dunkley testified at trial. On the witness stand he said that he was not present at the time of the shooting and that he did not have anything to do with Michael’s shooting. Because the accused testified, I must analyze his evidence in accordance with the three-part test set out in R. v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[10] Specifically, at the first stage of the W.D. test, if I believe Mr. Dunkley’s testimony that he did not shoot Michael, I must find him not guilty of the offence. At the second stage, even if I do not believe Mr. Dunkley’s testimony, if it raises a reasonable doubt about his guilt, I must find him not guilty of the offence. Further, even if the first two stages do not apply, at the third stage, I can only find Mr. Dunkley guilty of the offence if I find that the rest of the evidence that I do accept, proves his guilt beyond a reasonable doubt.

THE THEORY OF THE CROWN AND THE DEFENCE

[11] The theory of the Crown is that Mr. Dunkley and some of his friends attended CD’s Bar that night. After the club closed, the Crown submits that Mr. Dunkley and his friends socialized in the nearby parking lot. Michael, his New York friends, and other clubgoers were also socializing in the same parking lot.

[12] The Crown submits that Michael and/or his New York friends annoyed Mr. Dunkley either because of their presence or because Michael had been flirting with Collie Dubinsky, whom the Crown alleges was Mr. Dunkley’s girlfriend. The Crown submits that Mr. Dunkley’s hostility toward Michael and/or his friends motivated him to shoot Michael in the eye with a handgun.

[13] The Crown relies on the evidence of B.G. who testified that she was standing beside Mr. Dunkley at the time of the shooting. The Crown also relies on the evidence of Michael’s friends who were with him that evening, and the evidence of other people who were in the parking lot in the early hours of September 9, 2005. In particular, the Crown submits that Mr. Dunkley was observed angrily staring at the New York group while they were in the parking lot. This has been called “mean mugging.”

[14] The Crown further relies on the after-the-fact conduct of Mr. Dunkley, including Mr. Dunkley’s false statements to police officers and statements he made in intercepted telephone communications, particularly to his friend Grouch.

[15] The theory of the defence revolves around the W.D. test, the Crown’s burden of proof, and the credibility of B.G. In particular, the defence submits that B.G.’s testimony cannot be believed because of her criminal lifestyle, the internal inconsistencies in her testimony, and the external inconsistencies between her testimony and the evidence of other witnesses.

[16] If B.G.’s evidence is rejected by the court, the defence submits that the Crown’s remaining evidence is so weak that the Crown cannot establish its case against Mr. Dunkley beyond a reasonable doubt. Further, the defence submits that the court cannot draw any adverse inferences from the after-the-fact conduct of Mr. Dunkley as suggested by the Crown.

ANALYSIS

[17] I am going to analyze the evidence in some detail. I will first make some general, less controversial, findings about the circumstances leading up to the shooting, and then I will look at the testimony of some of the individual witnesses.

The Circumstances Leading Up to the Shooting

[18] I find that in September 2005 Michael Parmer, John Stewart, and Eugene Banks were all roommates living in Niagara Falls, New York. They were all in their early 20s. Michael was 22 years of age.

[19] On September 8, 2005, the three roommates and two friends, Jerome Watkins and Brian Pettigrew, drove together in Jerome’s vehicle to CD’s Bar in Hamilton, Ontario. They arrived at CD’s somewhere between 12:00 a.m. and 1:00 a.m. on September 9, 2005.

[20] Inside the nightclub the group danced, listened to music, and had a few drinks. I find that there were no incidents, disputes, or conflicts involving any of the New York friends inside CD’s Bar. Just before CD’s Bar closed at 2:30 a.m., the five New York friends left the club and walked together to the parking lot.

[21] Jerome had parked his car in what I will call the plaza parking lot. It is important to note that the plaza parking lot was not immediately beside CD’s Bar. CD’s Bar was at the corner of Ottawa Street and Cannon Street on the east side of Ottawa Street. The front door of CD’s opened onto Ottawa Street. The plaza parking lot was at the corner of Ottawa Street and Roxborough Street, approximately one-half block south of CD’s front door. There was a wide sidewalk on the east side of Ottawa Street between CD’s front door and the plaza parking lot.

[22] When the five New York friends left CD’s Bar, they walked south on this wide sidewalk toward the plaza parking lot. Their route took them past some two storey buildings that contained several small storefront businesses. There was a small alcove parking lot between two of the buildings approximately two-thirds of the way to the plaza parking lot. The distance between the front door of CD’s Bar and the telephone booth at the northwest corner of the plaza parking lot is approximately 78 metres.

[23] At the time the plaza contained several businesses including Alley Cats Bar, Niko’s Restaurant, a nail salon, and a grocery/variety store, all of which were setback from Ottawa Street. The parking lot took up the entire northeast corner of Ottawa Street and Roxborough Street.

[24] I accept the evidence that it was common for patrons of CD’s Bar to park in the plaza parking lot and to socialize in the parking lot after the club closed. On this particular evening, I find that between 2:30 a.m. and 3:00 a.m. there were approximately 20 to 40 people in various groups in the plaza parking lot.

[25] I find that on the walk from CD’s Bar to the plaza parking lot that evening there was a dispute between some of the New York friends and a young female patron of CD’s Bar, Sarah Guitard. John, Brian, and Eugene each testified about this dispute. I put little weight on Ms. Guitard’s testimony as I found her to be a difficult witness. Moreover, she admitted to misleading police officers with respect to what had happened that evening.

[26] Accordingly, I find that as the group of friends was walking toward the parking lot both Brian and Eugene made some comments to Ms. Guitard about whether Ms. Guitard was a Canadian or an American. Ms. Guitard was irritated and annoyed by these comments, and some words were exchanged.

[27] Eugene testified, and I accept, that they were not trying to annoy Ms. Guitard, but they were having some fun at her expense. I also accept Eugene’s evidence that he and his friends were quite loud and boisterous. At one point, Jerome physically picked up Ms. Guitard, held her on his shoulders, and spun her around. I find that all of this conduct likely would have caused other people on the street to notice Brian, Eugene, Jerome, and the New York group.

[28] When everyone arrived at the plaza parking lot, Ms. Guitard and her friend, Amy, remained near a bench at the corner of Ottawa Street and Roxborough Street, where the two girls talked with one or two of the bouncers from CD’s Bar.

[29] The five New York friends stayed generally in the vicinity of Jerome’s vehicle which was parked close to the centre of the plaza parking lot facing Ottawa Street. I find that, at that point, there was an ongoing verbal exchange between Brian and Ms. Guitard. I find that Brian was loudly insulting Ms. Guitard and using profanities. I accept Eugene’s evidence that Brian was hollering at Ms. Guitard and he was being “creepy” toward her.

[30] I find that Ms. Guitard told one of the bouncers that she would give him $100 if he would punch that guy in the head. The bouncers did not take her up on that offer. I also find that Ms. Guitard talked on her cell phone, and immediately thereafter said “just wait five minutes”. I accept Eugene’s evidence that he thought that perhaps Ms. Guitard had called her boyfriend to come to the parking lot to assist her.

[31] While this interaction was going on, there was also some congenial socializing between some of the New York friends and two other young women. These two women, Sabrina Ramnarain and her friend Kristen, were sitting inside Kristen’s car which was parked beside Jerome’s car. Kristen was in the driver’s seat and Sabrina was in the front passenger seat. At all relevant times both of these women remained within their vehicle.

[32] I find that, shortly before the shooting, Michael and Eugene were talking to Sabrina through the passenger side window of Kristen’s car, and Kristen was talking to other members of the New York group through the driver’s side window. Jerome’s car was parked to the driver’s side of Kristen’s car. I accept that the conversation between Michael, Eugene, and Sabrina was friendly, sociable, and cordial.

