COURT FILE NO.: CR-20-40000445
DATE: 20211109
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RESHAUN TABNOR
Arian Khader, for the Crown
Tobias Okada-Phillips, for the Defendant
HEARD: September 13, 14, 16, 17, 20-24, 27-29, 2021
P. CAMPBELL, J.
REASONS FOR JUDGMENT
A. BACKGROUND
[1] On March 11, 2019, a man dressed in black, with his face masked, stepped from the north sidewalk of Grandravine Drive in Toronto, near the stoplight at Keele Street, and from about six feet away discharged five rounds from a semi-automatic handgun toward a 2006 Lexus automobile driven by Walwin Brown, a middle-aged man heading eastbound and waiting to turn left onto Keele St. None of the shots struck Mr. Brown. Five cartridge casings were ejected from the weapon during the fusillade. The shooter quickly left the scene and entered a getaway vehicle, identified by eyewitnesses as a white four-door Mercedes-Benz. Mr. Brown, after remaining prone in his car for a time, exited the vehicle and fled the scene until he was satisfied the danger had passed. Shortly afterward, he returned to the scene and spoke to the police. He was extremely shaken by the attack for which he could offer no explanation and no clue as to the shooter’s identity.
[2] Just over two months later, on May 21, 2019, Toronto police were conducting an unrelated investigation of a suspected "drug den" in unit 409 at 415 Oakdale Road in Toronto. In the unit, they arrested Reshaun Tabnor and several other men whom they charged with drug offences on the basis of controlled substances seized on the premises. They had observed Mr. Tabnor driving a Hyundai Elantra and found its keys on his person when he was arrested. On May 23, after obtaining a search warrant, they located behind a panel in the driver’s door of the Elantra a .40 calibre Smith & Wesson handgun with an oversized magazine containing twelve .40 calibre cartridges, with an additional cartridge in the chamber. A comparison of the gun with identifying tool marks on the shell casings left behind by the shooter on March 11, 2019 established that this was the weapon fired toward Mr. Brown at Grandravine Dr. and Keele St.
[3] The five shell casings were swabbed (cumulatively, with one swab, rather than individually, with different swabs) and yielded a DNA profile that matched Mr. Tabnor’s DNA which had been secured by a warrant issued under s. 487.05 of the Criminal Code, R.S.C., 1985, c. C-46. This proved, as a practical matter, that Mr. Tabnor had at some point handled at least one of the cartridges fired at the Lexus.
[4] The investigation of Mr. Tabnor revealed that from March 1 to 11, 2019, he had been in possession of a white Mercedes-Benz four-door sedan, rented from a private owner through Turo, an online service for car rentals that is similar to Airbnb’s role in the short-term rental of residences. After the Mercedes-Benz was initially acquired, his rental had been extended three times and the vehicle was due to be returned to a stipulated drop-off site in Mississauga within one hour of the March 11 shooting on Grandravine Dr.
[5] Evidence that linked Mr. Tabnor with the gun used on March 11, the ammunition fired toward Mr. Brown's Lexus, and a white Mercedes-Benz formed the backbone of the Crown case. It was supplemented by two items of video surveillance footage, one of which is alleged to have captured the Mercedes-Benz meeting the Lexus on Grandravine Dr., and quickly making a U-turn to pursue it, about 1.8 km from the shooting site. The second video was from an outdoor camera near Grandravine Dr. and Keele St. which, facing south, captured the very front of Mr. Brown's Lexus during or just after the shooting and recorded it rolling forward several feet until it bumped the car in front of it, soon after which Mr. Brown emerged and fled on foot.
[6] The shooting, which the Crown contends Mr. Tabnor performed personally, gives rise to the attempted murder charge in count 1 of the indictment. Count 2 alleges possession of the firearm, a prohibited weapon, between March 11, 2019, the date of the shooting, and May 21, 2019, the date of the seizure of the Elantra, the vehicle in which the gun was located. Count 3 alleges possession of the oversized magazine—a "prohibited device"—on May 21, 2019. The three counts were laid under, respectively, s. 239 (1), s. 95 (1) and s. 92 (2) of the Criminal Code.
[7] Mr. Tabnor testified in his own defence and met the evidence linking him to the firearm and the car by denying that he was in possession of either on March 11. He said that he had left the gun with a friend, since deceased, and had made the car available to his friend and a group of young men, any of whom were free to use it and one of whom must have returned it to its owner at the required time on March 11. The implication of this evidence is that an unidentified third-party used the gun and the car in the attack on Mr. Brown.
[8] Based on his evidence about possession of the gun with the prohibited magazine, there is no dispute as to Mr. Tabnor's guilt on counts 2 and 3.
[9] The issues that I must resolve in relation to count 1 are the following:
(i) Was Mr. Tabnor, despite his denial, involved in the shooting on March 11, 2019?
(ii) If so, was he the person who actually committed the offence—the shooter and hence a "principal"—under s. 21(1)(a) of the Criminal Code or the driver and source of the weapon, which would make him an aider (or "party") to the crime under s. s.21(1)(b)?
(iii) If Mr. Tabnor was the principal, did he have the mens rea for attempted murder—the intention to kill Mr. Brown?
(iv) If he was a party, did he have the mens rea for party liability in cases of this nature—subjective knowledge that the shooter would attempt to murder Mr. Brown?
(v) If he lacked the mens rea for the crime, whatever his mode of participation, is he liable for conviction of an included offence?
[10] Based on my analysis below, I find Mr. Tabnor not guilty of count 1. While I find that Mr. Tabnor was involved in the shooting, likely as the driver of the Mercedes, there is insufficient evidence to support a finding that he had the mens rea required for party liability.
B. THE EVIDENCE AT TRIAL
i. The Victim and the Defendant
[11] Mr. Brown was in his late 40’s on March 11, 2019 and worked sometimes as a cook. He drove a 13-year-old Lexus. He was unaware, he said, of any enemies, much less anyone who would have reason to murder him. Given the opportunity in July 2021 to select Mr. Tabnor from a photo lineup, he failed to do so and gave no indication that he had ever met him or knew of any grievance between them.
[12] Mr. Tabnor was 23 years old on March 11, 2019. He had completed grade 11 and worked as a mid-level drug dealer. He testified that he was 5 feet 11 inches tall and, at the time of trial, weighed about 175 pounds. In 2019, he recalled that he was 15 or 20 pounds lighter. He lived some of the time with his mother, in another part of the city, and some of the time with his grandmother in an apartment at 50 Driftwood Avenue, a street that intersects Grandravine Dr. He was in a relationship with a girlfriend who, he said, lived in the same neighbourhood as his grandmother. Mr. Tabnor regularly drove the Hyundai Elantra searched by the police on May 23, 2019. He was stopped in this car for speeding on January 9 of that year, though the ownership of the car was murky—it was registered to a car rental agency, 3RRR Rentals Inc., of which no physical or documentary trace could be found by an officer assigned to look into it. The rental agency appears to be a fictitious smokescreen to avoid any documentary connection between Mr. Tabnor and the Elantra.
[13] Mr. Tabnor denied any relationship with, or prior knowledge of, Walwin Brown, much less any reason to kill him. The Crown acknowledges that it cannot prove a motive for the shooting and, at least as between Mr. Tabnor and Mr. Brown, none seems to exist.[^1]
ii. The Shooting on March 11, 2019
[14] Mr. Brown was driving along Grandravine Dr. in his Lexus, generally headed west to east, at around 7:00 p.m. He was alone in the car, which had tinted door windows that, nonetheless, permitted a view inside the vehicle. He had begun in the area of Driftwood Ave. and Futura Drive somewhat west of the Toronto Community Housing Corporation (“TCHC”) surveillance cameras, which the Crown alleges captured short segments of his drive.
[15] He came to a stop at the corner of Grandravine Dr. and Keele St., where he planned to make a left turn onto Keele and continue north. He was in the turning lane and recalled that there were two cars in front of him. He had his foot on the brake. At this point, Mr. Brown observed from his left someone walk up to his car, look in, and then step back to about six or seven feet and raise a gun which, in Mr. Brown's perception, the man shot at his face. Mr. Brown noticed the gun as the man approached him. He did not see where the man came from, but it would have to have been from the back or side.
