Court File and Parties
COURT FILE NO.: CR-20-15579 DATE: 2023/05/05 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – MICHAEL BUCKLEY Defendant – and – DWAYNE YOUNG Defendant
COUNSEL: John Semenoff and Anthony Does, for the Crown James Foord, for the Defendant Michael Buckley Nadir Sachak and Peter Kott, for the Defendant Dwayne Young
HEARD: January 9,10,11,12,13,19,20, 2023
REASONS FOR JUDGMENT
JUSTICE MARC R. LABROSSE
1Michael Buckley and Dwayne Young are charged with first degree murder in the death of Jonathan Wite. At the arraignment, the accused both entered a plea of not guilty to the offence charged but guilty of manslaughter. The Crown did not accept the pleas.
2Mr. Buckley and Mr. Young stood trial over seven days. In the context of a first degree murder trial, suffice to say that the trial ran efficiently largely because of an Agreed Statement of Facts containing 55 paragraphs of admissions pursuant to s. 655 of the Criminal Code, R.S.C., 1985, c. C-46.
3The issues in this trial are if Mr. Buckley or Mr. Young are guilty of first degree murder, second degree murder or manslaughter. As previously stated, manslaughter is admitted.
4At a high level, the factual background is not complicated.
5On the morning of August 20, 2020, Mr. Young left Ottawa and drove to Toronto. In Toronto, he picked up Mr. Buckley, Mr. Buckley’s partner, Ms. Williams, and their infant child. The four individuals arrived back in Ottawa at about 11:30 p.m.
6Mr. Young, Mr. Buckley and Ms. Williams entered the apartment complex at 2881 Richmond Road and proceeded two unit 211. From there it is alleged that Ms. Williams knocked on the unit door and asked to see “Jon”. The door was opened from the inside of the apartment and both Mr. Buckley and Mr. Young entered the unit. One of Mr. Buckley and Mr. Young put his hand over the mouth of Mr. Wite’s girlfriend, Shadara Flint, and the other proceeded into the apartment and eventually into the victim's bedroom where a struggle took place. Three shots were fired and two of them hit the victim in the chest and caused his death.
7Mr. Buckley, Mr. Young and Ms. Williams fled the apartment complex and drove back to Toronto. They returned to Toronto at approximately 4:00 a.m. Mr. Young then drove back to Ottawa and arrived later that morning at approximately 9:00 a.m.
8To a great extent, these are the facts that the court can rely upon. Some additional details are available as a result of video surveillance and telephone information. However, the facts described above paint the picture that the court must rely upon in order to arrive at its decision.
9There is no evidence of animus between the accused persons and the victim. There is no evidence that they even knew each other. No motive clearly emerges from the facts before the court. Ms. Williams, the one witness who was present throughout most of these events, has no credibility and is almost completely unreliable. As is their right, neither Mr. Buckley nor Mr. Young testified at the trial. In the result the court must determine if the Crown has established beyond a reasonable doubt first degree murder, second degree murder or manslaughter, which is admitted.
EVIDENCE
10The Court provides the following summary of relevant facts, relying largely on the Agreed Statement of Facts.
11At approximately 6:54 p.m. on August 20, 2020, a silver BMW driven by Mr. Young with Mr. Buckley, Ms. Williams and their infant child in the rear seats left the apartment complex at 311 Dixon Rd. in the city of Toronto.
12The silver BMW was involved in two traffic stops: one near Tyendinaga, west of Kingston, and the other near Mallorytown, east of Kingston.
13The silver BMW arrived in Ottawa at 2881 Richmond Rd. at approximately 11:36 p.m. on August 20, 2020. The BMW was parked on the north side of Grenon Ave., walking distance to the apartment complex at 2881 Richmond Rd. where the victim resided. Mr. Young proceeded to retrieve a telescoping ladder from the trunk of the BMW and both accused walked to the rear of 2881 Richmond Rd. They returned approximately 14 minutes later and placed the ladder back in the trunk of the BMW.
14At approximately 11:55 p.m., all three individuals walked to the apartment complex at 2881 Richmond Rd. Ms. Williams entered the lobby with her baby in her arms and convinced a resident to let her in through the secure door on the pretense that she was waiting for her cousin to come down and meet her. It was admitted that while waiting in the apartment complex lobby, Ms. Williams had two telephone conversations with Mr. Buckley. The first phone call was made from the vestibule and lasted 75 seconds. The second phone call was made from the secure area of the lobby and lasted seven seconds.
15At 12:05 a.m. on August 21, 2020, Ms. William allowed Mr. Buckley and Mr. Young into the secure lobby of the building. Mr. Young is captured on video surveillance wearing a camouflage long sleeve jacket, a dark mask, a green baseball cap and blue gloves. Mr. Buckley is captured on video surveillance wearing a black short sleeve shirt with a black hoodie and a brown bandana-type mask. Mr. Buckley was not wearing any gloves.
16Ms. Williams testified that the three individuals and the infant child took the elevator up to the second floor of the apartment complex. After leaving the elevator, they attended at the door of unit 211. Ms. Williams was directed by Mr. Young to knock on the door and to ask to speak to “Jon”. When they arrived at the door to unit 211, Ms. Williams was in front of the door, Mr. Young was to her left and Mr. Buckley was to her right. To their right, a stairwell was located further down the hall.
17Ms. Williams testified that she knocked on the door to unit 211 and asked for “Jon”. According to Ms. Williams, when a woman opened the door slightly, Mr. Young pushed on the door with two hands and moved into the unit. At that point Ms. Williams claimed to have fled down the stairs.
18Shadara Flint, Mr. Wite’s girlfriend, testified that on August 20, 2020, she was in unit 211 with Mr. Wite and her sister, Coreisha Flint. Coreisha Flint resided with both Shadara Flint and Mr. Wite. Coreisha Flint had her own room, and Mr. Wite and Shadara shared the other room. On the night of the offence, Coreisha Flint had been sleeping in her room since approximately 11:30 p.m.
19Shadara testified that shortly after midnight there was a knock at the door. At that time, both she and Mr. Wite were getting ready for bed. Mr. Wite was wearing boxer shorts with no shirt.
20Shadara went to the door and looked through the peephole. She saw a person wearing a black hoodie and a mask which had a white design on it. She thought it was possibly one of Mr. Wite’s friends. Shadara opened the door to see who it was and immediately someone pushed on the door and pinned her against the wall. The person who pushed on the door, and was the first person in the apartment, covered Shadara’s mouth with his hands. This person was not wearing gloves. A second male entered the apartment, briefly looked in the living room and then turned down the hall and entered Mr. Wite’s bedroom. Shadara heard a struggle in Mr. Wite’s room, which lasted approximately five seconds. After the struggle, Shadara heard between two to four gunshots. She saw Mr. Wite follow the shooter into the hall and seemingly push the shooter out towards the unit door. Shadara testified that her sister came out of her room screaming and this seemed to startle the two males, who promptly fled the apartment unit. Upon seeing that Mr. Wite was seriously injured, Shadara called 911 for help.
21Coreisha Flint testified that at the time of the break-in she had been sleeping. She was awoken by the sound of her sister screaming and a banging sound. She came out of her room and saw her sister standing in the hallway. The hallway light was on, and Shadara was in the process of closing the door. Mr. Wite was standing in the hall.
22Video surveillance shows Ms. Williams with her infant in her arms exiting the east stairwell of 2881 Richmond Rd. at 00:08:22 a.m. on August 21, 2020. Nine seconds later, Mr. Young exits from the same east stairwell door and six seconds after Mr. Young, Mr. Buckley exits from the east stairwell door.
23Ms. Williams testified that upon returning to the BMW, Mr. Young promptly blurted out the following words: “this wasn't supposed to happen; he wasn't supposed to be there”. She claimed that Mr. Young said this more than once during the drive back to Toronto. However, in the vehicle nobody spoke of the events that transpired in Ottawa.
24The BMW returned to 311 Dixon Rd. in Toronto at 4:13:26 a.m. on August 21, 2020.
25Ms. Williams then claims to have spent the next seven days in the Dixon Rd. apartment with Mr. Buckley. During this time, she claims that he refused to answer her questions about what happened in Ottawa.
