COURT FILE NO.: CR-19-1570

DATE: 2021 09 28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

J. Goulin and T.Kim, for the Crown

– and –

JOSEPH CHANG

R. Barrs and C. Tarach, for the Accused

HEARD: May 3-7, 10-14, 17, 19-21, 25-28, 31, June 1, 2, 3, 4, 7, August 20, 2021

REASONS FOR JUDGMENT

J.M. Woollcombe J.

A. Overview

[1] The accused, Joseph Chang, is charged with the first-degree murder of Alicia Lewandowski, alleged to have occurred in the early morning of March 5, 2018. Mr. Chang and Ms. Lewandowski were in an intimate relationship for a number of years. While they had lived together, on February 28, 2018, Mr. Chang dropped her at her mother’s townhouse in Mississauga, where she stayed for her final days. They did not see each other after that until the early morning of March 5^th.

[2] At 2:38 a.m. on March 5, 2018, Mr. Chang called Ms. Lewandowski. Over the next half hour, they had a few short calls and she sent him some text messages. At 3:14 a.m., his Infiniti arrived behind her mother’s townhouse complex, she got into it and they drove away. There is no evidence as to where they went. His car returned into the complex parking area at 4:56 a.m.

[3] There is no dispute that shortly after this, Mr. Chang shot Ms. Lewandowski and killed her with a 9 mm Luger firearm. He had obtained the gun from a friend’s house at 11:00 p.m. the night before. At 4:59 a.m., Ms. Lewandowski made a 911 call reporting that Mr. Chang had shot her in the head and that she was bleeding and needed help. Just over three minutes later, she reported that he had shot her again. She stopped communicating with the 911 operator. At 5:02 a.m., before the arrival of police or paramedics, Mr. Chang drove away. Minutes later, the police located Ms. Lewandowski, face down and unconscious on the ground in the parking area with her vital signs absent. Resuscitative efforts failed. Ms. Lewandowski was pronounced dead at 5:24 a.m.. She had been shot three times: once in the back of her neck, once in the upper abdominal area and once in the back.

[4] Mr. Chang made no attempt to communicate with Ms. Lewandowski again. He was arrested at 8:00 p.m. that evening at a MacDonald’s restaurant in Toronto. He had been in the restaurant, or in his Infiniti in its parking lot, since 7:22 a.m. Mr. Chang was taken to the Peel Homicide unit at 180 Derry Road, spoke to counsel and was interviewed by police. His statement, while conceded by the defence to be voluntary, was not tendered by the Crown.

[5] The issue to be decided is whether the Crown has proven beyond a reasonable doubt that this was a planned and deliberate killing.

[6] It is the defence position that at the time of the killing, and indeed for several days before and a period afterwards, Mr. Chang was in a drug induced psychosis. The defence submits that as a result, he was both incapable of forming the intent to kill, and, more importantly, that he did not form the intent to kill Ms. Lewandowski. As a result, the defence position is that Mr. Chang should be found guilty of manslaughter. In support of its position, the defence relies on:

• Ms. Lewandowski’s hearsay statements about Mr. Chang’s increased cocaine use and the fact she believed he was mentally unwell;

• Mr. Chang and Ms. Lewandowski having a loving, stable relationship in which he never would have killed her intentionally;

• Mr. Chang’s conduct in the days leading up to the shooting, including the strange and unusual alterations to the condominium unit in which he was living at 118 Balliol Street. Photographs of that unit reveal such alterations to include the removal from the walls and ceiling of electrical boxes, and devices such as smoke detectors and sprinkler head covers. The holes were stuffed with towels or taped over or left with hanging wires. He also unintentionally set off the sprinkler in that unit, flooding it on March 3, 2018. These are all said to be suggestive of him having become paranoid and delusional;

• The fact that there were drugs and drug paraphernalia in Mr. Chang’s unit, suggestive of him using crack cocaine;

• Mr. Chang’s allegedly “bizarre” utterances to his cousin, Ms. Chung, and to his counsel, Mr. Kayfetz on March 2 and 3, 2018, after the flood in his apartment, and before the shooting, which are said to indicate his disturbed state of mind at this time;

• Mr. Chang’s strange decision, after the shooting, to spend the day at the McDonald's restaurant with the gun he had used to kill Ms. Lewandowski in a gift bag she had given him for his birthday, along with his gifts and a card from her, a decision said to be inconsistent with having just committed a planned and deliberate murder;

• Mr. Chang’s allegedly preposterous utterances to the police who interviewed him after his arrest, which are also said to prove that he was delusional;

• Mr. Chang’s allegedly preposterous statements to Mr. Kayfetz on March 6, 2018, in the courthouse cells before his first appearance, said to be further evidence of his delusions;

• The opinion of forensic psychiatrist, Dr. Collins, that from March 2 until March 6, 2018, Mr. Chang was in a cocaine induced psychosis as a result of which he did intend to shoot and kill Ms. Lewandowski.

[7] In support of its position that the murder was planned and deliberate, the Crown relies on the history between Mr. Chang and Ms. Lewandowski, the events of the days leading up to the shooting and the events immediately after the shooting. More specifically, the Crown relies on the following:

• The assertion that Mr. Chang was angry at Ms. Lewandowski for her role in him having been charged with drug and proceeds of crime offences in July 2016. At the time of the shooting, Mr. Chang had been committed to trial and the Crown submits that he believed that he was not going to be able to successfully defend against the charges and thought that Ms. Lewandowski wanted to hurt him and destroy him;

• The submission that Mr. Chang’s state of mind leading up to the shooting reveals that he was feeling a loss of hope respecting his legal situation and relationship with Ms. Lewandowski;

• Mr. Chang’s statement to Ms. Lewandowski on March 3, 2018 that he would put a bullet in her head, said to support an inference that he wanted to kill her;

• The fact that Mr. Chang’s situation worsened on March 3, 2018 when Ms. Lewandowski called the police after he refused to let her into the apartment. She provided to the police the only link that they had between him and his unit at 118 Balliol Street. He knew that the fire department and police had responded to the flood call in his unit and that as a result of the flood and investigation that followed it, he would have lost the $74,000 cash he had there, as well as the significant amount of drugs he had stored there. His trip to that unit on March 5, shortly before he shot Ms. Lewandowski, confirmed to him that he would not be able to retrieve the cash and drugs. It is submitted that Mr. Chang had every reason to be angry with Ms. Lewandowski for having done something that would lead to further charges and losses of money and drugs;

• When the firefighters were responding to his apartment flood, Mr. Chang chose to conceal in a pillow and throw from his unit a firearm, magazine and sound suppressor he had in his unit on March 4, 2018. His conduct suggests a plan to retrieve it later, a plan he could not carry out because of the crowd that gathered where the pillow with the gun landed;

• Mr. Chang’s trip to Wesley Kim’s home at about 11:00 p.m. on March 5, 2018, hours before his final meeting with Ms. Lewandowski, where he secured a firearm and ammunition before contacting Ms. Lewandowski. At 2:38 a.m. with a different cell phone than he had ever used before, he contacted her, evidence said to be part of his plan to kill her;

• The fact that Mr. Chang made no contact with Ms. Lewandowski between the time she left his building after he refused to let her in on March 3, until he had secured another gun, in spite of her multiple attempts to contact him, is said to be evidence of his anger at her;

• The fact that Mr. Chang shot Ms. Lewandowski three times, once in the head (as he had said he would) and two other times in the abdominal area and back/chest area, over a period of minutes, revealing an intent to kill her;

• The fact that after the first shot, while Ms. Lewandowski was on the phone with the 911 operator, and said to him to stop, Mr. Chang continued to shoot at her, killing her, is said to highlight that he intended to kill her;

• The fact that after shooting Ms. Lewandowski, Mr. Chang provided her with no assistance, left the parking area and drove away, leaving her body in the parking area is said to be evidence that he had completed what he planned to do;

• The absence of evidence that Mr. Chang called or texted or attempted to contact Ms. Lewandowski after he had shot her and left her body. He had her purse in his car. The Crown says that this reveals that he knew he had killed her and that he lied to Dr. Collins when he claimed not to have known he had killed her.

B. Legal Principles

The burden and standard of proof

[8] Any discussion of applicable legal principles must begin with the presumption of innocence and burden of proof. Mr. Chang, like every single person charged with a criminal offence in this country, starts with the presumption of innocence. It is for the Crown to prove, beyond a reasonable doubt, that he is guilty.

[9] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. Mr. Chang cannot be convicted unless I am sure that he is guilty of the offence.

Credibility assessments

[10] This is a case in which very important credibility assessments must be made respecting a number of witnesses. I recognize that I may believe all, part or none of any witness’s evidence. One of the most effective means of assessing a witness’s credibility is to consider consistency between what the witness said when testifying and what that witness has said on other occasions or at other points in that witness’s testimony. Inconsistencies in a witness’s evidence vary in their nature and importance, depending on whether they relate to material or peripheral issues, and must be carefully assessed in the context of the case: R. v. M.G., 1994 8733 (ON CA), [1994] O.J. No. 2086; leave to appeal refused, [1994] S.C.C.A. 390.

First degree murder, second degree murder and manslaughter

[11] Mr. Chang is charged with first degree murder. Culpable homicide under s. 229 of the Criminal Code is murder:

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

(i) means to cause his death, or

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

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

[12] The Crown position is that this is a first-degree murder, under s. 231(2) of the Criminal Code, on the basis that it was planned and deliberate. To prove a first-degree murder, the Crown must prove both that the killing of Ms. Lewandowski was planned and that it was deliberate. Doherty J.A. summarized the meaning of these terms in R. v. Robinson, 2017 OCA 645 at para. 34:

A murder is planned if it is the product of "a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed". A murder is "deliberate" if it is "'considered,' 'not impulsive' . . . implying that the accused must take time to weigh the advantages and disadvantages of his intended action…

[13] Section 231(7) of the Criminal Code sets out that “All murder that is not first-degree murder is second degree murder”.

[14] Section 234 of the Criminal Code provides that “Culpable homicide that is not murder is infanticide or manslaughter”.

[15] The issue here is about Mr. Chang’s state of mind at the time that he shot and killed Ms. Lewandowski, not whether he caused her death, which is conceded.

[16] In determining an accused’s intent, courts often refer to the “common sense inference” which may be available. This permits a trier of fact to draw the inference that a sane and sober person intends the natural and probable consequences of his or her actions. In other words, if a person acted in such a way as to produce certain predictable consequences, it may be inferred that those consequences were intended by the person: R. v. Seymour, 1996 201 (SCC), [1996] 2 S.C.R. 252.

[17] It is well-established, however, that evidence of some form of intoxication, be it by alcohol or drugs, may rebut the common sense inference. As explained in R. v. Daley, 2007 SCC 53, advanced intoxication may result in an accused lacking a specific intent or foresight about the consequences of his actions, sufficient to raise a reasonable doubt about the requisite intent of the accused. When there is a reasonable doubt about the applicability of the common sense inference, an accused is entitled to a verdict of manslaughter, a general intent offence, rather than murder, a specific intent offence.

[18] The difference between the specific intent offence of murder (for which the Crown seeks a conviction) and the general intent offence of manslaughter (which the defence says is the appropriate verdict) is primarily related to “complexity of thought and reasoning required to commit the relevant offence”. A verdict of murder in this case requires me to be satisfied beyond a reasonable doubt that Mr. Chang shot Ms. Lewandowski with the intention of killing her: R. v. Tatton, 2015 SCC at para 21; R. v. Chan, 2020 ONCA 333 (leave to appeal granted 2020 [S.C.C.A.] No. 232).

[19] The defence points to other cases in which courts have accepted that the effects of ingestion of drugs by an accused was such that he did not have the requisite intent for murder. In these cases, based on the evidence before those courts, the Crown did not negate the reasonable possibility that the accused was in a psychotic state at the time of the offence. See, for example, R. v. Belyk, 2021 MBQB 12; R. v. Langevin, 2018 ONSC 6020.

[20] Every case depends on its own facts and the evidence that is presented. Determining whether Mr. Chang had the state of mind for murder requires consideration and weighing of all the evidence in this case. Given the defence position that, because Mr. Chang was in a drug induced psychosis, the Crown has failed to prove beyond a reasonable doubt that Mr. Chang had the intent to kill Ms. Lewandowski, there must be consideration of what Mr. Chang did before, during and after the time he killed Ms. Lewandowski, as all of this evidence sheds light on his mental state at the time of the shooting. As well, there needs to be a careful assessment of any admissible evidence about Mr. Chang’s drug consumption at the relevant time, or available inferences that can be drawn from the evidence respecting his drug use, along with the evidence of the effects of drug consumption. In addition, the expert opinion evidence of the forensic psychiatrist must be carefully assessed and weighed, in light of the rest of the evidence, to determine whether the crown has proven beyond a reasonable doubt that Mr. Chang had the intent for murder and whether, if he did, it was planned and deliberate.

Circumstantial evidence

[21] Where, like here, the Crown relies on circumstantial evidence to establish that Mr. Chang had the intent for murder, other plausible theories and other reasonable possibilities arising from the evidence that are inconsistent with guilt must be considered. If there are reasonable inferences other than guilt, the Crown has not established guilt beyond a reasonable doubt: R. v. Villaroman, 2016 SCC 33 at para. 35.

[22] There are a number of areas in which issues arose during the trial about the admissibility of evidence. In some respects, the parties agree. In other areas, they disagree about the legal principles and application of those principles. I will now identify these areas and set out where the parties disagree and the legal principles that must be later applied when I turn to my factual and credibility findings.

Disposition evidence

[23] The Crown brought a pre-trial application, on consent, to adduce three aspects of prior discreditable conduct of Mr. Chang:

• First, the Crown proposed to lead evidence of the relationship between Ms. Lewandowski and Mr. Chang through Ms. Lewandowski’s mother, Mira (who I will refer to as Mira in these reasons to avoid confusion between her and her daughter);

• Second, the Crown sought to lead evidence about an incident on July 23, 2016 in which police were called to Mr. Chang’s residence and, following the execution of a search warrant at the residence in which drugs and money were located, he was charged with possession of drug offences, proceeds of crime and an assault on Ms. Lewandowski. The Crown sought to lead evidence respecting communications between Ms. Lewandowski and Mr. Chang about this in the years that followed, and about the fact that Mr. Chang was committed to trial on the drug charges in February 2018;

• Third, the Crown sought to adduce evidence about an incident on March 3-4, 2018 in which Toronto Fire was called to 118 Balliol Street, unit 2301, where Mr. Chang was living. The Crown sought to lead evidence that this incident led to the seizure of both drugs and money from the unit, and a gun, magazine and silencer that Mr. Chang threw from the unit, concealed in a pillow, shortly before the arrival of the fire department.

[24] The Crown position on the application was that this evidence was probative of the nature of the relationship between Ms. Lewandowski and Mr. Chang and relevant to assessing Mr. Chang’s state of mind, animus towards Ms. Lewandowski and motive.

[25] The defence raised no objection to the Crown adducing any of this evidence. Indeed, the defence position was that most of this evidence is relevant, but that properly understood, it points in a very different direction, and demonstrates that Mr. Chang had an absence of motive to kill Ms. Lewandowski and did so in a drug induced psychosis. I have assessed the evidence in this case on the basis that this prior discreditable conduct is admissible. I will set out the conclusions that I draw from it when I review the evidence in more detail.

The hearsay evidence applications

[26] Hearsay evidence is presumptively inadmissible. The Crown brought an application, to which the defence consented, to adduce hearsay utterances made by Ms. Lewandowski. It was understood that at the end of the trial, submissions would be made by both sides about the weight that should be given to these two utterances. They are:

• The recording of the 911 call made by Ms. Lewandowski, said to be admissible as an exception to the rule against the admission of hearsay on the basis that it was a “dying declaration” or “res gestae”.

• The statement made by Ms. Lewandowski that, on Friday March 3, 2018, Mr. Chang told her to go away or he would “put a bullet in her head”. The Crown sought to adduce this evidence through a text message sent by Ms. Lewandowski to Grace Chung, through what Mira Lewandowski would testify that her daughter told her and through Cst. Malfara, to whom Ms. Lewandowski reported what Mr. Chang had said.

[27] Both utterances are admissible for their truth. The 911 call meets the test for admission as a dying declaration: R. v. Nurse, 2019 ONCA 260 at paras. 66-75.

[28] The 911 call is also admissible as a res gestae statement, more accurately now referred to as a “spontaneous utterance”. This exception to the hearsay rule permits the admission of a statement made under the stress or pressure of a startling event, where the possibility of concoction or deception can be safely discounted. The statement need not be contemporaneous with the occurrence, as long as the pressure created by it is ongoing such that there is an absence of opportunity for concocting or fabricating: R. v. Nurse, at paras. 77-83.

[29] Ms. Lewandowski’s reporting that Mr. Chang threatened to “put a bullet in her head” is admissible under the principled approach to hearsay: R. v. Bradshaw, 2017 SCC 35. While agreeing to its admissibility, the defence position is that it is a “preposterous utterance” and is evidence of Mr. Chang’s state of mind at the time and suggests that he was in a cocaine induced psychosis. I will set out my conclusions about this utterance in more detail later in these reasons.

[30] The defence brought no pre-trial application to admit hearsay evidence for any purpose.

[31] During the trial, while Mira Lewandowski was being cross-examined, the defence sought to adduce from her statements made by her daughter to her about Mr. Chang. While no formal application to admit hearsay statements made by Ms. Lewandowski to her mother was made, it was argued at the time that such statements were admissible as narrative and as evidence of Ms. Lewandowski’s views about Mr. Chang at the time. No application was ever filed by the defence to adduce any of the deceased’s statements to Mira for their truth.

[32] In closing submissions, the defence submits that Ms. Lewandowski’s statements to her mother are all admissible for their truth, and they are relied on in advancing the defence.

[33] Similarly, while Grace Chung, Mr. Chang’s cousin, was testifying for the defence, the defence attempted to elicit from her statements made by Ms. Lewandowski about her relationship with Mr. Chang. Again, no hearsay application had been made prior to her testifying. When it was unclear the purpose for which this hearsay evidence was being adduced, the defence brought a formal application. The application, and its addendums, reveal that the defence sought to adduce, for their truth, various statements made to Ms. Chung by Ms. Lewandowski over the period between 2016 and March 3, 2018. The defence position was that the statements were necessary because Ms. Lewandowski was deceased, that they met threshold reliability and that the real issue should be the weight to be given to them.

[34] The hearsay statements that the defence sought in the written application to adduce for their truth include:

• That after the events of July 23, 2016, at which time Mr. Chang had been charged with serious drug offences and a domestic assault involving Ms. Lewandowski, Ms. Lewandowski told her that Mr. Chang had apologized and that he had been defending himself and had never hurt her. Ms. Chung said that Ms. Lewandowski told her that she felt terrible that the police had been called and that she was going to make it right for Mr. Chang and would testify;

• That in the fall of 2017 or winter of 2018, Ms. Lewandowski was concerned about Mr. Chang’s increased use of smoking crack. She said that she was using heroin;

• That in the fall of 2017, while they were waiting for Mr. Chang at the Toronto Western Hospital, Ms. Lewandowski told her: that she was a heroin addict, that she was Mr. Chang’s “partner in crime” in the drug business, that she went to drug deals with him, was a perfect decoy, counted money for him in the particular way he liked and was proud of doing this for him;

• That in the same visit at the hospital, they had a conversation in which Ms. Lewandowski expressed concerns about Mr. Chang’s body being frail and failing him.

[35] In the same hearsay application, the defence sought to introduce Ms. Lewandowski’s statements to the Toronto Police Service (“TPS”) Officers Henry and Malfara on March 3 and 4, 2018 that after Mr. Chang did not let her into his apartment, she reported to the police and others that Mr. Chang had been using crack heavily over the previous month, that she was worried about him and that he had become paranoid.

[36] The Crown objects to the admissibility, for their truth, of these hearsay statements of Ms. Lewandowski adduced through Ms. Chung, and Officers Henry and Malfara respecting the state that she believed Mr. Chang to be in on March 3 and 4, 2018.

[37] In R. v. Bradshaw, 2017 SCC 35, Karakatsanis J. explained that threshold reliability can be established by showing that either there are adequate substitutes for testing the truth and accuracy of the statements (procedural reliability) or that there are sufficient circumstantial guarantees that the statements are inherently trustworthy (substantive reliability). This test must be applied to the various utterances. I will address the admissibility of these various hearsay statements that the defence seeks to rely upon and the weight I attribute them when I consider the evidence of the various statements at issue here.

Statements of Mr. Chang led by the defence

[38] The defence submits, in both its mid-trial application and in closing arguments, that utterances made by Mr. Chang to various people in the week leading up to the shooting are admissible for the defence as original evidence of his state of mind. The defence also seeks to rely on utterances made by Mr. Chang in his police interview.

[39] The statements made before the shooting include statements of Mr. Chang reported by Ms. Chung. In the hearsay application, the defence sought to rely on:

• On March 3, 2018, Mr. Chang called Ms. Chung and told her that somebody was watching him, that his place was bugged and that he could not leave his house. He said he had to go because people were listening to their conversation so he hung up;

• Later on March 3, 2018, Ms. Chung said that Mr. Chang called her while she was Pearson International Airport and said the same thing about people watching him and that there were bugs and wiretaps everywhere and he was afraid for his life and had to go because somebody was watching him;

• That on her arrival in San Francisco that day, Ms. Chung had numerous conversations with Mr. Chang in which he said things including that people were watching him and he did not feel safe, that they were going to kill him, that he was rambling, that they were monitoring him, that he was on drugs but that he knew it was people after him and not the drugs and that he did not make sense.

[40] The defence seeks to have these statements by Mr. Chang admitted as “evidence of delusion and hallucinations.” In support of its position, the defence relies on the law relating to “preposterous utterances”.

[41] As I understand the defence position, it is that Mr. Chang’s admissions to Ms. Chung that he was on drugs are admissible for the truth of their contents as they fall within the res gestae exception or spontaneous utterance exception to the hearsay rule that I have set out already and which is discussed in detail in the R. v. Nurse decision.

[42] The defence also seeks to rely on the evidence of Mr. Chang’s former counsel, Mr. Kayfetz, respecting what Mr. Chang said in a phone call they had on the evening of March 3, 2019 and during a visit that Mr. Chang made to Mr. Kayfetz’s home office shortly after. In addition, the defence seeks to have admitted the evidence of Mr. Kayfetz respecting his conversation with Mr. Chang after his arrest for the murder, while they were in the cells of the Brampton courthouse before his first appearance on March 6, 2018. The defence position is that these statements of Mr. Chang are admissible as “preposterous utterances” and as original evidence of Mr. Chang’s state of mind at the time.

