Court File and Parties

Court File No.: CR-20-0184-00 Date: 2022-04-22 Superior Court of Justice – Ontario

Between: Her Majesty the Queen

Counsel: R. Kozak and B. Sosa, for the Crown

And: David Hui and Musab Saboon Accused

Counsel: G. Joseph, for Mr. Hui B. Smart, for Mr. Saboon

Heard: February 28, March 1-4, 7-9, 2022, at Thunder Bay, Ontario

Mr. Justice W. D. Newton

Reasons

Overview

[1] On February 24, 2019, the body of Lee Chiodo was found at the dead-end of an isolated road on Mission Island in Thunder Bay. He had been shot in the back of the head.

[2] David Hui, Musab Saboon, and Marshall Hardy-Fox were charged with first degree murder and kidnapping. There is no forensic evidence linking the murder to any of the accused. All three gave statements to the police. Unlike what he told the police when he gave his statement, Mr. Hardy-Fox testified that Lee Chiodo was shot by David Hui with a gun provided by Musab Saboon because of a drug debt.

[3] The defence argues that Mr. Hardy-Fox is not a credible witness and is accusing the others in exchange for the withdrawal of the first degree murder charge against him. Key to my determination of the facts in this case is whether or not I accept the evidence of Mr. Hardy-Fox.

The Evidence

The Locations

9 Trillium Way

[4] Mr. Hardy-Fox’s girlfriend, Stephanie, lived at 9 Trillium Way (“9 Trillium”). Academy Drive is an adjacent street, and the general area is often described as “Academy”.

[5] The Crown alleges that Mr. Hui and Mr. Saboon were selling drugs out of 9 Trillium on and before February 23, 2019.

Mario’s Bowl

[6] Mario’s Bowl is a bowling alley and a restaurant/bar located about a three minute drive or 10 minute walk from 9 Trillium. It is between Memorial Avenue to the east and Macdonell Street on the west. Parking is at the south and immediately to the north is the Econo Lodge Hotel. Surveillance cameras cover the interior of Mario’s Bowl. A surveillance camera from The Bulk Zone on Macdonell Street covers the back or west side of Mario’s Bowl.

[7] The Crown alleges that Mr. Chiodo was lured to Mario’s Bowl by Facebook messages from Mr. Saboon who was posing as Crystal Leduc and then taken to the dead-end location by Mr. Hui, Mr. Saboon, and Mr. Hardy-Fox.

OPG “dead-end”

[8] There are two Islands, McKellar and Mission, at the mouth of the Kaministiquia River where it meets Lake Superior. Both are connected to the City of Thunder Bay by bridges. The most southerly, Mission Island, has a conservation area at its northeast point and an Ontario Power Generating (OPG) Station at its southern point. To the west of the generating station is a long municipal road, 108 Avenue, running north/south and ending at a dead-end just before the water. A surveillance camera facing west from the generating station, about 250m from 108 Avenue[^1], covers the roadway just north of the dead-end.

[9] Lee Chiodo’s body was found at this dead-end.

Scene Investigation

[10] Mr. Chiodo’s frozen and partially snow-covered body was found lying, face down, on his left hip with his feet extended on an angle behind him. An ejected shell casing was found less than half a metre away from his feet. A fired bullet was found directly beneath his head.

[11] He was not wearing a winter coat or toque as depicted in videos from surveillance cameras the night before. That clothing has not been located.

[12] Due to snow and drifting snow no other forensic evidence, such as footprints or vehicle tracks, was observed.

Post-mortem Examination of Body of Lee Chiodo

[13] Dr. Escott performed the autopsy on February 26, 2019. On consent, Dr. Escott was qualified as an expert in “forensic pathology”. He concluded that Mr. Chiodo died due to a single gunshot wound to the back of his head. The bullet entered the back of the right lower skull and exited through the left eyebrow. Based on his examination, Dr. Escott concluded that this was a wound caused by a firearm fired beyond 1 to 2 feet from the entrance wound.

[14] Dr. Escott also noted several contusions and abrasions to the scalp and face and a fracture of the left ninth rib resulting in an injury to the spleen which caused some blood loss. He described these other injuries as recent, with no evidence of healing, and, although difficult to estimate, he estimated that the injuries occurred within 12 to 24 hours prior to death.

[15] Toxicological analysis indicated the presence of fentanyl and cocaine in Mr. Chiodo’s blood.

Examination of Fired Shell Casing and Fired Bullet

[16] On consent, Benjamin Sampson was qualified as an expert in “firearms and firearm components and ammunition and ammunition components.” He concluded that the cartridge case was .40 calibre and that the bullet was fired from a pistol such as a Glock semiautomatic.

[17] A murder weapon was never located.

Biological/DNA Analysis

[18] Also on consent, Michael Bissonnette was qualified as an expert in “bodily fluid identification, DNA analysis and interpretation.” He examined the fingernail scrapings from Lee Chiodo’s hands and found DNA matching Lee Chiodo and one other person. That other person has not been identified.

[19] Analysis of blood on a towel found in Mr. Saboon’s vehicle when he was detained on March 1, 2019, was confirmed as matching the DNA profile of Mr. Hui. Clothing seized from Mr. Saboon was not analyzed.

Events Prior:

Amanda Leach

[20] Lee Chiodo’s former girlfriend, Amanda Leach, testified. They had been in a relationship for seven or eight years, the last year being very difficult. She said that Mr. Chiodo had become anxious and depressed. At the beginning of February 2019, she left the relationship and went and stayed at the Econo Lodge Hotel where she worked.

[21] On the day of his disappearance, Mr. Chiodo contacted her. He needed to have a shower. He arrived at her room at the Econo Lodge, showered, and stayed in her room and slept while she worked her evening shift. He asked to borrow $50 from her and used her tablet to check on messages. After his death, she turned the tablet over to the police because of the Facebook messages described below.

Crystal Leduc

[22] Ms. Leduc was summoned by the Crown for this trial but did not appear when required. A material witness warrant was issued. Her evidence was eventually proffered by way of an agreed statement of facts and the transcript of her testimony from the preliminary inquiry. It was agreed that her testimony was under oath and that she was cross-examined by counsel for Mr. Hui and Mr. Saboon.

[23] Ms. Leduc knew Lee Chiodo, David Hui, and Mr. Saboon, whom she knew as “Tony”. She did not know Marshall Hardy-Fox. She had known Mr. Hui the longest, for about six years through “the drug scene”. She met up with him in the Academy area when he had fallen “on the addiction side of it and was using.” She was buying drugs and using drugs with him in Academy.