[16] Mr. Brown reacted to the pointed gun by raising his hands. He fell backward on the front seats after the first three shots, which were fired very rapidly. The initial shots were followed by two more as Mr. Brown attempted to "play dead." None of the shots struck him and he did not see the shooter's movements after the gunfire ended. He remained in a crouched position for a period he estimated to be three to four minutes or perhaps, as he stated in cross-examination, two to three minutes. He then got out of the car, which was still running, and ran away, heading on foot north on Keele St. He returned to the scene and spoke to attending police officers after he heard sirens and was confident that he would be safe. An officer who spoke to Mr. Brown, who was still out of breath and shaking, deemed him to be in "a state of shock."
[17] Mr. Brown described the shooter as a Black man who was not much bigger than himself. Mr. Brown is five feet five or six inches tall and about 130 or 140 pounds; he considers himself "very skinny." The shooter was a "little more bulky," but slim. He put the shooter at about five foot eight inches but accepted in cross-examination a range of five foot six to five foot eight.
[18] Three witnesses, two called by the Crown and one by the defence, observed the shooting from different positions. All of them testified carefully and, in my view, credibly. With minor exceptions, there was no reason to doubt the substance of their evidence.
[19] Naveen Devasadayam had been driving north on Keele St. intending to turn left onto Grandravine Dr. at the light. He had entered the intersection. In that position, he saw the shooter walk from the north sidewalk of Grandravine Dr. to the middle of the westbound lane. He noticed a small black gun in the man's hand as he walked across the street and believes the man took it from his clothing. Mr. Devasadayam heard three to five shots, quick and close together, which were fired at the driver’s side of the car.
[20] After the shots, the shooter ran west on Grandravine Dr. and entered a "getaway car." Mr. Devasadayam saw this car come from a side street, Sharpecroft Boulevard, which runs south from Grandravine Dr. Mr. Devasadayam thought the shooter got into one of the rear seats of the car, which then drove west on Grandravine Dr., away from the crime scene. It appeared to be moving fast. Mr. Devasadayam saw the driver, but he could not tell if anyone else was in the car. The victim, after remaining crouched in his car for a short time, emerged and ran north. Mr. Devasadayam completed his left turn onto Grandravine Dr. and continued in the same direction as the getaway car, though he was not attempting to pursue it.
[21] Mr. Devasadayam described the shooter as wearing dark clothing, with a hood. He seemed to be masked, but his skin looked black. In cross-examination, he accepted that he had thought the shooter to be in his early 20’s, or even late teens because he moved quickly and had the "skinnier" frame of a younger person. He described the car as a four-door white Mercedes-Benz, saying when pressed that he was "pretty certain" of this when he spoke to the police. He referred to the taillights and the shape of the car's rear area, of which he had had the best view.
[22] Nancy Weinstein was returning home from dropping her son at a hockey arena and was the second car behind Mr. Brown's vehicle in the lane to turn left onto Keele St. from Grandravine Dr. From the corner of her eye, she saw someone on the north sidewalk of Grandravine. She watched as he walked into the middle of the road, pulled out a gun, and started shooting. She heard three shots before she ducked under the dash of her car. She estimated the shooter to be about five feet from Mr. Brown's car. She said the shooter stood and took aim at the window. She saw him pull the trigger three times, with his arm extended. She characterized the shooter’s walking as "casual but with purpose" and his conduct as "specific"—as if he knew where he was going.
[23] Ms. Weinstein did not know what the shooter did after firing the shots. She noticed a white car quickly turn right (south) onto Keele St. from Grandravine Dr. and followed it, thinking the shooter could be in it, though she had not seen the shooter enter any vehicle. She called 911.
[24] Ms. Weinstein recalled that the shooter was wearing all black clothing, which was like a "sweatsuit." He also had a black mask on which covered his face. She told the 911 operator that he was "roughly" five feet eight inches, though she testified that she was not good at estimating heights. She also said the man was "very skinny," which she mentioned because of how loosely his clothing hung from him.
[25] Kyle McCluskey, a teenager, was called by the defence. He heard the shooting from a nearby building then saw its aftermath from his third-floor balcony. He heard three shots then two more and when he went outside, he saw a middle-aged man—who must have been Mr. Brown—running north on Keele St. He also saw a younger man, who he thought to be about 17 or 18 years old, sprinting down Grandravine Dr. toward a white Mercedes. This man was dressed in black clothing and had on a mask and hoodie. He agreed in cross-examination that while the man was young, he was "guessing" at his age—the man could have been 22 years old for all Mr. McCluskey knew.
[26] The police retrieved surveillance camera video at Toronto Community Housing Corporation buildings along the route taken by Mr. Brown. The cameras were placed so that traffic along Grandravine Dr. could be seen between its intersection with Driftwood Avenue and its intersection with Arleta Avenue, a corner at which Grandravine Dr. veers sharply northwest. Clips from the time-stamped footage showed the following sequence:
• A dark-coloured vehicle, similar in its visible features to Mr. Brown's Lexus, meets a white vehicle, similar in its visible features to a Mercedes-Benz C250. The dark vehicle is moving in the direction of Keele St. as the white vehicle travels in the opposite direction.
• A little over 20 seconds later, on a different camera, the white vehicle enters the intersection of Grandravine Dr. and Driftwood Ave. where it performs a sudden U-turn, causing it to be headed in the same direction as the dark car.
• Where Grandravine Dr., a winding road, angles sharply to the left at the four-way stop at Arleta Ave., the white vehicle catches up with the dark one. Both make the left turn, still on Grandravine Dr., and are now headed toward Keele St., which is 1.8 km to the east, about three minutes away. These turns are completed by 7:04:05 p.m. and one vehicle at this point separates the dark and white cars.
[27] The shooting at Grandravine Dr. and Keele St. appears to have been completed by 7:07 or 7:08 p.m. A time-stamped outdoor surveillance camera (not, as far as is known, synchronized with the TCHC cameras) shows the very front of Mr. Brown's Lexus at the intersection, in the left-turn lane, at 7:08:25 p.m. The car begins to roll forward, slowly, at 7:08:56 p.m. and hits the vehicle in front of it, suggesting that by this point Mr. Brown's foot had left the brake, likely as a result of his reaction to the shots fired at his car. Twenty-five seconds after the Lexus hits the car in front, Mr. Brown emerges from the Lexus and can be seen running away, north along Keele St., as he testified.
[28] This sequence of surveillance images suggests that the driver of the white car, upon encountering the dark car, sharply reversed direction and pursued the dark car—Mr. Brown's Lexus—for about three minutes until the shooter emerged from the white car and discharged the firearm at the Lexus, which was stopped at the Keele St. lights. No serious challenge was mounted to this narrative in closing arguments. Two of the eyewitnesses to the shooting and its aftermath saw the shooter enter a white Mercedes and drive away.
iii. The Physical and Circumstantial Evidence
[29] The prosecution case that Mr. Tabnor was a participant in the March 11, 2019 shooting depends on several items of circumstantial evidence, the thrust of which was not contested by the defence. This evidence was intended (i) to link Mr. Tabnor to a white Mercedes-Benz four-door car and place the car in his possession at 7:00 p.m. on March 1; (ii) to link him to both the gun and the bullets used in the shooting; and (iii) to demonstrate that the shooting was preceded by a brief pursuit of the Lexus after the two cars met on Grandravine Dr.