[43] The law provides that “preposterous” utterances may be relevant evidence respecting an accused’s state of mind. This was discussed by Martin J.A. in R. v. Kirby, 1985 3646 (ON CA), [1985] O.J. No. 166 (C.A.) where he held that:

…statements of a preposterous nature by a person may be relevant to the issue of insanity and may be original evidence on that issue, as distinct from hearsay. Statements by an accused that he is Julius Caesar, that his neighbour is killing him with "thought waves", or that he hears voices issuing commands to him, constitute original evidence to prove that the accused suffers from a delusion or is hallucinating. The utterances are not used to prove any fact asserted in them, but as circumstantial evidence to support an inference that the accused suffers from delusions or hallucinations. See Cross on Evidence, 5th ed. p. 475; Wigmore on Evidence, 3rd ed., vol.2 p. 14; McCormick on Evidence, 2nd ed. pp. 592-93. Such statements may, of course, be feigned in order to simulate insanity but evidence of them does not offend the hearsay rule. Whether statements of that nature indicate actual mental states or whether they are contrived to simulate insanity must be determined by the court, usually with the assistance of experts.

[44] These principles were also discussed by Dambrot J. in R. v. W.G.F., 2003 ONSC 1145. He held that statements of an accused, for example, that he is the victim of persecution or that he hears voices issuing him commands, are original evidence that he is hallucinating. Because the evidence is not offered as proof of the facts asserted, it is not hearsay. Dambrot J. elaborated, at para. 434, about the importance of there being temporal connection between the hallucinations and the time of the offence:

It is important in this case to note that what is contemplated by this paradigm are statements that may reveal the mental condition of an accused at the time when those statements are made, which in turn may be circumstantial evidence of the mental condition of that accused at an earlier or later time, namely the time when the offence occurred. Of course, a statement of an accused that he experienced delusions or hallucinations at some time in the past is hearsay, and inadmissible, because it is then led as proof of the assertion contained in it that the accused experienced these symptoms at an earlier time.

[45] The Crown rejects that some of these alleged utterances ascribed to Mr. Chang were made and accurately reported in court by Ms. Chung and Mr. Kayfetz. To the extent that the utterances were made, the Crown submits that many of them are not preposterous or, if they were, they should not be given much weight by Dr. Collins in his assessment of Mr. Chang’s state of mind at the time of the shooting.

[46] Finally, while the defence conceded that Mr. Chang’s statement to police following his arrest was voluntary, it was not tendered by the Crown. The defence submits that various things said by Mr. Chang are admissible as preposterous utterances that reveal his state of mind at the time. The Crown opposes the defence being permitted to adduce, through the police officer who took the statement, portions of what Mr. Chang told the police.

[47] I will address this at the point I consider Mr. Chang’s police statement in its context.

Expert opinion evidence

[48] The defence relies heavily on the opinion evidence of Dr. Peter Collins. On consent, he was permitted to testify as an expert forensic psychiatrist and to offer opinion evidence on the mental state of Mr. Chang in and around the time he killed Ms. Lewandowski.

[49] An expert witness is entitled to testify about the mental state of an accused person without the accused person testifying. Where an expert relies on statements made by an accused concerning his or her state of mind at the time of the offence as a basis for the opinion concerning criminal culpability, the accused’s statements are inadmissible hearsay in proof of the facts asserted. The statement is admissible as the basis upon which the expert formed the opinion and properly considered in assessing the weight of the opinion: R. v. Giesbrecht, (1993), 1993 17039 (MB CA), 20 C.R. (4^th) 73 (Man.C.A.) at paras. 14-15; aff’d 1994 96 (SCC), [1994] 2 S.C.R. 482. As was made clear by Wilson J., for the majority in R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852, where the expert opinion is based on hearsay, the issue is one of weight to ascribe to that opinion, a question for the trier of fact to determine.

[50] Accordingly, as was fairly summarized by Dambrot J. in R. v. W.G.F., at para. 432, when an accused tells an expert that he was delusional, this is not evidence that he was:

432 Ordinarily, an accused cannot adduce evidence from a witness of what the accused or some other person told that witness to prove the truth of what the witness was told. For example, an accused raising an NCR defence cannot lead in evidence as proof of its truth from a forensic psychiatrist what he said to that psychiatrist about the delusions he has experienced; what he told others about the symptoms of his disease; or what he told another psychiatrist on an earlier occasion. Such evidence is hearsay. (See R. v. Abbey (1982), 1982 25 (SCC), 68 C.C.C. (2d) 394 (S.C.C.) at pp. 411-2.) Hearsay evidence that forms some or all of the basis of an expert's opinion is admissible, however, to show the information on which the expert opinion is based. It remains inadmissible as proof of the truth of that information. As long as there is some non-hearsay evidence to establish the foundation for the expert's opinion, the trier of fact may consider it despite the fact the foundation includes hearsay. Where the opinion is based on a mix of hearsay and non-hearsay, the weight attributable to the opinion is directly related to the amount and quality of non-hearsay evidence upon which it is based. (See Lavallee v. the Queen (1990), 1990 95 (SCC), 55 C.C.C. (3d) 97 (S.C.C.).)

[51] More recently, Barnes J. explained this in R. v. Worrie, [2019] O.J. No. 4306 in similar terms at para. 375:

375 In considering the relevant expert evidence, I am mindful of the evidentiary principles described in R. v. Worrie, 2019 ONSC 4548, at paras. 65, 66 and 55 as follows:

An accused cannot lead evidence from an expert to prove that what he told the expert about his delusions or his mental illness is true. This evidence is hearsay: R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24, at pp. 411-2; and W.G.F., at para. 432. Under these circumstances, the protected statement can be introduced, not for the truth of its contents, but for the purpose of showing the basis for the expert's opinion. One of the ways a trier of fact can determine what weight to give to an expert's opinion is to examine the basis for that opinion.

The protected statement is hearsay evidence. Where the expert's opinion is based on hearsay and non-hearsay evidence, there is a direct correlation between the weight placed on the expert's opinion and the quality of the hearsay evidence: R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852, at pp. 893, 897; Palma, at pp. 7-15; and W.G.F., at para. 432.

Preposterous statements made by an accused are admissible as original [sic] suffers from a mental disorder: R. v. Kirkby (1985), 1985 3646 (ON CA), 21 C.C.C. (3d) 31 (Ont. C.A.), at pp. 54-56. Those statements are not offered as proof of any fact asserted in them and are therefore not hearsay: R. v. Fell, 2003 49919 (Ont. S.C.) ("W.G.F."), at para. 434.

[52] Dr. Collins met with Mr. Chang on three occasions. Mr. Chang reported to him various things about his state of mind before, during and after the shooting. Dr. Collins was permitted to testify about how what he was told by Mr. Chang assisted him in reaching the conclusions that he did. He was entitled to rely on what Mr. Chang said to form the basis of his opinion. He was also allowed to rely on other direct, circumstantial and hearsay evidence to form his opinion. To be clear, however, anything that Mr. Chang told him is not admissible to prove the truth of what Mr. Chang said about what he did or thought around the time he shot Ms. Lewandowski. I will address his opinion and the weight that I think it should be given in more detail at the end of my reasons.

[53] There were a number of other witnesses who, on consent, were qualified as experts and permitted to offer opinion evidence. None of their expertise was contested. The issues respecting them really relate to the weight that the parties say should be ascribed to their opinions, which I will discuss as necessary.

C. Factual and Credibility Findings

[54] I am going to review, in chronological order, the relevant parts of the evidence relied on by the parties in support of their positions. As I do so, I will explain how and why I have resolved the significant legal and credibility issues so that my factual conclusions are clear.

Background evidence about Ms. Lewandowski and Mr. Chang’s relationship

[55] Alicia Lewandowski was born December 8, 1992. Her mother, Mira, described her daughter as having had a substance abuse disorder since 2011, before meeting Mr. Chang. She could not say when Alicia first became addicted to heroin.

[56] Mira thought that her daughter had met Mr. Chang in October 2014. She described Alicia as having been extremely secretive about Mr. Chang and said that she divulged few facts about him including where he lived and what he did for work. Early on, Mira and Mr. Chang discussed Alicia’s heroin addiction and she thought he had tried to keep Alicia on track.

[57] At some point, Alicia told Mira that Mr. Chang was a drug dealer. Mira told her daughter that she hated drug dealers, after which they had many conversations about Mr. Chang’s drug dealing. It was Mira’s view that there was no future in the relationship. She believed that Mr. Chang was isolating her daughter and this was a source of tension between her and Alicia.

[58] Mira lived in a townhouse at 1343 Rathburn Road East in Mississauga. Following a significant explosion in the area of her townhouse on June 28, 2016, Mira and Alicia had to move out of the home. Mira went to her mother’s home and Alicia moved to live with Mr. Chang.

[59] After Alicia’s death, Mira found in Alicia’s storage tote a letter that she believed had been written from Mr. Chang to her daughter before the explosion. The undated letter was filed as Exhibit 11. Mr. Chang began by writing that he wanted to say how sorry he was for what he had done and that he was not proud of the side he had showed her. He wrote that he never wants her to feel uncomfortable or scared of him. He goes on to tell her that he will never emotionally or physically hurt her and that he loves her.

[60] I accept that this letter was written from Mr. Chang to Alicia, likely before June 2016. The context about which Mr. Chang was writing is unclear. On the one hand, it appears that there had been a dispute between them. On the other hand, Mr. Chang professes his love for her. I attach no weight to this letter. When and why it was written, as well as the background and context, are just too uncertain to draw any conclusions from it.

[61] Mira said that after the explosion, Alicia lived mainly with Mr. Chang at a Mabelle Avenue apartment. Mira said that Alicia had to vacate that apartment after the July 23, 2016 incident when the police were called. Alicia moved back in with Mira until she moved back into her townhouse in May 2017.

[62] Ms. Lewandowski remained in a relationship with Mr. Chang. She had been going to school and working part time but lost her job in the summer of 2017 and began spiralling downwards. By the fall of 2017, Mira said Ms. Lewandowski was increasingly with Mr. Chang and she saw little of her daughter, often not knowing where they were. Alicia always said that she was with Mr. Chang, but Mira could not say if Alicia was being truthful with her and acknowledged that sometimes Alicia lied to her or misled her because of her addiction. Mira did not like Alicia’s relationship with Mr. Chang. She said she was “not allowed” to know the address at which they lived. She believed that Mr. Chang had a negative effect on Alicia. Mira recognized that Alicia’s addiction issues had not gone away completely in this period.

[63] Mira rarely saw Mr. Chang and communicated with him mostly by text. As a result, she did not know about his addiction or drug use. She told him that she wanted the relationship to end and sent him texts demanding that he bring Alicia back.

[64] While Ms. Lewandowski was at home briefly over Christmas 2017, Mira did not see either her or Mr. Chang at all in January, or until Mr. Chang dropped her at home on February 28, 2018. In this early 2018 period, Mira contacted Alicia daily, but Alicia would make excuses as to why she could not come home. Mira believed that Mr. Chang was supplying Alicia with drugs and that this was one reason why she wanted to be with him. She felt her daughter’s addictions controlled her decisions. Mira continued to text with Mr. Chang, saying that they should not continue together and that two addicts cannot be together.

[65] Mira testified about the physical appearances of Alicia and Mr. Chang in the fall of 2017. She described Alicia as skinny. She said that Mr. Chang was always skinny and agreed that both of them lost weight in the fall of 2017 and that neither looked well.

[66] In my view, Mira Lewandowski was an honest witness who did her best to recount what she saw and observed about her daughter and about her daughter’s relationship with Mr. Chang. She clearly loved her daughter and made tremendous efforts to try to support her through her long-standing heroin addiction.

[67] There are some difficulties with Mira’s evidence. While Mira trusted Alicia and cared for her deeply, and I have no doubt that Alicia loved her mother, it seems obvious to me that Alicia was not always honest with her mother about what was going on in her life, particularly as it involved narcotics and her relationship with Mr. Chang, about which she knew her mother disapproved. As a result, I am far from persuaded that Mira had, through Alicia, an accurate appreciation of what was happening between Mr. Chang and Alicia. Mira looks back on the situation as it ended up unfolding and, not surprisingly, sees everything in hindsight through the lens of her daughter having been killed by Mr. Chang. This makes it difficult for her to recall and accurately report what she observed and knew at the time things happened. I make this observation not as a criticism, but because I recognize the need to be cautious about accepting her narrative about her daughter’s state and about the relationship.

[68] The defence called Grace Chung to testify about the background of the relationship between Mr. Chang and Ms. Lewandowski.

[69] Ms. Chung is Mr. Chang’s cousin and is 7 years older than him.

[70] Ms. Chung said that she met Ms. Lewandowski in September 2015. They developed a rapport and became friends. Ms. Chung’s impression by the time of Mr. Chang’s 2016 charges was that they were in love and cared deeply about each other. She described their relationship as having ups and downs but said that she saw a “magnetic pull” between them.

[71] While I have serious concerns about the credibility and reliability of much of Ms. Chung’s evidence, which I will set out, there is no question that Mr. Chang and Ms. Lewandowski became involved in a close relationship and loved each other. They spent a great deal of time together, both before and after the July 2016 charges, including living together. Alicia knew her mother did not approve of the relationship and so chose not to share with her details about the relationship and what she and Mr. Chang did.

Events of July 2016, Mr. Chang’s charges, and the period up to February 2018

[72] The events of July 2016 are important because the Crown’s position is that Mr. Chang’s motivation for the planned and deliberate murder of Ms. Lewandowski was, at least in part, because he thought she had some responsibility for the serious charges he faced in relation to this incident. The Crown says that these charges were very much on his mind at the time Mr. Chang killed Ms. Lewandowski because his first appearance in Superior Court on them had been on March 2, 2018.

[73] The defence position is that the evidence relating to these charges shows the opposite – that Mr. Chang loved Ms. Lewandowski and that he needed her to defend against the charges, something that he fully intended to do.

The Charges of July 23, 2016

[74] On July 23, 2016, Ms. Lewandowski and Mr. Chang were living together at an apartment on Mabelle Avenue. Set out in Exhibit 9 is a Statement of Admissions of Fact about what happened on July 23, 2016. The significance of these events is in dispute between the Crown and defence. In reaching my conclusions, I have carefully reviewed the admissible evidence about the charges from that day and what followed them up until the time of March 5, 2018.

[75] At 4:28 a.m. on July 23, 2016, Toronto Police responded to a 911 call for a domestic violence incident. The call was not placed by Alicia Lewandowski. It was made by a neighbour. When they arrived at the building, police spoke with Ms. Lewandowski, who was in a neighbouring unit. Police also saw Mr. Chang dropping substances that they suspected were illegal drugs down a garbage chute.

[76] Police subsequently obtained a search warrant to search the unit. They searched a locked bedroom, the living room, kitchen and the master bedroom. They located what appeared to be a drug debt list, three cell phones, a money counter, various drugs and a safe with cash. They also found identification for Mr. Chang. More specifically, they located:

• Marijuana – numerous packages with a total weight of 621.18 g;

• Crystal meth 0.22 g;

• Cocaine – numerous packages with a total weight of 260.41 g;

• Heroine 2.03 g;

• Oxycocet – 5 pills; and

• A safe containing $385,515.00 in cash.

[77] Mr. Chang was charged with four counts of possession for the purpose of trafficking and one count of proceeds of crime. After a preliminary inquiry, he was ordered to stand trial on February 8, 2018. His first appearance in Superior Court was on March 2, 2018. Those charges are still outstanding.

[78] Mr. Chang was also charged with assault and mischief in relation to Ms. Lewandowski. Ms. Lewandowski provided a videotaped statement to police. That statement was played at trial and is contained in Exhibit 8.

[79] During her statement, police told Ms. Lewandowski that they were investigating the assault on her by Mr. Chang. She reported to them that he was her boyfriend at one point but was not at that point. She reported having known him for six months. Asked if she lived at Mabelle, she said no, but that her stuff was there and she was staying there because she had nowhere else to go after the June 2016 explosion.

[80] Ms. Lewandowski told police what happened was a “shock” because Mr. Chang had never been like that before and was the sweetest guy she knew. She described what had happened the night before. She said she went out with a girlfriend and that when she came home, Mr. Chang had been drinking and was rude and obnoxious. He began throwing things and threw her cell phone, smashing it into pieces. She said he hit her, as she said could be seen on her lip, and that she had bruises on her body. Photographs taken of her during her police interview reveal, in my view, what appears to be a small abrasion on her upper lip and a small abrasion on her right knee. She told police that she thought the neighbours had heard her yelling and called 911. She described things as a blur because it happened so fast.

[81] Ms. Lewandowski was asked what possessions she had in the apartment and said all of her clothes and personal belongings, like jewelry and make up were there, as well as her laptop and speaker.

[82] Ms. Lewandowski was told by police that they had seen Mr. Chang throwing stuff down a garbage chute and that they wanted the “back story” to that. She denied being part of it. She described there being one room where she slept and another that was always kept shut, that she thought was kept locked. She never went in and said that its contents were Mr. Chang’s. Asked what Mr. Chang did for work, she said that he worked for a meat distribution company. She denied knowing Mr. Chang to sell drugs or possess drugs, other than marijuana.

[83] Mira picked Alicia up from the police station that day. She did not recall if Alicia had injuries. She did not see Mr. Chang so did not know if he had injuries.

Ms. Chung becomes Mr. Chang’s surety

[84] On July 23, 2016, Mr. Chang was released on bail with a condition that he reside with his surety, his cousin Grace Chung, and that he have no contact with Ms. Lewandowski. He could return to the Mabelle Avenue apartment once to retrieve his possessions.

[85] Mr. Kayfetz, who was Mr. Chang’s lawyer at that time, testified for the defence at this trial, after an appropriate waiver of solicitor and client privilege[1]. He was sure that he explained to Ms. Chung, at that time, her role as surety. Under cross-examination, Ms. Chung confirmed that when she became Mr. Chang’s surety, she understood her obligation to the court to ensure he complied with the terms imposed, that he not commit any further offences and that she was required to notify the police if he breached.

[86] Ms. Chung said that after the bail, Ms. Lewandowski called her and explained to her what had led to the charges. She reported having come home late, drunk, and that Mr. Chang threw cigarettes at her and she hit him in his head. He got angry and smashed her phone. She lost it at him, kicking, punching and scratching him. According to Ms. Chung, Ms. Lewandowski told her that Mr. Chang acted in self-defence and that she would make it right.

Resolution of the domestic charges

[87] Mr. Kayfetz testified about what led to the Crown later withdrawing the domestic charges and about the drug charges moving forward.

[88] In relation to the domestic charges, Ms. Lewandowski sent to Mr. Kayfetz an email on August 18, 2016, included in Exhibit 69, in which she set out a version of events as to what had happened on July 23, 2016. This statement, which is hearsay, was not entered into evidence for its truth. By way of summary, she said that she and Mr. Chang had both been angry and intoxicated, that he had smashed her phone, that she had been the instigator of the physical fighting between them and had scratched his face. She said that while he had thrown her off, she had kept coming at him. Photographs of Mr. Chang taken following his arrest, contained in Exhibit 43, depict Mr. Chang with, among other minor injuries, what I view as numerous scratches on his face.

[89] Mr. Kayfetz agreed that he had not confirmed with Ms. Lewandowski that she sent this email and that he could not recall the details of what led to her sending him this message. He had no knowledge as to whether she received independent legal advice before sending it. Asked about any notes he would have had on these issues, he explained that after Mr. Chang changed counsel on March 6, 2018, he provided his file to new counsel and that any notes he had would have been in that file. He did not keep materials except for the emails that were made exhibits at trial. I understood him to acknowledge that he might not have made notes about this “recantation” because he had no reason to distrust Ms. Lewandowski.

[90] In my view, Mr. Kayfetz’s evidence about how events unfolded was logical, credible and made sense. I do not know if he ever had notes about what happened on this file, but he seemed to me to have a good recollection and, to the extent that he did not recall details, the emails and fact that the charges were later withdrawn make pretty clear what happened.

[91] Mr. Kayfetz shared Ms. Lewandowski’s email with the Crown. Shortly after, Ms. Lewandowski sent another email to Mr. Kayfetz granting Mr. Chang permission to return to his Mabelle unit for his possessions. She also indicated that she was not living there and did not like being there without Mr. Chang as it made her miss him even more.

[92] On May 30, 2017, the charges in relation to Ms. Lewandowski were withdrawn by the Crown and Mr. Chang entered into a Common Law Peace Bond with a condition that he could have contact with Ms. Lewandowski only with her written consent. She sent an email to Mr. Kayfetz that day giving that consent. Mr. Kayfetz said that this meant that they could be back together.

[93] On the basis of the evidence, I cannot say whether Ms. Lewandowski was truthful in her email to Mr. Kayfetz and statement to Ms. Chung about what had happened, or truthful in her statement to police about having been assaulted. It does not matter, and I need not decide. It is clear that while Ms. Lewandowski initially made a criminal allegation, she later recanted any suggestion that there was an assault on her. She did not want the domestic charges against Mr. Chang relating to her to go to trial. She wanted to continue her relationship with him.

[94] I observe that Ms. Chung’s evidence about what she was told by Ms. Lewandowski about the charges is largely consistent with Mr. Kayfetz’s. It is, of course, hearsay through Ms. Chung, though largely aligns with Mr. Kayfetz’s evidence as to what he understood. I do not accept for its truth Ms. Chung’s evidence that Mr. Chang forgave Ms. Lewandowski. The defence never applied to adduce this statement for its truth. It is not admissible for that purpose. At most, it may be that this was Ms. Chung’s perspective, but there is no admissible evidence before me that it is true. That said, all of the admissible evidence shows that they did move on together.

The period after the domestic charges were withdrawn and Ms. Lewandowski’s hearsay statements adduced through Ms. Chung

[95] In respect of the drug charges, Mr. Chang remained under the same recognizance of bail after the domestic charges were withdrawn on May 30, 2017.

[96] Ms. Chung testified that she was aware in May 2017 that the domestic charges were dropped and that there was a Peace Bond requiring Mr. Chang to take an anger management course. She understood that he and Ms. Lewandowski could see each other. She knew that the drug charges were still pending. When it was suggested to her that her duty as surety continued, even after the mischief and domestic were withdrawn, she seemed hesitant to agree. She testified that Mr. Chang told her that everything had changed and that as a result, she believed that all he had to do was to stay out of trouble and finish anger management, and that the curfew and no contact provisions were gone. She agreed that her error as a surety was not verifying this and in trusting Mr. Chang.

[97] Ms. Chung was extensively cross-examined on her knowledge, as a surety, of the need to sign off on a bail variation. There is no question that she signed off on one bail variation, understood that the process for a bail variation involved her signing off and that she never signed a further variation.

[98] Ms. Chung was inconsistent about when Mr. Chang moved out from living with her as required by his bail. In chief she said he stayed with her for a year (until July 2017). Under cross-examination, she said that he moved out gradually over the summer of 2017, beginning in July, and that he was not living with her by September She then said that he slept at her place in July and August, except for a few days, and then stopped sleeping at her place in the beginning of September 2017. It was suggested to her that he moved out earlier and Ms. Chung then said it was possible he started moving out in late spring. She said she did not know where he went but knew that he was living with Ms. Lewandowski.