[24] She had known Lee Chiodo for about five years and, in the period immediately prior to his death, he was on the “same side of the drug scene” as her, “looking to acquire and struggling with addiction himself.”

[25] She had met Tony about two weeks prior to Mr. Chiodo’s death. Lee Chiodo had introduced Tony to her when he brought her to 9 Trillium to do some housecleaning in exchange for drugs. Tony and David Hui were selling purple fentanyl and “crack” out of 9 Trillium which she knew as “Stephanie’s house”, and Ms. Leduc was acquiring drugs from them to sell. Over the two weeks, she went to 9 Trillium about a dozen times and Dave and Tony remained there. Drugs were also being sold out of units 22 and 38 by others.

[26] She testified that Dave and Tony used a little black car and that Dave chauffeured Tony.

[27] The first time she was at 9 Trillium, Lee Chiodo acquired drugs, 7 grams of cocaine, for resale.

[28] In February 2019, she had a Facebook Messenger account with a profile under her name. She had used that account to communicate with Lee Chiodo and others to acquire and sell drugs. At the time, she did not have her own device and would use a friend’s cell phone to check her Facebook.

[29] A printout of the Facebook messages between Crystal Leduc’s account and Lee Chiodo’s account for February 23, 2019, was filed as exhibit 12b at trial.

[30] Ms. Leduc denies sending any of these messages to Lee Chiodo. She said that she had used Tony’s phone to check her Facebook messages and that she was using Tony’s phone to communicate with Lee about some phones that he was trying to sell. She described that the conversation was very brief and that she was at unit 38 with Tony’s phone. Tony came to retrieve his phone and she did not have a chance to log out of Facebook.

Timeline of February 23, 2019

[31] The following sequence of Facebook messages and images captured by surveillance videos are relevant:

11:01:46 Facebook message from Lee Chiodo to Crystal Leduc: “ Meet me at marips bowl ” 11:02:36 Facebook message from Crystal Leduc to Lee Chiodo: “K I’m on my way” 11:09:46 Facebook message from Crystal Leduc to Lee Chiodo: “I’m here at front entrance” 11:12:47 Facebook message from Lee Chiodo to Crystal Leduc: “ Marios bowl 2 min k ” 11:12:58 Facebook message from Crystal Leduc to Lee Chiodo: “ Ok I’m already here ” 11:16:05 Facebook message from Lee Chiodo to Crystal Leduc: “ I be right there ” 11:17:42 Econo Lodge video: Lee Chiodo leaving room 11:19:01-25[^2] Bulk Zone video: male running to and from back of Mario’s Bowl 11:20:22 Mario’s Bowl video: Lee Chiodo running into Mario’s Bowl 11:21:17 Mario’s Bowl video: Lee Chiodo exiting with male 11:38:30 OPG security video: vehicle driving to dead end 11:43:43 OPG security video: vehicle driving from dead end

Mario’s Bowl Videos and Witnesses

[32] Video and still photographs from three surveillance cameras at Mario’s Bowl were filed as exhibits. Camera 4 covers the area inside the main door. Camera 3 covers the area in front of the front desk. Camera 2 shows the area surrounding the dining room till.

[33] In addition to the videos and photographs, three employees and one customer of Mario’s Bowl testified.

[34] As identified on the timeline, an individual wearing a red winter jacket and a toque was observed running into Mario’s Bowl past the main entrance camera at 11:20:22 p.m. It is agreed that this individual is Lee Chiodo. At 11:20:51 p.m., the main entrance camera shows a dark-skinned male wearing grey sweatpants and a grey sweatshirt entering. At 11:21:17 p.m. this camera depicts the dark-skinned male leaving, followed by Lee Chiodo.

[35] The front desk camera shows Lee Chiodo running past the front desk and into the dining room area. The dining room camera shows Lee Chiodo moving towards the location of the emergency exit. It is obvious that this movement attracts the attention of people nearby. At about 11:20:54 p.m., Lee Chiodo is observed coming back towards the front desk where he is met by the dark-skinned male. The dark-skinned male is observed approaching Lee Chiodo and placing his left hand on Chiodo’s shoulder who pushes it off with his right hand. Lee Chiodo backs away from the dark-skinned male and then they walk together towards the main entrance. Directly in front of the front desk, Lee Chiodo is observed stopping and then turning to walk in the opposite direction. He is followed by the dark-skinned male. Lee Chiodo then follows the dark-skinned male out of Mario’s Bowl.

[36] Brandon Olson was the front desk clerk. He saw Lee Chiodo going to open the emergency exit door and gestured not to open it. He then thought that Lee Chiodo entered the dining room. When the dark-skinned male entered and began to interact with Lee Chiodo, Mr. Olson was close by. He described the situation as “tense”. He overheard a discussion about “trying to get a hold of you”. He walked up to them and said, “not here guys, not here” and they both left towards the front door.

[37] Daisy Darrach was working at the dining room till. She saw a man run past her till towards the emergency exit. An alarm sounds when the bar on the emergency door is pressed so she followed him to advise him not to exit via that door. She then saw him enter the dining room area and then return to the main desk. She was nearby when the dark-skinned male and Lee Chiodo were talking. She does not recall what was said but “it was heated”. She asked them to leave and “take it out to the parking lot” because they were cursing. She described the dark-skinned male as “frustrated, maybe a little angry, but just mostly irritated.” She did not recall any threats being made.

[38] Christopher Osmulski was a customer that evening. He observed the man in a black and red jacket come in and run towards the restaurant area. He followed to see what was going on and saw the man enter the dining area and saw him “kind of duck or hide behind the end of the bar”. He thought that an employee told the man that he could not be there and saw him return to the entrance area at which point he saw a “black man come in and confront him.” He said he heard the black man say, “what are you doing, let’s go, you’re being a child, let’s get out of here.” He described the tone as “frustrated”, “like almost angry”.

