COURT FILE NO.: YC-19-5000003
DATE: 20230919
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Q.R. (Young Person)
Accused
Thomas Mack and Christopher Chorney, for the Crown
Mary Cremer and Cole Perry, for the Accused
HEARD: January 23-27, 30, February 3, March 6-8, 13-15, 20-22, May 29-31, June 2, 5-9, 28-30, and September 19, 2023
A.J. O’Marra J.
JUDGMENT
[1] Q.R., a young person, pursuant to the Youth Criminal Justice Act, SC 2002, C.1, is charged with armed robbery, possession of a prohibited firearm and second-degree murder in the death of Rocco Scavetta. Q.R. and the Attorney General consented that he be tried by a Justice of the Superior Court sitting without a jury.
[2] On September 8, 2018, Q.R., then 16 years of age, entered the Old Weston Road Flea Market, armed with a sawed-off .22 calibre rifle with the intent to rob a jewelry stall, Janet’s Jewelry, owned by Canet and Bogos Gurslan, of gold chains and rings. In the process of attempting to rob them while Q.R. brandished the sawed-off rifle, Mr. Scavetta, the mall manager tried to intervene by grabbing ahold of Q.R. from behind. Q.R. pulled away from Mr. Scavetta and while backing away pointing the firearm at him, warned him not to come closer. As Mr. Scavetta moved in his direction Q.R. cocked the firearm and shot him in the chest, which resulted in his death. The entire incident was captured on surveillance camera video footage.
[3] On the trial, at the conclusion of the evidence tendered, the defence admitted that Q.R. is guilty of the armed robbery and possession of a prohibited firearm and guilty of manslaughter, but not second-degree murder.
[4] Q.R. admits causing Mr. Scavetta’s death unlawfully, but asserts he did not intend to kill him, or intend to cause him bodily harm that he knew was likely to cause his death and was reckless whether he died or not.
[5] The position of the Crown is that when Q.R. raised the sawed-off rifle, cocked it and pointed it at Mr. Scavetta’s upper body he intended to cause bodily harm when he discharged the firearm and knew it was likely to cause death, and was reckless whether death ensued or not, as required under s. 229(a)(ii) of the Criminal Code.
The Issue
[6] The issue to be decided is whether Q.R. knew or was aware when he shot Mr. Scavetta it would likely cause death. In R. v. Murray 1994 (ON CA), [1994] 20 O.R. 3^rd^ 156 at para. 36 it is noted:
The issue is not whether the appellant caused bodily harm, but rather whether he knew at the time that the harm he was inflicting on the deceased was likely to cause his death. See Nygaard and Schimmens (1989) 1989 (SCC), 51 CCC 3^rd^ 417 (SCC).
Moreover, even if the appellant caused bodily harm as he plainly did and even if he was reckless in so doing, to be liable for murder under s. 229(a)(ii), the Crown had to prove beyond a reasonable doubt that at the relevant time the appellant knew that what he was doing to the deceased was likely to cause his death. In other words, bodily harm and recklessness is not enough to satisfy the intent requirement of s. 229(a)(ii).
[7] Further, as noted in R. v. Martineau 1990 (SCC), [1990] 2 SCR 633 at para. 13:
In considering liability for second degree murder intent must be proven beyond a reasonable doubt from the perspective of the accused’s subjective foresight of death.
[8] The focus of the assessment under s. 229(a)(ii) is, what did the accused know and foresee at the time he shot Mr. Scavetta?
The Applicable Law
i) Subjective Intent
[9] For the offence of second-degree murder, s. 229 a) ii) as observed in R. v. Moo, 2009 ONCA 645 at para. 45 the Crown must prove beyond a reasonable doubt:
a. an intention to cause bodily harm;
b. subjective knowledge (the bodily harm will probably be or likely be fatal); and
c. recklessness as to whether the victim dies or lives;
[10] J.A. Watt in Moo at para. 48 stated:
The requirement in s. 229(a)(ii) that the fatal assault be carried out in a reckless way, in other words by heedlessly proceeding with the deadly assault well-knowing the obvious risks, adds nothing to the vital element of the intent to cause bodily harm that the killer knows is likely to cause death and yet persists in the assault: Nygaard, at p. 1088. Anyone who causes bodily harm that she or he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences that she or he knows are likely to happen: R. v. Cooper, 1993 (SCC), [1993] 1 S.C.R. 146 (SCC) at pp. 154-155. In other words, such a person must, perforce, be reckless whether the victim dies or not: Cooper, at p. 155.
[11] In Cooper at p. 146 the Supreme Court of Canada made it clear that:
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 on the victim.
[12] In R. v. Shand, 2011 ONCA 5 at para. 152 Rouleau J.A. observed that a vague realization that death is possible will not be sufficient. 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.
[13] It is not sufficient that the accused knew that death could have resulted from the shooting rather the accused must have turned his mind to the result of the shooting that it would probably be fatal. The focus in this instance is what was known to the accused at the time bodily harm was inflicted.
ii) Common Sense Inference
[14] The Crown must prove that the accused subjectively intended to cause bodily harm and that he subjectively knew that bodily harm was likely to be fatal at the time of the shooting.
[15] The Crown submits that the court should apply the permissive common-sense inference that a person usually knows what the probable consequences of his or her actions are and means to bring them about.
[16] However, before the court can apply the permissive common-sense inference it must consider all of the evidence that impacts the accused’s mental state at the time of the offence.
[17] In R. v. B.E., 2019 BCSC 1442 at paras. 77-78 Williams J. noted:
Whether or not to apply the common sense inference depends in significant measure on the state of the evidence of the defendant's mental condition at the time of the offence. Put simply, did the accused have a sufficiently “sane and sober” mind, such that the common sense inference can be drawn that he intended the natural consequences of his act?