26A post-mortem examination was performed by an expert in forensic pathology. This expert concluded that the cause of death was two gunshot wounds to the chest. There was no dispute that both bullets removed from the deceased’s body were fired from the same firearm and the third cartridge case found in the apartment stairwell was also fired from that same firearm. The firearm was never recovered.
27Mr. Young attended before the Ottawa Police Service to provide a statement following his arrest. He asserted his right to remain silent and denied any involvement in the death of Mr. Wite. The officer conducting the interview showed photographs of Mr. Young during the trip from Toronto to Ottawa. Mr. Young was also shown photographs of him and Mr. Buckley in the lobby of 2881 Richmond Rd. Mr. Young agreed that the gray BMW was a vehicle owned by his girlfriend but he denied that he was the driver of that vehicle on the night of the offence. He denied knowing anything about what happened that night involving Mr. Wite.
LEGAL PRINCIPLES
28The legal principles governing culpable homicide were recently summarized by Di Luca J. in R. v. Strong, 2021 ONSC 1906.
(i) Culpable Homicide
29A homicide is committed when a person, directly or indirectly, causes the death of another person. A homicide can be culpable or not culpable. A culpable homicide is one that is caused by means of an unlawful act: see Criminal Code, s. 222(5)(a). Culpable homicide includes murder and manslaughter.
(ii) Planned and Deliberate First Degree Murder and Second Degree Murder
30As per s. 231 of the Code, murder is first degree murder or second degree murder.
31A culpable homicide is murder under section 229 (a) of the Criminal Code if the accused causes the death of another person and either:
i. means or intends to cause their death, or
ii. means or intends to cause them bodily harm that they know is likely to result in death and are reckless as to whether death ensues or not.
32Proof of causation requires a factual and legal link between the conduct of the accused and the death of the victim: see Strong, at para. 124. The Crown must prove that the unlawful acts of the accused were a significant contributing cause of death. The accused’s unlawful acts do not need to be the only cause or even the most significant cause: see R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at paras. 1, 20; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at paras. 184-189, leave to appeal refused, [2016] S.C.C.A. No. 513.
33In R. v. Martineau, [1990] 2 S.C.R. 633, Lamer C.J.C. said the following about the knowledge element for murder, at p. 646:
In sum then, I am of the view that a special mental element with respect to death is necessary before a culpable homicide can be treated as murder. That special mental element gives rise to the moral blameworthiness that justifies the stigma and punishment attaching to a murder conviction. For all the foregoing reasons, and for the reasons stated in Vaillancourt, I conclude that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. That was my position when Vaillancourt was decided, and that is my position today.
34In R. v. Cooper, [1993] 1 S.C.R. 146, the SCC made the following statements in respect of the knowledge element for murder where an accused person is reckless, at p. 155-156:
The same words can apply to s. 212(a)(ii) with this important addition: it is not sufficient that the accused foresee simply a danger of death, the accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning the victim. It is for this reason that it was said in Nygaard that there is only a "slight relaxation" in the mens rea required for a conviction for murder under s. 212(a)(ii) as compared to s. 212(a)(i). … The intent that must be demonstrated in order to convict under s. 212(a)(ii) has two aspects. There must be (a) subjective intent to cause bodily harm; (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death. It is only when those two elements of intent are established that a conviction can properly follow. [Emphasis in original.]
35In R. v. Roks, 2011 ONCA 526, 87 C.R. (6th) 144, the Ontario Court of Appeal described the knowledge element for unlawful object murder as follows, at paras. 132, 134:
The knowledge or foresight to which s. 229(c) refers is the actual or subjective knowledge of the person charged, not the objective or constructive knowledge of a reasonable person in the same circumstances: Shand, at para. 188. An assessment of the actual knowledge of an accused is an intensely fact-specific inquiry that requires and involves a careful analysis of all the circumstances in which the dangerous act occurred. The inquiry focuses on the accused's knowledge contemporaneous with the dangerous act. Where the dangerous act consists of a series of acts, the knowledge must be concurrent at some point with an act in the series: Shand, at para. 153; Cooper, at p. 158; R. v. Nygaard, [1989] 2 S.C.R. 1074, at pp. 1088- 1089.
The extent of the risk of death occurring as a consequence of the dangerous act is defined by the term "likely". The accused must know that the death of a human being is a likely consequence of the dangerous act. The term "likely" refers to the probability of a consequence. Proof that an accused was aware of the risk, possibility, danger or chance of death as a consequence of a dangerous act is inadequate to establish the mental or fault element in s. 229 (c): Shand, at paras. 153 and 209; Cooper, at p. 155.
36Vague realization that death is possible is insufficient. Similarly, if the dangerous act was done as a reaction, and out of panic, this may tend to show that the required subjective foresight of death was not present at the time that the act was committed: see R. v. Shand, 2011 ONCA 5, 104 O.R. (3d) 491, at para. 152.
37Murder is first degree murder when it is planned and deliberate. To prove first degree murder pursuant to s. 231(2), the Crown must prove beyond a reasonable doubt that:
a. The accused unlawfully caused the death of the victim;
b. The accused had the state of mind required for murder;
c. The accused’s murder of the victim was both planned and deliberate.
38A 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": R. v. Nygaard, [1989] 2 S.C.R. 1074, at p. 1084; R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 34.
(iii) Manslaughter
39A culpable homicide is manslaughter if the Crown proves beyond a reasonable doubt that the accused intentionally committed an unlawful act that caused someone’s death and did so with the objective foreseeability of bodily harm that is neither trivial nor transitory: see R. v. Creighton, [1993] 3 S.C.R. 3; R. v. DeSousa, [1992] 2 S.C.R. 944. The Crown must prove that a reasonable person, in the same circumstances as the accused, would realize that the unlawful act would likely put another person at risk of bodily harm. The objective foreseeability of death is not an element of manslaughter: Strong, at para. 122.
(iv) Constructive First Degree Murder
40Second degree murder becomes first degree murder if it is committed during the commission, or attempted commission, of an offence listed in s. 231(5) of the Criminal Code: see R. v. Harbottle, [1993] 3 S.C.R. 306. Section 231(5) includes, inter alia, the predicate offence unlawful confinement. Unlawful confinement involves a form of domination. Murder committed in connection with a crime of domination is elevated to first degree murder to reflect Parliament’s belief that such an offence is “particularly blameworthy and deserving of more severe punishment”: R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 61; R. v. Pritchard, 2008 SCC 59, at para. 19.
41To prove first degree murder using s. 231(5) of the Criminal Code, the Crown must prove that the murder occurred in close temporal and causal connection to the commission, or attempted commission, of the predicate offence. The key issue is whether the predicate offence and the murder are a continuous sequence of events that form a “single transaction” or “continuous transaction”: Pritchard, at paras. 19-20, 33-35; R. v. Paré, [1987] 2 S.C.R. 618, at pp. 631-633.
(v) The Predicate Offence of Unlawful Confinement
42Where the predicate offence is unlawful confinement, the Crown must prove that the accused confined the complainant and that the confinement was unlawful. A confinement arises where a person’s movements are coercively restrained or directed for some period of time: see Pritchard, at para. 24. The unlawful confinement does not need to be complete or prolonged. However, it must be distinct and independent from the act of killing. If the act of unlawful confinement causes the death, the distinct commission of a predicate offence upon which the enhanced moral responsibility of first degree murder rests will be absent: see Pritchard, at para. 27; R. v. Kimberley (2001), 157 C.C.C. (3d) 129 (Ont. C.A.), at para. 108.
43To prove a constructive first degree murder pursuant to s. 231(5)(e), the Crown must prove beyond a reasonable doubt:
a. That accused caused the death of the victim unlawfully;
b. That the accused had the intent for murder;
c. That the accused committed the offence of forcible confinement or the attempt thereof;
d. That the forcible confinement (or the attempt to commit forcible confinement) and the murder were part of the same series of events; and
e. That the accused was an active participant in the killing of the deceased.
(vi) Party Liability for Second Degree Murder and Manslaughter
44Section 21 of the Criminal Code states as follows:
21 (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
45Under s. 21(1), a person can be guilty as a co-participant to a murder. Under s. 21(2) a person forming a common intention to carry out an unlawful act with another person, may be guilty of murder or manslaughter based on the actions of the other party.