[39] Megan Shperuk was the assistant manager of Mario’s Bowl at the time. She was on a break outside, close to the main entrance. She noticed two men walking quickly in the parking lot. One walked towards the Memorial Avenue side of the building and the other towards the Macdonell Street side. She saw the male who had walked towards Memorial Avenue then enter at the front entrance. She described that male as darker in skin tone and wearing grey athletic clothing “like sweatpants and a sweater”. She said that his clothing stood out to her because he was not wearing a winter jacket. Next, she noticed that same man exit the building with another man. She described the other man as caucasian, a little taller than her height, 5’5”, and wearing outdoor clothing. She saw the man who had gone to the Macdonell side of the building return to the driver’s seat and the two other men getting in the passenger backseat door. She said that this stood out to her because it appeared to her that the driver was not driving a vehicle of his own because it seemed like he was trying to figure out the buttons. She could hear the doors lock and unlock and windows “sort of went down.” She described the vehicle as dark in colour and it was parked right across from the entrance doors, front facing out.

OPG “dead-end”

[40] The OPG security video shows the headlights of a vehicle driving southbound to the “dead-end” at 11:38:30 p.m., about 17 minutes after Lee Chiodo is shown leaving Mario’s Bowl. The headlights disappear and reappear driving in the other direction about five minutes later.

Events After:

March 1, 2019: Saboon: Detained and Statement

[41] On March 1, 2019, a short distance from 9 Trillium, a black Hyundai Sonata driven by Mr. Saboon was stopped by uniformed officers assisting in this homicide investigation. Also present in the vehicle were Mr. Hui and another male, Jonathan McKay. Mr. McKay was taken into custody because of an outstanding warrant. The Hyundai vehicle was seized, and Mr. Saboon was detained for questioning. Mr. Hui was not detained.

[42] The vehicle was searched and duffel bags and clothing along with certain documents were seized. One of the documents was a Shell Canada receipt dated February 27, 2019, from a gas station in Sudbury. Surveillance video from that gas station showed the Hyundai at the gas pumps and Mr. Saboon paying at the counter inside. Some of the contents were linked to Mr. Hui, including a white towel which, upon later analysis, was confirmed to have Mr. Hui’s blood on it. A subsequent search of the trunk disclosed a hidden compartment containing 179 oxycodone pills, 93.8 g of cocaine and 26.6 g of purple fentanyl. These drugs had an estimated street value of $21,810.[^3]

[43] Mr. Saboon was told he was being detained for a homicide investigation. He was taken to the police station. His clothing was seized. He declined to speak to counsel and then gave a voluntary video statement to police. He described his height as 5’11”.

[44] Mr. Saboon told police that he arrived in Thunder Bay on February 26, having travelled from Kitchener with Mr. Hui. He said that he was in Kitchener and playing poker on Saturday, February 23 and had last been in Thunder Bay about three weeks before.

[45] He said that he was “hanging out” at 9 Trillium in the Academy area and that Stephanie was “a good friend’ whom he had known for a while. He acknowledged that he knew Lee Chiodo and that Mr. Chiodo came to Stephanie’s sometimes. He had heard that Lee Chiodo was killed because he owed “Toronto guys” money.

March 2, 2019: Hui: Arrested and Statement

[46] Mr. Hui was arrested and charged with first degree murder and kidnapping. He spoke to counsel and gave a voluntary video statement to Sergeant Rybak.

[47] Mr. Hui identified the man he was with the day before as “Tony”. He acknowledged knowing Lee Chiodo. He admitted going to Mario’s Bowl with Tony and Marshall and that Marshall was the driver. Their car was parked in front of Mario’s Bowl directly across from the entrance and they sat in the car waiting for Lee to arrive with Tony “talking” to Lee on the phone. He said that he saw a text message saying be there in one minute or something similar. Mr. Hui said he left the car and went to the hotel/Memorial Avenue side to look for Lee Chiodo because Tony told him to. He denied going to the back, Bulk Zone side, of Mario’s Bowl.

[48] He said he was drinking that night and did some “Molly” (MDMA or ecstasy).

[49] He did not enter Mario’s Bowl and was picked up as the car was leaving the Mario’s Bowl parking lot at Memorial Avenue with Marshall driving. He said that he was seated in the front passenger seat and that Lee and Tony were in the back seat with Tony behind the passenger seat and Lee behind the driver’s seat. He said that “people started arguing about stuff” but that he ignored the conversation. He thought at one point there was some discussion about going to Lee’s grandmother’s house for money.

[50] Mr. Hui said that he got dropped off “close to home” after leaving Mario’s Bowl but could not say exactly where and when, but thought it was closer to midnight.

[51] He told the police that he and Tony left on a road trip to gamble in Toronto on February 25 or 26.

[52] He said that he had not met Marshall before that night, when he encountered him at 9 Trillium.

[53] He told the police that that he knew that there were at least, “three different groups of black guys looking for Lee”, that Lee owed a lot of money, and that Tony was going to help Lee.

[54] Mr. Hui said that Tony came to talk to him when he was released by the police and then left via the airport. He said that Tony did not kill Lee because he did not see him kill Lee.

March 3, 2019: Hardy-Fox Arrested and Statement

[55] Marshall Hardy-Fox, accompanied by his lawyer, turned himself into police after the police issued a notice that he was wanted for first degree murder and kidnapping. The “booking sheet” described him as 6’ 2 3/4”, weighing 230 pounds. His condition was described as “sober”. The sheet confirmed that he, along with Mr. Hui and Mr. Saboon, was charged with first-degree murder and kidnapping.

[56] Mr. Hardy-Fox gave a statement to Detective Rybak, the same officer who interviewed Mr. Hui.

[57] On September 17, 2020, and November 25, 2020, Mr. Hardy-Fox testified at the preliminary inquiry with respect to the charges against Mr. Hui and Mr. Saboon.

Trial Testimony of Hardy-Fox

[58] Mr. Hardy-Fox is now 30 years old. As a teenager, he was an accomplished athlete, playing hockey in the OHL and on a local Junior A team. Since hockey, he has worked mostly in construction with his uncle.

[59] In April 2018, he developed a relationship with a woman named Stephanie. He moved in with her and her children at her place at 9 Trillium. By December 2018, he suspected that Stephanie was smoking crack cocaine. By January, he was smoking crack cocaine with her. They were getting the drugs from other townhouses nearby. In February 2019, a week or a week and one half before Lee Chiodo’s murder, he moved out of Stephanie’s place because he wanted to get away from all the drugs that he was doing.

[60] On February 23, 2019, Stephanie came to see him to tell him that her children had been taken away from her and that someone was selling drugs (“trapping”) out of her place. She asked him to go with her to “kick them out” and he agreed. However, he said that, once they got there, Stephanie changed her mind and wanted to get more drugs.