Typically, circumstances that may impact the state of the accused's mind, for the purposes of whether the common sense inference may be drawn, are intoxication (by drugs and/or alcohol), some form of mental disruption (such as a psychiatric or psychological condition), or, in the case of a youth, “lack of life experience [that] affects the level of maturity and can affect the ability of youths to foresee the consequences of their actions”: R. v. M.(F), 2008 BCCA 111 (BCCA), para. 24.
I must consider as well that I am dealing with a young person under the Youth Criminal Justice Act. Professor Nicholas Bala in Youth Criminal Justice Law, 2012, Irwin Law observed “adolescents lack the intellectual capacity to appreciate fully the consequences of their acts and in many context, youths will act without foresight or self-awareness…”
Overview of the Crown’s Case
[18] The Crown’s case consists largely of security camera video footage taken from businesses in the neighbouring area and from within the Old Weston Road Flea Market. Video footage shows the accused riding his bicycle and then walking into the Old Weston Road Flea Market. Video inside the Market shows him walk through it toward the Jewelry stall, his robbery demand, and the shooting of Mr. Scavetta. His flight afterwards, arrest, transportation, booking at the police division, and his statement given later in the early hours of September 9, 2018 to the interviewing detectives is on videotape.
[19] On September 8, 2018, at 3:30 p.m. Q.R., riding his bicycle, approached the Old Weston Road Flea Market carrying a black duffle bag. He left his bike a short distance from the flea market and walked to the entrance carrying the black bag. He can be seen wearing a hoodie with the hood up. He entered into the flea market and walked toward the jewelry stall. Initially, he walked past the jewelry stall, turned back and approached the end of the counter. He placed the duffle bag down, pulled the draw strings to his hoodie tight about his face, then pulled out the loaded single-shot bolt-action sawed-off rifle out of the bag.
[20] All of his actions in his approach, entry, the attempted robbery, and shooting were captured on video and entered as Exhibits 4A, 4B, 4C and 6 on the trial.
i) The Shooting
[21] At 3:33 p.m. Q.R. can be seen pointing the firearm at the proprietors of the jewelry stall and demanding that they hand over the gold jewelry. Mr. Rocco Scavetta, the owner and general manager of the flea market had been alerted to the robbery and approached the jewelry stall initially while Q.R.’s back was to him. However, Q.R. saw his approach, turned and pointed the firearm at Mr. Scavetta to warn him off and then turned back toward the proprietors of the jewelry stall.
[22] Mr. Scavetta continued toward Q.R. and attempted to disarm him by grabbing him. During a brief scuffle the proprietor of the stall threw a metal ring sizer toward Q.R. but missed. It fell to the ground on the other side of the counter in front of Mr. Scavetta. Q.R. pulled away from Mr. Scavetta and backed up several feet. He stopped, cocked the firearm, raised it chest height and leveled it at Mr. Scavetta. At the same time, Mr. Scavetta picked up the metal ring sizer and stepped toward Q.R. Q.R. still pointing the firearm at Mr. Scavetta discharged it hitting him in the upper chest. Q.R. turned and fled down the aisle and out of the flea market. Mr. Scavetta staggered up the aisle in the other direction, collapsed and subsequently succumbed to his injuries.
[23] Q.R. fled still holding the firearm as he walked away and retrieved his bicycle. He rode a short distance before abandoning his bicycle. Within minutes he was arrested by the police still in possession of the firearm.
[24] The police received the call reporting the shooting at 3:34 p.m. A civilian who followed Q.R. out of the flea market and northbound on Union Street alerted arriving police officers to the direction in which he had fled.
ii) The Arrest
[25] The arrest of Q.R. was captured on PC William Gordon’s in-car camera. As PC Gordon’s scout car approached Q.R. at 3:41 p.m. Q.R. raised his hands above his head and complied with the directions given by the officers on the scene to lie flat on the ground face down. Three officers approached to effect the arrest. He was handcuffed to the rear. On being frisk searched for weapons he told the officers “it’s in my pants”. Constable Ruiz located the sawed-off rifle in Q.R.’s left pant leg. Another officer located a small rock-like substance in his pant pocket, later determined to be 0.1 grams of crystal methamphetamine.
[26] At 3:45 p.m. Officers Gordon and Nicolle escorted Q.R. to Gordon’s scout car where he was placed in the rear seat. At 3:48 p.m. the officers removed Q.R. from the scout car, secured paper bags to his hands for the purpose of preventing the loss GSR (gunshot residue). At 3:50 p.m. Constable Gordon asked Q.R. his age and was advised he was 16.
[27] At the time Constable Gordon read him his rights to counsel and cautions from his memo book and gave him the youth caution under the Youth Criminal Justice Act. Q.R. advised he wanted to contact his father when he was able. When asked if he wanted to call a lawyer he replied: “nah man, I did something stupid, there’s nothing, no lawyer can defend that”.
[28] At 3:52 p.m. Q.R. was advised by Constable Gordon that he didn’t have to tell him anything about the alleged offences unless he wanted to. He confirmed he understood and stated, “yeah sure, if you ask, Ill tell you”. Constable Gordon said, “well you dont have to”. After providing him his caution that anything he said could be used in evidence Q.R. replied “yeah, Ive seen that in movies . . . I understand yeah”. Constable Gordon advised him he was under arrest for aggravated assault with a weapon to which he replied, “oh really, I thought it was murder for a second. I was like whoa”. Constable Gordon added “well attempted murder as well”. In response, Q.R. stated “Yes, thats what I figured”. At that time, it was unknown as to whether Mr. Scavetta had died.
[29] At 3:58 p.m. Constable Gordon transported Q.R. to 12 Division in his scout car during which the entirety of the journey was audio and video recorded by the in-car camera video system. Q.R. can be seen leaning to his right and at times with his head cocked and from time-to-time opening and closing his eyes.
iii) The Booking
[30] At the Division during the booking procedure, he was advised that everything he said and did was being recorded. He stood between two officers and was addressed by the booking sergeant and after obtaining particulars as to name and age he was asked if he understood he could call a lawyer. He said he understood and that he had a lawyer but was not sure if she was still his lawyer.