46In R. v. Kirkness, [1990] 3 S.C.R. 74, at p. 88, the SCC considered the knowledge requirement that the Crown must prove to find a person guilty of murder pursuant to s. 21 of the Code:
Kirkness could only be implicated, pursuant to the provisions of s. 21 of the Code, as a party to the sexual assault. He was not the prime mover in the crime. He neither sexually assaulted, strangled nor suffocated the victim. In the case of an accused who aids or abets in the killing of another, the requisite intent that the aider or abettor must have in order to warrant a conviction for murder must be the same as that required of the person who actually does the killing. That is to say, the person aiding or abetting the crime must intend that death ensue or intend that he or the perpetrator cause bodily harm of a kind likely to result in death and be reckless whether death ensues or not. If the intent of the aiding party is insufficient to support a conviction for murder, then that party might still be convicted of manslaughter if the unlawful act which was aided or abetted is one he or she knows is likely to cause some harm short of death. Neither intent was demonstrated by the appellant in the present case.
47In R. v. Jackson, [1993] 4 S.C.R. 573, at p. 587, the SCC elaborated on the knowledge requirement that must be proven to be found guilty of murder or manslaughter under s. 21(2):
On the evidence presented, one of the scenarios available to the jury was that Jackson and Davy had formed a common intention to rob Rae and that, in the course of the robbery, Jackson murdered Rae. Even if he did not participate in the murder, Davy could be liable under s. 21(2) in this scenario. If he foresaw that murder was a probable consequence of carrying out the common purpose -- in this case the robbery -- he would be guilty of second degree murder. On the other hand, if Davy did not foresee the probability of murder but a reasonable person in all the circumstances would have foreseen at least a risk of harm to another as a result of carrying out the common intention, Davy could be found guilty of manslaughter under s. 21(2).
48While it is not possible to convict for murder under s. 21(2) without proof of subjective awareness of the risk of death, the appropriate mens rea for manslaughter under s. 21(2) is the objective awareness of the risk of harm. It must follow that a conviction for manslaughter under s. 21(2) does not require foreseeability of death, but only foreseeability of harm, which in fact results in death: see Jackson, at pp. 586-587.
(vii) The Assessment of Evidence
49The Crown must prove each essential element of an offence beyond a reasonable doubt. Each individual fact underlying an essential element need not be proven beyond a reasonable doubt unless the Crown’s burden is carried by a single fact: see R. v. Pham, 2019 ONCA 338, 377 C.C.C. (3d) 64, at para. 22. Individual facts are proven on a balance of probabilities. The individual facts are then assessed cumulatively and in context with the evidence as a whole to determine whether the Crown has proven its case beyond a reasonable doubt: see R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 82.
(viii) Reasonable Doubt
50A reasonable doubt can arise from the evidence or from the absence of evidence. A reasonable doubt does not need to be based only on evidence that is accepted by the trier of fact: see R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 36; R. v. Darnley, 2020 ONCA 179, 387 C.C.C. (3d) 200, at paras. 31-35. All of the evidence must be considered in assessing whether a reasonable doubt remains at the end of the case: see R. v. Miller (1991), 68 C.C.C. (3d) 517 (Ont. C.A.).
(ix) Circumstantial Evidence
51If the evidence in a case is circumstantial, the Crown must prove that the accused’s guilt is the only reasonable inference available on the evidence: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. The consideration of circumstantial evidence requires the drawing of reasonable inferences based on logic, experience and common sense. Speculation and conjecture are impermissible. The line between speculation and reasonable inference may at times be difficult to draw. However, the ease of drawing the inference is not the standard. The standard is whether the inference is based in logic and reason.
52If, after all the evidence is considered, a reasonable inference inconsistent with guilt on any essential element of the offence exists, the accused is entitled to an acquittal or a conviction on a lesser and included offence. An inference inconsistent with guilt must be reasonable, not simply possible. The Crown is not required to negate every possible inference conceivable. However, an inference inconsistent with guilt does not need to arise from “proven facts”: see Villaroman, at para. 35; R. v. Robert (2000), 143 C.C.C. (3d) 330 (Ont. C.A.), at para. 17. It can arise as a matter of logic and experience based on a consideration of all the evidence and the absence of evidence.
(x) Evidence Favouring the Accused
53Neither Mr. Young nor Mr. Buckley, as is their absolute right, testified.
54However, Mr. Young gave a statement to police which was introduced into evidence by the Crown. This is not a classic credibility case where the statements are on the whole exculpatory or advance an affirmative defence. The statement to the police has essentially been overridden by the admissions about Mr. Young’s involvement and the plea to manslaughter. The initial utterances are mainly inculpatory. The police statement contains both inculpatory and exculpatory portions. They also contain repeated exercises of the right to silence, which have no evidentiary value: see R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519; R. v. Kiss, 2018 ONCA 184, at para. 37.
55As for Mr. Buckley, the evidence of Ms. Williams includes various statements that are exculpatory for Mr. Buckley and minimize his involvement in Mr. Wite’s death.
56In accordance with R. v. W. (D.), [1991] 1 S.C.R. 742, I need not accept the exculpatory portions of Mr. Young’s statements or Ms. Williams’ evidence in order to rely on them. There is an alternative between complete acceptance and complete rejection of a defendant’s evidence: see R. v. J.E., 2012 ONSC 3373, 93 C.R. (6th) 387, at paras. 18-20; R. v. J.M., 2018 ONSC 344, at paras. 9-20. Even if I do not accept the exculpatory portions of Mr. Young’s statements and Ms. Williams’ evidence, I may be left with a reasonable doubt on an element of the offence or on the offence as a whole based on the exculpatory portions that I am unable to reject. Even if I completely reject the exculpatory portions, I must nonetheless consider whether the balance of the evidence that I accept satisfies me beyond a reasonable doubt that Mr. Young and Mr. Buckley committed the offences charged.
57Lastly, in assessing the inferences that can be drawn from the circumstantial evidence, I must consider not only the portions of defence evidence that I accept, but also those portions that I do not entirely reject either. Again, an assessment of the available competing inferences does not need to be based on ‘accepted facts’.
58In assessing defence statements and utterances, I must also guard against using a rejection of the evidence as positive evidence of guilt. Rejected evidence is simply rejected evidence; it proves nothing.
59Beginning with Mr. Young’s statement to the police, it is rejected in its entirety. No attempt was made by the defence to salvage any portion of it. It has effectively been overridden by the admissions which detail Mr. Young’s involvement. The statement to the police has no evidentiary value except as suggested by the Crown as some evidence of post-offence conduct.
60As for the portions of Ms. Williams’ evidence which are exculpatory for either accused, I have to deal with most of those in the analysis of her evidence as a whole. Suffice to say that those statements do not leave me with a reasonable doubt in the context of the first two steps of the W.D. analysis. It remains as part of the analysis to determine if the Crown has established the offences of first degree or second degree murder beyond a reasonable doubt.
ANALYSIS
Evidence of Tenisha Williams
61Ms. Williams was in a relationship with Mr. Buckley at the time of the events leading to Mr. Wite’s death. She accompanied both Mr. Young and Mr. Buckley to Ottawa and played a role in these events. She was responsible for gaining access to the secure lobby at 2881 Richmond Rd. in the event that access could not be gained from the balcony. It is not possible to conclude exactly at what point Ms. Williams’ role crystallized; however, I am of the view that she was definitely there for a reason.
62When considering her evidence as a whole, Ms. Williams lacked credibility on many fronts regarding her description of the events and how they unfolded. A significant difference emerged in the way she answered questions and recalled incidents when she was in cross-examination with counsel for Mr. Buckley as opposed to her evidence in chief and her cross-examination by counsel for Mr. Young.