[33] There was also a group of four young black men, including T.Q. and Richard Lee, in the parking lot. They had accompanied Sabrina and Kristen to CD’s Bar in a separate vehicle driven by T.Q. There was some interaction between these four men and Kristen and Sabrina, but I find that the men in that group left the parking lot prior to the shooting.

[34] Further, there was another group of young black men, all of whom were unidentified at the time. John and Brian observed these men standing in or around the north end of the plaza parking lot. I find that the New York friends walked past this group of young black men as they walked towards Jerome’s car from the nightclub.

[35] Based on the testimony of John, Brian, and Eugene, I find that a tall black man in that unidentified group gave hateful stares to the group of New York friends in the plaza parking lot. Other men in that group may have also been staring at the New York group, but the witnesses all referred to this tall black man as the “mean mugger.”

[36] John said that the mean mugger stared at them as if he wanted a problem. Brian said that he was staring at them and whispering to his friends as if they were talking about them. Eugene said it was an aggressive stare as if the mean mugger did not want his group to be there. I accept all of those descriptions as accurate.

[37] The Crown submits that Mr. Dunkley was the mean mugger, and I will review the evidence on that point later. Generally, I accept that the mean mugger was at least six feet tall, appeared to be in his 20s, and was dressed mostly in black.

[38] In the few minutes before the shooting, I find that Michael and Eugene were standing beside the passenger side window of Kristen’s car talking to Sabrina. They were exchanging telephone numbers as everyone was about to leave.

[39] Jerome was in his car and had indicated that he was ready to leave. John got into the front seat, and Brian and Eugene walked toward the rear door to get into the back seat. Michael briefly stayed at the passenger side window of Kristen’s car to finish putting a telephone number in his phone.

[40] I accept Sabrina’s evidence that Michael put the telephone number in his phone, said goodbye to her, and walked behind her car toward the rear of Jerome’s car. Then, a few seconds after Michael left Sabrina, as Brian and Eugene were getting into Jerome’s car, everyone heard a loud pop. Brian and Eugene got into Jerome’s car. Other people started running in the parking lot. Kristen and Sabrina quickly drove away.

[41] Michael’s friends realized that Michael was not in their car, so they promptly got out. They immediately saw Michael lying on the ground at the rear of Jerome’s vehicle, bleeding from the head, and obviously badly injured. I find that the shooting occurred very close to the rear of the two parked vehicles.

[42] Other than B.G., no one heard or observed any disturbance, immediately before the time of the shooting. I will therefore next consider B.G.’s evidence.

The Evidence of B.G.

[43] B.G. was a central witness at this trial. The Crown relies heavily on her testimony to prove its case against Mr. Dunkley. Unfortunately for the Crown, B.G. was a poor witness. There are many significant problems with her evidence that raise concerns about her credibility.

[44] The Crown acknowledges that there are problems with B.G.’s evidence, but the Crown submits that there are factors that support the reliability of her testimony. In particular, the Crown submits that B.G. was aware of details that only an eyewitness would know and that some of her testimony was corroborated by other witnesses. As I review the problems with B.G.’s evidence, I will also review the Crown’s submissions that her reliability.

[45] The first problem with B.G.’s testimony relates to the internal inconsistencies in the various versions of events provided by B.G. to police and to the court. These internal inconsistencies can be starkly illustrated by comparing B.G.’s first statement to police given in October 2005 to her testimony at this trial in May 2021.

[46] On October 9, 2005, she was interviewed about several matters at the police station by Officer Feser. On the same day she also spoke with Officer Court who had been assigned to guard her before her interview with Officer Feser. At the time, B.G. was a confidential informant who worked with the Hamilton Police Service.

[47] I find that B.G. told Officer Court that the police had picked up her friend for the shooting at CD’s Bar, but they had the wrong guy. In a more detailed discussion with Officer Feser, B.G. provided the names of about 20 people who she said were involved in drug dealing or gang activity, including Clayton McFarlane, also known as Grouch, Adrian Lynch, also known as Mob, and Jermaine Dunkley, also known as Germs.

[48] Regarding the shooting, she told Officer Feser that she had spoken to Grouch about two weeks ago and he told her that Mob was supposed to go to CD’s Bar that night and “take someone out” for Germs. She said that Grouch told her that Germs got the wrong guy, and “the guy from the States got the bullet in the face.”

[49] At this trial, in May 2021, B.G. testified that she was an eyewitness to the murder. The gist of her evidence at trial was that she attended CD’s Bar that night and inside the club she observed Collie Dubinsky flirting with Michael. She believed that Collie was Mr. Dunkley’s girlfriend.

[50] B.G. testified that after CD’s closed she walked to the plaza parking lot to ask Mr. Dunkley for a ride home. In the parking lot she observed that Mr. Dunkley and Collie were loudly arguing. She implied that the argument was about Collie flirting with Michael, but she also said that she did not recall the reason for the argument. B.G. testified that she stood beside Collie and Mr. Dunkley during the argument. Then, she said that Michael attempted to intervene in the argument. She thought there was going to be a fight.

[51] B.G. testified that she turned her head for a second and then she heard a bang. When she looked back, she saw Mr. Dunkley holding a gun with an outstretched arm and standing over Michael who was on the ground. She confirmed that she was standing beside Mr. Dunkley at the time.

[52] There are two obvious internal inconsistencies between her October 2005 statement and her testimony at trial. First, she changed her evidence about whether she was present at the time of the shooting. In 2005 she said that she obtained the information about the shooting from Grouch, but in 2021 she said that she was an eyewitness to the shooting. Second, she gave two completely different reasons for the shooting. In 2005 she indicated that the shooting was a case of mistaken identity. In 2021 she implied that Mr. Dunkley shot Michael because Michael attempted to intervene in an argument between Mr. Dunkley and Collie, or because Michael had been flirting with his girlfriend, Collie.

[53] At trial she gave no explanation for these inconsistencies. She simply said that she did not remember what she said to police in 2005. In fact, she incorrectly said that she thought that she spoke to police officers on the day after the shooting. She did not accept or deny Officer Feser’s testimony about what she said on October 9, 2005.

[54] As a possible explanation for these inconsistencies, the Crown suggests that perhaps B.G. did not tell police officers that she was an eyewitness in 2005 because she did not want to be compelled to testify against Mr. Dunkley. The Crown submits that B.G. intended to name Mr. Dunkley as the culprit, but she wished to shield herself from further involvement.

[55] In my view, the Crown’s suggested explanation for B.G.’s 2005 statement that she was not an eyewitness is conceivable, but it is highly speculative. Further, even if this explanation is correct, it does not explain the significant change in B.G.’s evidence regarding the reason for the shooting.

[56] After the October 2005 interview by Officer Feser, B.G. did not speak about this matter to police until she was interviewed by Officers Stewart and Cavanaugh in March 2008. She spoke with Officer Stewart again in July 2008. There was then a hiatus until she spoke with Officer Pacey in May 2010. Thereafter, there was a long gap until she gave two videotaped statements to police officers; one in February 2017 to Officer Murphy and one in June 2017 to Officer Ashbaugh. All of these statements and interviews, collectively, contain a great number of internal inconsistencies, and I will review a few of them.

[57] A very prominent internal inconsistency relates to the location of the shooting. There is no doubt based on all of the evidence at trial that Michael was shot while he was standing in approximately the centre of the plaza parking lot.