[31] He was asked if he was suffering from any illnesses or under a doctor’s care to which he replied: “insomnia, I’ve got drug counselling, like drug abuse counselling, ADHD, that’s it. Oh, and epilepsy”.
[32] Asked as to whether there were any mental health concerns, Q.R. stated he had been to CAMH and that he had been told he had Cannabis Abuse Disorder and ODD (Oppositional Defiance Disorder), but he did not know what that was. Asked whether he had consumed any alcohol in the past 12 hours he stated he had ½ can of Rockstar Vodka drink at 4%. He said he smoked crack and had been doing crystal meth which he consumed right before he got arrested because he wanted to “get rid of that completely”. He was asked if he had consumed any drugs in the past 12 hours to which he replied, “a whole lot”. When asked if he was feeling high, he replied “no, it’s I pretty much came down when I arrived here”.
[33] The booking officer told Q.R. that he would be placed in a cell pending the arrival of the officers who would seize items of his clothing to be examined. Q.R. stated “is there a plan, am I going to get to talk about what happened, like . . .”.
[34] The officer told him he was going to be searched and asked when he had last something to eat. He replied “a long time, like four days ago. Not four, like two”. He was told that he would be provided with food and drink.
iv) Level III Search and Photographs
[35] On arrival of the forensic identification service officer the bags that had been placed on his hands by the arresting officers had been removed for the collection of GSR evidence. He was then taken to a location off-camera for the purpose of the Level III search where his clothing was removed piece by piece for examination and he was photographed. During the search, the FIS officer was warned by Q.R. to be careful handling his pants as there could be fentanyl residue present.
[36] During the search each article of clothing was removed, the FIS officer took photographs of Q.R. which showed that physically he was in an emaciated, malnourished, and filthy state.
[37] On the inside of both elbows there were inflamed injection track marks, each over an inch in length, and collapsed veins, Exhibit 19-12 – 19-18.
[38] After being advised that he would be charged with murder, he spoke with duty counsel and his father as he had requested.
v) Pre-Interview Information
[39] Prior to interviewing Q.R., the lead investigator, Detective Campbell met with his father VR, a retired Toronto police officer. He advised Detective Campbell that his son had earlier apprehensions under the Mental Health Act where he had been taken to St. Joseph’s Hospital although not hospitalized. His son also had a history at CAMH (Center of Addiction and Mental Health) due to his drug use. He was known to use “all types of drugs”.
[40] The officer assisting Detective Campbell, Detective Constable Devine inquiring into Q.R.’s background, learned that there had been five previous police occurrences, two of which involved apprehensions under the Mental Health Act, both in 2018. On March 19, 2018, he had taken an unknown quantity of Xanax and threatened his father with a knife. On police arrival he threatened to kill the officers and their families. The police observed that he appeared to be in a psychotic state and took him to St. Joseph’s Hospital. On May 25, 2018, he had again consumed drugs and threatened his father with a knife. He also threatened to stab an officer. He was apprehended again and taken to Toronto Western Hospital and admitted under a Form 1 under the Mental Health Act.
vi) The Statement
[41] During the interview, after ensuring that Q.R. understood his rights and in the presence of Q.R.’s father, Q.R. offered that when he first arrived at the station he was “really high” and “so like it’s hard for me, like not - I remember – I remember the details, it’s just like I have to – it takes my brain a second”.
[42] Several times he asked if it was all right for him to tell the full story of what happened. He was advised by Detective Campbell that they would take it one step at a time to ensure he understood his rights.
[43] He told the officer that he took a “shit ton” of drugs – “meth, crack, heroin, fentanyl . . . fentanyl lollipop, Actiq, alcohol and marijuana”. He said he had not slept for “like 3 days”, however he had slept since he got there, “but before like I got into the custody, I haven’t slept for like 3 or 4 days . . . I’ve been up doing drugs”.
[44] After confirming Q.R. understood his rights, he was asked if he wanted to provide a statement to which he replied, “yeah I do”. He provided the following uninterrupted narrative:
So, I was planning to hit that . . . to rob that jewelry store for a while, the one at the flea market, but obviously I did not go in there planning to hurt anybody. In fact, I gave the, like, the guy that . . . unfortunately . . . I feel bad for it, trust me, but that I hurt, three, I gave him three warnings. He grabbed me and I still gave him a warning and I didn’t even shoot him after he got me. I gave him two more actually after he got me, and then I snapped because then this guy like keep . . . okay okay, moving on from that.
But, yeah, so I was planning to hit that jewelry store for a while, you know, it was like a pretty okay rewarding job, like, I was just planning to go in there and use the thing. At first, I was actually planning to do it without the thing, but I just thought oh yeah, it’s probably a crowded flea market, someone is going to try to attack me, so I was going to try and get like, like, all the jewelry, I saw it on the internet. It was strictly money, like obviously I was not planning to go in there and do what I did.
So, I get in there . . . do you want me to like kind of list it? Let’s start from the beginning. I go . . . I park my bike up like there because I was going to plan . . . I was supposed to, like, apparently . . . I don’t know why I . . . I planned to use a bike because I wasn’t . . . obviously I wasn’t planning to be that big, I was planning to just get the jewelry and get out of there really quick, nothing bad would . . . I was not expecting something bad would happen, like you know. So, but obviously, that didn’t happen.
So, I parked my bike up there and then, so I walked in, and I put the gun to her like, and I was just like, okay, I’ll just run the jewelry. Obviously, I was just like “yo, just put the chains in the bag, just put the chains in the bag”, that’s it. And I was pointing at the chains. At first, like, I didn’t, like, utter any threats and then I was like, oh yeah yeah, so just like “put the chains in the bag, put the chains in the bag”. She’s like “okay okay”.