63In cross-examination by Mr. Buckley’s counsel:
a. She acknowledged that there were possibly some things that Mr. Buckley mentioned to her that she does not remember;
b. She acknowledged that it was possible that Mr. Buckley mentioned that she and he were going to Mr. Young's daughter's birthday party before August 20, 2020;
c. She agreed that at some point in the car, she discussed Mr. Young's daughter and her upcoming birthday party with Mr. Young and Mr. Buckley.
d. She agreed that at some point a discussion began about going to Ottawa and “getting weed” in Ottawa;
e. She agreed that prior to arriving at the Richmond Rd. apartment complex, that Mr. Young pointed her in the direction that she should go and told her to let them know when she got in.
64In her examination-in-chief, Ms. Williams provided the following evidence on the above topics:
a. Prior to leaving for Ottawa, she did not ask Mr. Buckley where they were going and he did not say where they were going;
b. When leaving Toronto for Ottawa, she definitively stated that she did not know where she was going;
c. She denied that there was any discussion about what was going to happen during the drive;
d. It was only once they had arrived in Ottawa and that Mr. Buckley was leaving the car to go to the apartment that he stated that he was going to get weed;
e. She believed that Mr. Buckley was in Ottawa for a birthday party. She was not sure if she found that out before leaving the house or in the car;
f. She denied that there was any discussion about what would happen at the apartment and initially, she made no reference to Mr. Buckley’s desire to get weed;
g. She did not know where Mr. Young and Mr. Buckley were when she entered the lobby of the building, and she did not understand what was taking them so long;
h. At the point that Mr. Young pushed open the door to the unit, there had been no discussion about what would happen at the apartment;
65In her evidence during cross-examination with counsel for Mr. Young, Ms. Williams stated the following on some of these topics:
a. She maintained that everything in her police statement was accurate and that she had had an opportunity to review it. Later, she stated that she did not review all of it;
b. Prior to leaving for Ottawa, Ms. Williams could not remember if Mr. Buckley said where they were going;
c. There was no suggestion that they would be coming back the next day and she did not pack an overnight bag. She had the normal things that she would bring for her baby, but she was not sure if she had the baby’s kidney medication;
d. When confronted with the need to give the baby her medication at 8:00 p.m. every day, she said that there was no discussion about being back for 8:00 p.m. and proposed that she may have given the medication earlier that day;
e. When specifically asked if the word ‘Ottawa’ came up prior to leaving, she said she did not remember; possibly it did, possibly it did not;
f. She suggested that even Mr. Buckley did not know where they were going. She was unsure if Mr. Buckley asked Mr. Young where they were going during the drive to Ottawa;
g. She was unsure if there was a conversation about going to Ottawa in the car. At times she relied on the fact that she was sleeping in the car;
h. When she woke up when the car was parked, she did not know that she was in Ottawa. She did not know what city they were in;
i. Mr. Young told her to call them when she got into the secure lobby. In her statement to the police, she said that “they” told her to call. At trial she tried to explain that she really meant that Mr. Young told her to call;
j. She intimated that when she was in the building, Mr. Buckley called her, and she was concerned about where they were. She denied that there was any plan that she would call them once she got into the building.
66Ms. Williams’ evidence on these topics contains significant issues of credibility and reliability. She made efforts to identify Mr. Young as the driving force behind these events and to distance Mr. Buckley from any knowledge of what was transpiring. Her suggestion that even Mr. Buckley had no foreknowledge of going to Ottawa and that he found out in the car is not credible.
67Ms. Williams testimony from her police statement to the preliminary inquiry and then to trial was inconsistent. The inconsistencies in her evidence were noted on the following issues:
a. She did not mention in her police statement that Mr. Buckley had a headache and that this was why he would have been acting strangely;
b. She did not tell police that there was a discussion about Mr. Young and Mr. Buckley wanting to get weed when they arrived in Ottawa and that that was the first thing they wanted to do;
c. In her police statement she stated that “they” told her to call when she got into the secure portion of the lobby. She tried to justify that she uses the word ‘they’ frequently but that she would have meant Mr. Young but her evidence on this point lacked credibility;
d. She did not indicate in her police statement that it was Mr. Young who directed her to the building;
e. Initially, she denied thinking that they were going to unit number 211 for weed. However, when the transcript of the preliminary inquiry was put to her, she agreed that while walking down the hall she was sensing that they were there to steal weed.
f. She suggested that Mr. Buckley came out of the apartment building first in her police statement. At the preliminary hearing she agreed that Mr. Young comes out before Mr. Buckley after viewing the video. At trial she then said she could not remember who came out first.
68Having considered how Ms. Williams testified at trial, the inconsistencies in her evidence and her clear attempts to point to Mr. Young as the driving force, even when it is inconsistent with her previous statements, the court must treat the remainder of Ms. Williams’ evidence with significant concern.
69Despite Ms. Williams’ denial of a plan, her evidence is rejected on this point. Once it was clear that unit 221 could not be accessed via the balcony, Ms. Williams’ role took effect. Therefore, her evidence about only going to the apartment to use the washroom is rejected. The evidence establishes that as of 11:50 p.m. on August 20, 2020, Ms. Williams was responsible for entering the lobby at the apartment complex with her baby being used as a prop to gain access to the secured area of the lobby. While Ms. Williams denied at trial that she was directed by both Mr. Young and Mr. Buckley to gain access to the secured area, that evidence is rejected in favour of her previous statement whereby “they” told her to gain access to the secured area of the lobby. Her attempt to distance herself from her own use of the word “they” to confirm who instructed her was not credible.
70Furthermore, the suggestion by Ms. Williams that her presence alone in the lobby was not part of the plan and that she only called Mr. Buckley to find out where he and Mr. Young were is preposterous. Given that the BMW was parked in proximity to the entrance of 2881 Richmond Rd., it is impossible that Ms. Williams would have walked to the apartment complex so much faster than both Mr. Young and Mr. Buckley, that she would have waited in the lobby area and then eventually gained access to the secure lobby while Mr. Buckley and Mr. Young trailed far behind her. That evidence is rejected; clearly, the plan was that both Mr. Young and Mr. Buckley were nearby for Ms. Williams to call them when she had gained access to the secure area of the lobby. Ms. Williams played an integral part in that plan and she used her baby as a prop. Ms. Williams lacked significant credibility in her attempt to distance herself from this obvious plan.
71The following key pieces of Ms. Williams’ evidence must be weighed in light of her credibility and reliability problems:
a. She denied any knowledge of either Mr. Buckley or Mr. Young having a gun;
b. She denied being aware of any plan to steal drugs from the occupants in apartment 211;
c. She identified Mr. Young as the person who pushed open the door to the apartment and entered first;
d. She testified that upon returning to the car Mr. Young blurted out: “He was not supposed to be there and this was not supposed to happen”. She also stated that when he said those words he was pulling out his hair and seemed very upset. She stated that Mr. Young said those words more than once.
72Ms. Williams’ evidence concerning knowledge of the gun does not persuade the Court one way or another. Similar evidence was provided by Shadara Flint, a much more credible witness as to Mr. Wite’s possession of a gun. Ultimately, the court is unable to definitively conclude who among Mr. Young, Mr. Buckley and Mr. Wite possessed a gun. It was likely either Mr. Young or Mr. Buckley.
73The Court concludes that there was clearly a plan. This plan was fluid and imperfect. Three individuals got into a car in Toronto with no luggage or belongings for an overnight stay, with an infant child who required daily medication for her kidneys, in the possession of a ladder. The mother and child were present in order to assist in gaining access to the secure lobby of an apartment building and to trick the occupants of an apartment into opening the door. All of these factors point to the existence of a plan, that all three individuals present were aware of that plan and the only issue that remains to be determined is if this plan was for a murder or a robbery.
74Turning to Ms. Williams’ testimony about Mr. Young entering the apartment first, the court has concerns about Ms. Williams’ tendency to point to Mr. Young as the driving force in these events. Her tendency may lead her to suggest that it was Mr. Young who initiated the break in. However, when considering the role that the first person played in securing Shadara Flint, Ms. Williams’ evidence points to Mr. Buckley as the second person to enter and ultimately the shooter who confronted Mr. Wite in his bedroom. Given Ms. Williams’ tendency to minimize Mr. Buckley's role in these events, the fact that she did not recant this part of her evidence suggests to the court that her evidence of Mr. Young being the first to enter is truthful. This statement must be considered in light of the balance of Ms. Williams’ testimony.