[30] Scrutiny of the shooting scene by an identification officer located five spent shell casings in a cluster near the north side of Grandravine Dr. in the westbound lane where the shooter was said to be standing. Examination of the firearm seized from the door panel of Mr. Tabnor's Elantra matched it to four kinds of markings on the shell casings: the firing pin impression, the firing pin drag mark, the firing pin aperture mark, and the breach face mark. These matches, in total, allowed an expert from the Centre of Forensic Sciences (“CFS”) to conclude "to the limits of practical certainty" that the casings had been discharged from the same weapon and that the weapon was the Smith & Wesson handgun found in the car possessed by Mr. Tabnor on May 23, 2019. Evidence of a police officer who stopped Mr. Tabnor in the Elantra on January 6, 2019 suggested that his possession of the Elantra and the gun extended from before the March 11 shooting until May when the car was seized by police.
[31] The five ejected shell casings were examined for DNA, the finding of which is generally unlikely in such circumstances. Because of the relatively slender chance of obtaining a sufficient quantity of organic material to yield a DNA profile from any individual casing, a CFS protocol permits a series of apparently related casings at a scene to be tested on a single swab, elevating the chances of recovering a usable profile. When that was done in this case, the resulting profile matched Mr. Tabnor's profile and made the chances of another person having deposited the DNA one in a trillion. This did not prove that Mr. Tabnor had loaded, or even handled, all five bullets, since the match could have come from any one of the five casings because of the way they were tested.
[32] The Crown also proved, and Mr. Tabnor acknowledged, that he was in possession of a white Mercedes-Benz C250 four-door car on the date of the shooting. Mr. Tabnor first rented the vehicle from its owner, Rafi Shdid, on March 1, 2019 and renewed the rental, mostly through the app, on March 5, March 8, and March 10. He was observed operating the car at 1:15 a.m. on March 9 when a police officer stopped him for speeding. His rental of the vehicle cost him over $1200. The last renewal of the rental began on the evening of March 10, and was set to expire at 8:00 p.m. on March 11, at which time the car had to be returned to 2233 Hurontario Street in Mississauga. This was less than an hour after the shooting at Grandravine Dr. and Keele St. The evidence of Mr. Shdid established that the car was returned on time.
iv. The Raid at 415 Oakdale Road
[33] A good deal of evidence was led about the raid of unit 409 at 415 Oakdale Rd. on May 21, 2019 and the search of Mr. Tabnor's Elantra two days later. This evidence was of marginal significance to identifying the participants in the March 11, 2019 shooting, except insofar as the car search led to the finding of Mr. Tabnor's gun, which was used in the shooting. The evidence served as a kind of testing ground for the credibility of Mr. Tabnor and of a police officer conducting surveillance of the premises, but not in a way that I find particularly helpful to the key factual determinations I have to make.
[34] In short, a detective watching the premises on May 21 testified that at 8:30 p.m., he saw Mr. Tabnor make a hand-to-hand exchange with the driver of an Audi in the building's parking lot, then drive away in his own car for a short time, return, park the car, and enter unit 409. An agreed statement of facts confirmed that significant quantities of drugs, cash, and other indicia of trafficking were present in the unit when a search warrant was executed there later in the evening, Mr. Tabnor was arrested without drugs on his person but in a room with traffickers, a considerable quantity of controlled substances, and other paraphernalia. He was carrying three cell phones along with the keys to the Elantra in the parking lot.
[35] The search of the Elantra two days later, pursuant to a warrant, led to the gun found behind the driver's door panel. Mr. Tabnor, testifying in his defence, accepted the portrait this evidence painted of him as a drug trafficker with a gun but resisted any suggestion that his presence at unit 409 on May 21 had been related to this business. Rather, he said, he had taken his friend to the unit, which for him was an occasional "chill spot," not a venue for drug-dealing, and he had waited until a friend of his friend arrived so they could leave together. While waiting, he became absorbed in a televised Toronto Raptors basketball game, eventually making a bet on the outcome with an unidentified man. This man had to leave before the game ended and arranged to be paid if he won his bet. When Mr. Tabnor and the man were at the window of the bettor’s vehicle, all that passed between them was a handshake offered in a spirit of good humour, not drugs.
[36] I consider this by-play to be of little relevance in part because there is no doubt that Mr. Tabnor was a drug trafficker at the time of the raid in unit 409, and it is of no real significance whether trafficking was his link to the unit or not. In addition, there is no proven linkage between Mr. Tabnor's drug trafficking and the assault on Mr. Brown in his Lexus. Nothing suggests that Mr. Brown was implicated in drug trafficking or even drug usage, and nothing about the shooting has been shown to intersect with that sphere of Mr. Tabnor's life. Moreover, while Mr. Tabnor tells a complicated story denying his awareness of drug-dealing at the unit and the hand-to-hand sale to the person in the Audi, he admits that he was an active drug dealer. This suggests that any lie about the events of May 21 at the unit was likely to protect other people associated with it rather than to conceal the fact that he sold drugs. Dishonesty of this nature by young people operating in a criminal milieu, which is common in trial courts, cannot reasonably lead to a reflexive rejection of all of a defendant's exculpatory testimony.
[37] I certainly do not affirmatively accept Mr. Tabnor's evidence about the events on May 21 and I suspect that he was at the unit primarily as a drug dealer, not a chauffeur. However, I do not consider this to have been decisively proven by the Crown and, in the end, the credibility tussle over this is of no significance to my central factual findings.
v. Reshaun Tabnor's Testimony
[38] Mr. Tabnor, after addressing events surrounding the May 21 raid at 415 Oakdale Rd. and his possession of the firearm in the Elantra, gave evidence to the effect that on March 11, 2019, he was not in possession of either the gun that was fired at Walwin Brown's car or the Mercedes-Benz in which it was alleged the shooter arrived and departed.
[39] Mr. Tabnor explained that he had acquired the gun for his own protection, due to the general dangers in the area where he lived and the specific risk of selling drugs in that area. He said that he had been shot at in the past and perceived a risk of it happening in the future.
[40] Jovahn McKnollys was a close friend of Mr. Tabnor and about three years younger than him. He died on July 20, 2021, weeks before the trial began, in a shooting in Etobicoke. He lived at 208 Hullmar Drive, about 10 or 15 minutes from Mr. Tabnor's part-time residence at 50 Driftwood Ave. Mr. Tabnor described Mr. McKnollys as a childhood friend and "like family." He said that a group of young men regularly visited Mr. McKnollys’s home to "chill," using it as a "pitstop" for socializing and taking drugs. Some of the visitors were friends with only Mr. McKnollys, while others were friends of Mr. Tabnor as well. One day in late February of 2019, Mr. McKnollys told Mr. Tabnor that he was not feeling comfortable in his home, and that he had "safety concerns." He asked to borrow Mr. Tabnor's gun. Because of his closeness with Mr. McKnollys, Mr. Tabnor agreed and gave him the weapon. He did not place any time limits on its use by Mr. McKnollys and does not recall the circumstances of its return to him except that he pegs it as a week or a week and a half after his sister's birthday, which was on March 12. He recalled that at this point in early March he was "grinding"—working unusually hard to make money selling drugs—so that he could buy his sister a birthday present. Thus, on the day of the shooting at Grandravine and Keele, the gun used was temporarily out of his possession.
[41] With regard to the white Mercedes-Benz, which bears a notable resemblance to the white car that made the U-turn at Grandravine and Driftwood at 7:03 p.m. on March 11, Mr. Tabnor acknowledged renting the car through Turo on March 1 and extending the rental for a third time on March 10 at 8:30 p.m. which required him to return it on March 11 by 8:00 p.m.
[42] Mr. Tabnor testified that he initially rented the Mercedes because his Elantra had broken down. He kept it, however, because he was using it to impress a young woman named Raquel, a friend on whom he had romantic designs. At the same time, the Mercedes gave rise to a complication because Mr. Tabnor had a steady girlfriend, Delina, who was generally emotional and felt jealous regarding Raquel. Mr. Tabnor thought that Delina would "put two and two together" and infer from his rental of the Mercedes that he was trying to impress Raquel. He did not want his girlfriend, his mother, or his grandmother to see him with the Mercedes. For this reason, he left the Mercedes at Mr. McKnollys’s home on Hullmar Dr. from where he would either take a taxi to 50 Driftwood Ave. or drive there in his Elantra.