And then there’s this guy, right, so he grabs me like this, and I just pushed him off me, the guy, the victim. And then I, I put the, I point the thing at him and I’m like “yo, don’t move, don’t move”. I literally said, “don’t move”. And then he’s still coming toward me, and I don’t know what’s going through your head when you are walking up to someone when they got like a gun to your head and . . . and . . . and he obviously doesn’t want to, I didn’t. He knew I didn’t want to; I want to have to hurt that guy, he knew I didn’t want to have to hurt him. But this guy keeps walking towards me like this and he already grabbed me, so and then I still don’t do it. This guy grabs me again. If you’ve seen the security footage, you know what I mean, and I still don’t do it after that.
The third time then this guy starts running at me and so I’m like holy, instinct, that’s human instinct. I just, without even, like . . . obviously I did that. I thought I was going to get body slammed or stabbed or something. I have a guy four times my age just running towards me. I mean obviously I’m not doing something. I know what I am doing there ain’t too good, but still if somebody like . . . when you have somebody running after you, and you have a weapon, you are going to use it, regardless of the circumstances, especially when I gave him three chances.
[45] Q.R. went on to describe how he had planned to rob the jewelry store in order to pay for more drugs. He claimed he had purchased the firearm in a transaction over the “dark net”. He stated that he had “a lot” of drugs in his system when he committed the offence. He had been at home injecting drugs for days before the robbery. He had consumed fentanyl, heroin, crack and crystal meth. He said he had had hallucinations, seeing faces before he fell asleep earlier while in the cell, before the interview. He also thought that perhaps he had heard gun fire as he had run from the scene of the shooting.
[46] Q.R. stated that his drug use cost him from $200-$300 per day and that his plan was to sell the gold chains over the internet.
[47] He had gone to the jewelry store but had not planned to hurt anyone. He stated:
I have nothing against him. I’m just like back off man, back off. And I am like Yo, I’m armed, like just back off. Like it’s all you have to do, back off and then he . . . then he’s still running towards me, he’s still running towards me. This guy tries to grab me again. This guy . . . this guy does grab me again and I wrestle it away from him for a second time, for a so already . . . I . . and then I still . . . even after this occurrence, I’m still, I go “back off man, back off, back off.” And then this guy tries this again. And then it’s the third time and I’m like “Yo, Yo Yo Yo, seriously Yo, I pulled the thing back and obviously. I’ve never shot a gun before, so I was like . . . without making, I was like (indiscernible). I’m not aiming . . . I’m not aiming for no particular place; I’m just pulling it back and letting it zing making a lot of noise. Obviously, I was aiming for him, though, so I’m not going to say I wasn’t.
[48] Part of the Crown’s case includes the evidence of Dr. Graham Glancy, forensic psychiatrist allowed to be called to critique the defence expert evidence of Dr. Wagar Waheed, child and adolescent psychiatrist and forensic psychiatrist, more of which will be discussed later (below).
Defence Evidence
i) Q.R.’s Testimony
[49] In September 2018 Q.R. was living with his father, a retired Toronto Police Service sergeant in a basement apartment. Q.R. was left much on his own as his father spent most of his time away from the apartment, the condition of which he deplored. It was filthy and he felt his son had turned it in to a crack den as he continued to consume drugs.
[50] Q.R. was living as a drug addict, engaged in polysubstance abuse, mostly injecting or smoking crystal methamphetamine, his drug of choice.
[51] Photographs taken during the police search of the apartment Q.R. shared with his father showed that it was in a squalid state, with garbage strewn about, clothes left in piles where dropped, grime and mold covering most surfaces and Q.R.’s drug paraphernalia and detritus strewn about.
[52] Q.R. testified he consumed drugs continuously, injecting or smoking crystal amphetamine, crack cocaine, opiates, marijuana and hallucinogenic drugs, such as PCP and mushrooms. He spent much of his time on his computer playing video games and committing credit card fraud by selling credit card numbers to others over the internet and hacking.
[53] His parents were divorced. He had minimal contact with his mother since the age of 8 when he said she kicked him out for having taken her medication. Thereafter, he lived with his father.
[54] He started skipping school in grade 9 and had a number of suspensions for drug use and absences. His last enrollment was in the spring at the Jones Avenue Separated and Expelled Program offered by the school board, but he stopped going to school in September 2018.
[55] He testified that he started taking harder drugs, crystal methamphetamine, crack cocaine, heroin referred to as Down, a strong opiate mixture with fentanyl, and “speed balls”, a mixture of crystal meth and Down. He also took Xanax, marijuana and PCP.
[56] He testified that he had been on an 8-day binge, a “meth binge” with no sleep leading up to the robbery at the Old Flea Market. He was high the whole time. He described his drug consumption as follows:
Q. Okay. And can you tell -- just describe for the court, what substances were you using in the week leading up to your arrest?
A. Crystal meth primarily. Again, that's my drug of choice.
Q. Okay.
A. Um, heroin/down as I explained. Um, Xanax, marijuana, PCP, fentanyl which would have been in the mixture of the down.
Q. Okay. Fentanyl that would be mixed in with the down.
A. Yeah. Crack cocaine and oxycodone.
Q. All right. Now, you had -- if you can, just give His Honour an idea how you were using those drugs?
A. Well, I smoked the crack. That's the only way you use it. Um, the meth, it was a mixture of smoking, snorting and mostly injecting.
[57] Contrary to his statement to the police, Q.R. testified the plan to rob the jewelry stall was his main drug dealer’s idea – Teshawn Wilson. He stated that he owed Teshawn a lot of money for the crystal meth and other drugs he had been supplying him. When the robbery was first raised, he told Teshawn he did not want to do it, but Teshawn threatened him. He said that he would blow a hole in his head and pulled the gun to show him.
[58] Later in evidence, he said Teshawn put the gun to his head when he told him he had to rob the jewelry stall. Teshawn told him it would be an easy job, just an “in and out lick”.
[59] He said that Teshawn gave him the sawed-off rifle and that he could use it to scare the lady in the jewelry stall and that nothing would happen. He said that he told him it was just a “pea shooter”. It was a .22, just something used to kill rats and it would be sufficient to fire a warning shot and scare them to hand over the jewelry.
[60] He testified that at one point Teshawn loaded the gun, cocked it and fired it into the wall to show him how it worked. Then he reloaded it and gave it to him.