[58] In March 2008 B.G. told Officer Stewart that Mr. Dunkley and Michael were arguing while they were close to the door of CD’s Bar on Ottawa Street. She did not know why they were arguing. During their argument, she said Mr. Dunkley pulled out a gun and shot Michael.

[59] In February 2017 B.G., under oath, told Officer Murphy that Collie and Mr. Dunkley were arguing in front of the front door of CD’s Bar on Ottawa Street. She said that Michael intervened at that point and Mr. Dunkley shot him. Later, she said that Collie and Michael were just outside the door of the club when Mr. Dunkley came out and started yelling at Collie. Still later, she said that the shooting was somewhere between the front door of the club and the first parking lot.

[60] Furthermore, during the February 2017 interview B.G. drew a sketch, marked as an exhibit at trial, in which she showed Mr. Dunkley, Michael, Collie, and herself all located near the front door of CD’s Bar on Ottawa Street at the time of the shooting.

[61] In fact, the shooting occurred approximately one-half block away from where B.G. said it occurred in both March 2008 and February 2017. I estimate that the centre of the plaza parking lot is approximately 100 metres from the front door of CD’s Bar on Ottawa Street.

[62] To compound matters, during the February 2017 interview Officer Murphy tried to redirect B.G. On two occasions Officer Murphy suggested to B.G. that the shooting occurred in the parking lot. On both occasions B.G. denied that the shooting took place in the parking lot, and she described or pointed to the sketch to indicate that the shooting occurred on the sidewalk near the front door to the club.

[63] In my view, B.G. was unequivocal in February 2017 that the shooting occurred on the sidewalk just outside the front door of CD’s Bar. This is not only internally inconsistent with her testimony at trial, but it is externally inconsistent with all of the other evidence.

[64] Another internal inconsistency relates to the handgun. In February 2017 she said that when she turned back after she heard the gunshot she saw Mr. Dunkley holding the gun by his side. At trial she said that Mr. Dunkley was holding the handgun with his arm outstretched from his shoulder.

[65] Also, in February 2017 she said that she could not see anything coming out of the barrel of the handgun, but at trial she said that there was smoke coming out of the barrel.

[66] I disagree with the Crown’s suggestion that the change in B.G.’s evidence regarding the handgun should be construed as B.G. simply recalling more detail about the incident. Rather, in my view, B.G. intentionally changed her evidence for dramatic effect. She embellished her 2017 version of events in order to emphasize the drama of the shooting.

[67] The last internal inconsistency I will review relates to the getaway car. In February 2017 B.G. said that Collie drove the getaway car. She said that Collie pulled the car up to the curb on Ottawa Street where Mr. Dunkley got into the vehicle. The getaway car then pulled away from the curb on Ottawa Street and turned right onto Cannon Street.

[68] By the time of the June 2017 interview, B.G. had changed the location of the shooting from the sidewalk outside the front door of CD’s Bar to the plaza parking lot. Her earlier statement about the direction of the getaway car no longer made sense. Therefore, she changed her evidence by stating that the getaway car left the plaza parking lot via Roxborough Street and drove out of sight on Roxborough.

[69] In my view, this inconsistency was a deliberate alteration of evidence by B.G. I find that this was not a change to her evidence made because B.G. remembered new details. Rather, she intentionally changed her evidence in order to make it fit with the new location of the shooting.

[70] Regarding external inconsistencies between B.G.’s testimony and other reliable evidence, again there are many and I will review a few of them.

[71] I have already mentioned that B.G.’s initial statements about the location of the shooting are inconsistent with all of the evidence that the shooting took place in the centre of the plaza parking lot.

[72] Another external inconsistency relates to the events that occurred just before the shooting. I thought that the witnesses, Nicole Smith, Sabrina Ramnarain, and William Elsegood, were all good witnesses who were very close to the location of the shooting at the time. None of those witnesses saw or heard any dispute or argument near Michael or his friends in the few minutes before the gunshot. John, Eugene, and Brian also confirmed that there was no dispute or argument near them just before the gunshot.

[73] However, B.G.’s evidence at trial is in direct contradiction to the testimony of all of those witnesses. She described a loud argument between Mr. Dunkley and Collie, followed by Michael intervening in that argument, followed by the gunshot. If B.G.’s evidence is correct, this loud argument had to occur very close to the location of the shooting at the rear of the two parked vehicles.

[74] The Crown submits that there is a logical explanation for this external inconsistency. The Crown suggests that B.G. simply had her timelines confused, and that the argument between Mr. Dunkley and Collie occurred at some earlier point in the evening. The Crown submits that the other witnesses who were in the parking lot were not aware of that argument because it did not occur in the parking lot.

[75] I do not accept the Crown’s explanation for this inconsistency as it is again very speculative. There is no evidence, other than B.G.’s testimony, that there was any confrontation at all involving Mr. Dunkley and Collie and/or Michael at any time, either in CD’s Bar, outside the front door, or in the parking lot. Further, if the argument between Mr. Dunkley and Collie had occurred earlier in the evening, then B.G.’s testimony that Mr. Dunkley shot Michael when Michael intervened in the argument makes no sense.

[76] Along the same lines, there is no evidence, other than B.G.’s testimony, that a woman named Collie, or someone fitting her description, was present in the parking lot at the relevant time. Further, there is no evidence, other than B.G.’s testimony, that Mr. Dunkley was with a woman in the parking lot or at any time that evening.

[77] Complicating this issue is Mr. Dunkley’s testimony in which he denied that he was in a relationship with Collie, and he denied that he knew who she was. The Crown adduced no evidence to prove otherwise. Thus, there is no evidence before the court, other than the testimony of B.G., that Mr. Dunkley had any kind of a relationship with Collie.

[78] In my view, B.G.’s story about Mr. Dunkley and Collie arguing simply does not fit with the other evidence. I must again consider whether B.G. inserted this argument into her testimony for dramatic effect.

[79] The final external inconsistency that I will mention comes from the testimony of Nicole Smith. Nicole was standing outside of her friend’s car in the parking lot at the relevant time. She was close to the location at which Michael was talking with Sabrina at the side of Kristen’s car, and she had a good view of the two parked vehicles.

[80] Nicole said that she was not looking in Michael’s direction at the time, but when she heard the gunshot she looked up and saw Michael on the ground. She did not see any other person around Michael. I found that Nicole was a very credible witness as she stayed to assist Michael, and she was very helpful to police. She was able to identify or describe to police approximately 15 to 20 of the people who were in the parking lot and their activities.

[81] Nicole knows B.G., but she testified that she did not see B.G. in the parking lot that night. She confirmed on the witness stand that if B.G. had been standing near Michael at the time of the shooting, Nicole would have seen and recognized her.

[82] The Crown submits that Nicole was mistaken about B.G. not being present in the parking lot. In my opinion, this submission must be considered in conjunction with the Crown’s submission that B.G. initially told the police that she was not present at the shooting in order to avoid further involvement. I find that it is possible, but unlikely, that both of those Crown submissions are correct.

[83] I find that Nicole’s evidence throws doubt on all of B.G.’s testimony, and makes me question whether she was in the plaza parking lot at the time of the shooting.

[84] I would like to next deal with a more general submission from the Crown about the reliability of B.G.’s testimony.

[85] The Crown submits that B.G.’s testimony that she was an eyewitness is reliable because she was aware of details that only an eyewitness would know, including where in the parking lot the shooting occurred, who Mr. Dunkley was with, who was at the club that night, and the fact that one of Michael’s friends was very emotional after the shooting.