[43] Mr. Tabnor not only left the Mercedes on Hullmar Dr. but left the key with Mr. McKnollys. Moreover, he testified that the car was available for any of the young men who socialized at Mr. McKnollys’s place to drive as they might wish, without asking or notifying him. As a result, the Mercedes, like the gun, was out of his possession on the evening of March 11 and, if it was used along with his gun in the shooting of Mr. Brown, he does not know the identity of the driver. The driver of the Mercedes could be any of the young men who frequented 208 Hullmar Dr., whether it was a friend of his, a friend solely of Mr. McKnollys or Mr. McKnollys himself. Similarly, the shooter, it may be inferred, could be Mr. McKnollys or one of the unidentified young men who chilled at 208 Hullmar Dr. Mr. Tabnor testified that he was not the driver or the shooter, that he knew nothing of the crime, and that he had no reason to shoot Mr. Brown. He could not account for his whereabouts on the evening of the shooting because he did not know it had occurred until his arrest in June 2020.
[44] Mr. Tabnor was questioned closely about the logic of his evidence regarding the car and the gun. He maintained that he gave up possession of the gun to Mr. McKnollys even though there was no obvious end date to the latter's need for the protection the weapon afforded and even though his own need for the gun continued, as he was still dealing drugs and living in the same perilous neighbourhood during his weeks without the gun. The Crown pointed out that circumstances could arise quickly in which Mr. Tabnor might need the protection of the firearm. He was asked about regaining possession of the gun from Mr. McKnollys and whether he observed that it was missing five cartridges, which he would have had to reload. He said he could not recall this.
[45] With regard to his evidence about how the rented Mercedes came to be out of his possession at the time of the shooting, Mr. Tabnor was challenged about whether it made sense to leave a rental car, for which he was paying over a hundred dollars a day, to be used by unknown people for indeterminate periods, when he wanted it to be available for impressing a young woman he was covertly dating. The Crown also questioned whether it was necessary for Mr. Tabnor to park the car so far from his home to keep his possession of it from his family and why he would make the rental so widely known among a circle of friends and friends of friends, if keeping it from his family and girlfriend was imperative.
[46] In light of Mr. Tabnor’s emphasis on the use of the car to impress Raquel, he was questioned on why he would allow it to be unavailable to him for potentially long periods of time if he went to the Hullmar address planning to pick it up. His answer was that he was patient.
[47] Mr. Tabnor was asked about the documentation showing that he paid to renew the Mercedes rental on the evening of March 10, with the car due back in Mississauga about 24 hours later. He agreed that he had no idea when the car was returned to the stipulated address—2283 Hurontario St. in Mississauga—or by whom. He said that it could have been by any of the people associated with Mr. McKnollys’s residence, but it was not him. He agreed that he had no arrangement in place on the evening of March 11 to ensure the car went back. He trusted Mr. McKnollys to tell anyone who took the car when and where it had to be returned. He did not check that evening that it had been returned to the owner.
D. THE LEGAL FRAMEWORK FOR ASSESSING THE EVIDENCE
i. The Elements of Attempted Murder
[48] The offence of attempted murder, in s. 239(1) of the Criminal Code, imposes on the Crown the burden of proving an elevated level of criminal culpability. The mental state required for attempted murder is not identical to the mental states with which murder itself may be committed. Rather, since murder requires as the essence of its actus reus, a death, an attempt to commit murder requires a positive intent to bring about death. The slightly modified and diluted mental states in s. 229(a)(ii), (b), and (c) of the Code when death occurs are not to be imported into the definition of attempted murder when it does not. To be guilty of attempted murder, a person must perform an act for the purpose of causing death, or with the virtual certainty that death will ensue: R. v. Ancio, [1984] 1 S.C.R. 225, at pp. 248-250; R. v. Boone, 2019 ONCA 652, 56 C.R. (7th) 432, at paras. 75-84.
[49] From the standpoint of Mr. Tabnor’s liability as a principal in the shooting, which is the Crown's primary theory, there is no question that firing five bullets at a human being can constitute the actus reus of attempted murder and will make out the offence if accompanied by the intent to kill. To assess liability on Mr. Tabnor’s part as a principal, therefore, the question is whether, considering all the evidence—what is known and what is not—the shooter had the intent to end Mr. Brown's life when he discharged the handgun.
[50] The potential liability of the driver of the vehicle that brought the shooter to the scene and, if the driver was Mr. Tabnor, furnished the shooter with the handgun, depends on another tier of mens rea. An aider or abettor of the offence would have to provide assistance or encouragement to the shooter and do so with the knowledge that the shooter's intention was to bring about the death of Mr. Brown: R. v. Adams (1989), 49 CCC (3d) 100 (Ont. C.A.), at pp. 109-110; R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 88; R. v. Almarales, 2008 ONCA 692, 237 C.C.C. (3d) 148, at para. 74. The liability of the driver of the car must be determined without the benefit of the flagrant and proven conduct that can be ascribed to the shooter. The driver’s liability requires consideration of much subtler potential inferences and competing possibilities.
[51] The law allows for only one included offence to be considered by a trier of fact on an unparticularized charge of attempted murder. That is the offence of attempting to unlawfully cause bodily harm: Criminal Code ss. 24 and 269; R. v. Simpson (1981), 58 CCC (2d) 122, at pp. 142-143 (Ont. C.A); R. v. Pelletier, 2012 ONCA 566, 291 C.C.C. (3d) 279, at para. 111.
[52] The logic of these authorities is that if a person commits an act that evinces an attempt to injure but it is unclear whether the intent was to kill, her or she must necessarily be guilty of unlawfully attempting to cause bodily harm. This logic would not support a conviction where the acquittal on the greater offence of attempted murder rested on reasonable doubt about whether the defendant intended to cause any bodily harm to the victim, since this is a necessary element of a conviction for an attempt to commit the offence in s. 269.
ii. The Approach to Fact-Finding
[53] Mr. Tabnor is presumed innocent of the charges against him and retains that presumption until the point where the Crown has satisfied me, as the trier of fact, that his guilt has been demonstrated beyond a reasonable doubt. Each element of the offence charged must be proven to that standard by admissible evidence. The Crown’s burden of proof can be met only with evidence of sufficient cogency to leave me sure of Mr. Tabnor’s guilt. While this level of proof is not to be equated with absolute certainty—a rarely attainable level of confidence in the assessment of past events—it is much closer to absolute certainty than it is to mere probability.
[54] It is also important that I take care not to allow assessments of Mr. Tabnor's character or propensities to influence my evaluation of the evidence. He is a trafficker in hard drugs who kept a fully loaded semi-automatic handgun concealed in his car. This suggests a daily existence marked by deception and efforts to avoid important legal restrictions on his behaviour. Those are qualities that affect his credibility when he testifies in court because they suggest he may not accept a legal or moral duty to speak truthfully: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 62-65; R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, at paras. 70-78. However, in considering these features of Mr. Tabnor’s makeup, it is essential not to allow information about his character to influence my assessment of the likelihood that he committed the offence charged or had the state of mind required to make it a crime. Reasoning by a trier of fact from the defendant's character to his conduct creates a significant risk of error and is forbidden: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-36; R. v. MRS, 2020 ONCA 667, 396 C.C.C. (3d) 172, at paras. 58-66.
[55] As will be apparent, I draw no inferences about the likelihood of Mr. Tabnor's guilt by reference to evidence reflecting on his character and I have not seen any need to weigh it in assessing the credibility of his testimony.
[56] Finally, because Mr. Tabnor gave evidence, my assessment of his testimony must conform to the framework set by the Supreme Court of Canada in R v. W.(D), [1991] 1 S.C.R. 742, which prescribes that a trier of fact consider whether testimony of the accused, and evidence with the potential to exculpate him, is accepted; whether, if not accepted, it raises a reasonable doubt in light of all the evidence; and whether, if wholly rejected, the accepted evidence that remains proves guilt beyond a reasonable doubt. Although I will not approach fact-finding in the sequence set out in W.(D.), the approach to the issues that it directs has shaped my consideration of all the factual issues before me and my conclusion.