[61] Q.R. said he agreed to do the robbery because he was scared of Teshawn, and he did not want to be cut off from his drug supply. He claims as well that Teshawn told him to use his bicycle to go there to commit the robbery.
[62] In support of his claim that Teshawn was involved he pointed to the screen shot taken of his computer during the execution of the search warrant by the police at the apartment which showed a chat between parties named “methamphetamine”, said to be him and “thumpbuntz”, who he claimed to be Teshawn. The chat was about his bicycle and where it should be left. “thumpbuntz” responded that he did not care, “park the f…ing bike somewhere from my crib”.
[63] On the day of the robbery, in the morning his father came to the apartment and helped him pump up his bicycle tires.
[64] Q.R. testified that he then went to Teshawn’s house where he injected two to three speedballs, smoked marijuana and took PCP.
[65] He testified that because of his drug binge he was in a “full blown psychosis” experiencing auditory, visual and tactile hallucinations. He said he was seeing holes in trees framing faces, eyes and mouths opening and closing, lips moving and at times he heard “gibberish”. Everything looked “staticky” and very bright. He saw geometric shapes and felt bugs crawl under his skin. He felt weightless. He took Xanax to calm his anxiety.
[66] Q.R. claimed that when he rode off with the gun in the duffle bag over his shoulder to commit the robbery, he was not paying attention to his surroundings. Because he had “zoned out”, he almost ran into a car. The video shows that at an intersection he maneuvered his bicycle past a turning vehicle.
[67] He said he lost his balance as he approached a post. The video shows that he stopped at a post at a gate entrance, then he rode on, parked and locked his bicycle to another post.
[68] He walked into the flea market where he said he had been earlier with Teshawn to “scope” out the stall. He said he made a few wrong turns in the mall, but eventually found his way to the stall. He walked past it, stopped, turned, and walked back to the counter at the far end where he placed the bag down. He pulled the draw strings to his hoodie tight about his face and pulled the gun from the duffel bag.
[69] He pointed the firearm at the lady and screamed at her to “run the chains” He started to waive the gun around to make it apparent he had a gun, and to frighten her. She was moving slowly, which made him kind of angry, so he smashed the gun against the counter. It did not break.
[70] He heard screaming and looked around and saw someone, a man. He waved the gun at him to warn him off. When he turned back to the jewelry stall lady he then felt someone grabbing at his clothes from behind, then pulling at the gun, like a “tug of war with the gun.” He pulled the gun away from him and started to back up. He said to him, back off, F’ off, get the F’ out of here, I’ve got a gun, pointed it at him and told him he was serious.
[71] He said he saw something in his hand and thought it was a knife. He said he was scared that he was going to get stabbed. He testified he had been stabbed before with spiked knuckles and did not want it to happen again.
[72] He focused on the man’s hand. The man held it out front in his right hand. He thought he was going to hurt him, kill him. He wanted to stop him.
[73] He said he was not thinking, he just remembered that he wanted to stop him. He was about two feet away. He held the gun at chest level. His focus was at the man’s shoulder, so he pulled back the bolt, and fired. He testified he thought it would stop him and he did not care if he hit him or not. He just wanted to stop him, maybe scare him away. He saw gun smoke and ran.
ii) Dr. Wagar Waheed
[74] The defence called Dr. Wagar Waheed a child and adolescent psychiatrist and forensic psychiatrist to address whether, due to Q.R.’s medical and mental health issues and intoxication, he could have known that by shooting Rocco Scavetta that it was likely to cause his death.
[75] Dr. Waheed conducted interviews of Q.R. over three sessions in September and October 2022. In his report dated November 14, 2022, he diagnosed Q.R. with a number of psychiatric and mental health disorders, specifically attention deficit/hyperactivity disorder (ADHD), other specified trauma and stress related disorder, substance abuse disorder, specific learning disorder, persistent depressive disorder, hallucinogen-induced persisting perceptual disorder, and anti-social personality disorder (ASPD), in adolescence conduct disorder.
[76] Dr. Waheed testified that these mental health disorders, his school absences, parental abuse and neglect, malnutrition, lack of sleep, undiagnosed diabetes at the time all impacted his ability to make decisions and as a result reduced his ability to actively appreciate or recognize the potential for death in the circumstances. He testified that his long-standing drug use and mental health issues impaired his judgment and his ability to process information.
[77] In the result, Dr. Waheed, on review of Q.R.’s substance abuse, lack of sleep, his report of being under duress, ADHD, history of adverse life experiences, chronic medical problems including malnutrition and insulin dependent diabetes, he was probably not aware that shooting the victim was likely to cause death.
[78] Dr. Waheed did not testify that Q.R. was incapable at the time of the incident to be aware or know that shooting the victim was likely to cause death.
iii) Dr. Karen Woodall
[79] Dr. Woodall, a toxicologist was called by the defence to testify as to the nature of the substances that Q.R. said he consumed and the potential toxicological effects of taking of those substances. She was advised that Q.R. had an extensive history of illicit drug use and at the time of the incident, September 8, 2018, he reported had been using drugs daily and in combination, including crystal methamphetamine, cocaine, heroin and Xanax.
[80] She testified that crystal methamphetamine and crack cocaine are central nervous system stimulants. The former provides a long-term euphoric high and feeling of being energized for four to eight hours. The later provided a short-term feeling of euphoria that can last up to 30 minutes. Both are highly addictive. Extended or binge use, which is a repeated administration, can induce psychotic symptoms of paranoia and delusions. (Add in lack of Sleep and Crashes)
[81] The drugs, said to have been consumed by Q.R. are classified as psychoactive drugs which affect the brain and behaviour by interacting with neurotransmitters in the brain, which changes neurochemistry. A combined effect can impair a person’s ability to focus, assess the situation and process information. It can affect a person’s behaviour and a person’s overall health.