[61] He went with Stephanie to 9 Trillium in her vehicle. She drove. He had been drinking previously and estimated his sobriety at “5 or 6 out of 10”. When they arrived at 9 Trillium, Stephanie went inside to get drugs. After waiting for about a half of an hour he decided to go inside because she was taking so long. He had a couple of drinks of vodka while he was waiting in the car.

[62] He went to the door. The door was locked and someone that he did not know let him in. When he entered, he met Mr. Hui who was sitting at the kitchen table. Mr. Hui was “scaling out” drugs to customers that came to the house. He, Stephanie, and Mr. Hui consumed some crack cocaine and “Molly” (MDMA or ecstasy) together. It is not clear on the evidence how much drugs were consumed, but he was in the kitchen for a “couple of hours at least”. He did not pay anything for any drugs while he was there.

[63] Mr. Saboon arrived at 9 Trillium after Mr. Hardy-Fox had been there a couple of hours. Stephanie introduced Mr. Hardy-Fox to Mr. Saboon and Mr. Saboon acknowledged him as the “boyfriend”. Mr. Saboon then went into the living room to wait for people to come to the door. Sometimes, Mr. Saboon would assist Mr. Hui with the scales. Mr. Hardy-Fox and Stephanie also moved to the living room and sat on the couch watching TV. Another unidentified female was present in the living room.

[64] According to Mr. Hardy-Fox, at some point Mr. Saboon and Mr. Hui “started getting excited about getting a hold of someone that owed them money”. They said “we got a hold of him. We’re going to meet him at Mario’s Bowl.” Mr. Hui asked Mr. Hardy-Fox to drive, and he said he would because he knew that they usually paid their drivers with drugs.

[65] Mr. Hui gave him the keys and they went into a black sedan parked beside 9 Trillium with Mr. Hui in the front passenger seat and Mr. Saboon sitting in the rear. Mr. Hardy-Fox drove to Mario’s Bowl and parked in front of the front doors. Mr. Hardy-Fox testified that, as they were sitting in the vehicle in the parking lot, Mr. Saboon changed the plan to “if he didn’t have the money… We were going to bring him to a far place and make him walk a long distance.”

[66] Lee Chiodo was observed by Mr. Hui and Mr. Saboon approaching Mario’s Bowl and they all got out of the car. Then Mr. Hardy-Fox saw that Lee Chiodo had “bolted inside” as soon as he saw them. He said that Mr. Saboon told him to go watch the back. He did not know where Mr. Hui went. Mr. Hardy-Fox said he went to the back of Mario’s Bowl but did not see anything. He walked back to the vehicle and as he was walking back, he saw Lee Chiodo get into the rear right side passenger door with Mr. Saboon. Mr. Hardy-Fox then entered the driver’s seat and started driving towards Memorial Avenue because Mr. Saboon said that Mr. Hui had gone that way. They picked up Mr. Hui beside the bus stop in front of Mario’s Bowl and Mr. Hui sat in the front passenger seat again. Mr. Chiodo was seated directly behind Mr. Hardy-Fox and Mr. Saboon was seated behind Mr. Hui. Mr. Hardy-Fox turned left, going northbound on Memorial Avenue. They discussed where they were going to take Mr. Chiodo and then Mr. Hardy-Fox decided that they should go to Mission Marsh, a conservation area on Mission Island.

[67] They drove out of the commercial area of the city through some industrial areas on their way to Mission Marsh. Mr. Hardy-Fox heard Mr. Saboon threatening Mr. Chiodo’s life saying that he wanted his money. Mr. Hardy-Fox heard Mr. Chiodo “begging for his life, saying he doesn’t want to die.” As they were passing by the Purolator building, Mr. Hardy-Fox noticed a red dot go across the ceiling and, when he looked in the rearview mirror, he saw that Mr. Saboon was holding a handgun. As they drove over a bridge Mr. Saboon threatened to break Mr. Chiodo’s legs and throw him off. They continued to the Mission Marsh conservation area. As there were too many people at the conservation area, they decided to turn around and go somewhere else. Mr. Hardy-Fox thought that they would be driving back to the city, but Mr. Hui told him to take the next left, the road leading to the OPG dead-end.

[68] At the dead-end, Mr. Hardy-Fox got out of the car to urinate, and Mr. Saboon and Mr. Hui removed Mr. Chiodo from the vehicle. Mr. Saboon told Mr. Hardy-Fox to turn the vehicle around and when he did so, he got out of the car and saw Mr. Hui and Mr. Saboon walking back towards the car and Mr. Chiodo on the ground. He testified:

A. And they were discussing what to do. And then that’s when Hui said, “I’ll do it.” And then I see him grab the gun and start walking towards Lee. And that’s when I, I just sat in the front seat. I went right back in the front seat because it’s something like I don’t want to see and, I don't know, I was just hoping that they weren’t going to do it. And then the gunshot went off. And then I was just looking forward. And they got in the vehicle and Hui started talking about how when the life leaves the body, how the soul leaves the body or something. And then Saboon was telling him how they were looking for guys like him to do stuff like that. And then we just, I just made my way back to Trillium Way.

[69] When they returned to 9 Trillium, he was given about a gram and one half of crack, most of which he gave to Stephanie when they were in her room upstairs. Mr. Hardy-Fox said that he stayed the night “because I didn’t want them to like feel suspicious about me because I didn’t want them to come after me after. So, I left in the morning.”

[70] In cross-examination, Mr. Hardy-Fox admitted that, when he testified at the preliminary inquiry, he was still charged with first-degree murder and kidnapping but that, after his testimony, the charge of first-degree murder was withdrawn.[^4] He acknowledged also that he knew that his testimony would “greatly affect” the charges against him.

[71] He also acknowledged that he did not tell the truth to the police when he was interviewed on March 3, 2019, as he did not accuse Mr. Hui or Mr. Saboon of murdering Mr. Chiodo. He also acknowledged not telling the police about the threats to kill Mr. Chiodo or Mr. Chiodo begging for his life. He acknowledged telling the police that he did not know what was said in the car or watching “the kill”. He told the police that he “didn’t even think they shot him when I was driving off.” At trial, he gave various explanations for not telling the police what he testified to at the preliminary inquiry, saying that he was confused, that he did not know what to do, and, at one point, that he was intoxicated. When asked why he did not drive away when he saw what was happening at the dead-end or why he did not leave with Stephanie when he returned to 9 Trillium, he said that he was frightened for his safety and the safety of his family.