[99] Ms. Chung testified that by the time he moved out from living with her, Mr. Chang was looking thinner, unhealthy and sleeping at odd hours. After he moved out, he and Ms. Lewandowski would come by and neither looked healthy. The conclusion that she drew was that they were using drugs. She said that she never saw them do drugs but that Ms. Lewandowski had confirmed to her that she was using heroin and that Mr. Chang was smoking crack.

[100] Ms. Chung seemed to recognize that when Mr. Chang moved out, he was breaching his bail, a bail she was responsible for supervising. That is the only explanation for why she waffled so much on the date he moved out and seemed intent on making the date later than it likely was. Under cross-examination. Ms. Chung denied that when he moved out, she knew that Mr. Chang had not told her where he was going because he was going to sell drugs. She said that he never said that and she never thought it. She testified that “I trusted him implicitly” and believed him when he told her he was doing nothing illegal.

[101] The defence seeks to have admitted, for its truth, Ms. Chung’s evidence respecting hearsay statements allegedly made by Ms. Lewandowski around this time period. Ms. Chung testified that in the fall of 2017, while at the hospital waiting for Mr. Chang, Ms. Lewandowski told her: that she was a heroin addict, that Mr. Chang hated she was using and was trying to get her clean, that she was doing drug deals with him, that she was a perfect decoy for him, that she counted the money in the particular way he liked and that she was proud of how she did it. The defence also seeks to have admitted for its truth Ms. Lewandowski’s alleged statements to Ms. Chung at the same time, that she was concerned about Mr. Chang being frail and his body failing him.

[102] Under cross-examination Ms. Chung confirmed being suspicious that Mr. Chang was doing drugs after he moved out and that in the fall of 2017, her conversation with Ms. Lewandowski confirmed that she was doing heroin and he was smoking crack and other drugs. Ms. Chung knew he was not supposed to consume drugs and agreed that even though she suspected he was, she neither notified the police nor pulled his bail, as she could have. She did nothing, acknowledging that she had not wanted Mr. Chang in trouble and that she had been willing to overlook what he was doing to protect him.

[103] It was when it was put to Ms. Chung that Ms. Lewandowski, on her evidence, had given her explicit details about their drug business in October 2017 at the hospital, that Ms. Chung seemed to appreciate for the first time an obvious difficulty of her evidence. On the one hand, she purported to have suspected, but not really known for sure, that Mr. Chang was doing drugs and, on that basis, to have believed him and not to have taken any steps as his surety. On the other hand, she had testified that Ms. Lewandowski had explicitly told her in October 2017 that she was helping Mr. Chang sell drugs and that they were both using.

[104] Once this glaring problem with her evidence was highlighted for Ms. Chung, she immediately claimed that their discussion at the hospital in October 2017, which the defence sought to adduce for its truth, had been about what Ms. Lewandowski and Mr. Chang had been doing in the summer of 2016, and not 2017. She said that they had been talking about Mr. Chang’s case and that he needed to get healthy and his body breaking down, but it was as a result of things from 15 months earlier. Ms. Chung refused to admit that she had changed her evidence, insisting that her evidence in chief had been a discussion about what Mr. Chang had done in the summer of 2016.

[105] Ms. Chung’s evidence that she had been referring to what had happened in 2016, in my opinion, flies in the face of what she said in chief and in the face of the position about her evidence in chief taken by the defence in its application to admit her hearsay statements for the truth. That application clearly contemplated her statements as referable to what was happing in the fall of 2017, rather than 2016.

[106] Ms. Chung acknowledged having been a poor surety. That is a gross understatement. On the basis of her evidence, I have no doubt that she was well aware, when Mr. Chang moved out, that he was doing so in breach of his bail condition to live with her. She chose to ignore that condition and to let him do as he pleased. This demonstrates to me that she has been prepared to put Mr. Chang’s interests over her obligations to the court. It causes me to be very skeptical about the credibility of her evidence.

[107] I accept that Ms. Chung knew, or strongly suspected that Mr. Chang had resumed his drug dealing after he moved out from living with her and in with Alicia. That she chose to do absolutely nothing about this flagrant breach of his bail is further evidence that she is willing to assist him at the expense of her obligations to the court as his surety.

[108] Having considered Ms. Chung’s evidence as a whole, I am not satisfied that the defence has met threshold reliability in respect of the hearsay statements allegedly made by Ms. Lewandowski to Ms. Chung about drug use by both Mr. Chang and her in 2017. While I accept that Ms. Lewandowski had a good relationship with Ms. Chung, and might well have chosen to confide in her the truth about what was going on between her and Mr. Chang, I cannot be satisfied that Ms. Chung has accurately reported what was said. She seemed to me more concerned with advancing Mr. Chang’s interests than with providing honest answers. The evidence falls well short of establishing procedural reliability. Nor am I persuaded that the statements about their drug use are inherently trustworthy so as to meet the requirements of substantive reliability.

The defence plan for the drug charges

[109] I turn now to the evidence about what happened in relation to the drug charges that remain outstanding.

[110] Mr. Kayfetz wrote to the federal Crown on July 25, 2016 (as contained in Exhibit 70) requesting the Crown to preserve video surveillance from both the apartment building at Mabelle Avenue and the cells at 22 Division for a possible Charter application. He said that while in the police car outside the building, Mr. Chang had seen the police removing a box he recognized as being from his apartment. Mr. Chang had told Mr. Kayfetz that while he was in the cell at 22 Division, before the police had obtained a search warrant, they had showed him two zip lock bags that Mr. Chang had told him were from his room. Mr. Kayfetz acknowledged that the police had said the items shown to Mr. Chang were not from his apartment but indicated that he wanted to view the videos.

[111] In preparation for the February 2018 preliminary inquiry, Mr. Kayfetz prepared a “Statement of Issues”, marked as Exhibit 71. It similarly raised the issue of Mr. Chang’s possible Charter argument on the basis that the police had approached Mr. Chang in the cells with items from the bedroom in the apartment before the time that they had a search warrant. One of the 17 names on the list of people he sought as witnesses was Alicia Lewandowski.

[112] Mr. Kayfetz testified that he had spoken with Ms. Lewandowski and that he believed she had evidence that was germane and crucial to the alleged Charter breach resulting from a search prior to the warrant having been issued. She told him that when the police ushered her from the unit across the hall into their unit, for the purpose of her getting dressed, an officer was coming from the second bedroom. She said that in the first bedroom, a drawer was opened as though someone had looked in it and that clothes protruded out.

[113] Ms. Lewandowski also told Mr. Kayfetz, he said, that she was the person who had put the money in the safe and that she had counted it, that it had been neatly organized in the safe and that she knew how much she had counted. She told him that there was $80,000 missing from the safe. While Mr. Kayfetz did not know if Mr. Lewandowski was going to say that the money was from selling drugs, he believed that the real issue was whether her credibility would stand up about the missing money.

[114] Mr. Kayfetz’s evidence about what Ms. Lewandowski would say was offered from memory. He has no notes or recording of her statements to him. Challenged about whether, given the turbulent relationship between Mr. Chang and Ms. Lewandowski, he had considered whether he needed to have her evidence under oath or on video in advance, Mr. Kayfetz said he never doubted what she would say and that it was she who had brought this idea to him. It was his view that it was her intention to testify at Mr. Chang’s trial. Pressed as to why, when the Charter motion was not being heard at the preliminary inquiry, he would have put her name on the statement of issues, Mr. Kayfetz explained that he wanted the Crown to know she was an important witness, although not by expressly telling the Crown what her evidence would be. He described her as the “ace in the hole” for the defence, but acknowledged that he never shared the nature of that evidence in any of his letters to the Crown in which he raised the issues relating to the search before the warrant. He also acknowledged that other than the Charter argument, the Crown had a strong case against Mr. Chang on the drug charges.

[115] Mr. Kayfetz sent a further letter to the Crown on February 2, 2018, in advance of the preliminary hearing, again indicating that the issue for the case was the alleged search of the unit without a warrant. There is no mention in that letter of any alleged theft of money from the safe by police or of the evidence Ms. Lewandowski was anticipated to give at trial.

[116] Mr. Kayfetz acknowledged that there would have been challenges to Ms. Lewandowski’s credibility on a Charter motion, particularly because there were inconsistencies between her statement to police and the email she sent to him which had been provided to the Crown. For example, in her statement, when she told police she did not want to talk any more, they stopped asking questions. Yet, in her email, she told him she had been forced to give a statement. Similarly, in her police statement, she did not describe herself as the instigator or person who attacked Mr. Chang. In her email to him, she did. Furthermore, in the email to him, she claimed to have been extremely intoxicated and not to recall things, a factor that would have undermined her credibility on any Charter motion. She also said that Mr. Chang was intoxicated, a factor that might have affected his credibility and memory of events.

[117] The Crown’s position is that the strategy that Mr. Kayfetz planned to take in defending Mr Chang on the drug charges and relying on Ms. Lewandowski as the “ace in the hole”, made no sense in the circumstances. Mr. Kayfetz was adamant that it was Mr. Chang’s only chance.

[118] I accept Mr. Kayfetz’s evidence that he believed that Ms. Lewandowski would testify for the defence on a s. 8 Charter motion at Mr. Chang’s drug trial. I make no comment on whether this was a wise strategy or whether it had any prospects of being successful. Everyone agrees that it had some hurdles to overcome. Despite the fact that there was nothing written down about what Ms. Lewandowski had said, and it was never revealed to the Crown, I accept that Mr. Kayfetz has a fairly good recollection of how he planned to challenge the admissibility of the evidence found in Mr. Chang’s apartment, and that he believed Ms. Lewandowski was central to this.

The preliminary inquiry on the drug charges February 6-8, 2018

[119] Mr. Chang’s preliminary inquiry took place on February 6 to 8, 2018.

[120] The parties have both referred to messages sent between Mr. Chang and Ms. Lewandowski that related in some way to the July 2016 charges. On consent, evidence was adduced about the extraction of messages from their phones by Csts. Sikora and Turczak, both of whom testified as experts about the messages extracted from three phones. Two cell phones were used by Mr. Chang: a Samsung S6 Edge that was located in his Infiniti after his arrest and a black Alcatel PY 180 also found in his Infiniti after his arrest. Ms. Lewandowski used a Samsung Galaxy S5 that was located near her body after she had been killed. There are a huge number of text and app messages between Mr. Chang and Ms. Lewandowski contained in Exhibits 30, 31 and 35, which are summaries of the extractions from their phone in the period of time leading up to and after the preliminary inquiry.

[121] The messages sent by Ms. Lewandowski were hearsay and not tendered for their truth. They were adduced as context to Mr. Chang’s messages. Mr. Chang’s messages were tendered by the Crown for their truth.

[122] There is no need to refer to most of the messages. There are some messages, however, that appear to be references to the preliminary inquiry, to Mr. Chang’s thoughts about his charges or to discussions he had or planned to have with Mr. Kayfetz. I will highlight those that I see as most significant. These include:

• On December 18, 2017, Mr. Chang texts that he is going to see Danny (clearly a reference to Danny Kayfetz) to see what his future fate is. Ms. Lewandowski says, “It’s not what I wanted.” And then “What’s he gonna tell you” to which Mr. Chang responds “Yea it was…that there gonna ask for 3 yrs”. She responds, “WTF seriously?!” to which he says “Did u think this was a joke it’s a big reason I was in a fuck it mode for like a year” and then says for this type of charge they ask for 3-5 years;

• Later that day, Mr. Chang says to her, “The cops are cowboys who clearly break the law steal 90 K from me so there are coming hard”. She responds that she is going to be his first witness and take the stand and “beat this shit”;

• On January 21, Mr. Chang messages her to get home safe and he will deal with his prelims without her. He then says “Answer” and then messages, “Rat eh doesn’t surprise me”. She responds “Who ratted cuz it ain’t me”

• On February 6, 2018, Ms. Chung sent a text to Mr. Chang wishing him good luck today, clearly referring to his preliminary inquiry, and asking him to let her know how it went. On February 11, 2018, she texted and asked how it had gone. These text messages were adduced to give context to his reply to her on February 15, 2018: “Hi Grace sorry for the late reply but my prelim went ok could have been better but at this point I only have one leg to stand on and if that doesn’t work I might have to go on vacation unfortunately”. She asked if he had dates and he replied that he did not yet.

• On February 23, after the preliminary hearing, Mr. Chang writes to Ms. Lewandowski that it probably will sound crazy but that he is thinking of asking D (clearly referring to Mr. Kayfetz) to expedite the plea. She asks why. He replies that “the longer this drags on I’m worried it shortens my time”.

• On February 24 Mr. Chang writes to Ms. Lewandowski that, “I know with the malice in your heart now you want to bury me no doubt”. Ms. Lewandowski responds that she does not have malice in her heart but is wondering why he is being so mean to her. He responds, “But to bury me wouldn’t be that bad”. They appear to then make up and talk about love letters and cards and she talks about being his wife and their love. Among other things he messages to her that he has been “stressed as hell” because of the court situation.

• On February 24, 2018, Mr. Chang writes, “Gonna see Danny mon see how quick it can be done time to get it over you think? I so tired of the stress”. His next message is “No worries u won’t have to see me again”

• On February 25, Mr. Chang writes to her: “You really do want to see me finished…will you at least have the heart to come to the funeral?” He then sent her a number of attachments about addiction. This was followed by a message that included “I know now all you ever wanted was to hurt me and basically destroy everything about me…I know you won’t back me but will hurt me any more so yea I will ask to take the deal and that will be that but to do pen time and basically bury me, are you really that cold hearted?” Later, they discuss his upcoming birthday and he says he is going to “call Danny” (Mr. Kayfetz) and that “It is my mess to deal with it was stupid of me to think you would be there at my most difficult time in my life ever…

• On February 25, 2018, Mr. Chang sent a picture with a quotation, “The saddest part in life is saying goodbye to someone you wish to spend your lifetime with”. He also said, “You know they say the ppl closest to you and love you will hurt the most” Ms. Lewandowski asks what she has done to hurt him like this. Later in the messages he tells her that he loved her with all his heart and every fibre in his being. He then says he is going to see his parents later and “see what he wants me to do” . Mr Chang continues, “Before when I had to go thru court I was never this nervous or affected me this way fuk I needed that underlying support sigh”.

[123] Mr. Kayfetz was asked how, from his perspective, the preliminary hearing went. He did not seem to have a clear recollection. Asked whether Mr. Chang had conveyed to him that the preliminary inquiry had not gone well, Mr. Kayfetz said that his recollection is that the police witnesses had responses to all of his questions about where the drugs had come from. He said that Mr. Chang did not accept this, as he had seen them carrying out boxes.

[124] It was suggested to Mr. Kayfetz that Mr. Chang did not think the preliminary hearing had gone well. He said he did not know, and that while he talked to Mr. Chang, he would not have speculated with him. Mr. Kayfetz denied that Mr. Chang had begun to call him after the preliminary hearing to make arrangements to plead guilty. He also denied that they discussed how much time he would receive for these charges. He said he may have had a conversation with Mr. Chang about penalties for drugs, but there were never discussions about a plea with the Crown.

[125] Using the call logs contained in Exhibit 73, the Crown asked Mr. Kayfetz about the conversations he had with Mr. Chang in the period leading up to the preliminary inquiry and the time after, up to the call made late on the evening of Saturday March 3, 2021. There are 35 other calls between January 10 and February 28, 2018, although not all were answered. Mr. Kayfetz could not recall the content of any of them but was unequivocal that they did not discuss a guilty plea. He said that if they had, he would have taken steps to start that process including exploring sentence with the Crown.

[126] Following Mr. Chang’s committal for trial, he had a first appearance scheduled in Superior Court on March 2, 2018, his birthday.

[127] The Crown suggests that these charges were a source of enormous tension between Mr. Chang and Ms. Lewandowski, as revealed in the messages that he sent to her. I accept that this is true. He says as much in a message on February 24.

[128] The defence position is that Mr. Chang knew that Ms. Lewandowski was the key to his Charter application and success at trial and that he never intended to do anything other than to fight the charges, with Ms. Lewandowski’s assistance.

[129] There is an obvious disconnect between the messages sent by Mr. Chang to Ms. Lewandowski, statements by him tendered by the Crown, and Mr. Kayfetz’s perception that Mr. Chang never intended to plead guilty.

[130] I accept that from Mr. Kayfetz’s point of view, there was a Charter defence to advance and that he has no recollection of ever discussing a guilty plea with Mr. Chang. The fact that Mr. Kayfetz cannot recall the content of any of the significant number of phone conversations he had with Mr. Chang around this time suggests that they might well have discussed a guilty plea and that Mr. Kayfetz just does not recall doing so.

[131] In any event, Mr. Chang’s messages to Ms. Lewandowski reveal that the charges were having a significant impact on him and were very stressful for him. He appears not to have been confident that the Charter argument would lead to success, despite whatever encouragement he was receiving from Ms. Lewandowski. I find he said things from which it can be inferred that he did not think Ms. Lewandowski was as supportive of him as he wanted her to be and that he recognized that she would not be the “ace in the home” Mr. Kayfetz described. He went so far as to call her a rat, revealing that his trust of her was far from absolute, despite the love he professed for her at other points.

[132] Considering the totality of their relationship leading up to the end of February, I am not satisfied of the Crown’s position that whatever animus Mr. Chang harboured toward Ms. Lewandowski from the outstanding drug charge was a reason for him to want to kill her. I do find that Mr. Chang had serious, legitimate concerns about the charges he faced and the likelihood he would be going to jail. He was stressed and extremely worried about his future and frequently visited this stress and anger on Ms. Lewandowski.

Evidence about Mr. Chang’s drug use in January and February 2018

[133] Mira clearly believed that by the fall of 2017, her daughter was using heroin and that Mr. Chang was supplying it. She observed changes in both of them physically. While there is scant evidence about the extent of their use of drugs, I have no doubt that they both were using. On the evidence, I can make no finding as to the frequency and amounts of that use.

[134] Mira Lewandowski did not see Alicia over January or February 2018 until February 28. Accordingly, she could give no evidence of any observations of Mr. Chang’s condition in this period.

[135] Ms. Chung testified that Mr. Chang came by her place in mid-January for food and that he looked thin. She last saw him on February 4, 2018. Ms. Lewandowski was there as well. Again, she observed that Mr. Chang looked thin and unhealthy, but not as starved as she thought he appears in his March 5, 2018 arrest photograph, marked as Exhibit 26. She said his speech and manners were normal. She agreed that he had looked unwell since he had moved out from living with her. Her evidence is of no assistance as to the nature and extent of Mr. Chang’s drug use in this period.

Wednesday, February 28, 2018 to Thursday, March 1, 2018

[136] Mr. Chang dropped Alicia at her mother’s home on February 28, 2021. He unloaded her bag from his car and she brought her things in. Mira could not comment on Mr. Chang’s appearance on February 28 because he had on a winter jacket.

[137] Mira thought that Alicia looked thin and was not doing well. Mira made a medical appointment for her and asked her to seek addiction counselling. She said that Alicia said she would. Mira suspected Alicia was in addiction withdrawal on the Thursday. She described Alicia as quiet, withdrawn and tired.

Friday March 2, 2018 and early Saturday March 3, 2018.

[138] March 2, 2018 was Mr. Chang’s birthday. Ms. Lewandowski sent him messages on Facebook Messenger (contained in Exhibit 31) beginning shortly after 12:02 a.m. She thanked him for ruining her attempt to sing happy birthday and then asked if she was mistaken about him saying that she had brought someone to his door, making clear that she had not done so. At 12:12 a.m., using Facebook Messenger, she said, “I’m sorry to say this so bluntly but I’m going to be honest with you. I’m legit actually very scared for you. You’re losing your mind. You’re going crazy and I’m extremely worried about you.” She subsequently told him that she had a gift for him she would bring the next day and that her mum had one too. He responded, “The pen is way more than enough”. She responds, “Well I haven’t gotten that yet I haven’t been to pacific mall but I will”.

[139] In its closing submissions, the defence relies on Ms. Lewandowski’s utterance for its truth, suggesting that Ms. Lewandowski knew Mr. Chang had become mentally unstable and was aware of this before she called police late the next night when he would not answer his door. The defence suggests that Ms. Lewandowski’s messages are “original evidence of her observations of the accused”.

[140] I do not agree that her statement, which is hearsay, is admissible for this purpose. At the time the messages were adduced, the Crown made clear that while the Crown was adducing Mr. Chang’s statements for their truth, Ms. Lewandowski’s were before the court only to understand the conversation and were adduced for the fact that they were said and not for their truth. No application was ever brought by the defence to admit this hearsay statement of Ms. Lewandowski’s for its truth.

[141] I accept that Ms. Lewandowski appears, based on her observations of him, to have been worried about Mr. Chang and that her statement offers insight into her state of mind. That much seems uncontroversial. But I cannot infer from her messages that he was “going crazy” or was mentally unstable. Hearsay statements do not become admissible for their truth in the absence of an application to do so, consent or, at the very least, an argument as to why they are admissible. Even had there been an application by the defence to admit this statement for its truth, I cannot conclude it would have been admissible as evidence that Mr. Chang was, in fact, “going crazy”. There are far too many things that are unclear about what Ms. Lewandowski meant and the basis for her statement for this statement to meet threshold reliability.

[142] I accept the defence position that the comment by Mr. Chang, “the pen is way more than enough” does not appear, read in context, to be a reference to the penitentiary as the Crown suggests. Given her response about not having “gotten that yet” because she has not been to the mall, it seems to me much more likely that Mr. Chang’s reference to “pen” here is to an actual pen. I cannot find Mr. Chang’s comment to reflect animus towards Ms. Lewandowski about her role in sending him to jail.

[143] The evidence demonstrates that, not surprisingly, Alicia wanted to see Mr. Chang on his birthday and planned to take to him the clothing that she and Mira had purchased as birthday gifts for him. Her mother said that Alicia spent most of the day in bed and was not feeling well.

[144] Ms. Chung said that she texted Mr. Chang on March 2^nd for his birthday. She sent a 7:14 a.m. text message asking him to call and received no response.

[145] Mira’s testimony and the text messages (Exhibit 12) and call logs (Exhibit 13) between Mira and Alicia sent early on March 2 and early on March 3^rd, assist with the narrative as to what happened.

[146] By later in the day, Mr. Chang was not responding to Alicia’s messages and she had become concerned that something was wrong with him. Alicia told her mother that she had messaged or called him first thing on Friday morning and that he responded something to the effect that “you brought ‘em to set me up”. She said that she had asked him about it and then said to Mira that he was “going nuts”.

[147] Again, in my view, Ms. Lewandowski’s statement to her mother that Mr. Chang was “going nuts” is not admissible for its truth. Nor is any reference to any views that Ms. Lewandowski may have had about whether Mr. Chang was psychotic. When this evidence was elicited during Mira’s cross-examination there was no application by the defence to admit it for its truth. Aside from the obvious inability to ascertain from Ms. Lewandowski what she meant by “going nuts”, there is also no ability to ask her about the basis for this view. Indeed, there is no evidence about what Ms. Lewandowski may have meant in any comments made to her mother about Mr. Chang’s mental state. I am not able, in these circumstances, to find that her statements about Mr. Chang’s mental state to her mother meet threshold reliability and are admissible for their truth. Again, this evidence is relevant for Ms. Lewandowski’s state of mind at the time.