[82] Dr. Woodall noted that she did not interview Q.R. or have the benefit of any toxicology to confirm consumption, and as a Toxicologist she could only speak to the pharmacological effects of a drug on the body, including those that may affect mental faculties, which could influence behaviour. However, she could not say what potential effect the individual was experiencing at the time.
[83] She testified that the drugs, Q.R. reportedly consumed all had the possibility of influencing behaviour and impairing judgment over body movement, body actions and the thought process. She did not know and could not predict what the specific effects the substances would have been on Q.R. at the time of the event.
[84] As a toxicologist, she could only speak to the pharmacological effects of a drug on the body including those that may affect mental faculties which could influence behaviour but could not say the potential effect an individual was experiencing at the time. An opinion related to the specific actions or behaviour of an individual involving reasoning or intent are beyond her expertise as a toxicologist.
Assessment
Q.R.’s Testimony
[85] The Crown submits the numerous inconsistencies and contradictions in Q.R.’s evidence undermines his credibility and reliability. His evidence should be given no weight. The Crown points to the following evidence:
i) Not aiming versus aiming, positioning toward his shoulder
[86] In his videotaped statement to the investigating officers, he stated that “I’m not aiming . . . I’m not aiming at no particular place; I’m just pulling it back and letting it zing making a lot of noise. Obviously, I was aiming for him, though, I’m not going to say I wasn’t.”
[87] Later, in other proceedings under oath he claimed that he was aiming the gun at Mr. Scavetta’s shoulder.
[88] In an affidavit dated March 31, 2021, in a related proceeding at para. 31 he stated: “I wanted to get away and I wanted him to stop coming toward me. I remember pulling the trigger of the gun. I did not even aim the gun”. However, at para. 45 there is an internal inconsistency with him stating “I had aimed the gun for the shoulder”.
[89] In the related proceeding before McMahon J., he testified: “it was aimed for . . . not really aimed, but I positioned it so it was, like, toward his shoulder so it wouldn’t hurt him, right” (June 8, 2021, at page 28, line 21 of the testimony).
[90] In the same proceeding he stated: “I tried to position it for his shoulder, which is not really a deadly place, right? So, I didn’t think I was going to hurt anybody. (June 8, 2021, at p. 33, line 1-5).
[91] In Dr. Waheed’s report of November 14, 2022, from his interviews in September and October 2022 Q.R. told him he aimed the gun at his shoulder with the intention of turning him, but no intention of killing him.
[92] In his evidence in-chief on the trial the accused stated he positioned it toward his shoulder, and then in cross-examination when asked “so you didn’t aim?” he responded, he did not really aim, he positioned it towards his shoulder.
ii) Seeing a knife
[93] In his testimony on the trial the accused said he saw that the victim had something in his hand which he took to be a knife. Yet throughout his initial videotaped statement on September 9, 2018, to the investigating officers he made no reference to seeing an object or what he believed to be a knife in the victim’s hand.
[94] In Exhibit 13A-1 the videotaped statement transcript September 9, 2018, at pp. 89-90:
“I don’t know this guy; I don’t know what his intentions are. I thought his most likely . . . obviously I thought most likely his intention are to say to stop the robbery, but I don’t know that for sure. For all I know he could be walking up to me with a knife, that all, like I don’t know”.
[95] Similarly, at other times in the interview he stated that he didn’t know what he had on him. Further, in describing how Mr. Scavetta came towards him he held his hands up and out. In those instances, he did not describe or demonstrate him holding anything.
[96] Subsequently, he reported a definitive observation that Mr. Scavetta was holding out a knife toward him. In the affidavit dated March 31, 2021, in another proceeding he stated: “I got away from him and backed up while holding the gun. I remember he picked up what looked like a knife, and I saw him coming toward me holding out his knife (para. 30).
iii) Planned it himself or forced to do it
[97] In the videotaped statement he told the officers that “so I was planning to hit that jewelry stall for a while, you know”. Later, he stated that no one told him to do it, although his friends encouraged it, they were not involved, “yeah I told you, I planned it.” (Exhibit 13A Transcript, p. 25, line 11-12 and at p. 94 line 9-25)
[98] On August 31, 2020, in speaking with Dr. Jay Beitchman in the preparation of a s. 34 Report under the YCJA, he told him a friend had scoped out the store and told him it would be a clean robbery and that he could get the jewelry and exchange it for drugs.
[99] In his interviews with Dr. Waheed, September – October 2022 he indicated that his “homie” wanted him to do the robbery so he could pay him for the drugs that he had been given. He also said his homie would shoot him in the head if he didn’t do it.
[100] On the trial the accused testified that his main drug dealer, Teshawn Wilson, to whom he owed a lot of money for all of the drugs he had been using, told him to do the robbery or he would “blow a hole in my head”. He took out a revolver to show him when he said it. Later, he added in evidence that Teshawn put the gun to his head and told him he would shoot him if he did not do the robbery.
[101] Contrary to the story he told on the videotaped statement about the gun being acquired on the dark net by himself for payment of $1200 in bitcoins, he testified on the trial that Teshawn gave him the sawed-off rifle, loaded a bullet in it, showed him how to cock it, fired it into the wall to show him it worked, and then loaded another bullet for him, before the robbery.
[102] His explanation for leaving Teshawn out of the original story and getting the gun from him in the videotaped statement was because he did not want to get Teshawn in trouble and to be seen as a snitch.
iv) Non-lethal Sawed-off .22 rifle
[103] On the trial the accused testified he did not think a .22-calibre rifle could hurt anybody. He said he was told by Teshawn that it was just a “pea-shooter”, like a very powerful BB gun.