D. FACTUAL FINDINGS
[57] In section A of these reasons, I set out the five issues that must be addressed to apply the law to the evidence in this case. I now address each of these issues in order.
i. Was Mr. Tabnor Involved in the Shooting of March 11, 2019?
[58] Answering this question is fundamental to assessing the issues in the case, though its answer does not determine his guilt or innocence. The Crown alleges that the convergence of circumstantial evidence regarding his possession of the firearm used in the shooting and his rental of a car indistinguishable from the one in which the shooter arrived and departed, means that Mr. Tabnor is, beyond doubt, a participant in the offence. The defence, relying chiefly on Mr. Tabnor's testimony, supplemented by aspects of the circumstantial case, argues that his evidence should be believed and that there is reasonable doubt that he was present at the scene of the shooting in any capacity. The defence submits that someone else had Mr. Tabnor’s gun and, if his rented Mercedes-Benz was the pursuit and getaway vehicle, then someone else had taken possession of it as well.
[59] In my opinion, evidence related to the firearm unexpectedly discovered by the police on May 23, 2019, combined with documentation and testimony that Mr. Tabnor had access to a white Mercedes-Benz four-door car on the date of the shooting, make a conclusive case for his participation in the events surrounding the shooting on Grandravine Dr. My reasoning depends on the credibility and reliability of the items of evidence relied upon, the accumulation of facts suggesting Mr. Tabnor's participation, and the unlikelihood of coincidence in the features which point toward him. I do not believe Mr. Tabnor’s testimony responding to the circumstantial case nor does it raise a reasonable doubt.
[60] I accept the evidence of Karen Dann, a CFS expert in firearms analysis, that the weapon which fired the projectiles toward Mr. Brown's vehicle and ejected the shell casings recovered on Grandravine Dr. was the one found in Mr. Tabnor’s car on May 23, 2019. While the foundation of her opinion was probed in cross-examination, no reason was ultimately advanced to doubt it, nor can I see such a reason considering her testimony in its totality.
[61] The link to Mr. Tabnor and the gun, however, is strengthened and made more concrete by the evidence of Gerald Alderson, a CFS biologist, that the shell casings found on the street bore DNA which matched Mr. Tabnor’s profile at such a decisive statistical level that positing some other donor would be fanciful. The convergence of the general evidence that the shooting took place with his gun and the specific evidence that he handled the ammunition support an overwhelming inference that the gun fired at Mr. Brown’s Lexus was his—not just when it was seized, but on the date of the shooting.
[62] The two witnesses who saw the shooter’s departure both placed him in a white Mercedes-Benz. That is a precise recollection from independent witnesses, who are most unlikely to have made the same mistake wrongly identifying a different kind of car. It supports a factual finding that the gunman both arrived and departed in a white Mercedes, which was parked for the duration of his encounter with Mr. Brown on or close to Grandravine Dr. That is a finding I make on the evidence.
[63] There was necessarily a prelude to the sudden shooting at Mr. Brown's car. There was some moment during Mr. Brown's progress along Grandravine Dr. when the shooter was not behind him, followed by a moment when he was. While these moments could have been anywhere along Mr. Brown’s route, which began in the area of Grandravine and Futura Dr., I am satisfied that the commencement of the incident was when Mr. Brown in his Lexus met the white sedan on Grandravine at 7:03 p.m., shortly before the white car made a sudden U-turn and went in the same generally westerly direction as the Lexus.
[64] I reach this conclusion, in part, because of the several similarities between the U-turning car and Rafi Shdid's Mercedes-Benz C250 and the lack of any features that would exclude it from being that car. The general dimensions of the U-turning car, from the front, back, and side, the positioning of the front fog lights, the configuration of the taillights in two tiers, and the manner in which the taillights wrap from the rear to the side, all fit the Mercedes.
[65] A similar analysis suggests that the dark vehicle met by the white car and then followed from the left turn at Arleta Ave. was Mr. Brown's dark blue Lexus. The distinctive sweep of the chrome frame around the rear windows of both cars, the angle at which the taillights move from the rear to the side, and the overall contours of the two cars suggest they are the same vehicle. No feature was pointed to that belies this inference.
[66] Here, too, the unlikelihood of pure coincidence plays a part in the factual analysis. A shooting involving a dark car and a white car is a notably rare occurrence on any street. A sudden U-turn by a white car and its acceleration along the route taken by a dark car is a more common but still relatively distinctive occurrence. In my view, it becomes unlikely that when there is a shooting at one point on a route involving a white and a dark car, which is preceded minutes before by a sudden U-turn and acceleration on the part of a white car following a dark car, that the two events are unrelated and that the origin of the shooting lies elsewhere.
[67] The inference of a connection is elevated significantly when the dark car is similar in several respects to, and indistinguishable in any respect from, the dark car that was followed by the U-turning white car and when the white car is similar to, and indistinguishable from, a particular model of vehicle entered by the shooter. This is a long way of saying that I am satisfied that the meeting of the white and dark cars on Grandravine Dr., around twenty seconds before the white car’s U-turn, was the starting point of the episode that ended with the shooting and the departure of the white car.
[68] Onto this evidence, the Crown adds the fact that Mr. Tabnor had rented the same make of car, of the same colour as the one the witnesses saw at the shooting, and that it is very like the car that made the U-turn. This means that the circumstantial case points powerfully toward Mr. Tabnor’s involvement in the shooting by reference to the firearm and significantly toward him by reference to the vehicle. The implausibility of his not being involved can be measured by asking how likely it is that Mr. Tabnor was in possession of a white Mercedes, that his firearm was discharged by the shooter, and that the shooter then entered a white Mercedes to flee, but Mr. Tabnor was not involved as either the driver or the shooter. The answer, in my view, is that the chances of that are extremely remote. People who rent cars are usually in possession of them during the term of the rental. People who own illegal firearms usually hold them close to avoid loss or detection. When the two most salient features of the crime have strong links to the accused, through separate lines of analysis, the conclusion of his involvement in the crime is safe and, I believe, compelling. The circumstantial evidence can comfortably support an inference of Mr. Tabnor's participation in the shooting beyond a reasonable doubt.
[69] The question that next arises is whether the defence evidence—mainly that of Mr. Tabnor—either rebuts or raises a reasonable doubt about the inference supported by the circumstantial evidence. Mr. Tabnor gave evidence which, if credited to the extent of being reasonably believable, would sever the chain of reasoning that points to him as a participant in the events related to the shooting. He was, he testified, not in control of either the gun or the rental car because he had turned both over to Mr. McKnollys, who may have used them in the shooting or given them to other individuals who used them.
[70] I have considered Mr. Tabnor's evidence as carefully and sympathetically as I am able, conscious that there is no evidence directly implicating him in the shooting episode and that even the tightest net of circumstantial reasoning may be flawed by mistaken evaluation or mere chance. I do not, however, believe his testimony or find myself with a reasonable doubt about his involvement in the shooting because of it. I am sure that his account is untrue in its essential features.
[71] The most strikingly incredible aspects of his testimony are those related to the Mercedes. His possession of the car is closely documented and corroborated. His denial of possession at the time of the shooting depends on his own credibility, which, on this point, I find to be entirely wanting.
[72] Mr. Tabnor had some use for this car, a substantial upgrade from his usual vehicle, the Elantra. It could have been to impress Raquel—though no evidence connects her or anyone else to the Mercedes—or it could have been to impress drug clients or simply because he liked it. He made the decision to pay for access to the car, at a significant cost to a young mid-level drug dealer, four times in an eleven-day period. He obviously had some use or uses for it and attached value to driving it. This on its face makes it unlikely that he allowed the car to be used by unidentified people—possibly strangers to him—for indefinite periods of time and undeclared purposes over those eleven days. His suggestion that if he arrived at 208 Hullmar Dr. and found the car gone, possibly for days, he would simply be patient, is not reasonably capable of belief.