[72] He acknowledged that the police thought that “Tony” i.e., Mr. Saboon, and not Mr. Hui, had killed Mr. Chiodo.

Positions of the Parties

[73] As the accuseds called evidence, counsel for Mr. Hui and Mr. Saboon made their submissions first.

Mr. Hui

[74] While counsel for Mr. Hui conceded that the Crown has proven beyond a reasonable doubt that Lee Chiodo was murdered, counsel argued that the Crown has not proven, beyond a reasonable doubt, that Lee Chiodo was kidnapped by Mr. Hui or that Mr. Hui murdered Lee Chiodo.

Kidnapping

[75] Absent from the evidence, counsel argued, is evidence establishing, beyond a reasonable doubt, that Lee Chiodo was taken from Mario’s Bowl against his wishes. Counsel points to the video and eye-witness evidence which establish no removal by force or threat or fraud and the fact that Lee Chiodo followed the person who approached him out of Mario’s Bowl. Thus, counsel argued, a key element of the offence of kidnapping has not been proven. Further, counsel submitted, there is no evidence that Mr. Hui was involved in removing Mr. Chiodo from Mario’s Bowl either through surveillance video or eye-witness testimony.

First Degree Murder

[76] Counsel submitted that the Crown’s case for first degree murder relies entirely on the evidence of Mr. Hardy-Fox who, in exchange for changing his story to the police to his testimony implicating the accuseds at the preliminary inquiry, received the material benefit of having the first degree murder charge withdrawn. Counsel reminded me that it is “dangerous to rest a criminal conviction on the testimony of a single witness” R. v. Khela, 2009 SCC 4 at para. 1, particularly so when that witness has a strong motive to lie to avoid the jeopardy of a life sentence. When there is that strong motive to lie, the “danger of a wrongful conviction is particularly acute.” R. v. Khela, 2009 SCC 4 at para. 2. I was reminded that, in these circumstances, the trier of fact must be cautioned about the dangers of relying upon the evidence of such a witness. In addition to the motive to fabricate, counsel for Mr. Hui relied upon other concerns with Mr. Hardy-Fox’s evidence.

[77] Counsel for Mr. Hui submitted that Mr. Hardy-Fox’s evidence is unreliable due to his consumption of alcohol and drugs.

[78] Counsel for Mr Hui submitted that Mr. Hardy-Fox’s evidence lacks an “air of reality” because he was approached by two strangers to participate in a kidnapping, because he morphed from a driver only to a willing and active participant in a kidnapping, and because he failed to flee from Mission Island or 9 Trillium when he had the opportunity to do so.

[79] Counsel also pointed to the inconsistences, as noted, between his testimony at the preliminary inquiry and at trial and between Mr. Hardy-Fox’s statement to the police and his testimony. Counsel cautioned that, by having access to disclosure, Mr. Hardy-Fox’s evidence is tainted by the prosect of tailoring to conform to the known evidence. See for example: R. v. Buric, (1996), 28 O.R. (3d) 737(C.A.).

[80] Counsel submitted that there is no independent evidence confirming Mr. Hardy-Fox’s testimony regarding what occurred on Mission Island.

[81] Finally, counsel argued that there is no other evidence, other than the testimony of Mr. Hardy-Fox, to indicate that Mr. Hui was not being truthful in his statement to the police.

Mr. Saboon

[82] Counsel for Mr. Saboon adopted the arguments made by counsel for Mr. Hui and advanced three additional submissions.

[83] Counsel argued that there is no evidence, other than the evidence of Mr. Hardy-Fox, that contradicts the exculpatory statement given by Mr. Saboon that he was in Kitchener on February 23 and 24, 2019. Counsel noted the absence of any forensic, cell phone or GPS evidence contradicting Mr. Saboon’s statement and the complete failure by the police to investigate the asserted alibi.

[84] Counsel argued that there is no evidence, again other than the evidence of Mr. Hardy-Fox, identifying Mr. Saboon as “Tony” and submits that the “in dock” identification is of little assistance given that Mr. Saboon was the only black person in the courtroom and the only person secured in the dock. Given Mr. Hardy’s Fox’s limited involvement with “Tony”, a stranger whom he met only on February 23 and 24, 2019, his intoxication by alcohol and drugs, no other identification evidence, and the fact that the police had presented Mr. Saboon as the prime suspect, counsel described this identification evidence as worthless. Counsel relied upon the cases of R. v. Tat, 139 O. A. C. 129, R. v. Phillips, 2018 ONCA 651 and R. v. Hibbert, 2002 SCC 39.

[85] Finally, counsel for Mr. Saboon repeated the arguments that Mr. Hardy-Fox’s evidence should not be accepted noting that Mr. Hardy-Fox received a benefit in having the first degree murder charge withdrawn and therefore had a motivation to lie, that he provided no detail of the events of February 23, 2019 until after disclosure, and that he lied to the police and attempted to blame his inconsistent evidence on intoxication.

The Crown

[86] The Crown acknowledged that Mr. Hardy-Fox’s evidence is key and that, given his participation in the crime and the withdrawal of the murder charge against him, his evidence should be scrutinized carefully and not relied upon unless there is confirmatory evidence. Relying upon R. v. Kehler, 2004 SCC 11, the Crown submits that, to be confirmatory, the independent evidence “does not have to implicate the accused.” R. v. Kehler, 2004 SCC 11 at para. 16. The court stated:

20 Where a particular risk attaches to one critical element of the evidence of “an accomplice, or a disreputable witness of demonstrated moral lack” ( Vetrovec, supra, at p. 832), the trier of fact must be satisfied that the “potentially unreliable” evidence of the witness can be relied upon as truthful in that regard.

21 Such a risk may arise, for example, where there is any basis in the record for suggesting that the unsupported evidence of an accomplice, though evidently truthful as to his own participation in the offence charged, is for any reason subject to particular caution as regards his implication of the accused.

22 However, even then, having considered the totality of the evidence, the trier of fact is entitled to believe the evidence of the disreputable witness — even on disputed facts that are not otherwise confirmed — if the trier is satisfied that the witness, despite his or her frailties or shortcomings, is truthful. [Emphasis in original.]