[148] There is no issue that later that night, Ms. Lewandowski decided to go to see Mr. Chang. At 12:23 a.m. on March 3, 2018, Alicia texted Mira that she was on her way to Mr. Chang’s on public transit. At 1:26 a.m. Ms. Lewandowski messaged Mr. Chang and asked him to answer the door. By 1:33 a.m., Ms. Lewandowski told her mother that Mr. Chang was not answering. At 1:42 a.m., having told Grace Chung earlier that she had not connected with Mr. Chang and, at 10:17 p.m. that she was on her way to his place, she texted Ms. Chung that she had been knocking at Mr. Chang’s door for two hours and “still nothing”. She also told her mother that she was worried about Mr. Chang and needed to find out what was happening.

[149] The text messages between Ms. Lewandowski and Mr. Chang show that she both sent him multiple messages and called him in the evening of March 2, 2018. She told him she was going to his unit and asked him to answer the door. At one point she said she was very worried about him and continued begging him to answer. Later she said she said, “I am soooooo worried baby you’re scaring me” . By 2:27 a.m. on March 3, she told him she had been knocking non-stop for over an hour and a half and he was still not answering and said she could not rest until she knew he was okay.

[150] Again, while I have referred to Ms. Lewandowski’s statements to Mr. Chang, the statement that he is scaring her was not elicited by either side for its truth. Nor is it admissible for that purpose. Its relevance is for her state of mind and to reveal that she was concerned about Mr. Chang. This is some circumstantial evidence that, from her perspective, there was cause for concern about him.

[151] At 2:40 a.m., Ms. Lewandowski called 911. Exhibit 57 is a recording of that call. Ms. Lewandowski reported that her boyfriend was being “fucking abusive” and that “he’s been using a lot of drugs and, um, he’s being ver-, very aggressive and violent towards me.”

[152] Around that time, Alicia also called her mother who described her as “crying inconsolably”. In a 2:46 a.m. call, she told her mother that Mr. Chang had spoken to her through the door and told her to get away or he would put a bullet in her head.

[153] In response to Ms. Lewandowski’s call to police, Cst. Henry arrived at 118 Balliol Street at 2:48 a.m. and met her in the lobby of the building. He described her as very emotional and crying because she could not get hold of her boyfriend. She said he had been doing a lot of drugs. She reported having been there since about 1:00 am and that she had knocked repeatedly and there had been no answer. She said that when he had answered he had said to “leave him the fuck alone”. I will deal with the admissibility of her hearsay statements when I address the police investigation in relation to these events below.

[154] Cst. Henry and his partner went upstairs and knocked at the door several times loud enough for a person inside to hear. He could not recall if they identified themselves. There was no answer. They returned to the lobby and told Ms. Lewandowski that there was no answer and that they had no reason to enter the unit. They suggested that she go home, which she did.

[155] Ms. Lewandowski texted her mother that she was taking an Uber home at 3:06, arriving at around 3:30 a.m. Mira tried to find out what had happened but said that Alicia did not want to talk about it. Mira testified that she did not think Alicia appeared under the influence of substances that day. She described her as speaking clearly and coherently, though acknowledged that she had been distraught and emotional.

Saturday March 3, 2018

[156] The next day, Mira said that Alicia did not appear well and that she tried to take care of her. Her mother believed that she was “coming down” and “de-toxing”. She observed Alicia as being sweaty, having an upset stomach and being unable to eat or sit up, preferring to lie down. Mira did not think Alicia was under the influence of any drugs.

Mr. Chang’s communications with Grace Chung

[157] A significant part of Grace Chung’s evidence relates to the communications she said that she had with Mr. Chang on Saturday, March 3. This is important evidence because the defence position is that Mr. Chang’s statements to Ms. Chung are admissible as preposterous utterances going to his state of mind. The Crown says that Ms. Chung is not credible and conducted a lengthy, detailed cross-examination of her. I will review her evidence in some detail in order to demonstrate the basis for my credibility findings about her.

[158] By the time Ms. Chung spoke to Mr. Chang that Saturday morning, she had received a 7:46 a.m. message from Ms. Lewandowski in which she was told that Mr. Chang had threatened, the night before, to put a bullet through her head. She agreed that she had been alarmed by this and that she thought she needed to ask Mr. Chang about it. It was obvious to her that Ms. Lewandowski was upset by it. Ms. Chung tried to comfort her by responding that he lashes out because of stress. She agreed that by stress, she had been referring to Mr. Chang’s charges. She testified that Mr. Chang had told her that his preliminary inquiry had not gone well and that he might need to run away or was going to jail for a long time.

[159] In her examination in chief, Ms. Chung said that she had been concerned by not hearing back from Mr. Chang on his birthday. He called her (call #1) on Saturday morning at 10:34 a.m. She said that at the time, she was at Pearson International Airport about to board a 11:00 a.m. plane for San Francisco.

[160] In this first call, Ms. Chung said that Mr. Chang told her that someone was watching him and that his place was bugged. She said he was rambling and irrational in a way she had never heard before and which did not make sense to her. Under cross-examination, she added that he was panicked and scared and kept saying he was being watched and tapped and that he was going to be killed. She attributed this to him being on drugs. Asked her response, she told him that no one was after him, that he was sick, needed help and to call his mother. Mr. Chang told her he had to end the call because people were listening and he hung up. Under initial cross-examination, Ms. Chung thought the call had been “maybe 5 minutes”. When, later, she was shown the call log in Exhibit 30, she agreed that it had been only a minute.

[161] Ms. Chung never asked Mr. Chang about the threat to Ms. Lewandowski from the night before.

[162] Ms. Chung said that she thought Mr. Chang was at his home during this conversation and that he understood and appreciated where he was and to whom he was speaking.

[163] Ms. Chung said their conversation was concerning so she called him back. Mr. Chang did not answer. This was at 10:42 a.m.. At 10:43 a.m., Ms. Chung sent a text to Mr. Chang telling him that she was going out of town.

[164] Ms. Chung said that Mr. Chang then called her again (call #2) and said similar things: that people were watching him, that there were wires and taps and that he was afraid for his life. She told him, that she could not help him but that he needed to call his parents and to get to a hospital. She told him she was leaving town and could not help and that he was obviously sick. She said he was mumbling and did not reply. Ms. Chung told him that she would see him when she got back. Mr. Chang told her that he had to go because he heard someone coming and he hung up. The call logs and Ms. Chung confirmed that there was a call for 6 minutes and 44 seconds at 10:49 a.m.

[165] Ms. Chung testified that after this, she talked to Mr. Chang’s mother and said to try to track him down. Under cross-examination, she said that she could not really recall when she called Mr. Chang’s mother. She then said that she knew she had called his mother on March 5^th, and that she did not recall if she had on March 3, even though she had said in chief that she had asked his mum to track him down. Ultimately, I understand her evidence to be that she never placed a call to Mr. Chang’s mother on March 3, despite her evidence in chief. While she claimed to have been concerned when she boarded the plane, she agreed that she had done nothing and had continued on with her trip.

[166] Despite the two worrying calls, Ms. Chung acknowledged not having called or messaged Ms. Lewandowski to find out where Mr. Chang lived, even though she realized that Ms. Lewandowski was the only person who knew that. She also agreed that while she knew Ms. Lewandowski was devastated and worried, she never even told her that she had spoken the Mr. Chang. She denied that this was because she thought they needed space between them because he was angry at Ms. Lewandowski. She claimed not to have believed Ms. Lewandowski was in danger and said only that she wanted Mr. Chang to figure out himself and get some help, even though she believed he was panicked and delusional.

[167] Ms. Chung said that there were more quick calls between them after her arrival in San Francisco.

[168] She said that the first call was from Mr. Chang and that he was breathing heavily and hung up. He did this a second time. She then called him (call #3). Her evidence was inconsistent about when the breathing hang-ups took place and as to who placed call #3. Though Ms. Chung denied that the reason she had changed her evidence was having looked at phone records or discussed her evidence with anyone, it was unclear to me why her evidence changed as it did so as to so accurately conform with the call logs.

[169] In any event, the cell records reveal a call from Mr. Chang to Ms. Chung at 7:16 p.m. for just under 15 minutes. Like in their earlier conversations, she said he told her that people were watching him and that he did not feel safe. He thought people were going to kill him. She described him as paranoid and delusional. She did not think he heard what she was saying and he kept repeating that people were watching him and then had to go.

[170] The call records reveal that Mr. Chang answered a call from “home” at 7:46 p.m. and spoke for just under 3 minutes.

[171] After that, the records reveal that between 8:21 p.m. and 8:25 p.m., there were five very short calls made by Mr. Chang to Ms. Chung where he hung up. These did not lead her to do anything or to call him back. She said that she had been distracted, although she was obviously not so distracted that she didn’t answer the calls.

[172] Ms. Chung said she waited and then called Mr. Chang and that he answered (call #4). The call records show that at 8:37 p.m., they had a 27 minute call, but that he placed it, rather than her. Ms. Chung said that they had a lengthy conversation of at least a half hour in which Mr. Chang went “on and on” about the same thing: that they were tapping his apartment, that they were monitoring and were going to kill him. He also said that he was taking drugs but that they were not making him think this way. This was the only call in which Mr. Chang told her that he was taking drugs. She told him that he needed help and to please be careful and that she would see him when she got back. The call ended abruptly with him handing up.

[173] Ms. Chung said that her impression was that this was not the Joseph Chang she knew because he was usually rational and methodical, and had become paranoid. She did not call her aunt or the police or anyone after this call.

[174] Asked whether she had ever called Mr. Chang’s mother before Ms. Lewandowski was killed, Ms. Chung’s final position was that she could not be certain. She knows she talked to her own mother and her aunt, but just cannot say when.

[175] During her evidence in chief, Ms. Chung said that the next call she had with Ms. Chung was when he called her outside while he was running at 12:12 a.m. early on March 4^th, as discussed below. Under cross-examination, she conceded that there were actually additional calls before that: one where she called Mr. Chang at 9:19 p.m. for 10 minutes (call #5), a missed call at 9:31 p.m. where she called him and he did not answer, and a final call (call #6) at 9:35 p.m. for 7 minutes.

[176] Asked about the 9:19 p.m. call, Ms. Chung denied that Mr. Chang ever told her about the flood or the sprinklers or that the fire alarm was going off. The timing makes clear that for at least part of it, Mr. Chang would have been in his apartment with the flood having started. She did agree, under cross-examination, that in the 9:35 p.m. call, Mr. Chang was panting and breathing heavily and running.

[177] I will set out my findings respecting Ms. Chung’s evidence after completing my review of her evidence below.

Firefighters respond to flood in Mr. Chang’s unit

[178] At 9:22 p.m. on March 3, Toronto firefighters were dispatched to 118 Balliol Street St. for what they understood was a water problem. Five fire trucks responded with the first arriving at 9:26 p.m. There was an audible alarm sounding in the building and there was an alarm panel that indicated a water issue on the 23^rd floor. The concierge directed them to the 23^rd floor where they immediately saw that there was water coming under the closed door from unit 2301.

[179] The firefighters knocked at the door and announced their presence. The door was unlocked and they opened it. Immediately, they could see the sprinkler head in the entrance gushing water. It appeared compromised in that the water was pouring down, rather than spreading out in a fanning pattern as it is supposed to. It was the only sprinkler head that had been tampered with.

[180] The unit was loud and they called out to see if anyone was there. Within 5 to 10 seconds, they saw Mr. Chang. Initially, he came from within the apartment. They told him he had to leave. He glanced up at the firefighters, saw them, but appeared to ignore them. Firefighter Captain McCarron found it odd that Mr. Chang said nothing to them. He was darting back and forth in the corridor and to the back of the unit and they waited while he gathered his things. He appeared to be scrambling to get things and basically ignoring the firefighters. They could not see what he was doing. Mr. Suchma thought that all Mr. Chang had taken was his keys and maybe a small satchel or bag. It was difficult to communicate because of the sounds of the water.

[181] Eventually, Mr. Chang was ready to leave. He had his keys and as he left, and went to close the door, he inserted his keys into the deadbolt from the outside like he was going to lock it. The firefighters asked what he was doing and said he could not lock it because they were there for the water. Mr. Chang paused and then seemed to get the point. He left within two or three minutes of their arrival.

[182] In the firefighters’ interaction with Mr. Chang, he did not speak much and never got out a complete sentence. Mr. Suchma wondered if there was a language barrier and agreed that Mr. Chang did not communicate coherently.

[183] Photographs of the scene inside the apartment were entered as Exhibit 18, 19 and 22, although they were taken after the removal of the water. When the firefighters arrived, there was 6 to 8 inches of water in the unit. The unit has an entrance hall where the water was flowing down. There was a bathroom, master bedroom, smaller bedroom or office, kitchen and living room. To say that the photographs reveal a dirty, messy, disorganized unit is a huge understatement.

[184] In the unit, firefighters saw what appear to be narcotics in and around the desk in the office. There were also dozens of packaged hypodermic needles that were floating around in the water. There were muffin trays with substances in them. There were what appeared to be narcotics all over.

[185] Of note, as well, is the fact that the wall and electrical devices in the unit all appear to have been removed and the holes stuffed with towels or covered with duct tape. Electrical paraphernalia and tools are all over. The wires from receptacle boxes and devices are left hanging from the ceiling where such items as smoke detectors or sprinkler covers would have been. Vents were covered in cloth and the ceiling devices were removed or had been tampered with and stuffed with pillows and towels. There are tools, including a screwdriver and pliers on the couch, along with at least one smoke detector. There are numerous cleaning products.

[186] Mr. Suchma said he had never seen anything like this. The firefighters notified the police of what they found. Mr. Suchma was asked if he had noted a bucket of bleach with screws in it and said that he had not, although he had noted random cleaning supplies and various tools.

[187] The firefighters stopped the flow of water and removed most of it before leaving at 11:45 p.m. By that point, the Toronto Police had arrived and secured the unit while they awaited a search warrant.

Early police investigation

[188] The police investigation at Mr. Chang’s unit continued that night and the next day, March 4, 2018.

[189] Two significant events had occurred after the flooding started and before or as firefighters arrived:

• By the bicycle rack outside the building, the police identified a pillow that appeared to match the couch in Mr. Chang’s living room. Inside the pillow was padding and in the middle of the padding was a silver handgun. The gun was loaded with one live bullet at the top of the magazine. In the same pillow was a silencer wrapped in a blue towel with three bands around. Surveillance video from outside 118 Balliol Street depicted that pillow falling from above at 9:22:30 p.m.. Shortly after, at 9:25:40 p.m. the arrival of a firetruck can be seen.

• Beginning at 9:27:40 p.m., surveillance video shows small bags dropping to the ground from the area outside Mr. Chang’s unit. At 9:30:46 p.m., it appears that there is water falling to the ground from above and then more bags descend. At 11:52 p.m. on March 3, police retrieved from the grounds at 118 Balliol Street baggies of cocaine (1191.9 g) that had been tossed from above. They are depicted in Exhibit 20.

[190] This evidence demonstrates that after the commencement of the flood in Mr. Chang’s unit, he took immediate action. No doubt anticipating the arrival of the emergency personnel, but before they got to the unit, Mr. Chang tossed from his balcony the gun, magazine and silencer, carefully concealed in the pillow and multiple baggies of cocaine.

Mr. Chang’s Visit to Mr. Kayfetz

[191] Mr. Kayfetz testified that around 9:45 p.m. on March 3, 2018, he received a call from Mr. Chang. They had a short conversation. Mr. Chang told him that there was a flood in his apartment and that it was filling with water. He said he did not cause it and that the police were coming. Mr. Kayfetz felt that Mr. Chang was calling for advice and told Mr. Chang that he should stay there and speak to the police. Mr. Kayfetz did not ask if Mr. Chang had contraband in the unit. Mr. Kayfetz said that at the time, he did not know that Mr. Chang was not living with Grace Chung.

[192] Mr. Kayfetz said that later that evening at about 11:00 pm., Mr. Chang unexpectedly came to the door of his home, where his office is also located. Mr. Chang was soaking wet. He gave him a towel and told him to take off his clothes and he would put them in the drier. They then sat in his front hall and talked.

[193] Mr. Kayfetz said that Mr. Chang spoke in a low voice and told him “bizarre” things including:

• That “they” were trying to kill him;

• That he looked through the spyhole in the door and saw a reflection of someone with a shotgun in the fire extinguisher compartment;

• That “they” were trying to steal codes to get into the phone;

• That there were secret screws in the drywall so he had taken them out and put them in a bucket of bleach and pulled out the electrical units to stop the spying;

• That “they” had left two guns in the apartment. He fired one into the sofa and it didn’t fire so he knew it had blanks. A second gun he fired into the ceiling and then water came out and flooded the apartment. He put one of the guns in a cushion and threw it over the balcony. When he left, he had dumped the other gun into the garbage.

[194] Mr. Kayfetz said that Mr. Chang seemed markedly different than the usual straightforward person he had seen before and that the whole incident was “completely nuts” and very strange. He said that his only advice was for Mr. Chang to turn himself in. After giving him his dry clothes, Mr. Chang left. Mr. Kayfetz said that he was concerned, but did not know what to do. He did not accept the story he had heard as true.

[195] Mr. Kayfetz did not call anyone or do anything as a result of the visit. Pressed as to why he had not done anything about the fact that there were two guns that were in the public domain, Mr. Kayfetz’s response was that he did not necessarily believe that what Mr. Chang told him was true, that he did not have any idea what to do and that he was aware that there was little he could say because of their solicitor/client privileged relationship. Mr. Kayfetz said he had no concerns for Ms. Lewandowski. He believed that Mr. Chang knew that she was the most important witness for his drug case. He did acknowledge that he could have called Ms. Lewandowski or Ms. Chung to check if Mr. Chang was okay.

[196] Asked whether he had thought Mr. Chang was on drugs, Mr. Kayfetz said that he could not say. Mr. Chang had been leaning forward, talking quietly and intensely and looking straight at him. He observed nothing wild or outlandish in any way.

[197] I accept Mr. Kayfetz’s evidence as to the general nature of what he was told by Mr. Chang that night. While I accept that he had no notes, and may not have been able to recount verbatim what he was told, I believe that he accurately reported, to the best of his ability, what happened during this unusual visit. I accept that he found the conversation bizarre and so some of the details became seared in his memory. I accept that he perceived what he was being told as “nuts”.

[198] The defence does not seek to admit these hearsay utterances made by Mr. Chang to Mr. Kayfetz for their truth, but rather as “preposterous utterances” that are evidence of Mr. Chang’s state of mind at the time he made those utterances.

[199] I accept the Crown’s submission that assessing whether what Mr. Chang said is preposterous requires consideration of the context in which Mr. Chang was living. He was a drug dealer who kept a significant amount of drugs and cash in his unit. He also kept at least one handgun, ammunition and a silencer. He was living in a dangerous world in which he needed to be vigilant about the possibility of police investigating him and savvy about the risks to him posed by others in the criminal underworld in which he operated.

[200] In my view, in that context, not everything that Mr. Chang said to Mr. Kayfetz is really “preposterous” at all. It is not preposterous for him to believe that people were trying to kill him. Nor is it preposterous for Mr. Chang to have believed he had seen someone in the hall outside his unit with a gun. He had a gun inside. These might well be valid and accurate observations made by a realistic assessment of a drug dealer.

[201] On the other hand, other statements by Mr. Chang suggest that at the time, he may have been hallucinating or delusional. I include in that category: his suggestion that people were trying to steal codes to get into his phone; his statement that there were secret screws in the drywall that he had taken out and put in a bucket of bleach; his statement that he had pulled out the electrical units to stop the spying; and his statements about people leaving guns in his apartment. All of these provide direct evidence of his state of mind at the time.

[202] I took from Mr. Kayfetz’s evidence that while he found these statements extremely unusual, and bizarre, he did not really believe much of what Mr. Chang said to him. I do not accept the Crown’s suggestion that he was under any sort of legal, professional or moral obligation to do anything. That said, I also conclude that he could not have been all that concerned about Mr. Chang’s mental state as he chose to do nothing at all, for the safety of Mr. Chang or anyone else. He acknowledged that he could have contacted Mr. Chang’s surety, Grace Chung, or Ms. Lewandowski to ensure that Mr. Chang was alright. That he did nothing suggests to me either that Mr. Chang did not appear as poorly as Mr. Kayfetz said in his evidence or he did not think the circumstances were serious or concerning, despite the strange statements Mr. Chang made.

Continuing police investigation

[203] Ms. Lewandowski sent a text message to Grace Chung at 11:05 p.m. that evening. She asked if Grace had heard from Mr. Chang and told her that the police were after him. Ms. Chung said that this was the first time she became aware that the police were looking for Mr. Chang. At this point, Ms. Lewandowski would not have been aware of the flooding in Mr. Chang’s unit.

[204] Cst. Malfara learned about the investigation into unit 2301 at 118 Balliol Street and was able to match that unit to Mr. Chang because of the domestic incident that had been filed in the early hours of March 3, 2018. The Crown relies on this as important evidence that augmented Mr. Chang’s motivation to kill Ms. Lewandowski because she is the person who provided to police the only evidence that they had to link him to that unit.

[205] Cst. Malfara said he contacted Ms. Lewandowski at 11:11 p.m. to inquire if she knew where Mr. Chang was. She told him she was unaware of where Mr. Chang was. She told him that she was concerned for him and said he was not acting himself of late. She mentioned that she had gone to see him for his birthday earlier in the day and that he had said to her to go away “or I’ll put a bullet in your head bitch”. She advised that he had been on a “serious drug binge” and had been using opioids like crack and heroin. Asked if he would shoot, she said that she certainly hoped not and did not think he would. Asked if he had or owned a firearm, she said that he may have and that he definitely had access to one.

[206] Cst. Malfara had the impression that Ms. Lewandowski was more worried about Mr. Chang and him possibly being suicidal than she was about herself. She did not want to get him into any more trouble. She gave a possible address for Mr. Chang at Ms. Chung’s and gave a telephone number for Ms. Chung.

[207] As I have indicated, there is agreement that the “bullet in the head” comment is admissible, though the defence submits that it is a preposterous statement and evidence of Mr. Chang’s delusional state of mind , whereas the crown says it is evidence of a plan to kill Ms. Lewandowski.

[208] The defence seeks to admit for its truth Ms. Lewandowski’s statements to Csts. Henry (early on March 3 when he responded to her 911 call) and Malfara (on the evening of March 4) to the effect that Mr. Chang was using a lot of drugs, was on a serious drug binge and was using crack and opioids. The Crown concedes that these statements were accurately reported by the officers, but submits that because of the circumstances under which the statements were made, substantive reliability has not been established. This is based primarily on the Crown’s argument that there is an inability to cross-examine Ms. Lewandowski about what led her to this conclusion and what she meant by it.