[104] There is no reference in the videotaped statement or in any other subsequent interviews or reports that the firearm was just a “pea-shooter”.
v) Stabbed Before
[105] On the trial, the accused testified that he had been stabbed in the stomach before with brass knuckles that had spikes. In the previous proceeding June 10, 2021, at page 132-133 he testified that he had been stabbed in the abdomen by a meth dealer with a “little pocketknife, not a switch blade”.
vi) Drug binge
[106] In the videotaped statement the accused testified that he was on a three-to-four-day drug binge but at trial it had been extended to eight days with detailed daily descriptions of the drugs consumed.
vii) Anti-social personality disorder
[107] The Crown submits that as testified to by Dr. Waheed a common feature and symptom of the disorder of anti-social personality disorder is being “frequently deceptive and manipulative”, which is how the accused self-described in order to get favours and to be seen as cool.
viii) Memory clearer over time
[108] Although the accused testified that he was impaired at the time of the shooting as a result of his copious polysubstance drug consumption, he maintained that subsequently:
“…my memory has become clearer and less tainted by drugs and my psychosis fresh off the street. I am going to say, thinking about an event every single night you tend to pay attention to details, you think about the details, you think about the event . . . you make conclusions about what you think about, determinations from what you think about. If you think about something like that yes, your memory it will get stuck in your mind, you try to think about every part of it and then you might think about a part of it you didn’t think about before”.
[109] In the earlier proceeding on June 11, 2021, he stated that in ruminating about the day “my memory about what happened that day is just molded, molded, molded, just built itself”.
[110] Clearly, over time Q.R. has woven additional detail into his narrative of the incident that undermine his credulity.
[111] I agree that Q.R.’s evidence is generally unreliable and lacks credibility due to the numerous inconsistencies, additions and embellishments. However, where supported by other evidence, there are parts of his evidence that I accept as believable.
Dr. Waheed’s Opinion
[112] The weight of Dr. Waheed’s opinion was significantly undermined due to a number of deficiencies in his approach in arriving at his conclusion, not least of which was his reliance almost wholly on information provided by Q.R. during their interviews, without verification.
[113] Dr. Graham Glancy, qualified as an expert in Forensic Psychiatry, specifically with respect to the limits and scope of forensic psychiatry was called by the Crown to comment on Dr. Waheed’s forensic analysis or rather lack of analysis in arriving at an opinion.
[114] Dr. Glancy was called to comment on the limits and scope of forensic psychiatry because of his expertise as a result of his direct and lengthy involvement with the Royal Canadian Physicians and Surgeons (Canada) as its founder of the sub-specialty of forensic psychiatry, Chair and former Vice-Chair of the Examining Committee in Forensic Psychiatry and his long-term involvement in executive positions in the within the American Academy of Psychiatry and the Law, bodies that license psychiatrists to specialize in forensic psychiatry.
[115] He noted significant concerns with the methodology used by Dr. Waheed in arriving at his opinions. In this case where there are a multiple sources of information as listed in the appendix to Dr. Waheed’s report, he noted how important it was to compare those sources of information and their contents with the information provided by the subject.
[116] It was noted by Dr. Glancy that Dr. Waheed did not compare Q.R.’s accounts with what happened in the interviews conducted in September and October 2022, provided four years after the fact, with available source information from the time of the incident and which had been available to Dr. Waheed. There was no comparison with Q.R.’s self-report of what happened given to the police such as through the videotaped statement on September 9, 2018. There was no evaluation with the contemporaneous videotape to assess his demeanour and behaviour before, during the incident, afterward and in the police interview.
[117] Dr. Glancy was asked as a forensic psychiatrist faced with a set of facts four years after the fact how it should be considered in the analysis before arriving at any conclusion. He answered as follows:
As I said before, Your Honour, the forensic method is that the interview forms one of the bases for the opinion, but it's then really important to compare information from the interview to collateral information, which in this case would include videos, would include testimony in the various procedures. And then it's very important to analyze that information and to state which facts that the forensic psychiatric opinion does take into account and accept and which ones they might reject for some reason and say what that reason is. And this all needs to be taken into consideration before coming to the final conclusion as opposed to just making a conclusion on what the interview information told the forensic psychiatrist.
From his report and his testimony, he did not seem to perform any analysis and take into account the various sets of facts and to compare and contrast them and it's my understanding from seeing his cross-examination, although he had perused and there was some in fairness a great deal of information in this case, he did not take that information into account in coming to his final conclusion.
[118] Dr. Glancy indicated that access and consideration of collateral sources are important. As an example, Dr. Waheed referenced Q.R. having a diagnosis of substance abuse, however there is no significant analysis with respect to there being an impact of substance abuse on Q.R. at the material time. Dr. Glancy observed:
I don't remember from his testimony or report any sort of analysis, but I would have thought he had specific qualifications in substance use disorders that that would have been very important material for him to review and he may have given an opinion on whether any of the characteristics or demeanour of the accused youth correspond to someone who is intoxicated or incapable of forming intent or even unable to appreciate the nature and quality of the act that would all go to those issues if there was contemporaneous video that showed very clearly how he was acting ….
[119] As noted earlier much of the information considered by Dr. Waheed was self-report provided by Q.R. Dr. Glancy observed that generally speaking in forensic psychiatry one of the essential parts of the method is to consider the veracity or credibility of the evaluee’s self-report. Dr. Waheed agreed that all of the accused self-reporting should be treated with caution as he could be possibly deceptive. He diagnosed Q.R. with anti-social personality disorder, a feature of which is being deceptive and manipulative.
[120] Dr. Waheed agreed that the opinion he arrived at as stated in his report and testimony depended on the veracity of the information provided by the accused. He agreed in his testimony that his report contained no critical analysis of Q.R.’s self-reporting contained in it, other than a reference to the accused having said “I don’t know” when asked why he had not told a previous assessor he had been pressured to commit the robbery. An unchallenged inconsistency.
[121] Dr. Waheed did not testify critically about the veracity of the accused self-reporting, although ultimately under cross-examination he agreed that all of the accused self-reporting data should have been treated with some caution, as the accused was in Dr. Waheed’s words “possibly deceptive for certain”. He would describe the accused as deceitful and manipulative, and it would quite likely be in the accused’s mind to say to him whatever he perceived as being helpful to his defence. An assessment I accept.