[87] The Crown argued that Mr. Hardy-Fox’s evidence is confirmed by other independent evidence including the Facebook messages, the “layout” of Mario’s Bowl and the location where the car was parked, the Bulk Zone video, the headlights at OPG, the connection to 9 Trillium and the drug use there, the connection to the black car, and the testimony of Crystal Leduc.

[88] As to identity, the Crown argued that Mr. Hui’s identification as a participant is confirmed by his own statement, his connection to Mr. Saboon and his car, his connection to Mr. Saboon and the drug trade at 9 Trillium as confirmed by Ms. Leduc, and the testimony of Mr. Hardy-Fox.

[89] With respect to Mr. Saboon, the Crown argued that his identity is confirmed by his acknowledgement of an association with Mr. Hui and 9 Trillium as confirmed by Ms. Leduc, the Facebook messages and the testimony of Ms. Leduc about the Facebook messages, the Mario’s Bowl video, his association with the black car, and the testimony of Mr. Hardy-Fox.

[90] The Crown argued the Mr. Hui and Mr. Saboon are both guilty of both offences whether as principals or as parties.

[91] The Crown conceded that the evidence does not establish, beyond a reasonable doubt, a kidnapping of Mr. Chiodo at Mario’s Bowl as the surveillance videos depict Mr. Chiodo following the dark-skinned male, rather than his removal by force, out of Mario’s Bowl and as there is no evidence of threats or other acts vitiating Mr. Chiodo’s consent.

[92] Rather, the Crown argued that kidnapping “crystalizes” with the gun “reveal” and threats in the car enroute to Mission Island and that, from at least that point, Mr. Chiodo was being removed by force against his wishes to another place. Alternatively, the Crown submitted that the evidence establishes that Mr. Chiodo was confined without lawful authority and that either the kidnapping, or the unlawful confinement, was “connected, temporally and causally,” R. v. Pritchard, 2008 SCC 59 at para. 19.

[93] Based on the evidence of Ms. Leduc, the Crown alleged that Mr. Hui and Mr. Saboon had been supplying and selling drugs out of 9 Trillium to her, Mr. Chiodo, and others. Based on the evidence of Ms. Leduc and the timing of the Facebook messages and the Mario’s Bowl and Bulk Zone surveillance videos, the Crown submitted that some of the Facebook messages were sent by Mr. Saboon, posing as Ms. Leduc, to lure Mr. Chiodo to Mario’s Bowl. The Crown noted that Mr. Hardy-Fox’s evidence as to the events he witnessed at Mario’s Bowl was confirmed by the surveillance videos and the testimony of Ms. Shperuk. Therefore, the Crown argued that, although his testimony should be subjected to enhanced scrutiny because of its “frailties”, his evidence has been sufficiently confirmed to be accepted as truthful.

[94] The Crown submitted that the evidence, taken as whole, established that Mr. Hui and Mr. Saboon are guilty of kidnapping and constructive murder as a killing arising, temporally and causally, from the kidnapping or unlawful confinement. The Crown did not argue that this was a planned and deliberate first degree murder.

The Law

General Principles[^14]

[95] The basic tenet of criminal law is that everyone charged with an offence is presumed to be innocent, unless and until the Crown proves his or her guilt beyond a reasonable doubt.

[96] To prove any person’s guilt of the offences charged, the Crown must prove each and every essential element of those offences beyond a reasonable doubt.

[97] The phrase, “beyond a reasonable doubt”, is a very important part of our criminal justice system. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence.

Assessment of Evidence

Statements of the Accuseds

[98] There is evidence from each of the accused by way of the voluntary statements each gave to the police.

[99] As instructed by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742, if I believe the accused’s evidence that he did not commit the offence as charged I must find him not guilty. If, after careful consideration of all the evidence, I am unable to decide whether to believe the evidence of the accused or the evidence in the Crown’s case, I must find the accused not guilty. Even if I do not believe the accused’s evidence, if I am left with a reasonable doubt about his guilt, then I must find him not guilty. Even if the accused’s evidence does not leave me with a reasonable doubt, I may only convict if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

[100] Because there is an out-of-court statement from each accused and this is a joint trial, this evidence has a limited purpose. Anything said by one accused is only evidence concerning the person who said it. I must not consider what one accused said as evidence in relation to the other accused and I must not use what one accused said to assess the reliability of what the other accused or others said.

The Vetrovec Warning

[101] Mr. Hardy-Fox was a Crown witness. Although, like Mr. Hui and Mr. Saboon, Mr. Hardy-Fox was charged with kidnapping and first degree murder, the first degree murder charge against Mr. Hardy-Fox was withdrawn after he testified at the preliminary inquiry implicating Mr. Hui and Mr. Saboon in the murder of Lee Chiodo. Accordingly, there is good reason to look at Mr. Hardy-Fox’s evidence with the greatest care and caution. Although I may rely on his evidence even if not confirmed by other evidence, I caution myself that it is dangerous to do so. It is less dangerous to rely upon his testimony if his testimony is confirmed by other reliable and credible independent evidence.

First Degree Murder

Planned and Deliberate First Degree Murder

[102] To find an accused guilty of first degree murder, the Crown must prove each of these essential elements beyond a reasonable doubt:

a. that an accused caused the death of the deceased; b. that the accused caused the death of the deceased unlawfully; c. that the accused had the state of mind required for murder; and d. that the accused’s murder of the deceased was both planned and deliberate.

[103] A planned murder is one that is committed as a result of a scheme or plan that has been previously formulated or designed, one that has been thought over and considered. A murder committed on a sudden impulse and without prior consideration, even with an intent to kill, is not a planned and is not a deliberate murder.

Constructive First Degree Murder

[104] To find an accused guilty of first degree murder committed during the course of a kidnapping or an unlawful confinement the Crown must prove each of these essential elements beyond a reasonable doubt:

a. that an accused caused the death of the deceased; b. that the accused caused the death of the deceased unlawfully; c. that the accused had the state of mind required for murder; d. that the accused committed or intended to commit kidnapping or unlawful confinement; e. that the kidnapping or unlawful confinement and murder were part of the same series of events; and f. that the accused was an active participant in the killing of the deceased.

Kidnapping and Forcible Confinement

[105] To find an accused guilty of kidnapping, the Crown must prove the following essential elements beyond a reasonable doubt:

a. that the accused kidnapped the complainant, that is unlawfully took the complainant from one place and removed him by force or fraud, against his wishes, to another place, and b. that the accused kidnapped the complainant to cause the person to be confined against the person’s will.