[209] In my view, these statements of Ms. Lewandowski to the officers meet threshold reliability and should be admitted for their truth. The circumstances in which they were made were such that Ms. Lewandowski had been living with Mr. Chang up until February 28, 2018 and would have been aware of his drug use up to that point. She could speak to what had been going on only a few days before. While there are many questions left unanswered by the statements, including how recently he has used drugs and what quantity he administered, those issues, in my view, go to weight, not admissibility, of the evidence.

[210] Cell phone records show that at 11:12 p.m. that evening, Ms. Chung responded to Ms. Lewandowski’s texts by calling her. They talked for 13 minutes. Ms. Chung said that she was relieved that the police were looking for Mr. Chang.

[211] Cst. Malfara also spoke to Ms. Chung, who told him that she had spoken to Mr. Chang two hours earlier and that he was not making sense. She reported to the officer that he had said “they are out to get him” and that there were motions sensors all over his apartment and that he was going to die. She reported that he had said to tell his parents that he loved them.

[212] Ms. Chung acknowledged that Cst. Malfara had called her that night, after she had learned from Ms. Lewandowski that the police were looking for Mr. Chang. This call was around 11:49 p.m. Toronto time. When she was asked if she agreed that she had been asked where Mr. Chang was or if she had heard from him, Ms. Chung said that the conversation was all “a blur” and she does not recall what they talked about.

[213] Cst. Malfara was cross-examined by the defence about what Ms. Chung had said. At the time that evidence was adduced, the defence indicated that this hearsay was admissible for the narrative. On that basis, I permitted the officer to testify about what he had been told. The officer said that Ms. Chung reported to him that she had spoken to Mr. Chang two hours earlier and that he was not making sense. He was saying that people were out to get him, that there were motion sensors all over his apartment and that he was going to die. Ms. Chung reported that Mr. Chang told her to tell his parents that he loved them. Ms. Chung told the officer that she did not believe he would kill himself and that he struggled with undiagnosed mental illness.

[214] When she was cross-examined about what had been said by her, Ms. Chung seemed able to recall that she had told the officer virtually everything that the officer reported her to have said. Yet, she refused to confirm that she had told the officer that Mr. Chang had said these things before. Her explanation for him recording that she had said this, and her evidence, was that she knew Mr. Chang had never said these things to her before and that she does not know why she said that, or if she did. Her evidence ultimately was that if she told the officer that Mr. Chang had said these things before, she must have meant earlier in the day, and not on some earlier occasion.

[215] Ms. Chung said her final call with Mr. Chang was when he called her at around midnight. Cell records reflect him calling her at 12:12 a.m., at a point after she had spoke to Cst. Malfara. She said that this was really not a conversation. Mr. Chang was outside and was running and panting. In chief, she described the conversation as longer than 5 minutes and said that Mr. Chang would not tell her where he was. It ended with her telling him to make himself safe. Under cross-examination, Ms. Chung changed her evidence from this call being at least five minutes to being more like a minute. She said she had reflected, and denied having looked at any phone records. Cell phone records show that at 12:12 a.m., Mr. Chang called Grace Chung and they had a 59 second conversation.

[216] Ms. Chung was asked about whether she told Mr. Chang at this point that the police were after him. Her evidence was that she “probably” did tell him and “probably” told him to turn himself in. This call did not seem to stand out for her. Ms. Chung said that after this, she spoke to her aunt, Mr. Chang’s mother, who said that the family was looking for him. Under cross-examination, Ms. Chung corrected this evidence and said that she had not called her aunt at all on March 3 and had not spoken to her until March 5.

Conclusions respecting Ms. Chung’s credibility

[217] At 10:00 a.m. Toronto time on March 5, 2018, Ms. Chung learned from her brother that Ms. Lewandowski had died. She also spoke to her mother and her aunt before she spoke to the police.

[218] At 10:27 a.m., Cst. Cissek spoke with Ms. Chung while she was still in San Francisco. She told him that she had spoken to Mr. Chang on Saturday and that he had said his home was booby trapped and had not made sense. He also told her that he would be ok until she got back. Finally, she said that he had always been wild.

[219] While it occurred after Ms. Lewandowski was killed, there is another aspect of Ms. Chung’s evidence that warrants mentioning as it is another reason for my concerns about her credibility. Ms. Chung returned from San Francisco on the night of March 7. She knew that while she had been away, Cst. Hawley had come to her apartment and that police were looking for Mr. Chang. Cst. Hawley left her a voicemail at 7:35 a.m. on March 8 and she spoke to him at 11:40 a.m. that morning. She knew that the police were trying to obtain information about where Mr. Chang had been staying. She agreed that it was possible that she told the officer that she had not seen him in “a week” and that he only stayed with them on and off. She also agreed that the last time she had seen Mr. Chang was actually February 4 (more than a month earlier). Her explanation for this obviously misleading statement to the police was that she was in shock after what had happened to Ms. Lewandowski and that everything was very blurry.

[220] Ms. Chung, as I have indicated, maintains her denial of any knowledge that Mr. Chang had been breaching his bail by not living with her. For reasons I have provided, I reject this and conclude that she knew of the bail breach and made the choice to do nothing about it. I find, further, that she misled Cst. Hawley about how recently she had seen Mr. Chang because she continued to want to protect him and to minimize her failure as a surety.

[221] Ms. Chung was asked whether when the officer asked her for Mr. Chang’s primary place of residence, she recalled saying “no, he told us he was staying with Alicia and that he was doing so much better”. Initially, she testified that she did not recall this, but that it is something she would have said. She then said it was all a blur. She agreed that if she had said this, it was not true because she thought Mr. Chang was doing much worse. Ms. Chung denied saying this to try to help Mr. Chang.

[222] I have reviewed Ms. Chung’s evidence in considerable detail because of the weight and significance that each party ascribes to it.

[223] After carefully considering Ms. Chung’s evidence as a whole, I make the following findings.

• Ms. Chung loves her cousin Mr. Chang. She has exhibited this love by supporting him as a surety and trying to support and encourage him when she perceived him to be in trouble. She also appears to have been close to Ms. Lewandowski, trusted by Ms. Lewandowski and to have supported her in her relationship with Mr. Chang. I accept that she never perceived Ms. Lewandowski to be in danger and that she was genuinely upset by her death;

• Ms. Chung utterly failed in her role as a surety. She put Mr. Chang’s interests ahead of her obligation to the court, a matter that speaks to her respect for the court generally and causes me concern about whether she was truthful in her evidence;

• Ms. Chung’s obvious desire to assist Mr. Chang in her testimony was apparent to me throughout much of her evidence. While I have set out many examples of this, I found her memory to be inexplicably inconsistent. Where her evidence assisted Mr. Chang in his defence, she purported to have a good memory. Where she had previously said things to the police that did not assist him, such as that she had perceived him to have been doing much better living with Alicia, or that Mr. Chang had said the strange things he said to her before, or falsely telling Constable Hawley that she had last seen him a week before, she professed to have no recall.

• Ms. Chung’s evidence about the various calls she had with Mr. Chang over March 3, 2018 was very unreliable and caused me to further doubt her credibility. There are many details I would never expect someone to remember, such as who placed each call and precisely how long each call lasted. Yet, Ms. Chung chose, during her examination in chief, not to say that these were details she could not remember, but to provide very specific and detailed evidence. Then, under cross-examination, after having “reflected” over the weekend, she changed significant aspects of her evidence in such a manner that it then conformed almost perfectly with the phone records, which she claimed not to have reviewed. I cannot accept that her “reflection” just happened to result in this change. Something else accounts for her suddenly very accurate new memories about these calls. I am also left very troubled by Ms. Chung’s willingness to confidently provide in chief details that were so easily demonstrated to have been inaccurate. I was left with the strong impression that Ms. Chung testified as to what she thought would assist Mr. Chang, as opposed to what was true.

• Ms. Chung’s evidence about what she did as a result of her calls with Mr. Chang on March 3, 2018 was also inconsistent. For instance, during her examination in chief, she claimed to have been so worried after speaking with Mr. Chang before her flight to San Francisco that she called his mother. She later completely retracted this and claimed to have been confused. I find this to be an example of her exaggerating how serious she viewed Mr. Chang’s situation to be, in an effort to bolster his defence of having been in a cocaine inducted psychosis at the time he shot Ms. Lewandowski.

• I reject Ms. Chung’s evidence about the magnitude of her concern for Mr. Chang after her conversations with him over March 3. I also cannot accept her evidence that she believed, at the time, that Mr. Chang was very sick. In my view, had she had the level of worry about him she now claims, she would have taken the obvious step of contacting Ms. Lewandowski, the only person who knew where Mr. Chang lived, to help him. She knew that Ms. Lewandowski, who repeatedly texted and called her, and expressed her own concerns about Mr. Chang, would have willingly tried to help him. The fact that she never told Ms. Lewandowski what Mr. Chang had said causes me to question the credibility and reliability of what she testified to him having said and what her mindset was as a result.

[224] Despite my significant concerns about Ms. Chung’s evidence, and my view that she was keener to assist Mr. Chang than to provide an honest and candid account of what she recalls, there is no doubt that she and Mr. Chang had a number of phone calls over March 3. I accept her evidence that he was rambling and seemed irrational to her, observations about his demeanour that are admissible. I make nothing of her evidence that she believed he was delusional. That is not for her to say and, if anything, is relevant to her state of mind only.

[225] I am far from persuaded of the truth of Ms. Chung’s evidence that Mr. Chang told her he had been taking drugs. Even had I accepted that he said this, which I do not, such a statement would be inadmissible for its truth. It cannot be, as the defence submits, admissible as a spontaneous utterance by him. There is no evidence that it was made under the stress or pressure of a startling event. There is no evidence that the circumstances were such as to discount the possibility of concoction or deception: R. v. Nurse.

[226] I do accept that in the course of their various conversations, Mr. Chang repeatedly told Ms. Chung:

• that he was being watched and they were out to get him;

• that there were motion sensors and cameras in his apartment;

• that he was being wiretapped;

• that he believed he was going to be killed and was afraid for his life.

[227] The Crown more or less accepts that these things were said. Their admissibility for anything apart from the narrative turns on whether they fall into the category of preposterous utterances. I find not all of them are. The idea that he was being watched and that people were out to get him seems to me to be a rational and reasonable opinion for a drug dealer in Mr. Chang’s position to have. I also think believing he was going to be killed and so was fearful for his life is not a preposterous utterance for a drug dealer. While I accept that Mr. Chang likely asked Ms. Chung to call his parents and say that he loves them, I see nothing preposterous about that and nothing about it assists with determining Mr. Chang’s state of mind at the time.

[228] However, the statements that there were motion sensors and cameras and wiretaps in his apartment fall into the category of preposterous utterance. These are admissible as evidence of his state of mind at the time. These statements reveal that Mr. Chang was paranoid and are some evidence that he was experiencing delusions on Saturday, March 4, 2018.

Sunday March 4, 2018

[229] There is no evidence as to where Mr. Chang went on the Saturday night after his visit to Mr. Kayfetz. There is no evidence as to where he spent the night.

[230] At 6:54 a.m. on March 4, Cst. Henry called Ms. Lewandowski. She wanted to know if the police had found Mr. Chang. He said that she reported to him that Mr. Chang had been using crack heavily over the previous month and had become paranoid. She said that he believed that his phone was tapped and that there were cameras in his apartment and that people were out to get him. She did not think he was suicidal.

[231] Cst. Henry had no concern that Ms. Lewandowski was under the influence of any intoxicants at the time. He told her that there were charges against Mr. Chang. Her worry was about Mr. Chang. Ms. Lewandowski neither confirmed nor denied that Mr. Chang had made the threat against her, but was clear that she did not fear for her own safety.

[232] Mira was aware of the police officer having called her daughter that morning. She said that Alicia reported to her that the police had asked where Mr. Chang was and if she had heard from him because he had damaged the sprinklers in his condo unit and caused water damage. Mira agreed that Alicia was worried about where Mr. Chang was and what he was going to do.

[233] I accept that Ms. Lewandowski’s hearsay statement to Cst. Henry that Mr. Chang was using crack heavily over the previous month, like her earlier statements to Csts. Henry and Malfara, is sufficiently reliable as to be admissible for its truth. Ms. Lewandowski had been living with Mr. Chang. In my view, the circumstances in which this statement was made negates the possibility that she was untruthful or mistaken. She had direct, first-hand knowledge as to whether, and how much crack Mr. Chang was using. She had no reason to make this up. At the time, she was concerned for his well-being. There is little that cries out for explanation about this statement. While I accept that she cannot be cross-examined as to what she meant by “heavy” use, that goes to the weight of the evidence, not to its admissibility.

[234] I also accept that Mr. Chang’s utterances to Ms. Lewandowski, as she reported them to Cst. Henry, that he believed his phone was tapped and that there were cameras in his apartment, fall into the category of preposterous utterance that is admissible as evidence of his state of mind at the time he told Ms. Lewandowski this. The problem is that there is no evidence as to when that was. It was obviously at some point prior to the early morning of Sunday March 4. There is no evidence of this in the text messages between them. Their last phone call, prior to the morning she was shot, was her 16 second birthday call to him at 12:00 a.m. on Friday, March 2, and it was only 16 seconds. I infer that she he likely told her this at some point earlier that this. This detracts from the weight of this evidence in assessing Mr. Chang’s state of mind at the time of the shooting as it was at least four days before that.

Police investigation at Mr. Chang’s unit at 118 Balliol Street

[235] After the flood, the Toronto Police investigated Mr. Chang’s Balliol Street unit. They secured the unit while an application was made for a CDSA search warrant, which was authorized on Sunday, March 4 at 10:35 a.m.

[236] The police investigation had begun on Saturday night and continued into Sunday after the search warrant was issued.

[237] A significant number of photographs taken of Mr. Chang’s unit are in Exhibit 22. They vividly depict the strange alterations that had been made in the unit, which I have already described. An inventory of the various drugs located in the unit and outside was entered as Exhibit 24. There was large amount of drugs. The drugs located included crack rocks (3.84 g), melatonin pills (2.64 g), marijuana (452.76 g), cannabis resin bricks (11,029 g), pill bottles with pregabalin, zopiclone, buprenorphine, MDMH and diazepam and crystal methamphetamine (116.81 g). There was a digital scale, drug paraphernalia including spoons with a white substance and cans that had holes and burn marks that could have been used for smoking crack. There was a live bullet on the counter in the bathroom and 2 spent casings on the floor. In the master bedroom, there was a safe with the door ajar and $74,000 and a book with what appeared to be a debt list.

[238] In the bathroom was a can, shown to defence toxicologist Mr. Palmentier. He testified that it appeared to be drug paraphernalia and could be used to consume a drug that can made volatile with a lighter and then inhaled such as cocaine or methamphetamine.

Ms. Lewandowski’s efforts to contact Mr. Chang

[239] On the evening of Sunday, March 4, Mira tried unsuccessfully to persuade her daughter to eat, and then went out to her other daughter’s, returning later in the evening. She saw Ms. Lewandowski for about 45 minutes that evening. Ms. Lewandowski said she did not feel well. Her mother tried to reassure her that Mr. Chang would be found. Again, Mira testified that she did not think Alicia was under the influence of any drugs that day.

[240] That evening, Ms. Lewandowski continued to try to reach Mr. Chang. She called him at 8:13 p.m., a call of one second, and, at 8:16 p.m., she messaged him using Whatsapp, begging him to call her. She also texted Ms. Chung to see if she had heard from him. Ms. Chung did not respond.

[241] At 11:30 p.m., after learning from Cst. Malfara about the threat Ms. Lewandowski alleged Mr. Chang had made on the Friday night when she was at his apartment, Cst. Henry called her again. He asked her to come in and make a statement. She made clear to him that she did not wish to do so.

Mr. Chang’s activities on March 4, 2018

[242] There is no evidence, direct or circumstantial, as to where Mr. Chang was or what he did over the course of most of that day Sunday. To be clear, there is no evidence at all of his whereabouts or activities from the time he left Mr. Kayfetz’s late on Saturday evening until he went to the home of his friend, Wesley Kim about 24 hours later on the evening of March 4.

[243] According to Mr. Kim, at that time, he had known Mr. Chang for about ten years. They were golfing buddies who saw each other more in the summer months. In the fall of 2017and winter of 2018, they saw each other less than once a month. Mr. Kim did not know when he had last seen Mr. Chang before March 4, but guessed it had been for 5 to 10 minutes in January. He did not recall whether they discussed guns.

[244] Mr. Kim did not know what Mr. Chang did for work and could not say “definitively” whether he sold drugs. While he testified in chief that he knew that Mr. Chang did drugs, including pot to “maybe cocaine and crystal meth”, he then said he was “guessing”, never saw him do drugs and that his evidence was based on his behaviour. Under cross-examination, he agreed with the defence suggestion that he knew that Mr. Chang used drugs including pot, cocaine and crystal meth and that he knew Mr. Chang smoked crack cocaine and liked to escape reality.

[245] Mr. Kim testified that in March 2018 he legally owned a 9 mm Luger firearm, purchased 2 or 3 years earlier. He also had a rifle. He stored the guns in a gun safe in his basement, with ammunition stored in a separate safe, as required. The Luger had 3 magazines and each took 10 cartridges.

[246] Mr. Kim testified that his usual activity on Sunday nights was to clean his firearms in a work room in his basement, an activity he testified was a “therapeutic thing” for him. He did so on March 4^th. For the Luger, he said he removed one of the magazines and left the other two in the ammunition safe. The magazine was loaded. He said that he began after dinner and did a “light polish”. He then went back upstairs to clean up from dinner, watch Netflix and play with his dog. He had left his guns out on the table. The Luger was in its case and the case was open. They were there when Mr. Chang arrived.

[247] According to Mr. Kim, he had talked previously with Mr. Chang about his gun, but had not shown it to him. Asked if he had told Mr. Chang where he stored the Luger, he said he had not, but was “sure he knew”.

[248] According to Mr. Kim, at about 11:00 p.m., Mr. Chang unexpectedly knocked at his door. This did not surprise Mr. Kim as Mr. Chang stopped by sometimes to catch up for 5 or 10 minutes. Mr. Kim did not know how Mr. Chang got there, but assumed that he drove. Asked how he was, Mr. Kim said that he seemed a “little off”, was a little quiet, would not make eye contact and was “a little different for sure”. Under cross-examination, his evidence was that “something was not right for sure” and that it seemed like Mr. Chang was trying to act sober when he wasn’t. When Mr. Kim asked him what was up, he said Mr. Chang immediately asked to use the washroom and went downstairs.

[249] Mr. Kim said that he waited upstairs for Mr. Chang. Mr. Chang was in the basement for about five minutes. He then came up the stairs and said he was leaving and had to go. Mr. Kim testified that he thought nothing of this, assuming Mr. Chang had received a call and so had to leave, as had happened before.

[250] Asked if he had concerns about Mr. Chang driving, Mr. Kim said he did not think anything about it at the time, but in hindsight realized he ought to have ensured he was okay to drive. At the time, he thought Mr. Chang would be okay. He had not seen Mr. Chang have any difficulty walking down the stairs and certainly was able to understand Mr. Chang when he spoke. While he did not think Mr. Chang was doing well, health-wise, he had no concerns for his well-being when he left. He did not raise with Mr. Chang anything about him looking malnourished, though he had previously and said Mr. Chang had been dismissive.

[251] Under cross-examination, Mr. Kim agreed with the defence suggestion that between March 2016 and 2018, he had seen that Mr. Chang’s drug abuse was wearing on him physically and mentally. He agreed that Mr. Chang had lost a lot of weight and looked emaciated. He agreed that Mr. Chang’s arrest photograph, entered in evidence as Exhibit 26, was how he appeared on March 5. He also agreed that Mr. Chang had been closed off and seemed to be steadily more and more paranoid and that he had observed a “steady deterioration”. He was afraid to ask about this because he did not want to pry. He said that Mr. Chang lived in a “different world” from him. Asked whether he recalled Mr. Chang saying that people were trying to kill him. Mr. Kim paused and then said that while he could not recall “exactly”, he did recall Mr. Chang being in fear of something.

[252] Mr. Kim said that he did not think about his guns again until the next day when he heard on the news about Mr. Chang and a gun. He went to his workroom and noticed that the Luger was neither there, nor in the safe, so became scared. He contacted a lawyer and made a police statement on March 5, 2018.

[253] Mr. Kim identified the case found in the back of Mr. Chang’s Infiniti as looking like his. There is no issue that the gun used by Mr. Chang to kill Ms. Lewandowski was the gun that was owned by Mr. Kim.

[254] I found Mr. Kim to be largely incredible.

[255] Mr. Kim is, admittedly, a long standing friend of Mr. Chang. His gun was used by Mr. Chang to kill Mr. Lewandowski. Since realizing that his gun was used by Mr. Chang to kill Ms. Lewandowski, he has had every reason to distance himself as much as he could from any involvement in, or responsibility for, Ms. Lewandowski’s death.

[256] Mr. Kim’s evidence was somewhat inconsistent between examination in chief and cross-examination. He demonstrated an obvious willingness to agree with virtually every suggestion made to him by the defence, even if his evidence did not necessarily accord with what he had said in chief. For instance, asked about Mr. Chang’s drug use, he said in chief that he knew Mr. Chang did drugs. Asked to elaborate he said that he did pot and “maybe crystal meth and cocaine”, but then said he was really “guessing” from Mr. Chang’s behaviour. Under cross-examination, he readily agreed that he knew that Mr. Chang not only did these drugs but also that he smoked crack cocaine, evidence that was clearly intended to assist Mr. Chang’s defence. Similarly, while in chief, he said that Mr. Chang, on arrival at his home, seemed a “little off”, under cross-examination, his evidence became that “something was not right for sure”.

[257] Further, I found the whole scenario Mr. Kim described about how Mr. Chang came to have the gun to be implausible and unbelievable. To start with, the idea that Mr. Kim derives some sort of therapeutic benefit from cleaning guns that have been in storage and not used seemed both highly unlikely and like a fabricated excuse for having left Luger on the table from which he said Mr. Chang took it.

[258] Moreover, the rest of his evidence seemed so coincidental as to be palpably false. On his version of events, while he stores his guns safely and in accordance with the law, this night, he gave his gun a polish and then left the 9 mm Luger, the loaded magazine, and the rifle out on a table in the basement workroom, next to the bathroom. He went upstairs for water and was so distracted by dinner clean up, playing with his dog and watching Netflix that he never returned to the guns. Then, coincidentally, at 11:00 p.m., Mr. Chang happened to come by, unexpectedly. After practically no conversation, Mr. Chang said he needed to use the washroom, which happened to be in the basement, next to the workroom where the guns were sitting at the ready. As Mr. Kim tells it, while he waited on the upstairs sofa, Mr. Chang must have then either looked for, or happened upon, the very gun he wanted, which was fortuitously lying in open view, with a loaded magazine, and the case. Mr. Kim had no real further conversation with Mr. Chang. Yet, as Mr. Kim explains it, Mr. Chang must have taken the gun, magazine and case, all without him noticing. Despite feeling that Mr. Chang was “not right for sure”, and assuming he was driving his car, Mr. Kim raised no concern about that to Mr. Chang, allowing him to slip out with the Luge and to drive away. Then, Mr. Kim just did not think about the guns he had left out until the next day when he learned that Mr. Chang’s girlfriend had been shot.