[86] In my view, that submission by the Crown is not particularly strong. I find that B.G. could easily have learned all of the basic information about the shooting from any number of friends or acquaintances. B.G. was a self-admitted criminal and a drug dealer at the time. Her customers were involved in the drug culture in Hamilton. She knew Mr. Dunkley, knew that he was also a drug dealer, and knew many of Mr. Dunkley’s associates, including Grouch and Mob. She also knew some of the patrons of CD’s Bar and some of the DJs who worked there.

[87] Further, it must be remembered that B.G. at the time was working as a confidential informant for the Hamilton Police Service. Moreover, B.G. was involved in a corrupt illegal scheme that was being run by her handler, Officer Ruthowsky. It is apparent that confidential police information was exchanged between B.G. and Officer Ruthowsky as part of their scheme. Thus, B.G. could have obtained some of this information through Officer Ruthowsky, or even inadvertently through other officers who may have known something about the investigation.

[88] Still further, B.G. told Officer Court in October 2005 that one of her friends had been picked up by police and wrongly accused of the shooting. This implies that B.G. had talked to her friend and had obtained information from him about his discussions with the police about the shooting.

[89] The net result is that B.G. could have learned details of the shooting from any of these sources. Accordingly, the fact that she knew some details of the shooting does not in my view confirm that she was present at the scene.

[90] The only strong point made by the Crown with respect to B.G.’s knowledge relates to the holdback evidence. I accept that the investigating officers deliberately held back from the public the evidence that Michael had been shot in the eye. I accept that B.G. was aware of that holdback evidence in March 2008 as she told Officer Stewart that “Germs shot the guy right in the eye.”

[91] Defence counsel submits, and I accept, that there is a possibility that B.G. learned this detail from someone who was present at the scene. She also could have obtained this detail either from her friend who she believed had been falsely accused, or from Officer Ruthowsky.

[92] Also, on this point, it is interesting to note that B.G. testified at trial that she did not remember where on his body Michael had been shot. She did not remember the detail about Michael being shot in the eye. If B.G. was in fact present on the scene and saw the victim shot in the eye, one has to wonder if that would be a detail that she would forget.

[93] In summary, I find that the Crown’s submission that B.G.’s testimony includes details that support the likelihood that B.G. was an eyewitness is a weak submission. Moreover, the Crown’s submission that B.G.’s evidence is corroborated in part by the evidence of other witnesses is essentially part of the same submission. That is, if B.G. learned details about the observations made by other witnesses, the fact that those other witnesses testified about those details does not bolster B.G.’s evidence.

[94] In my view, there remain stark unexplained inconsistencies, both internal and external, in B.G.’s evidence that taint her credibility.

[95] In addition to these inconsistencies, there are other reasons to be cautious about B.G.’s testimony. In particular, B.G. has lived a criminal lifestyle. She is not the sort of person who is very trustworthy as she has a history of dishonest and unethical behaviour.

[96] B.G. acknowledged that she has been a drug dealer for many years, primarily dealing crack cocaine. She also confessed to being a chronic shoplifter and she testified that she continues to shoplift to make money. She has a criminal record that includes personation, uttering a forged document, fraud, theft, and drug trafficking.

[97] Further, she admits that she was involved in an illegal scheme with Officer Ruthowsky. Officer Ruthowsky was convicted and sentenced in 2018 for several offences including bribery, obstruction of justice, breach of trust, and trafficking in cocaine, all of which were offences arising out of Officer Ruthowsky’s abuse of his position as a police officer.

[98] B.G. testified that she became involved in Officer Ruthowsky’s schemes when he became her handler in October 2007. Their relationship continued into at least 2011. She said that, in general, she gave Officer Ruthowsky information about other drug dealers, and in return Officer Ruthowsky protected her from minor drug infractions, and shoplifting offences. She had a “get out of jail free” card that protected her if she happened to be arrested.

[99] Furthermore, B.G. testified that Officer Ruthowsky would give B.G. information about drug targets, and she would then get close to the targets and sell them drugs. Officer Ruthowsky would then raid their premises. After the raid Officer Ruthowsky would give B.G. cash money or some of the drugs that he had seized as compensation.

[100] I also find that B.G. has some motivation for not telling the complete truth. Specifically, there is strong evidence that B.G. wanted to ingratiate herself to police in order to obtain some compensation or a personal benefit.

[101] I find that there were three occasions in which B.G. attempted to trade information to the police in exchange for police assistance. First, in July 2008 she told Officer Stewart that she was willing to talk about the shooting, but in return she wanted financial help with her plans to move out of the province. Then, in May 2010, she made an unsolicited call to Officer Pacey and told him that she was prepared to give a statement if the police would assist her with getting her children back from the Children’s Aid Society. Finally, in 2017 she contacted Kingston police and again asked for help getting her children back from the Children’s Aid Society in return for information about the shooting.

[102] I agree with the Crown that there is no evidence that B.G. actually received any benefit in return for her evidence. However, I find that the police officers, although they did not make any promises, went along with her in hopes of getting her information. I find that B.G. believed that the better the information that she gave to police and the more co-operative she was, the more she could demand a benefit for herself. This taints her overall testimony, particularly when one considers that her evidence has evolved and gradually become better evidence for the police.

[103] Also, I find that B.G. clearly has no aversion to lying. When she was asked about the fact that she had deceived some of her customers because she set them up for arrest in her scheme with Officer Ruthowsky, she said, “I just lied to protect myself.”

[104] If a jury were present, I would give them a standard Vetrovec warning. This means that I would caution the triers of fact that the testimony of B.G. should be approached with the greatest care and caution. They would be entitled to rely on B.G.’s testimony, but it would be dangerous to do so if it was not confirmed by another witness or other evidence. In my view, I must heed that warning myself in analyzing B.G.’s evidence.

[105] The next problem with B.G.’s evidence relates to the role that was played by police officers in coaxing B.G. to change her evidence. I repeat that in February 2017, while he was interviewing B.G., Officer Murphy twice suggested that the shooting occurred in the parking lot. On both occasions, B.G. did not accept Officer Murphy’s suggestion.

[106] After the February 2017 interview, the lead investigating officer, Officer Bereziuk, knew that B.G.’s evidence was key to the prosecution of this case, and he knew that her incorrect statement about the location of the shooting was a problem.

[107] Officer Bereziuk testified that on June 5, 2017, he spoke with B.G. on the telephone. He said that during their telephone call he mentioned the possibility of a further videotaped police statement and B.G. blurted out, “All I can tell you is that boy was shot in that parking lot”.

[108] Officer Bereziuk initially described this comment by B.G. as a spontaneous remark that fortuitously fixed one of the key problems in this case. However, in cross-examination, Officer Bereziuk admitted that he may have said something to her about the parking lot before she blurted out this statement. I find that Officer Bereziuk did in fact suggest to B.G. that the location of the shooting was in the parking lot, and that it was his suggestion that caused her to make this change to her evidence.

[109] B.G. then attended for a follow-up videotaped interview with Officer Ashbaugh on June 7, 2017. At the start of the interview, Officer Ashbaugh talked to B.G. about her earlier statements and told her that parts “kind of get mixed together.” He then read aloud B.G.’s 2008 statement and played her entire February 2017 videotaped interview with Officer Murphy. He then told B.G. that in her recent telephone call with Officer Bereziuk she had said, “All I can tell you is that boy was shot in the parking lot.”

[110] Prior to the June 2017 interview, Officer Ashbaugh had prepared a videotape of the Ottawa Street area that he had recorded in the spring of 2017. After reminding B.G. of her previous statements, he showed that videotape to her.