75The same can then be said about the statements attributed to Mr. Young when he entered the car and his level of distress that the victim was not supposed to be present. This statement and the surrounding behaviour clearly favour Mr. Young and contradict the Crown’s theory that the murder was planned and deliberate. Conversely, it favours the allegation that there was some type of plan in place. This statement is also the only statement suggested by Ms. Williams which is exculpatory for Mr. Young; it goes against the direction of the rest of her evidence about him. Simply put, this is a statement elicited by the Crown, which is not negated by any witness who testified at the trial and which must be considered along with the rest of the evidence heard at trial.
ISSUES
76The following issues require adjudication:
a. Who is the shooter?
b. Are either Mr. Buckley or Mr. Young guilty of an offence for aiding or abetting or as part of a common purpose?
c. Was Mr. Wite’s death a planned and deliberate first degree murder?
d. Was Mr. Wite’s death second degree murder?
e. Was Mr. Wite’s death a constructive first degree murder?
f. Was Mr. Wite’s death manslaughter?
Who is the Shooter?
77As a result of the conflicting positions taken by Mr. Buckley and Mr. Young, the first question that must be addressed is if the court can determine who shot Mr. Wite. This is the first issue for adjudication and the remainder of the court’s analysis flows from there.
78The Crown takes the position that Mr. Young is the shooter. It points to the following evidence:
a. Ms. Williams leaves as Mr. Young pushed on the unit door with both hands;
b. Shadara Flint’s evidence was consistent that the hand over her mouth was gloveless because she felt skin on skin;
c. Mr. Young was wearing blue gloves as he entered the building.
79Mr. Buckley agrees with that position and raises the following additional arguments:
a. Mr. Young was the driving force for everything that happened in Ottawa and the source of information about Mr. Wite;
b. The evidence is unclear of how much Mr. Buckley knew of Mr. Young’s plan;
c. Mr. Buckley would not have brought Ms. Williams and their child to a planned execution.
80Conversely, Mr. Young takes the position that Mr. Buckley is the shooter and relies on the following evidence:
a. Mr. Young was the first person to go into the unit according to Ms. Williams;
b. Shadara Flint’s evidence was consistent that she was pinned to the wall by the first person to enter the unit and that the second person to enter was the shooter;
c. Shadara Flint’s evidence was that the person holding her left the unit before the shooter and Mr. Young exited the building before Mr. Buckley.
81This issue falls on two points: the credibility of Ms. Williams and the reliability of Shadara Flint.
82I have already addressed the credibility issues with Ms. Williams, particularly when it comes to her evidence about the differing roles played by Mr. Buckley and Mr. Young. Interestingly, Ms. Williams’ first observation of the moment that the door to unit 211 was opened was that “Mr. Young pushed on the door and went in”. In cross-examination by Mr. Buckley’s counsel, it was put to her that “you see Young push the door and don’t know if he went in” and she answered “Yes”, in contrast to her evidence in chief. Then, in cross-examination by Mr. Young’s counsel, the following exchange took place:
a. “You saw him [Mr. Young] go into the unit”. Answer: “Sure”.
b. “Young entered first”. Answer: “yes”.
c. “No ambiguity in your mind”. Answer: “That is the case”.
83In re-examination, she attempted to change her evidence and stated that she did not see Mr. Young’s feet go in.
84Interestingly, Ms. Williams seems to have been consistent with her previous testimony in her observation of Mr. Young going into the unit first as she was not cross-examined on that point. However, this evidence is not favourable to Mr. Buckley because the balance of the evidence points to the second person being the shooter. I note that Ms. Williams did not hesitate to correct certain portions of her prior statements which were not favourable to Mr. Buckley. However, she did not correct her prior statement in this instance. In the end, the answer given in direct examination to the Crown and then to Mr. Young’s counsel in cross-examination are the most believable versions of this moment when Ms. Williams saw Mr. Young enter the apartment. Ms. Williams’ efforts to change her evidence are not credible.
85Turning to the evidence of Shadara Flint, I found her to be a very credible witness doing her best to describe what she saw from a peephole and then in the darkness of the apartment within unit 211. As she properly admitted in her testimony, there are issues surrounding the reliability of her testimony given what she could actually see. A careful review of her evidence starts with the statement she gave to the police later the day of the shooting. Shadara Flint was interviewed by the police on August 21, 2020, from 2:23 a.m. to 3:00 a.m. She was asked whether the person holding her wore gloves, her answer was equivocal when she said: “No, I don’t think so”.
86Moving forward to trial, her answers on that issue were much more definitive. She confirmed being able to feel skin on skin. However, her conclusion that it was the man with the black hoodie and beige mask holding her was based on deduction. She agreed that she saw the man with the black hoodie and beige mask in the peephole, and she was firm that it was not a woman in the peephole. She also saw the police media release (released at 5:35 p.m. on August 21, 2020) showing three individuals and the man with the green cap and camouflage jacket was wearing blue gloves. Her statement to the police was given before police published the media release. She deduced that the man without gloves in the police photo was the person holding her during the events and that the other man (green hat and camouflage jacket) must have been the shooter. Her evidence is not based on any visual identification of Mr. Buckley as the person holding her but only on the fact that she felt skin on skin contact with the person holding her and covering her face. Her evidence is also not based on any visual observations of how the second person to enter (the shooter) was dressed even if it was drastically different than the non-shooter.
87Shadara Flint admitted that there was a certain amount of assumption that the person she saw in the peephole was the same person to pin her in the corner and cover her face. She did not negate the possibility that it was the man in the camouflage jacket who covered her face. Her sole observation was the fact that he was not wearing gloves.
88Finally, no evidence suggests that either Mr. Buckley or Mr. Young had a gun. The same applies to Mr. Wite.
89I conclude that I am unable to determine the identity of the shooter. The evidence of Ms. Williams, which is not favourable to Mr. Buckley, cannot be rejected. It is relevant in my view and does not fall under the same category as the other evidence she gave to minimize the role of Mr. Buckley. The evidence of Shadara Flint is based on the skin to skin contact but nothing else. She had no visual or other observations to contribute.
90Furthermore, I do not consider the fact that Mr. Young had more ties to the Ottawa area or that he was driving the car as being of any assistance. I also acknowledge that he had access to information through Brianna Innes and that he seemed to bring the ladder, but these do not assist in establishing the identity of the shooter beyond a reasonable doubt. Those facts do not resolve what Mr. Buckley’s role was in coming from Toronto. The same applies to whether Mr. Buckley or Mr. Young was the first person to exit through the east stairwell. The evidence is that they both left the apartment unit in succession. There is no marked difference in time as to their departure. The fact that one made it down the stairs and out the door six seconds before the other is of no assistance. Many things could have happened in the stairwell to allow for the first to leave the apartment unit to be the second to exit the building.
91The result remains that I am left with a reasonable doubt as to the identify of the shooter and the Crown has failed to establish the identity of the shooter beyond a reasonable doubt.
Aiding or Common Purpose
92Although the identity of the shooter has not been established beyond a reasonable doubt, the culpability of each accused is still possible based on their role as the non-shooter and the subjective or objective determination of their state of mind.
93For the purpose of analysing aiding or common purpose, the Ontario Court of Appeal’s decision in R. v. Jackson (1991), 68 C.C.C. (3d) 385 (Ont. C.A.), at pp. 421, assists the court in determining the difference between how ss. 21(1) and 21(2) of the Code are to be applied:
Section 21(2) must be distinguished from s. 21(1). The latter section is aimed at those who participate in the actual offence for which liability is imposed. Section 21(2) widens the circle of criminal culpability to include those who do not participate in the alleged crime but who do engage in a different criminal purpose and foresee the commission of the alleged offence by a party to that criminal purpose as a probable consequence of the pursuit of the criminal purpose. [Citations omitted; emphasis added.]
94A person may be found guilty of an offence because he helped somebody else to commit it. Aiding requires both conduct and a particular state of mind.
95In the present case, the non-shooter does not participate in the actual offence of shooting and killing Mr. Wite. Thus, the analysis of the non-shooter’s culpability under s. 21(1)(b) requires analyzing whether the role of pushing in the door, pinning Shadara Flint to the wall and covering her mouth played a role in helping the shooter to gain access to Mr. Wite’s room and benefit from the element of surprise. Here, I think it clearly does.