[73] Mr. Tabnor also had, on his account, no way of knowing that anyone would be returning the vehicle if he took no personal responsibility for it. If he was not driving it, he could not be sure that anyone in Mr. McKnollys’ circle was committed to its timely return, without which he would be in default. The car had to be returned less than an hour after the shooting and would necessarily have been a preoccupation of Mr. Tabnor’s in the period between 7:00 p.m. and 8:00 p.m. His story of leaving responsibility for the return of the car with Mr. McKnollys and his friends is not credible, and I reject it.
[74] My view of the testimony’s falseness is fortified by the evidence respecting the people at 208 Hullmar Dr. I do not know if the portrait Mr. Tabnor paints of that residence is true but if it is, it means that there were people coming in and out of the address who made Mr. McKnollys himself so nervous that he asked to borrow a gun for protection—he was not “feeling comfortable when he was at home.” If that is true, then leaving the rental car there, where it would be both vulnerable and easily accessible, makes no sense. Parking it on a side street, nearer to Mr. Tabnor's own residence, inconspicuously and more conveniently, would be far more logical if he had genuine concerns about his girlfriend or mother and grandmother becoming aware of it.
[75] Logic would also dictate that if Mr. Tabnor was prepared to have the Mercedes in the hands of any of the men in Mr. McKnollys’s circle, he would have required them at least to communicate to him details about what they were doing with it and when it would be available. Mr. Tabnor had three cell phones, so allowing the costly car to float freely in the hands of strangers is simply not believable.
[76] Mr. Tabnor’s story of how the gun came to be out of his possession on March 11, 2019 has similar flaws. Mr. Tabnor acquired the weapon, he testified, out of concern for his own safety in both the neighbourhood where he lived and the drug-dealing milieu in which he operated. To explain his account of giving the gun to Mr. McKnollys, he described his friend feeling insecure and threatened in his own home. This was not a temporary situation with a projected end date. For Mr. Tabnor, however, the gun was an important accessory not only to his drug-dealing but to his daily life. His account of May 21 at the commercial unit is a telling example. He describes it as a familiar chill spot and not a place he identified with drug-dealing. He was not there to deal drugs but for the inconsequential purpose of transporting a friend to meet another friend. Yet, he says, he took his firearm into this unexceptional, relatively benign premises until satisfied he would be safe. Mr. Tabnor was, he testified, selling drugs at a faster pace than usual in the period around March 1, to earn money for his sister's birthday present. There is no credible reason for him to give up a weapon he needs in even routine circumstances to a friend who cannot tell him when it would be given back.
[77] The evidence placing both a white Mercedes-Benz and the handgun that fired the shots at Mr. Brown's Lexus in the possession of Mr. Tabnor places him in a tight spot as a witness. His involvement in the shooting episode is a facially obvious inference. His attempts to disassociate himself from the gun and the car are, in my view, false. Accordingly, they do not refute the strong evidence of his involvement in the shooting and they do not raise a reasonable doubt about it. I am satisfied on all the evidence that Mr. Tabnor participated in the March 11, 2019 shooting.
ii. Was Mr. Tabnor the Shooter or the Driver?
[78] If Mr. Tabnor was the shooter, and the principal in the crime committed against Mr. Brown, assessing his liability for attempted murder is much simpler than if he was the driver. If he was the driver, he would have to know what the shooter intended to do before he did it. That means that before leaving the Mercedes, the shooter would need to have formed the intention to murder Mr. Brown, and Mr. Tabnor would need to have clearly known that intention. Identifying the form that Mr. Tabnor’s involvement took is a critical question.
[79] In my view, the Crown has failed to prove that Mr. Tabnor was the shooter though that is its primary position on the evidence. Not only do I have a reasonable doubt that shooting was Mr. Tabnor's form of involvement in the events on Grandravine Dr., but I consider it distinctly probable that he was the driver of the Mercedes and that a different man was the shooter.
[80] I say this firstly because the evidence makes clear that the shooter and driver were different people. The shooter got into the rear of the Mercedes before it departed along Grandravine Dr. after the shooting. The car came out of the side street to pick up the shooter. This proves that there were two people involved in the crime. We know a good deal about Mr. Tabnor but nothing about the other person.
[81] Second, Mr. Tabnor was the person who had rented the Mercedes and was responsible for it. He was the only person who can be confirmed to have driven the car (when he brought it in for renewal on March 5 and when he was stopped for speeding in the early hours of March 9). His name was on the documentation, and he was the obvious person, in the absence of other credible information, to have been driving it on March 11.
[82] Third, both the handgun and the car employed in the crime are transferable items but if this episode began, as I believe it did, when the Mercedes and Lexus met on Grandravine Dr., it would be far easier, and far more likely, for the gun to have come under the control of Mr. Tabnor’s companion than for the Mercedes to have done so. People are usually driving their own cars and by the time of this shooting, Mr. Tabnor had possessed the Mercedes, in his own name, for a week and a half. Without any other information, he is likely to have been the driver as the car moved along Grandravine Dr.
[83] Fourth, the description of the shooter, while not determinative, suggests someone other than Mr. Tabnor. I accept that he is 5 feet 11 inches tall—slightly above average. In court at the time of trial, he is of a solid, somewhat muscular build. Even if he were ten percent smaller, he would not be slim or skinny. The thrust of the evidence from witnesses to the shooting is that the shooter was about five feet six inches to five feet nine inches tall and noticeably slim, like a youth. These differences do not in any way eliminate Mr. Tabnor as the shooter—they are not decisively different. They do, however, tend to distinguish him from the shooter and they open a universe of thousands of men closer in appearance to the shooter than Mr. Tabnor. Put another way, if Mr. Tabnor and another unidentified man are posited to be in the Mercedes that Mr. Tabnor has rented and a slender Black man of about five feet eight inches, who is not the driver, emerges, the chances are that this is the unidentified man, not Mr. Tabnor.
[84] A fifth point arises from the evidence of Mr. Brown that the person who fired the shots came up close to the Lexus and looked inside to see Mr. Brown before opening fire. While I am aware that Mr. Devasadayam and Ms. Weinstein did not register this step in the sequence, I cannot reject Mr. Brown's evidence that it occurred. It is evidence that the Crown led in-chief and later attempted, with some success, to support in re-examination. We know that Mr. Brown does not recognize Mr. Tabnor. Mr. Tabnor said he does not recognize Mr. Brown. Neither of them knows of a reason why Mr. Tabnor would shoot Mr. Brown on his own, nor why Mr. Tabnor would suppose that by looking at Mr. Brown he would recognize him. It appears that the shooter expected to recognize the driver of the Lexus and thought that he did. Because the shooter was masked, Mr. Brown could not know if he would recognize him in return. While there is a great deal of room for the possibility that Mr. Brown was mistakenly selected as the victim in this shooting, both the effort by the shooter to identify the driver and his apparent belief that he had done so, make it relatively less likely that the shooter was Mr. Tabnor and more likely that he was a shorter, slighter man and a passenger in the car, rather than the driver.
[85] The Crown has not satisfied me that Mr. Tabnor was the shooter. His liability must be assessed on the basis that he was the driver.
iii. Did the Shooter have the Mens Rea for Attempted Murder?
[86] The state of mind of the shooter is, in one sense, central to the analysis of Mr. Tabnor's guilt as the driver. If I were to conclude that the shooter’s intent to cause Mr. Brown's death was not established beyond a reasonable doubt, it would be very difficult—though not logically impossible—to—convict Mr. Tabnor of attempted murder as a party. The proviso that it is not impossible could apply to a case where a party had every reason to believe that a shooter would kill a victim (for example, because the shooter promised he would), but the shooter’s apparent intention was found to be insincere. Attempted murder would be an available verdict against the party in such a case.