[111] While B.G. was watching the videotape of the Ottawa Street area, she attempted to show Officer Ashbaugh the location of the shooting, but she did not select the plaza parking lot as the location. When she identified the small alcove parking lot as the place of the shooting, Officer Ashbaugh stopped the videotape of the area. He then said, “Let me continue.” He talked about Alley Cats Bar. When the videotape eventually showed the plaza parking lot, Officer Ashbaugh said, “So, that’s in fact the parking lot that you were talking about?” B.G. agreed.

[112] It is difficult to accept the Crown’s submission that B.G.’s testimony that the shooting took place in the plaza parking lot is in fact B.G.’s own recollection of events. B.G. never used the phrase “parking lot” to identify the location of the shooting until she apparently said something to Officer Bereziuk, 12 years after the shooting had occurred. That telephone conversation with Officer Bereziuk occurred after Officer Murphy had twice attempted to tell her that the shooting was in the parking lot, and after Officer Bereziuk made the same suggestion. Further, even though Officer Ashbaugh was intent on having B.G. confirm the location as the plaza parking lot, and B.G. was intent upon helping him, she clearly did not even select the correct parking lot location until Officer Ashbaugh pointed it out to her.

[113] I find that the manner in which this evidence was elicited by police officers severely undermines the reliability of B.G.’s testimony about the location of the shooting.

[114] Finally, regarding B.G., I found that her demeanour at trial was very concerning. She repeatedly said that she had memory problems, which is understandable given the passage of time. However, I found that she was very aggressive with counsel about her memory issues.

[115] In my view, she tended to engage in aggressive arguments about her memory when she was confronted with inconsistencies in her evidence. To be fair, she did this with both Crown and defence counsel. I accept the submission that she used her memory issues to attempt to avoid engaging in any inquiry about the inconsistencies in her statements.

[116] Also, I found that B.G.’s attitude on the witness stand ranged from indifference to outright hostility. On occasion she would not even agree to a simple suggestion, such as whether she had just observed something in a videotape. At one point she said that she had made a mistake in her evidence because “the trial is not my top priority.” On another occasion she stated that she did not care for, or have respect for, the police or for the justice system.

[117] In summary, regarding B.G.’s testimony I find that there are many unexplained illogical inconsistencies, both internal and external, in her evidence. Moreover, even if there were no inconsistencies, I would have to treat B.G.’s evidence with caution because of her criminal lifestyle, her dishonest character, her possible motive to lie, her demeanour, and the way in which her important evidence evolved through coaching by police officers.

[118] For all these reasons, I find that I cannot rely on any of the testimony of B.G., except to the extent that it is corroborated by other reliable witnesses.

The Evidence about the Mean Mugger and the Parking Lot

[119] I am now going to turn to the evidence about the mean mugger and the other people in the parking lot. The Crown submits that, regardless of the weight that is given to B.G.’s evidence, it has established that Mr. Dunkley was the person who was mean mugging the New York group of friends, that Mr. Dunkley had animus toward the New York group, and that Mr. Dunkley shot Michael. In this respect the Crown relies primarily on the evidence of John, Brian, Eugene, and Richard Lee.

[120] Before I review the evidence, I wish to make a few more findings of fact. I repeat my earlier finding that there was a mean mugger, that is a tall black man who was mean mugging the New York group in the plaza parking lot after CD’s Bar closed.

[121] In addition, I find that Mr. Dunkley was at CD’s Bar that night and that he was somewhere in the area of the plaza parking lot at the time of the shooting. In that respect I rely upon Mr. Dunkley’s cell phone records, Mr. Dunkley’s own admission was that he was at CD’s Bar, and the evidence of the Hamilton Cab Company driver. I also find that Mr. Dunkley’s friend, Grouch, was also in the area of the plaza parking lot at the relevant time.

[122] Regarding the identity of the mean mugger, I thought that John, Brian, Eugene, and Richard were all honest witnesses.

[123] Brian testified that he first noticed the mean mugger inside CD’s Bar. He said that the mean mugger was inside the nightclub with a group of other guys who were staring at them and whispering about them. After they left CD’s Bar, Brian said that the New York friends passed the mean mugger and his group on the sidewalk as they walked to the plaza parking lot.

[124] While they were in the parking lot, Brian testified that the mean mugger and his group were standing close to the sidewalk near a billboard and a brown building at the north end of the parking lot. He said that his New York group was not close to the mean mugger’s group. From this evidence I find that Brian saw the mean mugger standing near the northwest corner of the parking lot near the telephone booth.

[125] Brian said that there were actually two guys who were mean mugging them. The most aggressive was a tall black male in his 20s, approximately six feet tall, slender build, with a Jamaican vibe. He wore a tan New York Yankees cap and a black hoodie. To be clear, I find that when the witnesses referred to the mean mugger, they were referring to this taller more aggressive man. Brian testified that the other mean mugger was a shorter black man.

[126] I note that a booking record for Mr. Dunkley from 2005 indicates that Mr. Dunkley was 6’3” tall, weighed 181 pounds, and had short braids in his hair. He was approximately 20 years old in the fall of 2005. Thus, Mr. Dunkley generally fits Brian’s description of the taller mean mugger.

[127] Brian attended the Hamilton police station to review a photo lineup on October 21, 2005, approximately six weeks after the shooting, for the purpose of identifying the mean mugger. When he was shown the photo lineup he selected a picture of Mr. Dunkley out of the lineup and said that the picture “looks similar to him” and later said “definitely looks like him”.

[128] I thought that Brian was sincere and thoughtful when he considered the photo lineup. I find that Brian understood the gravity of his role as an identity witness. I note that Brian did not positively identify Mr. Dunkley as the mean mugger, but I accept his evidence that Mr. Dunkley “looks similar” to the taller black male who was mean mugging them in the parking lot.

[129] There are two factors that subtly undermine Brian’s photo lineup evidence. First, Brian testified that he was shown a photo lineup on the evening of the shooting, September 9, 2005, at the police station and that he did not find any picture in that array that looked like the mean mugger. At trial this court heard that the police officers do not have a record of any photo lineup that was shown to Brian on September 9, 2005.

[130] However, I heard evidence that the police officers had prepared three photo lineup arrays on the evening of September 9, 2005, and that one of the arrays was shown to John Stewart. Based on the evidence before me, I find that the police officers did in fact prepare a photo lineup array on September 9, 2005, and showed it to Brian Pettigrew. I find that the photo lineup shown to Brian that evening was the same as, or similar to, the photo lineup that was shown to John Stewart, and that it did not include a picture of Mr. Dunkley.

[131] The second undermining factor is Brian’s testimony that the mean mugger had a Jamaican vibe and that the only picture in the photo lineup of a person with a Jamaican vibe was the picture of Mr. Dunkley. Brian could not really explain what he meant by a Jamaican vibe, but I accept that subjectively Brian believed that Mr. Dunkley’s picture was the only one of a person who had this characteristic.

[132] I do not agree that this means that Brian’s selection of Mr. Dunkley’s picture has no probative value. I find that the Jamaican vibe that Brian saw in the picture was just one factor that caused him to say that Mr. Dunkley’s picture was similar to that of the mean mugger. In hindsight, it would have been helpful if Brian had viewed pictures of other persons who had a Jamaican vibe, but I acknowledge that it would be very difficult to create an array that included such a subjective element.

[133] In summary, I accept Brian’s evidence that Mr. Dunkley looks similar to the mean mugger. This is some evidence that in fact Mr. Dunkley was the mean mugger.

[134] John testified that he did not see the mean mugger inside CD’s Bar. He first saw the mean mugger in the parking lot standing in the corner by the stores. He was not asked which corner, but his evidence implies that he saw the mean mugger in the north end of the parking lot. He said that the mean mugger was a black male who was with two other black men, both of whom were shorter than the mean mugger. John testified that they were nowhere close to his New York group.