[106] To find an accused is guilty of unlawful confinement, the Crown must prove the following essential elements beyond a reasonable doubt:

a. that the accused confined the complainant; and b. that the confinement was without lawful authority.

Parties

[107] In this case, there is more than one way for the Crown to prove the accuseds guilty of the crimes charged. A person commits an offence if he, alone or along with someone else, personally does everything necessary to constitute the offence. A person also commits an offence if he does anything for the purpose of helping another person commit the offence (aiding). Anyone who actively encourages somebody else to commit an offence is as guilty of the offence as the person who actually commits it (abetting).

Analysis

[108] I begin my analysis by acknowledging that Mr. Hardy-Fox is a Vetrovec witness who, having been charged with first-degree murder, testified that Mr. Chiodo was shot by Mr. Hui, resulting in the withdrawal of the first-degree murder charge against him. The danger of a wrongful conviction is “particularly acute”. But for the testimony of Mr. Hardy-Fox, there is no other direct evidence linking the accuseds to the murder. As counsel reminded me, it is “dangerous to rest a criminal conviction on the testimony of a single witness.” R. v. Khela, 2009 SCC 4 at para. 1.

[109] I acknowledge that the testimony of Mr. Hardy-Fox may have been “tainted” by disclosure and note that he implicated Mr. Hui and Mr. Saboon at the preliminary inquiry in September 2020, almost 18 months after his statement to the police, when disclosure by the Crown of the videos, statements, and reports would have been complete.

[110] I also acknowledge that I may not use the statement of one accused against the other, even to confirm the testimony of Mr. Hardy-Fox.

Identity

Mr. Hui

[111] Mr. Hui admits that he attended at Mario’s Bowl on February 23, 2019, in a car driven by Marshall whom he had met that day. This is confirmed by the testimony of Mr. Hardy-Fox and Ms. Shperuk who saw three, not four, people enter the car parked in front of Mario’s Bowl. The testimony of Ms. Leduc and Mr. Hardy-Fox connects Mr. Hui and Mr. Saboon to the drug trade at 9 Trillium and the black car. When Mr. Saboon was detained near 9 Trillium on March 1, 2019, he was in the company of Mr. Hui. Items associated with Mr. Hui, including a towel with his blood, are found in Mr. Saboon’s vehicle. I am satisfied, beyond a reasonable doubt, that Mr. Hui was involved in the events of February 23, 2019.

Mr. Saboon

[112] Mr. Saboon denied being in Thunder Bay on February 23, 2019, and gave an alibi, which was not investigated by the police, that he was in Kitchener. There was no direct identification of Mr. Saboon, other than the “in dock” identification by Mr. Hardy-Fox at trial. Ms. Leduc did not identify Mr. Saboon at the preliminary inquiry. There was no other identification evidence. The surveillance video from Mario’s Bowl is of insufficient clarity to make a reliable identification. In addition to that surveillance video, I have Mr. Saboon’s video statement and the gas station till video. All that can be said from the videos and the general descriptions given by the Mario’s Bowl witnesses is that Mr. Saboon resembles the man who interacted with Mr. Chiodo at Mario’s Bowl.

[113] Ms. Leduc identified “Tony” as involved in the drug trade with Mr. Hui at 9 Trillium. She identified him as being associated with the black car. Found in the black car was purple fentanyl, the same kind of fentanyl being sold at 9 Trillium. She testified about using Tony’s phone to access her Facebook messenger account and that Tony retrieved his phone from her. The Facebook messages commencing at 11:09:46 with “I’m here at front entrance” and continuing at 11:12:58 with “okay I’m already here” are consistent with the author of those messages being present at and luring Mr. Chiodo to Mario’s Bowl. The videos depict Mr. Chiodo running into Mario’s Bowl and then, about 30 seconds later, a male resembling Mr. Saboon entering Mario’s Bowl. The testimony of Mr. Hardy-Fox identifies Mr. Saboon as associated with Mr. Hui and the drug trade at 9 Trillium and the black car. The testimony of Mr. Hardy-Fox is consistent with Facebook messages establishing contact with Mr. Chiodo and with what is depicted on the entrance surveillance camera at Mario’s Bowl showing Mr. Chiodo “bolting” inside, the Bulk Zone video, and the testimony of Ms. Shperuk of what she observed outside Mario’s Bowl.

[114] I do not accept Mr. Saboon’s statement that he was in Kitchener on February 23, 2019. I accept the evidence of Ms. Leduc and Mr. Hardy-Fox, for reasons outlined below, that Mr. Saboon was present in Thunder Bay and, based on the Facebook messages, the surveillance videos, and the testimony of Mr. Hardy Fox, I am satisfied, beyond a reasonable doubt, that Mr. Saboon was involved in the events of February 23, 2019, in Thunder Bay.

Assessment of the Testimony of Mr. Hardy-Fox

[115] Counsel for both accused warned that Mr. Hardy-Fox’s testimony was “tainted” by access to disclosure. I accept that possibility as a legitimate concern and a reason explaining why Mr. Hardy-Fox’s testimony is consistent with other independent evidence.

[116] However, the cross-examination was limited to a single acknowledgement that Mr. Hardy-Fox was aware of the disclosure in this case. Having observed his testimony and being conscious of the possibility of “tainting,” I am satisfied that Mr. Hardy-Fox gave his testimony based on his recollections and not based on re-created recollections constructed from disclosure. My impression is that Mr. Hardy-Fox is not particularly sophisticated. His testimony did not appear contrived, but rather based on his honest recollections of an extremely traumatic event.

[117] I acknowledge that there were some inconsistencies relating to the degree of his intoxication and whether he had consumed “Molly”, but I do not view those inconsistencies as indicators that he is not being a truthful witness. I acknowledge that he did not tell the truth to the police when interviewed and accept his explanation that he did not know what to do and say at that time. His attempt to explain the inconsistencies between his testimony and his statement by saying he was intoxicated is a lie but, in my assessment, does not detract from his overall credibility. As I observed his cross-examination, Mr. Hardy Fox was searching for explanations as to why he did not tell the truth to the police when first interviewed.

[118] As to not leaving the dead-end or 9 Trillium, I accept Mr. Hardy-Fox’s explanation that he was fearful for his safety and the safety others.