96As for intent, the Crown must prove that the non-shooter intended to help the shooter commit the offence of murder. Finally, the aider must have had the knowledge that the shooter intended to commit murder.
97Turning to common unlawful purpose, this applies when there is an agreement to do something unlawful and the person is then found guilty of another crime committed by those who were part of the original agreement.
98The illustration often made is in the role of the getaway driver during a robbery where the person who commits the actual robbery ends up shooting and killing someone. The Crown must establish an agreement to rob and the unlawful act of causing death. As for the mental element, second degree murder is made out if the Crown can prove beyond a reasonable doubt that the shooter meant to kill the victim or meant to cause the victim bodily harm that the shooter knew would likely kill the victim and did not care whether the victim died or not. The driver will be guilty of second degree murder if the Crown can prove beyond a reasonable doubt that the driver actually knew that it was likely that the shooter, in carrying out the robbery, would intentionally kill the victim or intentionally cause the victim bodily harm that the shooter knew would likely kill the victim.
99The Crown has established that both Mr. Young and Mr. Buckley (and in my mind Ms. Williams) were acting according to an agreed plan and that there was an agreement between them. In support of that conclusion, I highlight the following:
a. There is no evidence to support a finding that Mr. Buckley was not aware of the eventual destination when he and Ms. Williams were picked up from the Dixon Road apartment. While Ms. Williams did her best to present conflicting evidence and create doubt around any discussion or knowledge of going to Ottawa, I reject that evidence. I also reject her evidence that they were going to a birthday party for a child that they did not know, with no gift and no overnight clothing or medication for Ms. Williams’ child.
b. Both Ms. Williams and Mr. Buckley knew exactly where they were going and for how long. That is the only realistic inference from the evidence. The plan for Mr. Young to drive to Toronto to get Mr. Buckley is significant on its own. Further, Mr. Young was meant to bring Mr. Buckley to Ottawa and then return him to Toronto that same day. I reject Ms. Williams’ evidence that it was “possibly” in the car that Mr. Buckley eventually asked where they were going and that they may have discussed a birthday party in Ottawa. There is no ring of truth to such a comment and there is no evidence that corroborates that theory. The evidence is that the plan was to drive to Ottawa, commit a crime and then return to Toronto.
c. The plan was clearly to gain entrance to Mr. Wite’s apartment, either with the assistance of Ms. Williams (via the secure lobby) or without (via the balcony). When the balcony option was put aside, Mr. Buckley and Mr. Young acted in concert to direct Ms. Williams to gain access to the secure area and call Mr. Buckley. I reject Ms. Williams evidence that it was only Mr. Young who directed her. Her previous evidence was that “they” told her to call Mr. Buckley when she was in, and I conclude that this direction was given by both of them.
d. Mr. Buckley and Mr. Young acted in concert when entering unit 211. Once the door opened, no words were spoken, no direction was given. The non-shooter subdued Ms. Flint and the shooter checked the living room and then went straight to Mr. Wite’s room.
e. Both men left via the nearby stairwell, exited the building in succession and met up at the BMW.
f. The plan involved knowledge of the location of Mr. Wite’s apartment, the location of the balcony, the location of the unit on the second floor, the location of the bedroom and the point of exit.
g. Mr. Young’s words afterwards (as reported by Ms. Williams) upon returning to the BMW, although self-serving in some respects, confirm that there was a plan: “He was not supposed to be there and this was not supposed to happen”.
100In terms of the required elements for common unlawful purpose, the Crown has established the plan or agreement, whatever it was. There is no dispute that the original agreement was to carry out something unlawful but the parties differ on if the plan was for murder or robbery.
101As for the commission of an offence, the defendants do not dispute that an unlawful act was committed – the unlawful killing of Mr. Wite. They concede that the unlawful act constitutes manslaughter; the defendants disagree that the unlawful act constitutes murder. Either way, the second element of the analysis is proven beyond a reasonable doubt.
102This leaves the knowledge element. The defendants clearly entered into unit 211 by breaking in and it must be determined if it was to commit a robbery or a murder. Regardless, the non-shooter was aware of at least the plan to commit a robbery. In the case of a robbery, the unlawful act resulted in Mr. Wite being shot and killed by the shooter. As both defendants entered pleas to manslaughter, the objective analysis of the intent is admitted.
103In the case of murder, the Crown must prove beyond a reasonable doubt that the shooter meant to kill Mr. Wite or meant to cause Mr. Wite bodily harm that the shooter knew would likely kill him and did not care whether he died or not. As for the non-shooter, he will be guilty of second degree murder if the Crown can prove beyond a reasonable doubt that the non-shooter actually knew that it was likely that the shooter, in carrying out the unlawful act (murder or robbery), would intentionally kill Mr. Wite or intentionally cause Mr. Wite bodily harm that the shooter knew would likely kill him and did not care whether Mr. Wite died.
104The mental element for manslaughter is an objective standard as opposed to the subjective standard for murder. As such, the non-shooter will be guilty of manslaughter if the Crown can prove beyond a reasonable doubt that the non-shooter actually knew, or should have known, that in carrying out the robbery the shooter would probably cause bodily harm to Mr. Wite by intentionally applying force to him.
105The analysis then turns on the nature of the original agreement and the knowledge of the shooter and non-shooter at the time of the offence.
First degree murder
106Even without knowing the identity of the shooter, the accused persons can still be found guilty of first degree murder if the murder was planned and deliberate provided that they both had the subjective intent to commit murder.
107The Crown argues that the defendants are guilty of first degree murder because Mr. Wite’s death was planned and deliberate. In support of that position, the Crown argues the following (as set out in para. 61 of the Crown’s Memorandum of Fact and Law):
a. The only logical inference on the evidence was that the plan was to kill Jonathan Wite.
b. There is no evidence that Jonathan Wite had a violent disposition or that he possessed any firearms or weapons – evidence is to the contrary.
c. If it was the intruders’ intent to rob, they do not come prepared with any visible bag in which to place belongings.
d. If the plan was to forcibly enter the apartment when Mr. Wite was not there, why bring a loaded handgun at the ready?
e. If the plan was to forcibly enter the apartment when Mr. Wite was not there, why ask for him by name?
f. As Mr. Young had knowledge of Mr. Wite’s apartment and him living there, his same sources (be it Brianna Innis or others) would have been able to tell him about others who were living in the apartment: Shadara and Coreisha.
g. Coming into the apartment guns a blazing to subdue Shadara and Coreisha was logically not necessary.
h. The intruders in up to 30 seconds demand nothing from the occupants (other than demanding that Shadara remain quiet).
i. There is no evidence that the intruders search for anything or take anything from the apartment.
j. There is evidence that there was nothing of value in the apartment.
k. Even if the accuseds intent was to commit a robbery, this does not preclude that they also planned to shoot Wite as part of that robbery.
l. There is speed and efficiency to the enterprise: within 30 seconds or less, both Buckley and Young are able to force themselves into the apartment, confine Shadara Flint to the entrance foyer, while the second intruder makes his way to the bedroom, with a loaded gun at the ready and fires three shots at relatively close range, 2 of which strike Wite in the chest.
m. There is no evidence that the shooting of Mr. Wite was somehow necessary to allow the intruder to make his escape. The only evidence was that at the end after being shot, Mr. Wite was at the door, with Shadara believing that Mr. Wite was trying to push the shooter out of the apartment.
n. There is speed and efficiency to Mr. Buckley’s and Mr. Young’s exiting the apartment. Once the “execution” is accomplished both men are out the apartment door and shortly thereafter down the east stairwell.
108At this point the Court must consider that the Crown’s case in favour of planning and deliberation is based on circumstantial evidence. As stated in Villaroman, the question becomes whether the trier of fact, acting judicially, can reasonably be satisfied that the accused person’s guilt is the only reasonable conclusion available on the totality of the evidence.
109The burden rests on the Crown to establish the essential elements of first degree murder which are:
a. The accused unlawfully caused the death of the victim;
b. The accused had the state of mind required for murder;
c. The accused’s murder of the victim was both planned and deliberate.