[135] John said that the mean mugger was in his 20s, approximately 6’2” tall, 180 to 200 pounds, with tiny braids in his hair. He wore a black hat, black hoodie, and black shoes. Again, Mr. Dunkley fits this general description.

[136] Eugene also did not see the mean mugger inside CD’s Bar. He first noticed the mean mugger in the parking lot, but he was not able to specify the location in the parking lot. He noticed two mean muggers, one taller and one shorter. He could not provide a good description of either of the mean muggers. He described them both as in their early 20s and black.

[137] Richard Lee was not associated with the New York group of friends and did not know them. Richard came to CD’s Bar that evening in a car, driven by his friend T.Q. That car contained four black males, including Richard and T.Q. They knew the two girls, Sabrina and Kristen, who came to CD’s Bar in Kristen’s vehicle.

[138] Richard did not observe anyone mean mugging. However, he said that there was a black man in the parking lot who looked “sketchy”, like he was on something. It is the Crown’s position that the sketchy black man observed by Richard was in fact the mean mugger who was observed by John, Brian, and Eugene. Richard said that the sketchy man he observed was 6’1” to 6’2” tall, had braids or corn rows, and wore a New York Yankees hat.

[139] Richard saw this sketchy man leave the plaza parking lot and walk down Roxborough Street as if he were following a girl who had just left. Then, the sketchy man returned to the parking lot looking at his cell phone.

[140] Richard and his group left the parking lot in T.Q.’s car prior to the shooting. At that point he said that the sketchy black man was standing near Niko’s Restaurant in the plaza parking lot. I note that Niko’s Restaurant is on the east side of the parking lot on the side opposite the sidewalk.

[141] In summary, I find that there is good evidence that Mr. Dunkley was the mean mugger who was described by John, Brian, and Eugene, although the evidence is not conclusive. I find that Mr. Dunkley was probably the tall black man who was mean mugging the New York group from the north end of the parking lot near the sidewalk. I find that the mean mugger was in the presence of at least two of his shorter friends, one of whom was probably Grouch. Those findings should be considered along with all the other evidence at trial.

[142] I am unable to find that the person described by Richard as a sketchy black man was the same person described by the New York friends as the mean mugger. At most, I find that the sketchy black male seen by Richard was possibly the mean mugger, but it is also possible that he was a different person.

[143] Next, if Mr. Dunkley was in fact the mean mugger, I question whether this helps the Crown because there is good evidence that the mean mugger probably left the parking lot before the shooting, and there is no evidence that he returned.

[144] Brian testified that the mean mugger had left the parking lot before the shooting. He was not aware of his return. Eugene also testified that the mean mugger left the parking lot before the shooting.

[145] There is yet another wrinkle in this evidence as Eugene added that the mean mugger got into the car of guys that was associated with Sabrina and Kristen and left in that car. Eugene was clearly referring to the four black males, including Richard, that left in T.Q.’s car. I note that Sabrina’s evidence was that of the four black males in T.Q.’s car, two were tall black men and two were shorter black men. This suggests that there may have been one or two tall black men, other than Mr. Dunkley, who were in the parking lot.

[146] In consideration of all of this evidence, I find that the person who was mean mugging the New York group probably left the parking lot prior to the shooting.

[147] At this point I would like to review the evidence of some of the other people who were in the parking lot.

[148] Pat Scally was the hot dog vendor who was set up near the northwest corner of the parking lot, near the area in which both John and Brian observed the mean mugger. I accept that Mr. Scally would have had a good view of the north and centre parts of the parking lot.

[149] Mr. Scally said that he heard a gunshot that caused him to look toward the centre of the parking lot where he saw a young man lying on the ground. He saw a black male standing near the victim. That black male was approximate 5’11” tall, medium build, wearing dark clothing, and had braids bunched up at the back of his head. Mr. Scally testified that the male was just nonchalantly standing there as if nothing had happened.

[150] There is no doubt that Mr. Scally’s description of the black male he saw generally fits the description of the mean mugger and the description of Mr. Dunkley. It also fits the description of the sketchy black male who was observed by Richard.

[151] However, Mr. Scally’s evidence does not fit with the reliable evidence of Nicole Smith, William Elsegood, and Sabrina Ramnarain. These three good witnesses all testified that there was no one else around Michael or his friends at the time of the shooting or immediately after the shooting, other than the occupants of Jerome’s and Kristen’s cars.

[152] Sabrina testified that Michael walked away from the passenger side window of Kristen’s car only a few seconds before she heard the gunshot. He had walked toward the rear of her vehicle intending to get into Jerome’s car. There was no one else in the area.

[153] To be fair, at the time of the gunshot Sabrina was sitting in Kristen’s car, looking forward, getting ready to leave. However, she said that she probably looked into her sideview mirror to make sure Michael was clear of Kristen’s car. She assumed that he had walked around the rear of Kristen’s car to the passenger side of Jerome’s car. After they heard the bang, Kristen quickly drove away, and Sabrina looked out the rear window where she could see someone on the ground.

[154] Nicole’s evidence is even more clear. She was standing relatively close to the two parked vehicles in the centre of the parking lot. She would have had a view of the scene from the same direction as Mr. Scally, but she would have been closer to the location of the shooting.

[155] Nicole testified that as soon as she heard the shot she ducked and went to jump into her friend’s car. At the same time, she looked up to see what was happening. She testified that she saw Michael on the ground. No one else was around him. She watched as his friends exited Jerome’s car to help Michael, and then Nicole helped as well.

[156] William Elsegood was in the same group with Nicole and in the same position. His testimony generally confirmed Nicole’s testimony.

[157] There is no explanation, if Mr. Scally is correct, as to why a person who was nonchalantly standing over Michael after the gunshot was not seen by Sabrina, Nicole or William. Further, John, Brian, and Eugene all testified that there was no other person they observed in the area at the time of the gunshot.

[158] Possibly more troubling is the question of how a person who is nonchalantly standing over someone just disappears between the time of the gunshot and the time the people in the parking lot looked toward him. That is, from Mr. Scally’s evidence that person was not in a hurry to leave the parking lot. It is also useful to note that Mr. Scally has no current memory of this event, and therefore he could not be effectively cross-examined on the point. His evidence was admitted at trial only through Mr. Scally’s adoption of a statement that he gave to police in 2005.

[159] Therefore, I accept Mr. Scally’s evidence that there was a black male, generally fitting Mr. Dunkley’s description, whom he observed in the parking lot that evening, but I reject his evidence that this black male was nonchalantly standing near Michael immediately after he was shot.

[160] In addition, there is also some evidence of at least two other questionable characters who were in the parking lot that night.

[161] Nicole testified that there were two black men in their early 20s who had walked into the plaza parking lot from Roxborough Street about one minute prior to the shooting. She said that it seemed as if they were walking with a purpose. They were both wearing camouflage Gilligan hats, or fishermen hats. Immediately after the shooting Nicole saw these two men walking quickly out of the plaza parking lot across Ottawa Street.

[162] William testified that he saw two black men walking from the store area in the plaza toward Ottawa Street. They walked by him and he sensed that something was up. About 15 to 20 seconds after they walked by, he heard the gunshot. He had some trouble with the description of these two men, but his memory was refreshed by his police statement. He adopted his statement and agreed that they were “two short black guys, 5’5” to 5’6” tall.”

[163] From this evidence I conclude that there were two other black males, neither of whom were the mean mugger, who walked into and through the parking lot at approximately the time of the shooting. I accept Nicole’s evidence that they entered the parking lot from Roxborough Street and left via Ottawa Street after the shooting.