[87] There is no basis for such a finding here. If the evidence does not show that the shooter intended to bring about Mr. Brown's death, there is no foundation for finding that Mr. Tabnor provided the aid he did—the transport and the gun—believing the shooter would do so. On the other hand, proof that the shooter did intend to kill takes the prosecution only part of the way to proving the mens rea for attempted murder. The shooter's intention is therefore a significant but not a decisive issue—it can support an acquittal (because nothing suggests Mr. Tabnor had a mistaken belief in the shooter's intention to kill), but not a conviction (because the decisive question is what insight Mr. Tabnor had into the shooter's intention to kill, if it existed).
[88] I have struggled with this. The shooting was audacious and recklessly public. If the shooter planned to commit murder, and had Mr. Brown in his sight, the shooter might have followed Mr. Brown to a location where there would be fewer witnesses than at a major intersection. On the other hand, even a lesser crime, such as shooting to threaten or intimidate Mr. Brown, would have serious legal consequences and the shooter was obviously willing to run that risk.
[89] The crime appears to me to have a hurried and improvised quality to it. Though the Crown suggests the driver and shooter were alert to the possibility of coming across Mr. Brown and were planning to kill him in advance of the encounter on Grandravine Dr., I consider that speculative. Some hostility toward Mr. Brown (or the person for whom Mr. Brown was mistaken), by one or both men in the Mercedes, obviously pre-existed the encounter on the street but its nature, intensity, and duration—and whether the hostility was shared—cannot be determined on this evidence. There is no reason to conclude the encounter was anything other than happenstance.
[90] There are potential markers of planning to commit a crime, including the evidence that the shooter had Mr. Tabnor's gun available and that his face was covered. In my opinion, neither of these factors is indicative of an advance intention to carry out the shooting. First, I do not accept the Crown's contention that the gun’s presence in the Mercedes was indicative of an antecedent intent to kill because Mr. Tabnor said that he used the gun for drug-dealing and that the Elantra, not the Mercedes, was his "drug car." That was, in my view, a false premise of a made-up story and after rejecting the story, I am not prepared to use one of its premises to support the prosecution theory. I believe the gun was in the Mercedes because Mr. Tabnor was in the Mercedes, not because he had a particular use for the gun in mind when he and the shooter spotted Mr. Brown in his Lexus. Second, the mask served to cover virtually all of the shooter’s face, but I cannot infer it was in the shooter’s possession to commit a public shooting—it could reasonably have been part of his winter outfit in March or an accessory he regularly kept with him. I cannot tell if it was a mask created for the purpose of a disguise or something else adapted for that purpose to commit the shooting.
[91] The best basis for assessing the shooter's state of mind is what he did once he exited the Mercedes and approached the Lexus. The five shots, likely in bursts of three and two, strongly suggest a homicidal intention. Two of them struck the driver's door, one in the window, and one just below it. Two others struck the rear door, quite close to the front door. The fifth shot missed the car—indications of it were found on and beside a fence on the south side of Grandravine Dr.
[92] The question is whether this suggests a shooter trying, somewhat ineptly, to shoot Mr. Brown, or a shooter attempting to frighten and perhaps threaten Mr. Brown without killing him. The possibility that he was shooting at the rear door and the two shots that went through the front door were the result of his ineptitude, lends a faint plausibility to the inference that killing was not the objective. This conclusion would be strengthened by the complete absence of any reason for the shooter (or Mr. Tabnor) to want to murder Mr. Brown—though there is equally no known reason for either of them to want to terrify him.
[93] The Crown also invites me to draw inferences from the shape of the three bullet holes in the front and back doors. Counsel suggests that the shots in the rear door show that they were fired at a slight angle to the vehicle while the one in the middle of the front door appears to have hit the car squarely. The Crown then pairs that with the evidence from the building surveillance camera pointed toward the Grandravine Dr. and Keele St. intersection, which shows the Lexus slowly rolling forward until it struck the vehicle in front of it. This, according to the argument, occurred when Mr. Brown, prostrate across the front seats of the car, took his foot off the brake, allowing the vehicle, still in "drive," to move forward. If the shooter’s position was static, this could account for the slightly different angles of the projectiles’ entry into the doors. On this view, the shooter was trying to shoot through the front door (or window) from a static position and hit the rear door twice because the vehicle was moving away from him, to his left.
[94] This argument could have benefited from an expert assessment of both the primary evidence about the differing angles of entry of the projectiles and the inference that this was a result of the vehicle’s forward movement. It may be that either a slight shift in the shooter’s position, or even the angle of his arm, would account for the differing entry angles. There are a great many imponderables in any attempt to reconstruct this shooting from the evidence before the court.
[95] Nonetheless, the essential features of the Crown’s analysis are visible in the photos and video, and I cannot dismiss it. I do note, however, that we can see the Lexus moving forward in the building video and we can see Mr. Brown emerge a little more than 20 seconds later. He recalled spending two to four minutes in the car after the shooting. His time estimates would have to be very mistaken for this shooting to have been in progress as the car was moving forward. The Crown counters this critique with the reasonable submission that for a man as terror-stricken as Mr. Brown, 20 seconds huddled on his front seat could easily have felt like a few minutes.
[96] The issue of the shooter’s intention troubled me a great deal when it appeared during the trial that if Mr. Tabnor was the shooter, his state of mind would be a critical issue. Since I am satisfied that he was probably not the shooter, it is no longer incumbent on me to determine the shooter’s state of mind. For the purpose of assessing Mr. Tabnor's guilt on the charge of attempted murder as a party, the shooter’s state of mind need not be conclusively resolved. It is, at least, highly probable that the shooter meant to kill Mr. Brown when he directed five bullets toward the car he was driving.
iv. Did Mr. Tabnor have the Mens Rea for Party Liability for Attempted Murder?
[97] In contrast to the tight web of circumstantial evidence that proves Mr. Tabnor's involvement in the shooting—and, in my view, shows him to have been an aider rather than a principal—there is a dearth of information on which to assess his belief about the intentions of the shooter in advance of the shots fired by him. It is possible to formulate plausible narratives about what went on in the Mercedes before the shooting, but such narratives depend on assumptions for which there is no satisfactory proof.
[98] What I conclude with confidence is that one or both of the occupants of the Mercedes spotted Mr. Brown in his Lexus on Grandravine Dr. and reacted quickly, leading to a decision by Mr. Tabnor to make a U-turn and follow the Lexus for about three minutes with the intention of catching it. Because the gun belonged to Mr. Tabnor, I am satisfied that he either physically retrieved it from some concealed location and gave it to the shooter or, if it was easily accessible (for example, in a glove box or console) gave the shooter permission to retrieve it and use it. This happened at some point during the three-minute pursuit. In addition, I am satisfied that Mr. Tabnor made a determined effort to catch the Lexus. His determination is apparent in the haste with which he got behind the Lexus after the U-turn and the speed with which he turned the corner at the stop sign where Grandravine Dr. meets Arleta Ave. Mr. Tabnor was motivated to catch the Lexus. He was also likely aware, at some stage, that the shooter was donning a mask, though, depending on the nature of the mask, this could have escaped his notice while he was driving or occurred after the shooter got out.
[99] I also conclude that Mr. Tabnor stopped the Mercedes, let the shooter get out, and positioned himself on or near Sharpecroft Blvd. to wait for the shooter. I am sure that Mr. Tabnor saw and heard the series of gunshots and that he facilitated the shooter's escape by allowing the shooter to re-enter the Mercedes and quickly driving him away from the scene.
[100] These findings weave Mr. Tabnor tightly into the very serious criminal conduct of the shooter, as a party providing both the critical pieces of equipment—the gun and the car. There are also many questions about which we must not speculate or make assumptions. We do not know who spotted Mr. Brown in the Lexus and provided the impetus for the U-turn and pursuit. We do not know anything about the relationship between Mr. Tabnor and the shooter. We do not know whether it was a long and close relationship or a newer and less intimate one. We do not know as between them which man had the greater seniority, status, or influence. We do not know what relationship the shooter had to Mr. Brown. We do not know what conversations took place between Mr. Tabnor and the shooter, either before the U-turn or during the pursuit.