110I start by dealing with planning and deliberation.
111In terms of reasonable possible inferences, an available inference is that the defendants were planning to force their way into Mr. Wite’s apartment to rob him of either money or drugs.
112Many of the facts relied upon by the Crown for a planned murder are equally consistent with a planned robbery:
a. While there is no evidence that Mr. Wite had a violent disposition, the same can be said about Mr. Buckley and Mr. Young. Further, there is no evidence of any animus between Mr. Young and/or Mr. Buckley and Mr. Wite;
b. The absence of a visible bag to transport cash or drugs does not negate the intent to rob. Bags could have been in Mr. Buckley’s or Mr. Young’s pockets, and one does not need large bags to store stolen cash or drugs.
c. The possible use of a handgun does not negate the intent to rob. Handguns can be used for robberies without an intent to kill and there is no evidence as to which of Mr. Buckley, Mr. Young or Mr. Wite had a handgun. Considering the struggle between Mr. Wite and the shooter, the original possession of the handgun is not clearly established but it would have likely been with either Mr. Buckley or Mr. Young who were at a minimum, on their way to commit a robbery, if not a murder.
d. The use of Mr. Wite’s name to gain access to the apartment can be a point of familiarity to access the premises for a robbery.
e. That they wanted to attend at the apartment when Shadara and Coreisha were present but not Mr. Wite can be consistent with a robbery where someone is there to let them in.
f. Neither defendant entered the apartment “guns a blazing” as suggested by the Crown. No witness saw a gun in the possession of either Mr. Buckley or Mr. Young. Knowledge of the gun only appears after it has been fired and after a struggle between the shooter and Mr. Wite.
g. The fact that no demands were made from the occupants is not inconsistent with a robbery. The scenario of a robbery gone wrong, can explain that plan to rob was derailed by the struggle with Mr. Wite and the fact that he was shot twice. At that point, the two occupants were in a state of shock, gunshots rang through the night and the intruders’ reaction was to flee the scene as per Shadara Flint.
h. The absence of a search for objects to steal is not inconsistent with the robbery gone wrong scenario whereby a struggle and discharge of a firearm puts an end to the plan for a robbery.
i. The statements by Shadara Flint and Coreisha Flint that there were no valuables to steal does not negate the possibility that either Mr. Buckley or likely Mr. Young would have been under the impression that there was something to steal. This is further supported by Mr. Wite’s social media postings, especially the photo of him with what appears to be large amounts of currency, and knowledge that could have been obtained by Mr. Young from Brianna Innis.
j. The possibility that the shooter intended to rob and shoot Mr. Wite is nothing more than a supposition. There is no evidence of an intention to shoot Mr. Wite, other than the fact that someone had a weapon and that it was likely Mr. Buckley or Mr. Young who possessed the weapon.
k. The speed and efficiency to the enterprise is just as plausible in the scenario of a robbery and the element of surprise.
l. The absence of necessity of the shooting to allow the intruders to escape does not advance the debate. It is also consistent with a change of plans resulting from the robbery gone wrong.
m. Finally, the speed and efficiency of the “execution” is an available inference. However, this does not negate the robbery gone wrong scenario.
113There are a few additional pieces of evidence that goes against an execution or robbery with intent to shoot Mr. Wite. Shadara Flint testified that as the two men fled the apartment, they appeared to have been scared off by Coreisha Flint’s screaming. However, Coreisha Flint was clear that when she exited her room, the two men were gone. As such, the apparent fear would not have been generated by the screams of Coreisha Flint. Shadara Flint was unsure if she screamed but Coreisha Flint said that she was awoken by her sister’s screams. In the end, Shadara saw that the men were scared off, possibly by fear, due to screaming or how things transpired.
114There is also the statement by Mr. Young when he enters the BMW. That statement is considered in light of Ms. Williams’ tendency to discredit Mr. Young. However, it is admissible evidence, elicited by the Crown, which is more credible that the other portions of Ms. Williams’ evidence as she is pointing to Mr. Young as the organiser of the plan. Those words are also consistent with a form of apology from Mr. Young to Mr. Buckley given that Mr. Young would have been the source of information about Mr. Wite and the apartment unit through Brianna Innes.
115Finally, there is the decision by Mr. Buckley to bring his partner and his child to the apartment unit, or at least to the door. It is challenging to consider that this would have been done if the intent was to execute Mr. Wite, nearly in the child’s presence. However, I give little weight to the presence of Ms. Williams with the child because they were clearly comfortable using the child as a prop to gain access to the secure lobby and to the apartment unit. While troubling, the presence of the child does not play a large part against a finding of planning and deliberation of murder.
116In the end, the Crown has not established the essential element for first degree murder of planning and deliberation. I am left with a reasonable doubt that this was a robbery gone wrong. As set out in Robinson, the evidence does not support a conclusion of a calculated scheme or design which has been carefully thought out.
Second Degree Murder
117The Essential elements for second degree murder in this case are:
a. The shooter caused Mr. Wite’s death;
b. The shooter causes Mr. Wite’s death unlawfully; and
c. The shooter had the state of mind required for murder.
118The first issue around any finding of murder is the identity of the shooter. I have concluded that the Crown has not established the identity of the shooter beyond a reasonable doubt on the evidence before me. This therefore negates the possibility of a finding of guilt based on either Mr. Buckley or Mr. Young being the principal offender who shot Mr. Wite.
119However, regardless of my finding on the identity of the shooter, I am of the view that the state of mind of either Mr. Buckley or Mr. Young is relevant given that they must then each be considered as the non-shooter.
120Regardless of who the shooter was, I am of the view that neither Mr. Buckley nor Mr. Young had the state of mind required for murder. I come to that conclusion for the following reasons:
a. There is no narrative to explain the reason why Mr. Wite would be murdered.
b. There is no evidence of any animus between Mr. Wite and either accused person.
c. There is no evidence of who had a gun or evidence that the non-shooter knew of the gun. While it is possible that the gun belonged to Mr. Wite, the evidence of Shadara Flint is that he did not have one. Also, the potential scenarios are that Mr. Buckley and Mr. Young were going to Ottawa to either murder Mr. Wite or to rob him. In either scenario, it is more likely than not that the gun was in the possession of either Mr. Buckley or Mr. Young. That is the only realistic inference.
d. As is often the case for establishing the state of mind for murder, it is based on circumstantial evidence, and it is common to draw an inference that a sane and sober person intends the natural and probable consequences of their actions. As set out in Roks at paras. 136-137, the inference extends only to the natural and probable consequences of the conduct, not to every possible, conceivable or remote consequence. Here, the mere fact that the shooter brought a gun to a robbery does not establish the state of mind for murder. Firearms are often part of robberies to sway victims to act in a certain way or to protect oneself if things go array.
e. Further, there was an intervening act in this case, being the struggle with Mr. Wite when the shooter entered his bedroom. The evidence does not establish that the shooter would have had the knowledge or foresight to know that the dangerous act of robbery with a gun would likely result in Mr. Wite’s death.
f. On the evidence before me and the absence of planning and deliberation, it is clear that any intent to kill could only arise during the unfolding of the robbery. The evidence does not support an inference that the shooter intended to rob and kill when he entered the apartment. The outward manifestation of the intent to kill is identifiable in the three shots fired in rapid succession, two of which hit Mr. Wite in the chest. Given the brief duration and fluid unfolding of the shooter’s entrance in the bedroom, it would have been impossible for the shooter, in the context of a struggle with Mr. Wite, to formulate an intention to kill or an intention to cause bodily harm that he knew was likely to kill. It is more likely that the dangerous act of shooting Mr. Wite was done as a reaction, and as a result of the struggle between the shooter and Mr. Wite. This shows that the required subjective foresight of death was not present at the time that the act was committed: see Shand, at para. 152.
g. In the absence of any direct evidence on the foresight or knowledge issue, this element could be proven beyond a reasonable doubt if the only rational inference available from the circumstantial evidence as a whole was that the shooter, either Mr. Buckley or Mr. Young, actually knew that committing robbery with a handgun would likely cause somebody’s death: see Roks, at para. 142. This is not the only available inference.