[259] I find this evidence wholly incredible. I do not accept most of Mr. Kim’s evidence. I accept that Mr Chang went to Mr. Kim’s home and that Mr. Chang left with the 9 mm Luger, a magazine loaded with cartridges and a gun case. Beyond that, I reject Mr. Kim’s story entirely as incredible and unreliable, including the evidence he gave about his observations of Mr. Chang over the previous six months, his evidence respecting Mr. Chang’s drug use and his evidence about Mr. Chang’s demeanour that night.

Monday, March 5, 2018

[260] Video surveillance from 118 Balliol Street depicts Mr. Chang back at his building, beginning at 12:34:15 a.m. on March 5, 2018. He is seen walking towards the main entrance. He appears to have a cell phone to his right ear and uses a fob to enter the main lobby and then wait for the elevator. As 12:35:48, he enters the elevator and is out of view. I have no hesitation in concluding that Mr. Chang went upstairs to see whether he could get back into his unit. Once he realized he could not, he left.

Mr. Chang and Ms. Lewandowski speak on the phone and then meet

[261] At 2:14 a.m., Mr. Chang called Ms. Lewandowski using a different phone than he had used before, a black Alcatel cell phone located by police after his arrest in his black Infiniti. The records from these calls are in Exhibit 37. That phone was used for all of their subsequent communication. Initially, they spoke for 2 minutes and 42 seconds. He called her again from the same phone at 2:41 a.m., a call that lasted 3 minutes and 13 seconds. At 2:45 a.m., she texted him a photograph of the front door at 1343 Rathburn Road, her mother’s address where she was. She then called him at 2:49 a.m., a call that lasted for 2 minutes and 22 seconds. She called again, but that call was missed. At 2:50 a.m., she texted him, “Baby why did you hang up on me?? Please call me back I’ve been worried sick about you :( I love you soo much.” She followed this at 2:50:20 with “My heart hurts :( :(”.

[262] At 3:05 a.m., Ms. Lewandowski called Mr. Chang and the call lasted 5 minutes and 14 seconds.

[263] It is an agreed fact that at 3:14 a.m., Mr. Chang’s black Infiniti entered the townhouse complex parking lot behind 1343 Rathburn Road. Mr. Chang called Ms. Lewandowski for a call lasting 17 seconds. At 3:22 a.m., the Infiniti headed toward the gatehouse and left the parking lot through the exit, after stopping to pick up Ms. Lewandowski. They left and went east on Rathburn Road.

[264] There is no evidence as to where Mr. Chang and Ms. Lewandowski were between 3:22 a.m. and their return to the townhouse complex at 4:56 a.m.

[265] At 4:56 a.m., the Infiniti returned and entered the complex parking lot through the entrance. It paused briefly in front of the gatehouse and went left towards the parking area at the back of the townhouses.

[266] There is no surveillance video as to what happened after that.

Alicia Lewandowski’s 911 call

[267] Ms. Lewandowski’s 911 call began at 4:59:39 a.m. and lasted for 11 minutes and 18 seconds. It was recorded, played in court and entered into evidence as Exhibit 2, along with a transcript which is Exhibit 2b.

[268] Ms. Lewandowski begins the call reporting, “Oh my God” twice and says “I’m…I’m dying”. The dispatcher asks her questions such as where she is and if she can hear. Ms. Lewandowski appears to be addressing someone else and says “Stop it” and “What are you doing” at 5:01 a.m.. She is told she has called 911 and asked the address and whether she needs police, fire or ambulance.

[269] At 5:01:35 a.m., she provides the address of 1343 Rathburn Road East and continues, “He just shot me in the head.” Asked what is going on, she confirms that her boyfriend just shot her in the head. Asked with what, she responds, “A gun. I don’t know if I’m alive or if I’m dying. I don’t know. Can you please just send police and an ambulance here”.

[270] Asked if he is still there, Ms. Lewandowski says, “Yes. I’m bleeding from my head”. Addressing Mr. Chang she says, “Stop Stop. Stop it”. Addressing the dispatcher she says, “I’m bleeding from my head” and, asked which part she says, “the back”. She is asked for, and at 5:02:21 a.m. provides, the name of her boyfriend as Joseph Chang and adds that, “The police are looking for him right now”. She continues, “He’s trying to hide his gun right now. Please send police here” and repeats at 5:02:29 a.m. that he is trying to hide his gun.

[271] Ms. Lewandowski provides directions as to where she is and says, “I have blood everywhere. Please come. Please come”. She is told that they are coming and then addresses Mr. Chang and says “Stop it. Stop.” She then reports, about 3 minutes and 24 seconds into the call, “He just shot me again. Oh my God”. She screams and says “Oh my God. Oh, my God. No. Oh. Oh. Oh. Oh. “. While the dispatcher continues to try to communicate with Ms. Lewandowski, there is no response from her.

[272] On consent by the defence, Ian Haya testified as an expert in audio enhancement and analysis. Employed by the RCMP, he works as a forensic analyst to enhance and analyse audio or video related evidence. He reviewed the 911 audio call to determine if it could be enhanced or heard more clearly.

[273] Mr. Haya testified that while the signal quality was good on the operator’s side of the call, on Ms. Lewandowski’s end, there was a lower quality, some distortion, compression and drop out. Quality relates to how clear voices are and the audio software revealed that they were less clear at Ms. Lewandowski’s end. Compression refers to reduced quality that occurs when there is a format conversion of the recorded data to a format to be sent over the network. Distortion occurs when there is some data processed differently. The effect in this case is it can make sounds sound different than they would have originally. Drop out refers to a complete data loss where the sending side stops transmitting a signal and so parts of the call go quiet like the call is cutting out or dropping. This was detectable at a few spots in the call.

[274] When he listened to the audio recording, Mr. Haya said that there are two unintelligible short utterances, possibly a male voice, that are distinguishable from the female. The first is at 3:24.040 to 3:24.300 and is Exhibit 60. The second of the two utterances is at 3:25.531 where there is a second small vocal component. This is Exhibit 61. There are no words heard but there are utterances.

[275] He also said that at 3:26.475, there is an unidentifiable impulse or “acoustic event”. Listening to it, one can hear a higher pitched sound followed by a muffling or second part. He explained that the main impulse is at the beginning and that it overlaps with a higher pitched tone. This impulse is not an utterance with a vocal component. He said that there is distortion, but that it does not sound like a natural sound which means that it was affected in some way.

[276] Finally, Mr. Haya said that there was a short male utterance at 4:28 and said that there is a vocal component to this when a bit of the 911 operator can also be heard. This is Exhibit 64.

[277] Mr. Haya was asked about the place in the 911 call when Ms. Lewandowski says that she was just shot again and the fact that there does not appear to be an audible shot. He said that one possible explanation could be that because gunshots are so loud, that they are not accurately captured by the recording device because the sound can overload the microphone and not be properly recorded. He also said that there could be a drop out or a high level of distortion, after which it can take time for the recording device to recover.

[278] The Crown submits that Mr. Haya’s evidence can account for the fact that no shot or shots were heard when Ms. Lewandowski tells the 911 operator she has been shot again. I accept that he has provided a possible explanation for this. Beyond that, while I appreciate that there may be detectable male utterances at the points in the call Mr. Haya noted them, I do not think that really assists in resolving the issues to be decided.

Neighbours overheard shots

[279] Three people who lived in neighbouring homes testified as to what they heard early in the morning. I will briefly review their evidence.

[280] Evelyn MacNeil and Elizabeth Delarosa lived in the high-rise apartment building at 1359 Rathburn on the 10^th and 3^rd floors respectively. That building is east of the parking area behind Mira Lewandowski’s townhouse complex.

[281] Ms. McNeil’s unit was on the west side of the building. Her bedroom window was open. Coming from the townhouse complex below, she was awoken by voices of a male and female that she thought was a domestic squabble, though she could not hear the words spoken. The female was crying and sounded like she was in distress and the male was talking although she agreed that he could have been in distress. She heard what she thought was a gun shot. After that, she heard both the male and female voices again. About a minute after the first bang, she heard a second bang. She was afraid and went to the balcony and looked out the window. After the second shot, she initially said she did not hear voices, but later agreed that there might have been more talking. About a minute to 90 seconds later was a third bang and she heard a car driving away. She was unsure about the time spans between bangs.

[282] Elizabeth Delarosa had a bedroom that faced west that enabled her to see into the lane and the visitor parking area behind Mira Lewandowski’s townhouse. Her window was open. She woke to what she thought was a big loud pop that she thought was a gunshot. Less than ten minutes later was a second one. Under cross-examination, she agreed that there was not much time between the first and second shots. She then heard what she described as a loud cry or groan, more like a grunt. She did not recall hearing other voices. After that, she felt scared and looked out. At one point she saw a car speed out very fast and screech the tires and exit onto Rathburn. Shortly after, she saw police arrive.

[283] John Neralich lived at 1341 Rathburn Road, beside Mira Lewandowski in the most westerly townhouse. In the early morning, he heard a loud bang that woke him and which he could not identify. He thought it might be construction. About 30 seconds later, he heard another loud bang that he thought might have been a shot. Almost immediately after, he heard a woman screaming at the top of her voice. There were two more loud bangs and then silence. He went to the window and said he heard a black car start and take off with an aggressive acceleration.

[284] I have no doubts that each of these neighbours heard parts of what happened between Mr. Chang and Ms. Lewandowski. Each was woken by the sounds. Each heard the sounds of what they believed was a woman yelling or crying or screaming after they had heard one shot. I am not sure their evidence assists much as to how events unfolded, other than that two of the three believed that the Infiniti left aggressively.

Mr. Chang’s actions from the time of the killing until his arrest

[285] Mr. Chang drove his Infiniti from the townhouse complex, exiting at 5:02 a.m. and proceeding east on Rathburn Road. His car did not have headlights on. The video from the complex shows police arriving at the complex at 5:05 a.m. There is no evidence as to where he went or what he did until 7:22 a.m.

[286] On consent, March 5, 2018 surveillance from the MacDonald’s restaurant located at 1221 King Street West (in the area of King and Dufferin) in Toronto was filed as an attachment to the Exhibit 65 Admissions of Fact. The videos depict Mr. Chang’s Infiniti arriving at the parking lot at 7:22 a.m. and parking nose in. At 7:25 a.m., Mr. Chang left the Infiniti with a bag and went into the MacDonald’s. He ordered food and went to the seating area. At 7:47 a.m., he returned to the front counter, holding the bag. He ordered food and returned to the seating area. He went to the counter for a third time, holding the bag, and ordered at 8:13 a.m. He then left and went to the Infiniti. He seems to have stayed there for the next seven hours. There is no evidence as to what he was doing.

[287] At 3:15 p.m., Mr. Chang left his Infiniti and returned inside the MacDonald’s. He went to the seating area with a bag and took a seat at a table just off camera view. He remained there until the Toronto Emergency Task Force (“ETF”) arrived.

[288] Over the course of the day, Mr. Chang made no attempt to communicate with Ms. Lewandowski. He sent no text messages and made no attempt to call her.

Mr. Chang’s arrest, right to counsel and police interview

[289] A team of eight ETF officers arrived at the MacDonald’s at 7:42 p.m. They wore full gear as they understood Mr. Chang was armed and dangerous. Believing Mr. Chang was in the Infiniti, they used a flash bang distraction device over the car and announced their presence. Mr. Chang was not in the Infiniti.

[290] At 7:43 p.m., the video shows ETF officers entering the MacDonald’s. They instructed patrons loudly and clearly to get on the ground.

[291] Mr. Chang was discovered by Cst. Christopolous, who said he was hunkered down under a table. He described Mr. Chang as slouched over to the side with knees up, half lying and half sitting, with his back against the wall. He had his hat pulled down. The officer asked him to show his face and he did so. He was asked to show his hands and complied.

[292] Cst. Hicks described Mr. Chang as not lying on the ground, but with his back to the corner facing out in a fetal position, with his head tucked into his knees. Cst. Hicks asked him to identify himself. Initially Mr. Chang did not respond, but he then identified himself in a soft voice.

[293] Mr. Chang had a gift bag near him. It contained a blue shirt and grey striped t-shirt that must have had been given to him by Ms. Lewandowski for his birthday earlier that morning. It also had the 9 mm Luger he had used to shoot her, with one unfired bullet in the magazine, though not chambered. There was also a card reading “For my husband” in an envelope with Happy Valentines Day written on the outside. The items are all depicted in Exhibit 40.

[294] At the MacDonald’s, Peel Police Sgts. Mazzacato and Brown took custody of Mr. Chang from the Toronto EMS officers. They walked him to their car, read him his rights to counsel (at 7:55 p.m.) and informed him he was under arrest for first degree murder. Sgt. Mazzacato said that Mr. Chang appeared to him to understand. Mr. Chang gave the names of counsel as Chris “Taranian” and Danny Kayfetz and was told he could speak to counsel when they got to the Peel Homicide Bureau. Sgt. Brown and Sgt Mazzacato left with Mr. Chang at 8:11 p.m., arriving at 180 Derry Road at 8:35 p.m.

[295] On the drive to the Homicide Bureau, Sgt. Mazzacato was in the back seat while Sgt. Brown drove. Neither officer saw obvious signs of medical issues or had any concerns that Mr. Chang was under the influence or alcohol or drugs. Sgt. Mazzacato testified that had they had concerns, he would have called for EMS. The officers testified that Mr. Chang appeared aware and conscious.

[296] At 180 Derry Road, Mr. Chang was taken up to the 3^rd floor. He was given food from Swiss Chalet to eat. His right to counsel was facilitated, he was processed, his clothing was seized and he was given new clothing.

[297] Sgt. Mazzacato facilitated a call for Mr. Chang with Mr. Kayfetz. The officer told Mr. Kayfetz that Mr. Chang had been arrested for first degree murder and that he would be held for a bail hearing. They then had a private call between 8:55 and 9:08 p.m.

[298] Mr. Kayfetz testified about this call. He said that after receiving the call from the Peel Police that Mr. Chang had been arrested, he was in shock and was speechless. In his conversation with Mr. Chang, he tried to get Mr. Chang to understand that he should not speak to police. He said that Mr. Chang had trouble understanding or hearing and that he does not know if it was the phone. He was satisfied that Mr. Chang understood his instructions not to speak to the police, or at least that he heard him.

[299] After his call with counsel, Sgt. Mazzacato interviewed Mr. Chang with Det. Cranley scribing from another room. The interview ended at 2:34 a.m. on March 6.

[300] I will now turn to address the portions of Mr. Chang’s police statement upon which that the defence seeks to rely. The defence conceded that the statement was voluntary. The Crown did not tender Mr. Chang’s statement into evidence. The defence made no application to do so either. It was not played at trial and is not in evidence as an exhibit.

[301] Both Sgt. Mazzacato and Det. Cranley testified to having had no concerns about Mr. Chang at any point before or during the interview. Had they had concerns, they would have sought medical assistance. Det. Cranley testified that he had no concern that Mr. Chang was under the influence of an intoxicating substance and that he had no concerns for his medical well-being. Under cross-examination, Det. Cranley agreed that there was nothing in his notes about Mr. Chang being coherent and not being confused. During this cross-examination, without objection by the Crown, Det. Cranley also agreed that that during his interview, Mr. Chang said various things including that:

• he did not think he was in the right state of mind;

• that he was losing his mind right now;

• that he was not thinking clearly;

• that he was losing his shit and needed to see a psychiatrist;

• that he was mental in his head right then;

• he had done things in his condo unit, including about cutting cords, though not the reasons why, and he asked the officer to check it out because he really was crazy;

• something like he had been imprisoned in his place for three days under surveillance with people at the door racking shotguns;

• that people were controlling of his phone;

• while it was suggested that Mr. Chang had said he heard voices, he said he did not recall this specifically;

• that he was “losing his shit” and needed to see a “fucking psychiatrist”;

• that he was “mental in my head right now” and everything is a blur;

• that he was “batshit crazy” and needed to be locked up in a mental ward.

[302] It is the defence position, as I understand it, that because Det. Cranley and Sgt. Mazzacato “mislead the court” and suggested that Mr. Chang’s state of mind was normal, these statements of Mr. Chang’s are, at the instance of the defence, “admissible as original evidence” of Mr. Chang’s state of mind before, during and after the homicide. The defence position is that they are evidence of a “delusional state of mind”. In making this submission, the defence relies on R. v. Edgar, 2000 5162 (ON CA), [2000] O.J. No. 137 (C.A.) for the proposition that the defence may introduce statements made by an accused in the presence of police officers to support an inference that the accused was irrational or delusional shortly after the offence.

[303] In R. v. Edgar, the Court of Appeal accepted the probative force of utterances made by an accused after his arrest that appear to be irrational or delusional. The Court held that the trial judge had erred in finding them inadmissible on the basis that they were not made sufficiently proximate in time to be relevant to the accused’s state of mind at the time of the offence. The Court of Appeal accepted that they were relevant to the accused’s state of mind and to establish the foundation of the expert psychiatrist’s opinion. In reaching this conclusion, the Court stated, at para. 24:

The probative value lay in the fact that the utterances appears to be irrational or delusional, and hence potentially supportive of the defence being advanced. The passage of time, or, for that matter, the fact that there may have been a rational explanation for the statements, were simply matters going to the weight of the evidence, not its admissibility.

[304] The Crown accepts these principles from R. v. Edgar, but submits that it is unfair for the defence to lead the statements to establish Mr. Chang’s state of mind during final submissions, without giving the Crown notice of this.

[305] While the defence did not bring a formal application to adduce Mr. Chang’s utterances to the police, from the time Det. Cranley was cross-examined about what Mr. Chang had said, I understood that that the defence was seeking to rely on those portions of Mr. Chang’s statement as a basis for the defence expert’s opinion and as relevant to Mr. Chang’s state of mind at that time the statement was made and potentially also at the time of the shooting. The question is whether the evidence is admissible for those purposes.

[306] When the Crown has not sought to tender Mr. Chang’s statement, I begin from the basic rule which precludes “an accused from eliciting from witnesses self-serving statements which he has previously made”: R. v. Campbell, (1977), 1977 1191 (ON CA), 38 C.C.C. (2d) 6 (Ont. C.A.) at para. 44. This rule is based on the “sound proposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination: R. v. Simpson, 1988 89 (SCC), 1988 S.C.J. 4 at para. 24. There are, however, exceptions to this prohibition.

[307] These statements may be admissible to show the accused’s state of mind at the time. R. v. Edgar also establishes an exception for post-arrest statements of an accused relied upon by an expert in forming an opinion about the accused’s state of mind.

[308] I see a fundamental difference between the sort of statements that may reveal that a person is irrational or delusional and many of those utterances made by Mr. Chang in his interview. R. v. Edgar does not stand for the proposition that an accused person can tell an officer that he is crazy or delusional and then rely on that as proof that he was. His utterances to that effect are not admissible in accordance with the R. v. Edgar approach. They are self-serving statements and do not provide any insight into Mr. Chang’s actual state of mind at the time or earlier at the time of the shooting.

[309] However, there are some things Mr. Chang said, as testified to by Det. Cranley, that may provide insight into his state of mind and thus may be properly admissible in accordance with the principles in R. v. Edgar as evidence of Mr. Chang’s state of mind at the time the utterances were made, as well as for the purpose of assisting Dr. Collins in forming his opinion as to Mr. Chang’s state of mind earlier. These include: he had been imprisoned in his place for three days with people racking shotguns, that people were controlling his phone and that he had been hearing voices.

[310] What the defence is not permitted to do, however, is to adduce in closing submissions portions of Mr. Chang’s statement that were never raised as part of the evidence in the trial. In its written submissions (at paragraph 111), the defence suggests that there were 26 things said by Mr. Chang in his interview that were put to Sgt. Mazzacato. I accept that a number of them were put to Det. Cranley, as summarized above. But in my view it is not open to the defence at this point to rely on any portions of the statement that were never mentioned in the trial or put to an officer as “original evidence of his continuing delusional, hallucination filled mind”. Simply put, there was no evidence adduced at the trial that Mr. Chang ever said these things. It would be an error for me to consider any portions of Mr. Chang’s statement that were never referred to in evidence at the trial and which are referenced for the first time in the defence closing submissions.

[311] There is, however, a real difficulty with the utterances made by Mr. Chang in his police statement, as reported by the officer. He seems to me to have been recounting what had been happening on the Saturday night and what he had thought and believed at the time, not what he was experiencing at the time of the interview, some days later. For instance, I did not understand Mr. Chang to be saying to the police that he continued to hear voices during the interview. At least that is far from clear from the manner in which Det. Cranley was cross-examined. Similarly, he did not seem to be saying that he still believed that people were controlling his phone or racking shotguns. Rather, he was referring to what his beliefs had been when he was in the Balliol unit. While I am prepared to find his statements admissible in accordance with R. v. Edgar, the fact that it is not clear that Mr. Chang was speaking about his beliefs at the time he made the statements, and seems to have been speaking about his state of mind prior to the killing, impacts on the weight to be accorded to the utterances when assessing their relevance to Mr. Chang’s state of mind at the time of the shooting.

[312] I return now to the chronology of March 5. After the completion of Mr. Chang’s interview, he was taken down the stairs by Sgt. Mazzacato and Det. Cranley and driven to 22 Division, where he was booked. He had no difficulty moving or following instructions.

[313] At 22 Division, Mr. Chang was escorted to the booking area. Before being put in a cell for the night, he was searched and then asked a number of questions that the police officers recorded. Among the questions were: did he have any medical conditions to which he said “no”; if he takes any prescription medication, to which he said, “no”; if he had taken any medications to which he said he had consumed Lyrica for nerve damage and also 5 mg of valium; was he taking methadone, to which he said “no”; had he consumed any illicit drugs in the last 24 hours, to which he said “no”; if he had a drug dependency to which he said, “no” and whether he was currently suffering from withdrawal to which he said “no”.

Tuesday, March 6, 2018

Mr. Chang’s first appearance

[314] Before his first appearance on Tuesday March 6, Mr. Kayfetz said that he spoke to Mr. Chang in the cells in the basement of the courthouse. According to Mr. Kayfetz, Mr. Chang spoke in a whisper, leaning forward. He was still talking about “them” wanting to kill him. Mr. Kayfetz said that Mr. Chang made no sense and seemed different from the person he had known before.

[315] Mr. Kayfetz said he may or may not have made notes of this conversation but that he was discharged shortly after and has no notes.

[316] Mr. Kayfetz said that he had not known whether to believe Mr. Chang’s story about his apartment. He said he spoke with a Peel Regional Police officer who told him two things: first that Mr. Chang had been arrested in the MacDonald’s with a gun beside him and second that in Mr. Chang’s apartment police had located a pail of bleach full of drywall screws. For Mr. Kayfetz, this supported the truth of what Mr. Chang had told him on the Saturday evening As a result, Mr. Kayfetz said that he spoke to the person he was told was the assigned Crown and said that the case looked like it would be one of “NCR”, or not criminally responsible, and that Mr. Chang should see a psychiatrist.