[101] It is this vacuum of information on what I consider the crucial questions for assessing Mr. Tabnor’s mens rea that shapes my decision on this issue. The Crown has assumed a difficult challenge in attempting to prove that Mr. Tabnor had the state of mind for attempted murder as a party. It requires showing that he knew that the shooter would try to kill Mr. Brown when that knowledge had to be acquired during a few fraught minutes between the spotting of the Lexus and the shooter's exit from the Mercedes. Mr. Tabnor did not have the evidence we now have of what the shooter actually did once he left the car. During the period when Mr. Tabnor’s liability as a party must be assessed, the Crown must establish that he became aware of what the shooter would do, based on whatever understanding he could acquire from their history and their conversation and conduct in the Mercedes—matters about which we know almost nothing and can make only limited inferences.
[102] Many scenarios can be proposed that are plausible in the sense that, with so little information to confine the inference-drawing, all of them are possible. But positing different, conflicting scenarios highlights the essentially conjectural nature of resting conclusions on so little evidence.
[103] The Crown can, for example, emphasize that it was Mr. Tabnor’s car and Mr. Tabnor's gun and that guns are designed to kill people. It can suggest that Mr. Tabnor was calling the shots—literally. When he chased Mr. Brown’s Lexus in his Mercedes and gave his gun to the shooter, he knew what the shooter would do.
[104] But the defence can emphasize the evidence that Mr. Brown and Mr. Tabnor did not know each other and there was no grievance between them. It can point to evidence that the shooter looked in the window to confirm the identity of his target before opening fire. From this, it might be suggested that the shooter knew the target, had the motive, requested (or even demanded) the U-turn and the gun, and carried out a killing with Mr. Tabnor acting as no more than the wheelman.
[105] There are many possibilities consistent with the limited available evidence. Maybe the shooter disclosed his motivation and intention during the drive. Maybe, as the Crown posits, the two men shared the motivation, whatever it was, and reacted jointly to seeing the Lexus. But maybe the shooter did not know or decide exactly what he was going to do until he looked in the Lexus and assessed the situation. Maybe the shooter told Mr. Tabnor no more than to catch the Lexus. Perhaps, he told Mr. Tabnor to stop when they came to the lights at Keele St. and he concentrated mainly on getting ready. It is possible that the shooter formulated his intention during the ride and was candid with Mr. Tabnor, but it is also possible that the planning as events unfolded was as improvised as the initial decision to make the U-turn.
[106] Other scenarios, emphasizing different aspects of the evidence, are possible. My emphasis, however, is on the lack of evidence and the impossibility of drawing inferences that point to Mr. Tabnor's guilt with the confidence the Crown's burden demands.
[107] I will address three submissions on which the prosecution laid some stress in attempting to establish party liability. First, the Crown argued that the swiftness with which the Mercedes made its U-turn, and the timing of the shooting in relation to the scheduled return of the Mercedes, suggested some pre-existing plan or intention on the part of Mr. Tabnor. I do not accept that submission. The time between encountering the Lexus and making the U-turn was sufficient for either man to express some desire to pursue the Lexus and for the decision to be made to make the U-turn. I am certain that some form of powerful animus—maybe even homicidal hostility—existed before the chance encounter on the road, on the part of at least one of the men in the Mercedes. However, there is no reason to suppose that this animus had crystallized into a plan to kill Mr. Brown upon laying eyes on him and included an anticipation that he might suddenly appear in the opposite lane of traffic. What we know about the beginning of the pursuit suggests that it, and the shooting that followed, were conceived and carried out over a matter of minutes.
[108] Second, I cannot accept that the shooting must have been performed with some calculation and pre-meditation because it occurred so close to the end of the rental period when Mr. Tabnor would have to return the Mercedes. The public shooting was a reckless act with a very high risk that the participants would be connected to it by the licence plate on the Mercedes or through some other evidence. Mr. Tabnor’s rental of the car was well-documented and had a high potential to inculpate him once it was discovered. I do not accept that the timing of the shooting, which arose as a matter of chance, was coordinated with the scheduled return of the rental car.
[109] Third, Crown counsel argued that there were likely opportunities at stop signs between the beginning of the pursuit and its end to perform a "drive-by" shooting if the goal was to warn or intimidate Mr. Brown and that the location at the Keele St. stoplight, with the Lexus caught behind another vehicle, suggests an intended "assassination". There is, in my view, far too little information to support this reasoning. We do not know what the situation was at the two or three stop signs between the U-turn and Keele St. For example, the Mercedes may have fallen further behind at four-way stops. Another possibility is that the shooter was not comfortable discharging the gun until he had satisfied himself of Mr. Brown's identity. Maybe the shooter had not made up his mind on what to do, or he had not gotten ready for it, until he was close to Keele St. It is unlikely that both the intention of the shooter and the means of executing that intention were fully formed in the mind of the shooter at the beginning of the pursuit of Mr. Brown’s Lexus. The same must be doubly true of Mr. Tabnor, who not only had to drive but could also possess no knowledge of what the shooter would do until the shooter had both decided on his intentions and, by some means, communicated them.
[110] A firearm can be used for many purposes in a hostile encounter. It may be to scare, rob, warn, threaten, or even to damage property. It may also be used for murder. I think the likeliest of the many plausible scenarios are ones in which Mr. Tabnor understood, either at the start of the pursuit or during it, that the shooter would attempt to kill Mr. Brown. But this is far from a conclusion that can be reached beyond a reasonable doubt. It is difficult to prove that a man acquired a belief—amounting to knowledge—that another man was going to commit a heinous, reckless, and extraordinary act, in the space of a few tense minutes. The evidence available does not provide that proof.
[111] For clarity, I have no doubt that in driving the shooter to the scene of the encounter and granting him possession of the gun, Mr. Tabnor did know that the shooter would employ the gun in a dangerous manner to perform a serious criminal act. However, there is insufficient evidence to show that Mr. Tabnor knew of an intention on the part of the shooter to kill Mr. Brown in advance of the shots being fired.
v. Is Mr. Tabnor Guilty of an Included Offence?
[112] An indictment for attempted murder may include language that alleges lesser offences of which the accused can be convicted if the attempt to kill is not made out. It may, for instance, on a case such as this, allege that the attempted murder was committed by unlawfully pointing and discharging a firearm or by discharging a firearm into a vehicle knowing that a person was present, thereby creating potential liability for offences under ss. 87 and 244.2 of the Criminal Code. Where a count charges attempted murder by itself, however, the authorities reviewed earlier indicate that the only included offence is an attempt to unlawfully cause bodily harm under s. 269. I have not found any other included offences while considering the appropriate verdict on count 1.
[113] The reasonable doubt that arises on the evidence concerning count 1 extends to the element of intention in the included offence. The only way in which the shooter could have caused bodily harm to Mr. Brown was by shooting him. My doubt that Mr. Tabnor knew the shooter intended to kill Mr. Brown arises from my doubt that he knew the shooter would attempt to shoot Mr. Brown.
[114] For these reasons, Mr. Tabnor is found not guilty on count 1.
[115] In accordance with the evidence and the acknowledgements of Mr. Tabnor’s counsel, I find Mr. Tabnor guilty on count 2 and count 3.
P. Campbell, J.
Released: November 9, 2021
COURT FILE NO.: CR-20-40000445
DATE: 20211109
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RESHAUN TABNOR
Defendant
REASONS FOR JUDGMENT
P. Campbell J.
Released: November 9, 2021
[^1]: A lengthy segment of Mr. Brown's cross-examination was taken up with exploring a report he provided to the police long after the shooting and shortly before trial in which he recounted a March 2019 incident between himself and a female friend at a bar, which led to antagonism with the woman's boyfriend toward Mr. Brown. It also led to a claim by another person to Mr. Brown that the offended boyfriend was behind the March 11, 2019 shooting. Almost all the potentially significant evidence in this testimony was inadmissible hearsay, incapable of lending substance to the suggestion of an alternate suspect. None of it accounted for the role of the white Mercedes or Mr. Tabnor's firearm in the shooting. It ultimately played a negligible role in the parties’ submissions and their conception of the case.