After-the-fact Conduct of Jermaine Dunkley

[164] The Crown submits that I should construe the after-the-fact conduct of Mr. Dunkley as evidence of his guilt. The Crown relies on two separate categories of after-the-fact conduct evidence.

[165] First, on December 9, 2005, Officers Stewart and Pacey interviewed Mr. Dunkley while he was in custody at the Hamilton Detention Centre. During that interview Mr. Dunkley lied to police as he falsely denied that he was at CD’s Bar on the night of the shooting, and he falsely denied that he was aware of the shooting at the time of the interview.

[166] Second, the Crown also relies upon five intercepted telephone communications between Mr. Dunkley and others, particularly his friend Grouch, in which Mr. Dunkley made several statements that the Crown submits can be used as evidence of his guilt.

[167] The courts have established that after-the-fact conduct is a form of circumstantial evidence. The general principle is that the conduct of an accused person after a crime has been committed can, under certain circumstances, provide circumstantial evidence from which an inference can be drawn that the accused behaved as a person who is guilty of the alleged offence. See the case of R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 17-22.

[168] However, the law is clear that a court must be cautious about drawing an inference, based on after-the-fact conduct, that the accused committed the crime alleged as there is a risk of speculative and prejudicial reasoning. As Rothstein J. stated in White at para. 23, “Jurors may be tempted to "jump too quickly from evidence of post-offence conduct to an inference of guilt" without giving proper consideration to alternate explanations for the conduct in question.”

[169] In a paper entitled, Simply Complex: Applying the Law of Post-Offence Conduct Evidence, 63 CRIM. L.Q. 275 (2016), Paciocco J. discusses the dangers of drawing inferences about what an accused was thinking or why an accused said or did something. At p. 282, he wrote, “Those dangers arise, in part, because … the decision-maker is invited to take what the accused person has done or failed to do, to infer from that what is in the mind of the accused, and to then draw significance from this inference in resolving an event that happened in the past.”

[170] Further, the legal authorities caution that when considering after-the-fact conduct the court must be very clear about the purpose and intended use of the after-the-fact conduct evidence. That principle is apparent in the White decision, and in R. v. Rodgerson, 2015 SCC 38, [2015] S.C.J. No. 38, [2015] 2 S.C.R. 760.

[171] Keeping those principles in mind, I am going to consider the two categories of after-the-fact conduct in this case and decide if I can reasonably draw the inferences suggested by the Crown.

[172] Regarding Mr Dunkley’s lies during the police interview, I want to make it clear that this is not a case of a false alibi that is disbelieved or contradicted by the evidence. Mr. Dunkley admitted that he lied in the two ways identified by the Crown. He testified that he lied in the hope that the police would not question him further and would discontinue their investigation. I would classify these lies as false exculpatory statements.

[173] I accept that false exculpatory statements can be used as after-the-fact conduct from which a court may infer guilt. In the case of R v. O'Connor, 2002 CanLII 3540 (ON CA), [2002] O.J. No. 4410 (Ont.C.A.) at para. 26, O’Connor J. wrote the following: “False exculpatory statements made by a person upon being informed that a crime has been committed will in some circumstances be consistent with that person being conscious of having committed the crime...”

[174] I also want to be very clear about what inferences are possible in this case. The Crown submits that I may infer from these false statements that Mr. Dunkley was responsible for the murder. In my view, the Crown’s submission is overreaching. I cannot reasonably infer all of the elements for the offence of murder from Mr. Dunkley’s lies about his presence at CD’s Bar or his knowledge of the event. However, I agree that it is open to the court to infer that Mr. Dunkley lied because he was involved in the shooting, and he wished to distance himself from the crime.

[175] Next, I must consider any alternate explanations for these false statements and determine whether, on all of the evidence, I can reasonably draw an adverse inference from this conduct.

[176] Mr. Dunkley testified that he lied to police not because he had done anything wrong, but because he does not trust police and did not want to be involved in the investigation. He hoped that if he lied about being at CD’s Bar that police would not continue to question him.

[177] Mr. Dunkley said that his father had been deported because of a drug charge when Mr. Dunkley was a child. He said that he grew up in a black community where police were very aggressive towards his community, and he believed that police only saw the colour of his skin. He did not want to deal with police and he tried to avoid police. He was concerned about being falsely accused and doing two years dead time.

[178] I find that Mr. Dunkley’s stated reason for lying to police is plausible. I do not make any finding as to whether the police officers treated Mr. Dunkley differently because he was black, but I do accept that in Mr. Dunkley’s case and in the case of many members of the black community there is a general distrust of the police as there is a perception of bias against the black community. Thus, I accept that subjectively Mr. Dunkley did not trust the police and did not wish to be co-operative with the police under any circumstances.

[179] I also find that it is likely that Mr. Dunkley also wanted to avoid a police investigation because Mr. Dunkley was a full-time criminal drug dealer. That is, Mr. Dunkley and the police were on opposite sides of the law. In fact, Mr. Dunkley was in custody at the detention centre as a result of police charges at the time of his interview. I find that his criminal lifestyle was also a reason for his willingness to mislead the police and limit their investigation.

[180] In conclusion, on this point, I find that there are several plausible explanations for Mr. Dunkley’s lies during his police interview. One of the plausible explanations is that Mr. Dunkley was complicit in the shooting, which is an explanation consistent with his guilt. However, the other explanations are consistent with his innocence.

[181] Because of the need to be cautious about the use of after-the-fact conduct evidence, I find that I cannot draw an adverse inference as requested by the Crown. That is, from the evidence that Mr. Dunkley lied to police I cannot, and do not, infer that he did so because he was complicit in the shooting.

[182] In the second category of after-the-fact conduct the Crown relies on several statements made by Mr. Dunkley in five intercepted communications, the first four of which were on December 9, 2005, shortly after the police interview at the detention centre, and the fifth of which was on March 5, 2006.

[183] It is the Crown’s submission that these statements, collectively, support a reasonable inference that Mr. Dunkley committed an offence. Again, I find that it would be unreasonable to infer from this after-the-fact conduct that Mr. Dunkley committed the offence of murder. However, it is open to the court to infer that he was complicit in the shooting.

[184] For this part of the analysis, I need to divide the many statements made by Mr. Dunkley into a few subgroups.

[185] In the first subgroup I have considered statements in which Mr. Dunkley expressed his belief that his phone calls were being recorded; talked in coded language to Grouch; and said that he did not want to talk to his girlfriend on the telephone about the police investigation.

[186] I find that I cannot draw any adverse inference as requested by the Crown from the statements in this subgroup. It must be remembered that both Mr. Dunkley and Grouch were drug dealers and were involved in a criminal lifestyle. I find that as a matter of common sense Mr. Dunkley likely knew there was always a possibility that his telephone communications could be recorded at any time. I also accept that Mr. Dunkley very likely regularly talked to Grouch, his drug business associate, in coded language, particularly when talking about a police investigation. Therefore, with respect to this subgroup of statements made by Mr. Dunkley, I cannot draw any adverse inference about the offence before this court.

[187] In the second subgroup I have considered the statements in which Mr. Dunkley informed Grouch about the police investigation and about someone mentioning his name. I also include in this subgroup the statements in which Mr. Dunkley expressed concern about the ongoing police investigation.

[188] In this respect, I accept the Crown’s submissions that it is possible to draw an adverse inference from these statements. However, there is also an alternate explanation here.