[122] Dr. Waheed agreed in cross-examination that interviewing collateral sources of information like the accused’s parents and others, which he did not do, would also have been particularly helpful especially because of “some clear indications that there was reason to have, if not caution, even be very wary of the accused’s own credibility or reliability in the case”.
[123] What is significant in Dr. Waheed’s report and opinion is the absence of any reasoning process connecting the factors as he outlined them, substance abuse, lack of sleep, duress, ADHD, history of adverse life experiences, malnutrition, and diabetes either individually or collectively to his opinion as to Q.R.’s awareness of the lethal action he was engaged in at the time. When asked about the individual factors he agreed that none could assist with what was present in a person’s mind at the significant time.
[124] Moreover, Dr. Waheed ultimately agreed that “these factors would not have value in evaluating the probability of what his thoughts were”. His conclusion, he agreed, about the probability of Q.R.’s specific thought or not at the time of the incident, was not one he could come to. While he explained that his opinion was based on the cumulative effect of the factors, he did not explain the reasoning process that led from the factors, cumulative or otherwise to his opinion.
[125] In assessing the testimony of any witness, the trier of fact can accept some, none or all of the testimony. I accept Dr. Waheed’s expert opinion with respect to the diagnosis of mental health disorders and issues of Q.R., however, as to his opinion, which encroaches on the ultimate issue, I am not satisfied that he provided the necessary evidentiary basis to opine as to Q.R.’s state of knowledge or awareness at the time of the offence in September 2018, an issue for the trier of fact.
[126] As a result, Dr. Waheed’s conclusion, based primarily on self-reporting and unverified or corroborated information provided by Q.R., lacks foundation and affords little probative value in the factual determination of the accused’s intent.
[127] However, based on his expertise as a child and adolescent psychiatrist, I accept, his diagnoses of Q.R.’s mental disorders and his evidence of the unique neural biology of the developing adolescent brain which renders adolescents less thoughtful and deliberative in their actions than adults in my consideration as to whether Q.R. had subjective foresight that the bodily harm he caused was likely to cause Mr. Scavetta’s death.
Dr. Karen Woodall
[128] I also consider Dr. Karen Woodall’s evidence that long-term use of central nervous system stimulants like methamphetamine increases a user’s risk of developing psychotic symptoms or psychosis, which can include paranoia, hallucinations and delusions. Further, during psychotic episodes erratic and violent behaviour can also occur.
[129] Consistent with Dr. Woodall’s evidence as to the effects of long-term use of crystal meth and other stimulants, when Q.R. was interviewed by the police following his arrest he reported hallucinations and delusions, an aspect of Q.R’s evidence which I accept as credible in the circumstances.
Conclusion
[130] In considering the applicability of the common-sense inference, the court must consider all of the evidence that impacts the accused’s mental state at the time of the offence. In this instance I consider the cumulative effect of the accused’s age, his substance abuse, sleeplessness, ADHD, undiagnosed diabetes, his physical health and adverse life experiences.
[131] I find on the evidence that Q.R. had a serious drug addiction affecting his physical and mental health at the time of the offence. In support of this finding is his physical state at the time of his arrest as depicted in the photographs taken during the Level III search, showing an adolescent significantly malnourished, in a filthy state with obvious signs of neglect to personal hygiene and his extensive drug use graphically displayed by the injection track marks on the inner aspect of his elbows.
[132] The apartment he shared with his father was littered with drug paraphernalia and detritus, in an abhorrent squalid condition. He was also found at the time of his arrest to be in possession of a rock of crystal meth. His father confirmed to the investigating officers that his son used all types of drugs. Further, there had been previous police occurrences, two of which involved apprehensions in 2018 under the Mental Health Act due to drug induced psychosis.
[133] Whether he was stimulant binging for 3-4 days or more, I accept he had experienced a significant period of sleep deprivation as a result in his using crystal meth and other drugs. Shortly after his arrest and being advised he was to be charged with murder, while being held in a cell pending the interview with the investigating officers, he fell asleep. Detective Campbell testified that she waited several hours before interviewing him because of his apparent drug use at the time. In his interview, he spoke of auditory and visual hallucinations – consequences of long-term use of stimulants - consistent with him crashing, a consequence of his drug binge coming to an end, an effect as testified to by Dr. Woodall.
[134] After his arrest, on being detained at the Roy McMurtry Centre he was found to weigh only 89 pounds, consistent with him being grossly malnourished. He was treated for drug induced psychosis on admission and also found to have undiagnosed Type 1 diabetes.
[135] I am unable to apply the common-sense inference as to his intent and knowledge in the circumstances. I am unable to find at the time Q.R. discharged the firearm he was in a sufficiently “sane and sober” state due to the cumulative effect of his substance abuse, sleeplessness and other physical and mental health issues extant at the time of the offence for him to appreciate the natural consequences of his act.
[136] The act of firing the gun appears to have been done as a reaction to an unexpected intervention diminishing the likelihood that subjective foresight of death was present.
[137] The Crown submits, notwithstanding his drug use and other issues, Q.R.’s knowledge and awareness as to the lethality of his actions was evinced by his comment made to Constable Gordon on being informed, he was being arrested for aggravated assault: “oh really, I thought it was murder for a second.” There is only one logical interpretation, he was fully aware he inflicted bodily harm he knew was likely to cause death.
[138] In my view, it was at most an after the fact realization that death was a possible consequence of what he had done.
[139] I am not satisfied beyond a reasonable doubt in all of the circumstances that at the time Q.R. pulled the trigger of the firearm he had the requisite subjective foresight of the likelihood of death flowing from the bodily harm he inflicted on the victim.
[140] In the result, I find Q.R. not guilty of second-degree murder but guilty of manslaughter in the death of Rocco Scavetta. In addition, I find Q.R. guilty of armed robbery and possession of prohibited firearm.
A.J. O’Marra J.
Released: September 19, 2023
COURT FILE NO.: YC-19-5000003
DATE: 20230919
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Q.R. (A Young Person)
Accused
JUDGMENT
A.J. O’Marra J.
Released: September 19, 2023