121As a result of my finding that the shooter, being either Mr. Buckley or Mr. Young, did not possess the requisite intent for murder, the analysis must turn on the role of each Mr. Buckley and Mr. Young as the non-shooter to determine if they had the required state of mind under s. 21 of the Criminal Code.
122The role of either Mr. Buckley or Mr. Young as the non-shooter must be considered as an aider or in light of the common unlawful purpose. I accept that as a non-shooter, either Mr. Buckley or Mr. Young assisted in their role of gaining access to the unit and clearing a path for the shooter. Turning to knowledge, the Crown must demonstrate beyond a reasonable doubt that either Mr. Buckley or Mr. Young, as the non-shooter, knew that the shooter intended to commit murder.
123For common unlawful purpose, it has already been found that the agreement and the offence are established. However, the Crown needs to demonstrate beyond a reasonable doubt that either Mr. Buckley or Mr. Young actually knew that it was likely that the shooter, in carrying out the unlawful act (murder or robbery), would intentionally kill Mr. Wite or intentionally cause Mr. Wite bodily harm that either of them knew would likely kill him.
124I acknowledge that much of what Mr. Buckley or Mr. Young knew would have come from the evidence of Ms. Williams. Ms Williams has been shown to be problematic at times during this trial but she is also the source of most of the direct evidence. While walking down the hallway to the apartment door, Ms. Williams testified that she was thinking that there may be a robbery of weed. Furthermore, in terms of the knowledge of the shooter, there is no evidence that the non-shooter had any knowledge that the shooter possessed a gun. The absence of that shared knowledge is significant and there is no evidence to allow the court to infer it.
125Also, from Mr. Buckley’s perspective, the presence of his child also informs the knowledge he had heading down the hallway as to the likelihood of Mr. Wite being killed.
126In the context of second degree murder, and as set out in Jackson (SCC), at para. 33, the Court must focus on the subjective knowledge of both Mr. Buckley and Mr. Young. Did either foresee that murder was a probable consequence of carrying out the common purpose, in this case robbery? I conclude that they did not.
127Thus, the Crown has failed to establish the essential elements of murder beyond a reasonable doubt.
Constructive First Degree Murder
128A brief comment on constructive first degree murder. To establish constructive first degree murder, the Crown must establish that:
i. The act of confining Shadara Flint was an “essential, substantial and integral part of the killing of the victim”: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 73; and,
ii. That the non-shooter knew that the principal offender would probably commit murder: Ferrari, at para. 61.
129In Harbottle, the Supreme Court gave some examples of where an accused could be convicted of first degree murder under s. 231(5). In that case, one example involves one accused, with the intent to kill, locking the victim in a cupboard while the other accused sets fire to that cupboard. In such a case, the accused who confined the victim in the cupboard might be found to have caused the death of the victim pursuant to s. 231(5) of the Code. That could also extend to the accused who locked the victim in the cupboard, even if that person did not intend to kill the victim, if that person knew that the principal offender who lit the cupboard on fire would probably commit the murder.
130As explained by Cory J. in Harbottle, in order to raise culpability to first degree murder under s. 231(5), something more is required. The "something more" is not that the accused caused more the death of the victim. What is required is that his participation in the killing be sufficiently immediate, direct and substantial to warrant the greater stigma and sentence attached to first degree murder: see Nette, at para. 62.
131In Harbottle, the factual circumstances leading to a finding of guilt under s. 231(5) was that the participant held the victim’s legs so that the principal offender could strangle the victim. While the word formulation in Nette is slightly different – “sufficiently immediate, direct and substantial” – the concept is the same as “substantial and integral cause” used in Harbottle. The purpose is to identify that something more is required to find an increased degree of moral blameworthiness: see Ferrari, at para. 58.
132In the present case, I find that the Crown has failed to establish constructive murder in either case. First, the type of confinement here, to pin Shadara Flint to the wall, was certainly sufficiently immediate to allow the shooter to enter with the element of surprise, but it was not sufficiently direct and substantial. It was not a significant contribution to Mr. Wite’s death to trigger culpability for first degree murder.
133In R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, the accused kept a person confined at knifepoint in the kitchen to prevent that person from offering rescue or assistance to the victim. As such, the action of restraining a third party by force, as was done to Shadara Flint, may allow for a finding of constructive murder.
134However, in the present case, the evidence is that everything happened quickly. If the shooter had been alone, it is conceivable that he could have pushed the door open, pushed Shadara Flint out of the way and engaged in the struggle with Mr. Wite leading to the shots being fired without Shadara Flint being able to provide any assistance. I find that the degree of participation by the non-shooter is insufficient to permit a finding that the secondary party is guilty of first-degree murder.
135Second, and more importantly, the Crown has not demonstrated that the non-shooter knew that the shooter would probably commit murder. As previously stated, I find that this was a robbery gone wrong. It was not a planned and deliberate murder and as such, neither the shooter nor the non-shooter entered the apartment unit possessing the mental element required for murder.
Manslaughter
136The essential elements for manslaughter are that the shooter caused Mr. Wite’s death and that the shooter caused Mr. Wite’s death unlawfully. Here, in terms of causation, the analysis is simple. Whether the shooter had his own gun or whether he took the gun from Mr. Wite (speculative) it is clear that the action of shooting Mr. Wite twice in the chest caused Mr. Wite’s death as confirmed by the evidence of the pathologist who testified in this case (see Exhibit 8)
137Turning to the second part of the analysis, the unlawful act must be dangerous. An unlawful act is dangerous if a reasonable person, in the same circumstances as the accused, would realize that the unlawful act would likely put another person at risk of bodily harm. In the present case, there is little dispute that the unlawful act of committing a robbery with a handgun put Mr. Wite at risk of bodily harm. However, I note that bodily harm can be both physical and psychological: see R. v. McCraw, [1991] 3 S.C.R. 72.
138I agree that based on the evidence available to the court, both Mr. Buckley and Mr. Young formed a common intention to break into unit 211 and commit a robbery. In committing that robbery, the shooter was involved in a struggle with Mr. Wite and the shooter shot and killed him. However, the Crown has not established that either the shooter or the non-shooter knew that murder was a probable consequence of committing the robbery. The shooting of Mr. Wite happened very quickly with successive shots being fired by the shooter in a short amount of time. I am not satisfied beyond a reasonable doubt that as part of the struggle with Mr. Wite, the shooter meant to kill him or cause Mr. Wite bodily harm that he knew would kill Mr. Wite. Other inferences, not based on speculation, are available and have been set out herein. The scenario of the robbery gone wrong is grounded in various parts of the evidence.
139However, I am satisfied that a reasonable person would have foreseen the risk of harm to Mr. Wite and to the other occupants as a result of carrying out the robbery with a gun. This is sufficient to find the shooter guilty of manslaughter as it was objectively foreseeable that some harm, either physical or psychological would happen.
140As for the non-shooter, I have already addressed the agreement to break in and rob Mr. Wite. I have also identified the unlawful act that the shooter, in committing the robbery committed an offence – the unlawful killing of Mr. Wite. These are the first two elements under s. 21(2).
141The defence have conceded that the evidence establishes beyond a reasonable doubt that the non-shooter knew, or should have known, that in carrying out the robbery the shooter would probably cause bodily harm of some kind to Mr. Wite by intentionally applying force to him.
142The question then is whether or not there was objectively reasonable foreseeability of the risk of bodily harm being done by the non-shooter to Shadara and Coreisha Flint. The role played by the non-shooter was clearly to push the door open and pin whoever was at the door to facilitate the shooter’s to access the unit. It would be foreseeable that those planned actions would interfere with the health and comfort of the victim both physically and emotionally for some time and would not be trifling. In any outcome I am certain that the role played by the non-shooter would leave any victim with some psychological harm of a non-trifling nature.
143The offence of manslaughter is made out for both the shooter and the non-shooter.
CONCLUSION
144Michael Buckley, I find you not guilty of first degree murder, not guilty of second degree murder, but guilty of manslaughter.
145Dwayne Young, I find you not guilty of first degree murder, not guilty of second degree murder but guilty of manslaughter.
Justice Marc R. Labrosse
Released: May 5, 2023