[189] The evidence is uncontradicted that Grouch is not only Mr. Dunkley’s drug business associate, but he is also his friend. Further, there is good evidence that Grouch was at or near CD’s Bar, at the relevant time.

[190] Mr. Dunkley testified that after the police interviewed him, he wanted to talk first to his mother and then to his friend Grouch. He acknowledged that he was upset because of the police interview and because his name had been linked to the shooting. He also acknowledged that he was concerned about rumours that were circulating at the detention centre about his involvement. He said that he wanted to talk to his friend Grouch about these things as they were upsetting to him. In my view, Mr. Dunkley’s explanation for what he said to Grouch is plausible.

[191] Thus, Mr. Dunkley’s comments to Grouch are consistent with both his guilt and his innocence. A guilty person may wish to warn his accomplice of an ongoing police investigation, but an innocent person who was just informed by police that he was under investigation may simply want to talk about the alleged misguided investigation with his friend.

[192] Therefore, for these reasons I cannot draw an adverse inference about Mr. Dunkley’s guilt as a result of his comments to Grouch in this second subgroup.

[193] The third subgroup in the intercepts relates solely to the intercept of March 5, 2006. The Crown submits that I can interpret this intercept as evidence that Mr. Dunkley was increasingly concerned because the police were continuing their investigation and had spoken with a witness.

[194] The difficulty for the Crown with respect to this subgroup is that most of the talking during the fifth intercept was done by Grouch, not by Mr. Dunkley. Grouch’s statements do not constitute evidence against Mr. Dunkley; only Mr. Dunkley’s statements can be used against him.

[195] During the fifth intercept Grouch informed Mr. Dunkley that police officers had interviewed a girl and that the police were “getting too close for comfort”. For the most part Mr. Dunkley responded to Grouch with one-word answers such as “Yeah” and “OK”. At one point Mr. Dunkley said “that doesn't mean nothing”. He also said “it's all bullshit ... like leave us alone.”

[196] Therefore, I find that the statements by Mr. Dunkley in the fifth intercept cannot be interpreted in the manner suggested by the Crown. I cannot find that Mr. Dunkley was increasingly concerned by the police investigation. In fact, it appears that Grouch had an elevated concern, but, if anything, Mr. Dunkley was telling Grouch that there was nothing to worry about.

[197] Finally, I carefully considered Mr. Dunkley’s statement to Grouch in the fourth intercept to “story up.” To put this into context, shortly after Mr. Dunkley told Grouch that the police officers told him that someone brought up his name in connection with the shooting, Grouch expressed disbelief and then said, “Story up bud”. Mr. Dunkley replied, “Yea. Story up.”

[198] I reject Mr. Dunkley’s testimony that this was just something they would say if they thought someone was not telling the truth. I find that the only reasonable interpretation of this comment is that it was a clear message that they should both tell the same story. This implies that by the time of the police interview in December 2005, Mr. Dunkley was aware of the details of the shooting.

[199] Again, I cannot infer that Mr. Dunkley was complicit in the shooting or even that he was present in the parking lot. I acknowledge that it is possible that he was present at the scene, but it is also possible that he had been informed by others about the details. I can only infer from this comment that Mr. Dunkley was aware of the details of the shooting and that it was important for Grouch and Mr. Dunkley to have the same story. Again, this could mean that Mr. Dunkley simply wanted to limit the police investigation for the reasons I have already mentioned.

[200] In summary, I find that there are difficulties interpreting all of the after-the-fact conduct in the manner requested by the Crown. I find that I cannot reasonably infer from any of the after-the-fact conduct that Mr. Dunkley was complicit in the shooting. However, I do infer that by December 9, 2005, Mr. Dunkley was aware of the details of the shooting.

Jermaine Dunkley’s Testimony – The W. D. Test

[201] Mr. Dunkley testified that he was present at CD’s Bar on the night of the shooting. He testified that he was not at the plaza parking lot that evening, although he acknowledged that he may have walked in that direction to get a taxi. He testified that he did not shoot Michael Parmer, he is not aware of who shot Michael Parmer, and he was not involved in the shooting.

[202] Mr. Dunkley acknowledged his cell phone records that indicated that he would have been in the area of CD’s Bar and the plaza parking lot between approximately 1:17 a.m. and approximately 3:41 a.m. that morning. He said that this was not particularly unusual because he lived in the general area and he visited clubs in that area on a regular basis.

[203] I do not accept Mr. Dunkley’s evidence at face value. He has a lengthy criminal record, he acknowledged that he has lived a criminal lifestyle, and he acknowledged lying to police. Thus, whatever Mr. Dunkley says must be considered with caution. Therefore, the first stage of the W.D. test is not applicable.

[204] I agree with counsel that it is appropriate to consider the second and third stages of the W.D. test together in this case as I am required to assess Mr. Dunkley’s testimony in light of all of the evidence that has been adduced by the Crown.

[205] Therefore, I am going to summarize my findings of fact based on the evidence adduced by the Crown and consider whether the Crown can prove its case beyond a reasonable doubt. At the same time, I will consider whether Mr. Dunkley’s evidence raises a reasonable doubt about his guilt.

CONCLUSIONS REGARDING THE EVIDENCE

[206] Accordingly, for the reasons I have just stated, I find that the evidence that I accept establishes the following facts:

• That Michael was shot while he was standing in approximately the centre of the plaza parking lot at the rear of the two vehicles operated by Kristen and Jerome that were parked side by side.

• That Michael had been speaking with Sabrina at the passenger side of Kristen’s vehicle a few seconds prior to the shooting. When he left the passenger side of the vehicle, he walked toward the rear of Kristen’s vehicle intending to walk behind the two vehicles to Jerome’s vehicle.

• That there was no argument or dispute of any nature in the area of the two parked vehicles immediately prior to the shooting.

• That, in particular, there was no argument or dispute involving Michael and/or Mr. Dunkley and/or Collie Dubinsky immediately prior to the shooting.

• That, other than the occupants of Kristen’s vehicle and Jerome’s vehicle, there were no other persons in the immediate vicinity of the shooting at the time of the shooting.

• That immediately after the shooting there was no other person around Michael until Michael’s friends and Nicole Smith came to his aid.

• That a tall black man, wearing dark clothing and a hat, with short braids in his hair, had been mean mugging the New York group of friends while they were in the plaza parking lot.

• That Mr. Dunkley was probably the person who was the mean mugger. At the time of the mean mugging, the mean mugger was in the presence of at least two of his shorter friends, one of whom was probably Grouch.

• That the mean mugger probably left the plaza parking lot prior to the shooting.

• That approximately one minute prior to the shooting two black men, neither of whom was the mean mugger, entered the plaza parking lot from Roxborough Street, and those same two men left the parking lot via Ottawa Street immediately after the shooting.

• That there was another black man, described as sketchy by Richard Lee, who was in the plaza parking lot at some point prior to the shooting, but his whereabouts at the time of the shooting is unknown. I make no finding as to whether this sketchy black man was Mr. Dunkley or the mean mugger.

• That there was a tall nonchalant black man, observed by Pat Scally, in the plaza parking lot at some point that evening. I make no finding as to whether this nonchalant black man was Mr. Dunkley or the mean mugger.

• That by December 9, 2005, when he was interviewed by police, Mr. Dunkley was aware of the details of the shooting.

[207] Based on these facts, I find that the Crown has not proved beyond a reasonable doubt that Mr. Dunkley is the person who shot Michael Parmer. The case fails at the third stage of the W.D. test.

CONCLUSION

[208] In conclusion, for the reasons set out herein, I find that the Crown has not proved its case. I therefore find the accused not guilty.

Released: September 2, 2021

J. R. Henderson J.