[317] Mr. Kayfetz was pressed under cross-examination as to whether it was possible he was confused about having been told about the screws in the bucket at the Balliol Street unit. He was sure he had been told this by a police officer that day.

[318] A transcript of the first appearance before Justice of the Peace Fallon was filed as Exhibit 72. At the first appearance, Mr. Kayfetz advised the court that he had spoken to the Senior Crown, Mr. Presswood, already and was told that the Crown would be putting together a disclosure package. Mr. Kayfetz said that this was a tragic case, that he and the Crown needed to work together and that he had already had an initial meeting with the Crown.

[319] The defence says that Mr. Chang was still in a drug induced psychosis at court and that Mr. Kayfetz’s evidence confirms this. The Crown submits that Mr. Kayfetz’s evidence is not reliable, pointing out that there is no evidence that any Peel investigating officer was present at court and that there is no evidence that any Peel officer was aware of there having been a bucket of bleach located with screws in Mr. Chang’s apartment. There is, as the Crown points out, no evidence in this trial that there was a bucket of bleach with screws located in Mr. Chang’s unit.

[320] I accept that when Mr. Kayfetz spoke to Mr. Chang in the cells that morning, Mr. Chang leaned in, was whispering and seemed paranoid. Mr. Kayfetz was in shock about what had happened and did not have a very clear recollection of exactly what was said. I find that his memory about this conversation, as distinguished from the conversation at his home a few days earlier, is not good. It was not clear that Mr. Chang was still speaking about people wanting to kill him or whether he was recounting what he had believed before. Mr. Chang may have been referring to ongoing fears, or may have been speaking about fears he had had before. As I have already held, I do not view the statement by a drug dealer that people wanted to kill him as a preposterous utterance such that this is admissible as evidence of Mr. Chang’s state of mind at that time. While I accept that Mr. Kayfetz was concerned about Mr. Chang’s state of mind, I cannot conclude from his very imprecise evidence that Mr. Chang about what Mr. Chang was saying, that he was still experiencing hallucinations or that his state of mind at the time was delusional and out of touch with reality.

[321] Whether Mr. Kayfetz believed Mr. Chang had an NCR defence and needed to be assessed by a psychiatrist, and the reasons he held this view, are not relevant to the issue to be decided. What if anything he conveyed about his views to any Crowns at the time is also, in my view, of no relevance.

[322] Having reviewed the chronology in this case, I turn now to some further aspects of the evidence.

D. Important Aspects of the Scene and Forensic Evidence

[323] Police were dispatched to 1343 Rathburn Road at 5:04 a.m. on March 5, 2018. Ms. Lewandowski’s body was lying face down on the ground with a pile of glass around her. She was unresponsive. There was a lot of blood on her head and body and wounds on the back of her head. She had no vital signs. Despite chest compressions, she never started breathing again. Paramedics arrived at 5:10 a.m. and for safety reasons, Ms. Lewandowski was put on a stretcher and moved to an ambulance. At 5:25 a.m., she was pronounced dead.

[324] There was a significant body of evidence from the Forensic Identification Bureau Cst. Harris. The following are the important aspects of the scene, which includes the evidence from the parking area and the evidence obtained following Mr. Chang’s arrest from both the Infiniti and the firearm in the gift bag.

[325] In terms of the parking area, the police investigation revealed, as depicted in Exhibit 14:

• In the “inner perimeter” of the parking area, there was a significant amount of broken glass shards;

• Close to the pile of glass shards was Ms. Lewandowski’s cell phone;

• There are obvious visible tire tracks which have red blood staining on them and in the glass. They appeared fresh;

• Three live unfired cartridges were located in the parking area in locations marked on photographs in Exhibit 14;

• No spent projectiles or bullet casings were located in the parking area, even after a metal detector was used in the search;

[326] Police subsequently obtained a search warrant for Mr. Chang’s Infiniti and found, as depicted in the photographs in Exhibit 14:

• There is no window in the driver’s side door although pieces of the former window remain. There was broken glass in the footwell of the driver’s door area and within the door;

• Mr. Chang’s white Samsung phone was found in the driver’s side door pocket;

• Mr. Chang’s black Alcatel cell phone was found on the passenger seat;

• Ms. Lewandowski’s wallet, containing her identification including her driver’s license and health card, was on the floor of the front passenger side. In the rear console was a Coach purse that appears to have been hers;

• Two spent casings were located in the back of the passenger seat. They had the same headstamp as the other rounds and had been fired. A third casing was located in the rear footwell behind the driver’s seat with the same headstamp. Expert witness Mr. Sampson confirmed that these casings are from the same Luger and that it was the one later found with Mr. Chang. He further testified that when the Luger is fired, the casings are ejected from the firearm through the ejection port and that they fall to the ground in the vicinity of the shooter, and not more than a metre or a metre and a half from the shooter. He said that because casings can bounce around once they fall on a hard surface, or be kicked, where they are located is not a reliable indicator where the shooter was;

• One live round was found on the floor of the passenger wheel well with the same markings as those found in the inner perimeter;

• Under the driver’s seat was a live round with the same headstamp that appeared to be damaged;

• In the back seat was a gun case with a 10 round magazine inside. Mr. Kim testified that this looked like his;

• There was a hole in the outer driver’s seat support torso area. Using a coloured tracking rod, the direction of the bullet that caused that hole was depicted in slide 85 of Exhibit 14;

• Guided by where the holes on the driver’s side armrest and seat were, police removed the door cover off the inner side of the driver’s door and located two projectiles in the base of the door in the glass. They were swabbed and sent for DNA testing, which was found to be Ms. Lewandowski's. They were fired by the Luger later found in Mr. Chang’s possession;

• The gun recovered from Mr. Chang on his arrest had a 10 live round capacity magazine with one live round in it. The markings were the same as those on the spent cartridges found in the Infiniti;

• Ms. Lewandowski’s black shirt, removed from her body at the time of her autopsy, had 4 holes, 2 in the front and 2 in the back;

• Ms. Lewandowski’s black coat was examined for firearms discharge residue. None was found. Firearms discharge residue comes from the muzzle or front of the barrel of a gun and is deposited on the primary target, or that which is hit first. It includes smoke, burned gunpowder and unburned powder. The closer the gun is to the target, the greater the deposit. Since none was found on the jacket, Mr. Sampson conducted tests to determine what distances from the coat the gun would have been when fired in order not to leave firearms discharge residue. He concluded that if the coat was the primary target, the gun was more than 15 inches from it at the point of discharge.

E. The Forensic Pathology Evidence and Crown’s Toxicological Evidence respecting Ms. Lewandowski

[327] Dr. Daryl Mayers was qualified, on consent, as an expert forensic toxicologist and permitted to offer opinion evidence in the absorption, distribution, elimination and effects of drugs in the human body. In reaching his opinions, he reviewed the report of another forensic toxicologist, Karen Whittal, which had been prepared on June 12, 2018, and adopted her findings. Her role had been to examine femoral blood (from the femoral artery in the leg which is distal from the body) and urine from Ms. Lewandowski for the presence of drugs and poisons.

[328] The significant toxicological findings were that Ms. Lewandowski had:

• No ethanol in her body (from alcohol consumption)

• Fentanyl in a concentration of 71 ng/mL4 ng/mL of blood. He explained that fentanyl is an opioid analgesic compound that is both a potent pain killer and, used recreationally, can give a euphoria. It is a central nervous system depressant. Asked about the effect of this amount of fentanyl, he explained that this depends entirely on the tolerance of the individual. Someone with non-tolerance could die with 3 ng/mL blood but someone with tolerance could have three times the amount of Ms. Lewandowski and not die. In terms of when it was administered, he could not say with specificity but was sure it was not more than a day before her death and probably less.

• Morphine in a concentration of 252 ng/mL 11 ng/mL of blood. He explained that morphine is identical to fentanyl in terms of properties, but that it is less potent so that more needs to be taken when it is used as a recreational drug. He said that it can also arise because other drugs such as heroin or codeine were taken. If it was from heroin, that heroin was probably consumed in the last 24 hours. He could draw no conclusions as to how it was taken or when.

• Benzoylecgonine in a concentration of 110 ng/mL 8 mg/mL of blood. This has no effects and is inactive. It is a metabolite of cocaine, but since there was no cocaine detected, it indicates that she used cocaine in the past, as much as 24 to 36 hours before death. Cocaine, he explained, is a stimulant and when used recreationally as a stimulant lightens mood, increases alertness, decreases appetite, increases heart rate and makes a person feel happy and euphoric. It is short lived and has a short half life, which contrasts with its metabolite, which lasts longer. He agreed that the absence of cocaine does not mean that Ms. Lewandowski did not have cocaine in her system at the time of death. That is possible because cocaine can continue to break down in femoral blood.

[329] Under cross-examination, Dr. Mayers was asked about the effect of drugs on the brain in terms of information processing. He said that with fentanyl, heroin, morphine and opioids, because of their sedative effects, there could be confusion, decreased awareness of surroundings or inability to have clear conversation. Effects depend on tolerance, which builds over time. He said that cocaine used recreationally, does not have much effect on the ability to interact and no lasting impact on the ability to understand.

[330] Forensic pathologist Dr. Christopher Ball was qualified, on consent, to provide expert opinion evidence on the cause of death. He was also asked by the Crown to comment on the order of injuries, although the defence objected to this part of his opinion being given much weight.

[331] Dr. Ball conducted the autopsy on Ms. Lewandowski on March 5, 2018..

[332] Of significance are the following findings:

• There were 3 perforating gunshot wounds, meaning that the bullets went through her leaving no projectile inside;

• One shot was to the back of her neck. As depicted in the autopsy photographs contained in Exhibit 53, and based on skin features including an abrasion collar, this bullet entered from the right side back of the neck. The bullet went through the soft tissue in the back of the neck and exited on the left side of the back of the neck. The bullet caused a fracture of the left side back of the skull, but did not enter the skull. It would have been extremely painful and would have bled profusely. There was no soot deposition or other evidence from which to estimate the range of fire. This would not have caused rapid or immediate death but, left untreated, it could have caused death from blood loss;

• A second shot was to the right side of her middle back. It went through the chest wall, through the right atrium and right ventricle of the heart, through the muscle between the left and right heart chambers, exited the heart and then through the anterior chest, between the ribs and exited her body in her left lateral chest. He described the path of the bullet as back to front, right to left and top to bottom. This bullet compromised her ability to breath and her heart’s capacity to pump blood through the body;

• A third shot was to the abdomen. It entered on the right side of the torso below the breast and above the belly button. It went through the liver, stomach, left diaphragm and exited on the left side middle of her back. There would have been blood loss from the entry and exit of the bullet and internal bleeding of the liver. The damage to the liver, which is vital for life, would have caused her life to end, but the speed would have depended on how its function was lost;

• There were abrasions on her face. These could be “dicing injuries”, discussed below.

• Her right forearm had brown bruises and needle puncture marks. The back of her right hand had irregular bruising and faint red needle puncture marks. None of these appeared recent. Her left forearm had bruises but no punctate marks. The back of her left hand had green bruising and multiple punctate injuries or track marks. There were red marks that he agreed were recent needle punctures. He said that she appeared to be an IV drug user who had used drugs in the past and possibly recently. By recent, he said it could have been hours to days before death;

• Her left knee had red abrasions, as did her leg. Knowing that there was shattered glass in the parking area, he called these “dicing injuries” and explained that they are commonly seen in motor vehicle accidents when tempered window glass breaks. Ms. Lewandowski’s dicing abrasions occurred near her time of death.

[333] Dr. Ball concluded that the cause of death was gunshot wounds to the torso, which includes the shots to the chest and the abdomen. These were critical injuries and the paths of the bullets were depicted using rods in slides 31 and 32 of Exhibit 53. The shot to the back that went through the chest would have caused death most rapidly. After it, her breathing would have been impaired, as would blood going to her brain and she would have lost consciousness and died in minutes. The shot to the abdomen would have caused severe damage to the liver and could have caused rapid death, but not as rapid as the shot to the back. It would not have caused loss of consciousness immediately.

[334] The shot to the back of the neck could have caused death or could have been survivable, depending on proximity to a hospital. Dr. Ball said that it did not cause injury to the brain and so she would have been able to use her extremities, to stand, to speak and to breath after it.

[335] Having reviewed the toxicological expert’s report, Dr. Ball said that while Ms. Lewandowski had substances including elevated fentanyl, morphine, metabolite of cocaine and antihistamines, none of these contributed to her death.

[336] In terms of the order of the three shots, Dr. Ball initially was unable to provide an opinion. After listening to the 911 call, however, he said that he believed that the neck shot was first and that the one to the back/chest/heart were after. He could not say when the shot to the abdomen fit in. He based this view on:

• the fact that Ms. Lewandowski said on the 911 call that she had been shot in the back of the head and his finding was that she was shot in this location;

• the fact that the 911 call lasted several minutes and that she seemed lucid and coherent and was able to name the shooter, spell his surname and correct the 911 operator with respect to the address. This suggested that the back/chest shot had not yet occurred;

• the fact that there was then commotion after which she said she had been shot again;

• the fact that after being shot again, she became rapidly incoherent, unable to communicate and unresponsive;

• what he concluded from the 911 call was agonal breathing after she stopped speaking (at 3 minutes and 22 seconds into the 911 call). This occurs after a person’s body dies but the body is still attempting to breath. Agonal breathing has a sound and pattern that is distinct, although he agreed that he was not familiar with the sound of breathing when someone has a gunshot injury to the lungs. His opinion was that this breathing was different from the heavy breathing that can be heard at the 1 minute and 32 second mark after Ms. Lewandowski said, “What are you doing?”. He thought that before the time she says she was shot again, she was lucid and coherent and that after that, she lost her ability to communicate and also her breathing changed. Dr. Ball testified that even if the breathing at the end of the 911 call was not agonal breathing and was from the lung injury, this was unlikely to change his opinion as to the order of the shots.

[337] While the defence made much at trial about Dr. Ball’s opinion as to the order of the shots, the defence position ultimately, as I understand it, is that the order of shots is of no moment because Mr. Chang was in a drug induced psychosis the entire time[2].

[338] I make the following findings respecting what happened that morning:

• There may well have been a verbal dispute between Ms. Lewandowski and Mr. Chang in the parking lot after they arrived there at 4:56 a.m. The only neighbour to hear that was Ms. McNeil. However, it makes sense that the other neighbours would not have heard the dispute and only woke when there was the loud sound of the first gunshot;

• Mr. Chang first shot Ms. Lewandowski in the back of her neck. The shot went from right to left as she sat in the driver’s seat of the car. While there was profuse bleeding and significant pain, the shot did not enter her brain and did not cause her to lose consciousness. She made the 911 call;

• Ms. Lewandowski accurately reported in the 911 call that she had been shot in the back of her head. There would be no reason for her to falsely report what had happened at a point when she knew she needed help and might die. She accurately reported who shot her and where they were. She was desperate for help;

• During the 911 call, Mr. Chang was not far from Ms. Lewandowski. She remained in the driver’s seat, as is evident from the fact that she was still there when she was shot again. I cannot say where exactly Mr. Chang was, but there are a number of times during the call when she speaks to him or comments on what he is doing, including saying to “stop” and that he is trying to hide the gun. While the defence accurately points out that he did not do so, I accept that this is what she perceived him to be doing and that he was still relatively close to her, likely in the front passenger seat;

• The second and third shots were to Ms. Lewandowski’s back and abdomen. I cannot make a finding as to their order. The trajectory of the two bullets proves, in my view, that Ms. Lewandowski was still in the driver’s seat at the time of those shots. I find that they were likely in rapid succession and occurred during the commotion that can be heard immediately before Ms. Lewandowski reports having been shot again. I cannot say how far from Ms. Lewandowski Mr. Chang was. The gun was more than 15 inches away from her coat. After these shots, Ms. Lewandowski became quickly unconscious;

• While there is no direct evidence as to where Mr. Chang was at the time of the first shot, during the period between the first shot and the fatal shots or at the time of the fatal shots, the fact that all three shell casings were found in the vehicle (two in the back of the passenger seat and one on the floor behind the driver’s seat) and that ejected casings land in the vicinity of the shooter, means it can only be that Mr. Chang was either in the vehicle himself, or had the gun within the vehicle while he stood just outside it and pointed the firearm at Ms. Lewandowski. While I understand that the location of spent casings is not an accurate indicator of where the shooter was, the fact that all three casings were in the vehicle, and that it seems impossible for them to have bounced from outside the vehicle up onto the passenger seat and into footwell behind the driver, logically supports a conclusion that Mr. Chang was either in the car when he shot or had the gun pointed into the vehicle. There is no other explanation for the placement of the three spent casings;

• While the second and third shots cannot be heard on the 911 call, I am not troubled by that. Mr. Haya offered a reasonable explanation as to why that might be. In my view, these were the fatal shots and they occurred at the 3 minute and 24 second mark of the 911 call;

• Because Ms. Lewandowski was in the driver’s seat at the time she was shot, and Mr. Chang drove the Infiniti away, I conclude that he must have either physically moved her dying body from the driver’s seat to the ground outside the car, or must have opened the driver’s side door and had her body fall out. There is no other way for her body to have reached its face down position on the broken glass. Under either scenario, Mr. Chang had to have been in very close proximity to Ms. Lewandowski’s body after shooting her and had to have known that she was unconscious and likely dying from her injuries;

• Mr. Chang quickly left the scene, with his lights off, an indication that he wished to evade detection.

F. The Defence Toxicological Evidence

[339] With the Crown’s consent respecting qualifications and expertise, the defence called Jean-Paul Palmentier as a toxicologist. He provided opinion evidence on pharmacological effects of drugs on the human body including toxicity routes and means of administration.

[340] Mr. Palmentier explained that the effects an individual experiences from drugs depends on how administered, when administered, how often administered and the person’s drug history. Normally, the greater dose, the greater effects. Re-administering a drug increases the effect and, if taken before the initial effects wear off, there can be additive effects.

[341] Like Dr. Mayers, Mr. Palmentier explained that cocaine is a recreational drug used as a central nervous system stimulant for euphoric purposes. It has a short half life and metabolizes between 1 ½ and 7 ½ hours after administration, leaving benzoylecgonine as the metabolite in the body. Crack cocaine is a form of cocaine. With crack, smoking is the fastest route of administration. Effects are felt almost immediately.

[342] Smoking crack increases heart rate, blood pressure, and causes pupil dilation. It produced a hyper excitability. A person may have increased alertness, self-confidence and self esteem and decreased impulse control. There may be disinhibition and additional risk-taking. Cocaine can speed up the processing of information, but causes difficulties with divided attention and a decreased ability to perform complex tasks.

[343] Mr. Palmentier set out stages of consumption: first, drug free; second where one has the euphoria effect sought; third, if administered regularly over days and with increasing amounts, there can be psychosis; fourth, cocaine excited delirium and finally, potential death. He said that a person goes through all stages and agreed that many of the symptoms are the same. He said that higher doses lead to deleterious effects and that there is potential for paranoia.

[344] He described cocaine induced psychosis as a syndrome produced when an individual under the effects of excessive cocaine consumed over a long period of time experiences hallucinations and delusions. Cocaine induced psychosis is characterized by, first, hallucinations (seeing or hearing things that are not there) that may be auditory, visual, tactile or olfactory and then by delusions, which he explained are false beliefs or impressions of something.

[345] Under cross-examination, Mr. Palmentier agreed that after the euphoria stage, if a person stops using cocaine, the individual could move to a dysphoria or crash phase. At this phase, the effects of the drug have worn off and are not felt. Symptoms of this phase include depression, fatigue, listlessness and sleeping. He agreed that a cocaine induced psychosis only happens if there is continued and excessive use over a period of time.

[346] Mr. Palmentier explained that once a person reaches psychosis, if you stop taking cocaine and then re-administer, the psychosis can be activated with a larger dose. It can become more intense and start earlier than with previous binging. How long it lasts, he said, depends on when the cocaine leaves the body. With repeated administrations, the time it lasts after the cocaine leaves the body can increase to days or weeks.

[347] There is no way to know what amount of cocaine causes cocaine induced psychosis. It differs between people. Excessive use of cocaine may not cause cocaine induced psychosis in everyone as it depends on the individual and the doses.

[348] Mr. Palmentier said that methamphetamine, which was found in Mr. Chang’s 118 Balliol Street unit, is a similar drug to cocaine in terms of its effects and that it is used recreationally for a euphoria. It is snorted, injected, smoked or taken orally. It tends to last 4 to 8 hours, whereas the effects are about 20 minutes after smoking crack. If both drugs are administered at the same time, the effects are additive and can be amplified. Binge use of methamphetamine and increasing the doses can lead to psychosis as well. By binge use, Mr. Palmentier meant regular use through a number of days, possibly more than ten days as opposed to recreational use which is 1 to 2 days. One can transition from binge use to chronic use. Chronic use refers to consistent use over 10 days or more.

[349] Mr. Palmentier explained that heroin and other opioids are depressants and slow down the brain. They give a different euphoria in which a person is in a cloudy or dream like state after injecting or smoking. Tolerance is the key factor in how a person is affected. Tolerance across opioids develops but only if the opioids have the same potency.

[350] Mixing stimulants like cocaine with depressants like opioids can mean that the effects of the cocaine are dominant first and then the effects of the opioid become dominant.

[351] Mr. Palmentier testified that benzodiazapams and valium are sedative drugs prescribed for anxiety and alcohol withdrawal. Valium is the brand name for benzodiazapam. They are consumed in tablet form orally and slow the central nervous system and information processing. If binged, the effect may be amplified.

[352] Pregabalin is a sedative used for fibromyalgia and pain. Binging leads to greater sedation and euphoria. It slows down the central nervous system and brain function.

[353] MDMA is a drug called ecstasy or molly and is a mild stimulant with hallucinogenic properties. It alters information processing.

[354] Mr. Palmentier had no blood work for Mr. Chang and never saw any medical records related to him. He had no contact or conversation with him either. He agreed that his opinion was limited to the pharmacological effects of drugs, meaning what the body does with them and how the drugs affect mental faculties that could affect behaviours. Opinions about actions and reasoning are outside the scope of his expertise and are for psychiatry.

[355] As I understood Mr. Palmentier’s evidence, it is that the effects of drug use on a person depend on a number of things: the property of the drugs; the timing and size of the dose, including whether there is an additive effect, the pattern of use, the route of administration, the blood concentration achieved, whether other drugs are used at the same time and the particular individual’s response, which with opioids depends on tolerance. With cocaine it is not as clear what the effect of tolerance is. Other factors that may influence how a person is affected include their medical history and whether they have any mental health history.

G. Opinion Evidence of Forensic Psychiatrist Dr. Collins

[356] Given how critical the opinion evidence of Dr. Collins is, I will set it out in detail.