[119] Having identified these concerns, I find that Mr. Hardy Fox’s evidence was confirmed by other independent evidence including:

• the testimony of Ms. Leduc as to Mr. Hui’s and Mr. Saboon’s involvement in the drug trade at 9 Trillium and the black car
• the surveillance video showing Mr. Chiodo running into Mario’s Bowl
• the surveillance video showing someone running to the rear of Mario’s Bowl
• the surveillance video showing a person I accept as having been Mr. Saboon entering and then exiting Mario’s Bowl followed by Mr. Chiodo
• the testimony of Ms. Shperuk as to the observations of Mr. Hardy-Fox, Mr. Saboon and Mr. Chiodo in the Mario’s Bowl parking lot and her observations of Mr. Hardy-Fox operating the vehicle
• the OPG surveillance video depicting a vehicle arriving at and then leaving the “dead end” about 17 minutes after Mr. Chiodo is shown leaving Mario’s Bowl
• the use of a pistol as confirmed by the firearms expert
• the presence of a fired bullet found directly beneath Mr. Chiodo’s head indicating he was lying down when killed

[120] I acknowledge that an accomplice or an active participant in the events of this evening would have this knowledge and could, in denying their involvement, implicate another. However, based on the totality of the evidence, I find that the confirmatory evidence is capable of satisfying me, and does satisfy me, that Mr. Hardy-Fox, “despite his frailties or shortcomings,” was truthful. I also note that, although the police suggested aggressively that Mr. Saboon was the ‘shooter’, Mr. Hardy-Fox identified Mr. Hui, and not Mr. Saboon, as the person who shot Mr. Chiodo.

[121] I accept Mr. Hui’s statement that he was at Mario’s Bowl with Mr. Saboon and Mr. Hardy-Fox on February 23, 2019, and that he did not see Mr. Saboon kill Mr. Chiodo. Other than that, I do not accept his evidence as to what happened after they left Mario’s Bowl.

[122] I do not accept Mr. Saboon’s statement that he was not in Thunder Bay on February 23, 2019.

[123] This is not a case of being unable to decide whom to believe. I accept the testimony of Mr. Hardy-Fox.

[124] I am not left with a reasonable doubt as to the following facts which I accept as true based on the totality of the evidence:

• Lee Chiodo owed money to Mr. Saboon and Mr. Hui
• Mr. Saboon posed as Ms. Leduc on Facebook messenger and sent the messages between 11:09:48 and 11:15:56 luring Mr. Chiodo to Mario’s Bowl
• Mr. Chiodo entered the car driven by Mr. Hardy-Fox accompanied by Mr. Saboon and then Mr. Hui
• Enroute to Mission Island Mr. Saboon threatened Mr. Chiodo and produced a pistol
• Mr. Chiodo was taken against his will to the dead-end on Mission Island
• Mr. Chiodo was removed from the car by Mr. Saboon and Mr. Hui
• Mr. Saboon and Mr. Hui discussed what to do and Mr. Hui said: “I’ll do it”.
• Mr. Hui obtained the pistol and shot Mr. Chiodo from behind in the back of the head while Mr. Chiodo was lying face down

Kidnapping or Unlawful Confinement and Constructive Murder

[125] I accept the submission of the Crown that the kidnapping “crystalized” with the gun “reveal” and the threats to Mr. Chiodo in the car enroute to Mission Island. If I am incorrect with respect to that conclusion, I accept the alternate submission that an unlawful confinement has been made out.

[126] I am satisfied, beyond a reasonable doubt, that the kidnapping, or the unlawful confinement, was “connected, temporally and causally” to the killing.

[127] I am satisfied, beyond a reasonable doubt, that Mr. Saboon was the principal in the kidnapping or unlawful confinement and that Mr. Hui was a party as an aider. I am also satisfied, beyond a reasonable doubt, that Mr. Hui was the principal in the deliberate killing of Mr. Chiodo, and that Mr. Saboon aided and abetted in that killing. Accordingly, I find both guilty of kidnapping and constructive first degree murder.

Planned and Deliberate First Degree Murder

[128] Although not advanced by the Crown, I am also satisfied, beyond a reasonable doubt, that the evidence discloses that this was a planned and deliberate murder. Although the “plan” may have begun as collecting a debt and then morphed into detaining and abandoning Mr. Chiodo on Mission Island, by the time the pistol was produced and the threats were made, the plan had evolved again.

[129] I accept Mr. Hardy-Fox’s evidence that Mr. Saboon and Mr. Hui “were discussing what to do. And then that’s when Hui said, I’ll do it.”

[130] This discussion considers the act and the consequences for what follows and involves the obtaining of the pistol and the murder of Mr. Chiodo. This is not a killing on a sudden impulse and without prior consideration. The act was considered, Mr. Hui volunteered to do that act, acquired the pistol, and shot Mr. Chiodo who was lying face down in the snow. Accordingly, Mr. Hui is guilty of first degree murder as principal and Mr. Saboon is guilty as an aider, bringing and giving possession of the pistol to Mr. Hui, and as an abettor in actively encouraging Mr. Hui through their discussions culminating in deciding who would kill Mr. Chiodo.

[131] Accordingly, I find Mr. Hui and Mr. Saboon guilty of the planned and deliberate first degree murder of Mr. Chiodo.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: April 22, 2022

[^1]: Based on the scale of the Google Maps filed as exhibits. [^2]: It is not known whether the video cameras at Mario’s Bowl and the Bulk Zone were set to the same times. [^3]: Charges under the CDSA against Hui and Saboon were stayed on July 5, 2021. [^4]: No evidence was led as to the disposition of the kidnapping charge. [^5]: R. v. Khela, 2009 SCC 4 at para. 1. [^6]: R. v. Khela, 2009 SCC 4 at para. 2. [^7]: See for example: R. v. Buric, (1996), 28 O.R. (3d) 737(C.A.). [^8]:, 139 O. A. C. 129. [^9]: 2018 ONCA 651. [^10]: 2002 SCC 39. [^11]: 2004 SCC 11. [^12]: 2004 SCC 11 at para. 16. [^13]: R. v. Pritchard, 2008 SCC 59 at para. 19. [^14]: What follows has been excerpted and adapted where appropriate from D. Watt, Watt’s Manual of Criminal jury Instructions, 2nd ed. (Toronto: Carswell, 2015). [^15]:, [1991] 1 S.C.R. 742. [^16]: R. v. Khela, 2009 SCC 4 at para. 1.