[357] Dr. Collins is a forensic psychiatrist who works with the Complex Care and Recovery Program and the Centre for Addiction and Mental Health in Toronto. He is also an Associate Professor in the Department of Forensic Psychiatry at the University of Toronto and works in the Criminal Behaviour Analysis section of the Ontario Provincial Police. His extensive and impressive CV was entered into evidence as Exhibit 77. He has been qualified to give expert opinion evidence for both the Crown and defence in numerous cases in Canada. He understands the role of an expert in court proceedings. With the Crown’s consent, I found that he would be permitted to offer expert opinion evidence respecting Mr. Chang’s mental state in and around the time of the shooting.

[358] Dr. Collins was asked by the defence to conduct a psychiatric assessment of Mr. Chang. He prepared a report, which was provided to the Crown before the start of the trial. That report was not made an exhibit at trial.

[359] In reaching his opinion, Dr. Collins met with Mr. Chang three times. He reviewed the case file including: notes of various investigators involved in the case, will say statements of civilian witnesses, an event chronology prepared by the police, a transcript of Ms. Lewandowski’s 911 call, scene photographs and videos from 1343 Rathburn Road; the Peel Police Forensic Identification Services Report, and the video and transcript of Mr. Chang’s police interview on March 5, 2018. He also reviewed the Occurrence Report from the March 3, 2018 incident at 118 Balliol Street, including photographs from Mr. Chang’s unit, a list of the drugs found in the unit and the drug paraphernalia. Dr. Collins had one telephone interview of Grace Chung. He said that he considered everything in reaching his opinion.

[360] Dr. Collins agreed that his opinion depends on the accuracy and completeness of information he received from Mr. Chang and from the people who observed his behaviour and mental state at the time.

[361] Dr. Collins discussed with Mr. Chang his history of substance abuse. It began at 15 when he experimented with drugs including cannabis, LSD, mescaline, crystal-methamphetamine, and cocaine as a teenager. He then began to sell drugs, maintaining a residential grow-op. He said that in October 2017, after an abscessed tooth, he was prescribed morphine and began to have cravings for this class of drugs, and abusing synthetic analgesics like oxycontin and hydromorphone. When he used these, he used less cocaine, but more heroin. He smoked it while his girlfriend, Ms. Lewandowski, used heroin intravenously.

Dr. Collins’ opinion

[362] By way of summary, it is Dr. Collins’ opinion that at the time of the shooting, Mr. Chang was experiencing a cocaine-induced psychosis. It was Dr. Collins’ view that after a period of consuming a number of drugs, the main one being crack cocaine, coupled with methamphetamine, Mr. Chang began to develop a delusional belief that his life was in danger and that he was going to be killed. He also developed auditory hallucinations. As a result of the auditory hallucinations, and in response to them, he ended up shooting the water main in his Balliol Street unit and causing the flood. He left his apartment and continued to ingest drugs. He was still in the psychosis when he met with Ms. Lewandowski and still believed that his life was in danger. Consistent with the psychosis, he was paranoid and incorporated benign things as being malevolent to him. While parked in the parking area behind Mira Lewandowski’s townhouse, he perceived that there were people in his peripheral vision that put him in danger and so shot them.

[363] In reaching his opinion, Dr. Collins did not rely on any toxicology reports. He said that “given the amount of, of cocaine and given what he reports, I’m confident he was in a drug-induced psychosis”. He agreed that he relied on Mr. Chang’s self-reporting about cocaine use at the relevant time and in the period before having become excessive. He did not look at any medical records or blood tests and said, “I don’t need blood tests” to know it is a psychosis because it is observable behaviour.

[364] Dr. Collins acknowledged that as a drug dealer, Mr. Chang would have been wary and hypervigilant. But, it was his opinion that he “crossed a line” when that became unreasonable and he started hearing voices and having visual hallucinations and perceiving them as threatening. With those experiences, it became a drug induced psychosis. He agreed, of course, that all of the information about hearing voices came from Mr. Chang.

Effects of cocaine

[365] In order to explain what he means by a cocaine induced psychosis, Dr. Collins read from an authoritative text entitled “Organic Psychiatry: a Textbook of Neuropsychiatry” about the stages a person can go through after taking psychostimulants.

[366] He explained that there are four stages. After acute intoxication, there can be withdrawal. There can also be addiction and there may be “hallucinosis”. Cocaine hallucinosis usually begins with visual and auditory misperceptions in which harmless noises and objects appear threatening and the person becomes hyper-vigilant and increasingly concerned. At this stage, the person has partial insight into the unreal nature of the hallucinations and delusions. He said that “if you continue to take stimulants, a psychosis can develop”.

[367] Cocaine psychosis is a “further progression to extreme paranoia” that is usually preceded by a transitional period of increasing suspiciousness, perceiving benign events as threatening, depression and compulsive behaviour. People at this stage misinterpret everyday events in a delusional way and believe others are plotting against them or are about to attack them. They may act on those beliefs with unusual aggressiveness, damaging property or becoming homicidal or suicidal. At this stage, people lose their insight into the unreal nature of their hallucinatory experiences.

[368] Dr. Collins testified that in a cocaine induced psychosis, a person is fully conscious, but his or her reality is compromised. The main component of the psychosis is delusions, the most common of which are paranoid or persecutory delusions. Psychosis is different from impaired consciousness where the person does not realize what they are doing and acts in an automatic state.

[369] With psychosis, people are still conscious and able to complete complex tasks. They are capable of action and of voluntary control over action. For instance, they can walk and know that they are walking. They can drive, though often do so aggressively. They can carry on conversation. But their prevailing state is of paranoia and there are usually paranoid delusions.

[370] Asked about the difference between not criminally responsible (“NCR") and being in a state of psychosis, Dr. Collins said that a lot of people who are psychotic still know what they are doing. They know the nature and quality of their acts. They know the implications of their acts.

[371] In a psychotic state, Dr. Collins said that people who are encountered could be regarded or misconstrued as being a threat. Other people can be drawn in their delusional framework.

[372] Dr. Collins testified that a cocaine induced psychosis can last days or weeks or longer.

Mr. Chang’s version of events as reported to Dr. Collins

[373] Dr. Collins provided a lengthy summary of the information he received from Mr. Chang and relied upon in forming his opinion as to Mr. Chang’s mental state at the time of the shooting. Nothing Mr. Chang said to Dr. Collins is admissible for its truth. It is admissible only as the basis for Dr. Collins’ opinion.

[374] Mr. Chang told Dr. Collins that on Thursday, March 1, 2018, he was heavily under the influence of a number of drugs and had taken a combination of crack cocaine, opioids, heroin, methamphetamine and benzodiazepines. He told Dr. Collins he had not slept in five or six days because of the drugs he had consumed. He said that he started to believe that people were after him. He believed this because the names of his “contacts” on his phone were changing and he had an increase in data usage, making him think that there were tracking devices on his phone. Mr. Chang also said that he experienced auditory hallucinations and heard voices. While he could not understand what they were saying, he heard them laughing in his apartment and believed that it was wired for audio and video and that people were watching him and listening to him. This concern, he said, led him to take apart the electrical outlets in his apartment and, after seeing a blue flash from one of the sockets, he began to disconnect electrical devices. He said he had placed metal screws from things he took apart into a bucket of bleach to neutralize them.

[375] Mr. Chang told Dr. Collins that he continued taking “copious” amounts of drugs. He mostly took cocaine and would also use heroin and opioids to bring him down from the effects of cocaine.

[376] Mr. Chang told Dr. Collins that he believed people persecuting him had rented an apartment across the hall and were monitoring his movements in his unit. He took noises outside the apartment as a sign he was about to be robbed of the drugs and money in the unit and killed. He thought he heard a shotgun being racked in the hall and saw through his peephole a reflection of an individual with a shotgun and heard a voice say “he’s coming”. In response, he prepared to respond with his own gun at the door. Later he said he heard someone say, “let’s go” as a result of which he concluded that an attack was not imminent. He felt like a captive in his unit.

[377] Mr. Chang told Dr. Collins that at one point (on the night of March 2, 2018 / early morning of March 3, 2018), he heard banging on the door for over an hour. It was Ms. Lewandowski, but he refused to answer because he did not know if it was her or if he was being “set up”. He said he heard voices in his speakers and in the air vents and that they were taunting him and telling him that they were coming into his apartment to get him. He felt that there was a conversation between people in his bathroom and that tracking devices in the apartment monitored his movements.

[378] Mr. Chang said that he had called his cousin, Grace Chung, who was out of the country, to tell her that he loved her and that he thought he was going to die. Dr. Collins said that she told him that she believed that Mr. Chang was paranoid.

[379] At one point, presumably the evening of March 3, 2018, Mr. Chang said that he heard a voice saying that they were coming in to get him. He fired a shot, which hit a water source, causing water to pour into his apartment. This resulted in the building being evacuated. He was drenched.

[380] Mr. Chang told Dr. Collins that before leaving, he threw a gun and drugs over his balcony and tried to flush drugs down the toilet. He left and as he walked up Yonge Street to Starbucks, he threw a gun into a garbage receptacle. He bought a coffee and then got into a taxi to go to see his lawyer, Mr. Kayfetz.

[381] Dr. Collins was asked whether the fact that the gun that Mr. Chang threw from his balcony appeared to be wrapped carefully, with the silencer and the clip in the pillow, made it seem like it had been thrown out there so that it could be later retrieved. He agreed that it was possible that Mr. Chang planned to pick up the gun outside. When it was suggested that this was a pretty quick reaction to figure out a plan for the gun and get it out there, Dr. Collins said he could not say whether that was the plan or whether Mr. Chang just wanted to dispossess himself of the gun.

[382] Mr. Chang reported to Dr. Collins that he was too embarrassed to tell Mr. Kayfetz what had happened over the last couple of days and did not tell him about the drugs or “crazy things”. Mr. Kayfetz put his clothes into the drier and he then left and took a taxi to where his car was being repaired. He told Dr. Collins that he drove to his apartment building with the purpose of getting his money and drugs, but saw that there were security guards, so could not access the premises and left.

[383] Under cross-examination, Dr. Collins said he was unaware that Mr. Chang in fact returned to 118 Balliol Street on March 5 after obtaining the gun from Mr. Kim, rather than March 3 as he told him. He agreed he had not asked Mr. Chang about this inconsistency. While he had said he depended on the truthfulness of Mr. Chang’s account of events, when he learned that Mr. Chang was mistaken, he attributed any confusion about the date on Mr. Chang’s part to him being in a psychotic state.

[384] According to Mr. Chang, after leaving Mr. Kayfetz, he drove around and then called a friend, Nana, for help. She met him at a hotel and secured a room for him because he did not have his credit cards or identification. Once in the room, he told Dr. Collins that he took heroin to calm down and then he got up and took methamphetamine. He left the hotel and said he drove around aimlessly, believing he was being pursued. A car cut him off and he incorporated it into his beliefs and thought unknown people were after him.

[385] Under cross-examination, Dr. Collins explained that Mr. Chang reaching out to a friend to get the hotel was something he was able to do within the framework of a drug induced psychosis.

[386] Dr. Collins was asked about how Mr. Chang got the heroin at the hotel and said he did not recall. Nor did he know where the methamphetamine Mr. Chang claimed to have taken was acquired. Dr. Collins agreed that the information that more drugs were taken at the hotel came exclusively from Mr. Chang. Told that there was no heroin in Mr. Chang’s apartment, Dr. Collins was asked whether he had any concern that Mr. Chang could have exaggerated his consumption of drugs. He said he had not asked about the heroin so could not comment. He conceded that his inability to source any of the drugs Mr. Chang claimed to have consumed at the hotel was “ultimately a concern”, but did not change the fact that he was in a drug induced psychosis.

[387] Mr. Chang told Dr. Collins that he felt vulnerable without a gun and so went to his friend Wesley Kim’s and told him he had been robbed. When Mr. Kim was distracted, he stole his gun and loaded clip and left. He said he continued to drive around thinking about what to do. He said he was still “tripping out” and continued to ingest drugs. He believed that songs on the radio were about him and Ms. Lewandowski and their relationship and how volatile it was. He contacted her and she said she needed to see him so he drove to Mississauga to pick her up.

[388] Mr. Chang said that they drove around and went to a Tim Horton’s parking lot. Ms. Lewandowski gave him a bag of gifts for his birthday. He said they talked and he asked her about her drug use and why she had told the police he was suicidal. He reported that another car in the parking lot at the Tim Horton’s made him paranoid and he decided to leave.

[389] As they drove, he reported that Ms. Lewandowski asked him what he had done in his apartment and told him that he needed help. At one point while they drove, a car came up behind him and he thought it was the same one he had seen at the Tim Horton’s. Ms. Lewandowski tried to sooth him and suggested going back to her mother’s place.

[390] They returned to Rathburn Road, parked in the lot and were “just talking”. According to Mr. Chang, he was in the passenger seat and saw two people in his peripheral vision coming toward the car from the fence line. He said that he got out and started shooting. He said he did not know if he hit the two people. He said he ran back to the car and saw Ms. Lewandowski “fell out the passenger side of the car”. Fearful for his life, he said that he drove off. He said that eventually, he pulled to the side of the road and saw that Ms. Lewandowski’s purse was in the car and took the valium he found in it.

[391] Dr. Collins did not know whether the people that Mr. Chang claimed to have seen in his peripheral vision were a hallucination or not. The only delusion that Dr. Collins understood Mr. Chang had in the parking area was when he saw figures at the fence line of the property and believed that they were after him.

[392] Dr. Collins was asked under cross-examination if he had questioned Mr. Chang on how it came to be that Ms. Lewandowski fell out of the passenger side of the car after having been in the driver’s seat. He did not.

[393] He was also asked whether he questioned Mr. Chang about the fact that it would be surprising, given that the driver’s window glass was broken, for Ms. Lewandowski to have fallen from the passenger side, as Mr. Chang had told Dr. Collins. Dr. Collins said that Mr. Chang does not recall any of that. Dr. Collins did allow for the possibility that Mr. Chang had pulled Ms. Lewandowski out of the driver’s side. Asked if he would have known, in doing so, that she had been shot, he responded, “that would be an assumption, but I can’t really assume”. What Mr. Chang told him was that he saw Ms. Lewandowski lying on the ground and drove off because he believed his life was in danger.

[394] Mr. Chang said that he went to King and Dufferin, near his parent’s place, and fell asleep in the car. He woke up when someone asked if he was okay and reported that he went to a nearby MacDonald’s. There, he ordered coffee and dozed off, remaining there for the day.

[395] Mr. Chang reported that he was woken by the EMS flash bang and taken into custody. He said that when he was arrested by police that day, he was not aware that he had shot Ms. Lewandowski or that she was dead. He said it finally sunk in that he was responsible when the 911 tape was played for him. He reported to Dr. Collins still not remembering shooting Ms. Lewandowski.

Dr. Collins’ views about Mr. Chang’s memory gap

[396] According to Dr. Collins, Mr. Chang remembers “everything before” and “everything after” shooting Ms. Lewandowski, but does not recall shooting her. Dr. Collins accepts this, saying that amnesia does occur “from time to time” in the presence of a psychotic episode. He said that the psychosis impairs attention and the encoding of events.

[397] He acknowledged another possibility, which is that when committing a violent crime, people experiencing an extreme emotional event or condition, whether rage or fear, can have a “red-out”. With a red-out, the person knows what they are doing at the time, but are not able to deposit it into their short term memory bank. This is separate and apart from being in a drug induced psychosis. Dr. Collins agreed that if what Mr. Chang had was a red-out, it is possible that he intentionally shot and killed Ms. Lewandowski.

[398] Dr. Collins allowed that another explanation for a lack of memory could be that Mr. Chang is malingering. He did not believe that Mr. Chang had feigned amnesia on the basis that people who do so usually feign memory for hours.

[399] Under cross-examination, Dr. Collins was asked whether the easiest way to malinger was to feign memory loss, with the Crown suggesting that maybe Mr. Chang did not want to believe what he had done. He could not answer. His view remains that Mr. Chang is not malingering, although the reason for this seems to be mainly that Dr. Collins believes he was in a psychotic state where amnesia can happen.

Dr. Collins’ views about Mr. Chang’s intent

[400] Dr. Collins said that Mr. Chang had the intent to shoot the gun, but not the intent to shoot Ms. Lewandowski. He said that Mr. Chang can recall shooting, but not shooting her. It was Dr. Collins’ opinion that Mr. Chang had amnesia about shooting Ms. Lewandowski plus a misinterpretation.

[401] Dr. Collins said it is possible for a person in a drug induced psychosis to shoot and kill with the intention of doing so. He does not agree that Mr. Chang had the requisite intent in this case in that he believes that Mr. Chang did not intend to shoot and kill Ms. Lewandowski. He intended to shoot whoever it was that he saw and feared.

[402] Dr. Collins believes that as a result of drug inducted psychosis, Mr. Chang had a diminished capacity to form intent. Asked how the psychosis operates to diminish capacity, Dr. Collins did not really explain, but answered with reference to Mr. Chang. He said that it is because Mr. Chang saw people out of his peripheral vision, he acted out against those he felt were against him, but he had “no intention in terms of being able to recognize a specific person or entity, he just knows that he’s, his life was in danger…”. It did not matter to Dr. Collins whether there was anyone there or not, it was the fact that Mr. Chang’s ability to test reality was impaired.

[403] Asked about whether Mr. Chang could plan and deliberate in the state he was in, Dr. Collins did not really answer. He did say, however, that “what was his mental state during the actual incident is difficult to determine other than the fact we know he was in a cocaine induced psychosis”. One problem is that he has a lack of recall.

[404] There are a number of aspects of Ms. Chang’s mental processes that Dr. Collins agreed were not affected by the drug induced psychosis. For instance:

• Dr. Collins said that in his view, Mr. Chang knew when he was with Ms. Lewandowski on March 5 that having a loaded firearm was wrong but chose to have one because he felt his life was in danger. He knew he had fired a gun and knew it was legally and morally wrong to fire a weapon. And he knew the consequences of firing the gun. His actions were not involuntary.

• Dr. Collins was also asked about Mr. Chang’s intent with respect to other events that night. He agreed that Mr. Chang had the intent to take and possess a loaded firearm. While he said that Mr. Chang feared for his life when he took Mr. Kim’s gun, he agreed that he had the intent to possess it and knew what he was doing when he took it.

• Dr. Collins agreed that on March 3, in his unit, Mr. Chang knew what he was doing when he discharged the firearm, although Dr. Collins said he did so in response to what he perceived was a life threatening event. He also had the intent to possess the firearm that he threw over the balcony. Further, Dr. Collins agreed that Mr. Chang had the intent to possess the drugs in his apartment and those that were thrown over the balcony.

Whether Dr. Collins challenged Mr. Chang

[405] Dr. Collins was asked whether, when he interviewed Mr. Chang, he pointed out to him places where his version of events was inconsistent with what he had told the police or told someone else or other known facts. While Dr. Collins said that it is his practice to challenge the stories he hears, he also seemed to say he would only do so if “it’s really bizarre or strange or inconsistent, or if I feel that there’s malingering” or if he got the sense that the person was lying. In this case, he did not test what Mr. Chang was saying because he really felt that he was not lying about the psychosis and his perceptions.

Dr. Collins’ view about Mr. Chang’s police interview

[406] It was Dr. Collins’ view that in his police interview, Mr. Chang was still psychotic. Under cross-examination, he was asked about various things Mr. Chang said in his police statement and whether he had discussions with Mr. Chang about these issues.

[407] For instance, he was asked whether there was any significance to the fact that Mr. Chang did not say anything about not being in his right state of mind until after being told he was charged with first degree murder, discussed the other charges in relation to his apartment, been told that the police had spoken to witnesses, commented that there were no eye witnesses and asked Sgt. Mazzacato if he had the authority to lessen the charge. Dr. Collins said because Mr. Chang was part of a criminal subculture, he asked questions “along those lines” before saying he was not in his right mind and paranoid. Dr. Collins never asked Mr. Chang why he asked those questions of the officer. I see Dr. Collins’ response as complete speculation. My review of Dr. Collins’ evidence is that he would not allow for the possibility that Mr. Chang had decided that if he was facing a first degree murder charge, the best thing to do was to say he was not in his right mind. He testified that there was nothing to indicate that he was malingering, although he did agree that Mr. Chang could have been trying to manipulate the police and still be psychotic.

[408] Dr. Collins knew that Mr. Chang told police he was mad at Ms. Lewandowski for having told the police he was suicidal. He did not discuss this with Mr. Chang. He agreed that this could be relevant to motive, but qualified his answer saying that he was delusional at the time.

[409] Dr. Collins acknowledged not having asked Mr. Chang about his comment in his police statement that he had hidden the gun from Ms. Lewandowski in the car. He could not recall whether he had thought it was significant to ask why he would have concealed a gun from the person he ended up shooting.

Additional information Dr. Collins had not been aware of

[410] There are a number of aspects of the case that Dr. Collins agreed he was not aware of when he spoke to Mr. Chang. When asked about these various areas by the defence during his examination in chief, Dr. Collins testified that these things largely made no difference to his opinion, or strengthened it. For instance:

• He had not known that Mr. Chang reported to Ms. Chung that someone was watching him, that his place was bugged, that he felt he could not leave his house, that there were bugs and wiretaps everywhere, that he was afraid for his life, that people were trying to kill him, and repeated this over and over, adding that he was on drugs but that the drugs were not making him this way. Asked whether this would have affected his opinion, he said it did not change a thing and that it illustrates that when someone is psychotic, it affects their belief system and that they have little insight and are reporting their reality;

• He had not known that when Toronto fire officers arrived at Mr. Chang’s apartment after the flood, where water was gushing out and there were drugs and drug paraphernalia floating around, that Mr. Chang seemed oblivious to them and grabbed a small bag, left and tried to lock the door behind him causing them to ask what he was doing, that would have affected his opinion. Asked whether this would change his opinion, he said it did not. Asked whether he thought it was possible that Mr. Chang was not responsive because he was trying to dispose of items off his balcony, Dr. Collins could not say and added that it could be because he was in a psychotic state;

• He had not known that the police located a large amount of a variety of drugs in Mr. Chang’s apartment, including large amounts of cocaine, methamphetamine. That would not have affected his opinion;

• He had not known that in the apartment there were home made crack pipes like beer and pop cans with burned holes in them. He said this was confirmatory of his opinion;

• He had not known that Mr. Chang had reported to Mr. Kayfetz, on March 3, 2018 after 9:45 p.m. that there were cameras all over and electrical devices and outlets allowing access to everything he was doing and guns appearing that were not his and interceptions through holes and openings in the wall. He said that it sounded like psychotic thinking. Asked to comment on the fact that Mr. Chang told him that he had tried to hide that embarrassing parts from Mr. Kayfetz, he said that Mr. Chang may not remember what he said, and may have been amnestic and that this was consistent with his mental state in and around the entire time. Under cross-examination, he said that it did not change his view that Mr. Chang told police it had been his gun that he threw over the balcony and that he told Mr. Kayfetz that “they” left a gun there and that these seemed like different versions of events;

• He had not known that