COURT FILE NO.: CR-20-30000358
DATE: 20231006
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DENNEIL MORGAN
Defendant
Caolan Moore, for the Crown
Breana Vandebeek, for the Defendant
HEARD: July 31, August 1, and 3, and September 14, 2023
RHINELANDER J.:
INTRODUCTION
[1] Denneil Morgan was charged with attempt murder, discharge firearm, aggravated assault, possession of a loaded firearm, and possession of a firearm while prohibited.
[2] For the reasons set out below, I find Mr. Morgan guilty of possession of a loaded firearm (count 4) and possession of a firearm while prohibited (count 5). I find him not guilty of attempt murder, discharge firearm, and aggravated assault (counts 1 – 3).
[3] In the early morning hours of September 30, 2019, Stevie Mullings was shot multiple times by Denneil Morgan. The events of that evening were captured on several surveillance cameras in the commercial parking lot that clearly showed Denneil Morgan was the shooter.
[4] At issue is whether Denneil Morgan acted in self-defence. It is the Crown’s onus to prove beyond a reasonable doubt that Mr. Morgan was not acting in lawful self-defence and to prove each of the essential elements for all offences charged.
[5] Mr. Morgan reelected his mode of trial after a mistrial was declared on June 21, 2023, during jury deliberations. This is important to fully understand how this trial proceeded and my assessment of the evidence in this case as I was not the original trial judge.
[6] This trial proceeded by way of viva voce evidence of Denneil Morgan, agreed statements of facts, surveillance videotape, and the transcripts of the evidence of all other witnesses called at the first trial by the crown and defence.
OVERVIEW
[7] In September of 2019, “My Father’s Place and Good Vibes Bar” operated at 1534 Warden Avenue in Toronto. This was a restaurant and drinking establishment that had a bar at the back, high top tables with bar stools on the sides, and a space in the middle used for dancing.
[8] Shortly after midnight, four vehicles arrived at the plaza and parked north of the bar, in front of Young’s Milk store. The vehicles were all backed in and parked side by side.
[9] The following persons were identified as having exited the vehicles; Vehicle 1 - Denneil Morgan and Andrel McKay; Vehicle 2 - Nazia Rahman; Vehicle 3 - Dwayne Morgan and Nicole Morgan; and Vehicle 4 - Stevie Mullings and Tanya Mullings.
[10] Denneil, Dwayne, and Andrel are brothers. Stevie Mullings is their cousin. Nazia Rahman was Denneil Morgan’s girlfriend at the time, but they have since married. Nicole Morgan is Dwayne’s wife, and Tanya Mullings is married to Stevie Mullings.
[11] Denneil Morgan’s vehicle, a Ford Edge, was parked directly in front of Young’s Milk and the southernmost vehicle of the group. Next was Nazia Rahman’s white Mercedes sedan, followed by Dwayne Morgan’s dark coloured SUV, and lastly Tanya Mullings’ black SUV.
[12] All parties exited their vehicles and headed to the bar using the sidewalk. At the entrance to the bar, they were searched by security prior to being admitted. While inside, the group socialized, had drinks, and danced.
[13] Close to 1:30 am, Stevie and Tanya Mullings were captured on video leaving the bar, with Stevie in the lead. They walked in the parking lot as opposed to on the sidewalk. As they walked, Stevie fell behind. Tanya believed he stopped to acknowledge someone. Tanya unlocked her vehicle with a remote fob, causing the lights on her car to flash.
[14] Within twenty seconds of the Mullings’ leaving the Bar, Denneil Morgan is seen on the video heading north on the sidewalk. Just before Denneil Morgan exited the bar, two other males had exited and headed in the same direction as the Mullings. They were identified as Tyler Lansdowne-Thomas and an individual known to Denneil Morgan as “Randall”. Denneil Morgan cut between two cars towards his friends in the parking lot.
[15] Denneil Morgan passed them and continued northwards but turned and went back towards Mr. Lansdowne-Thomas who had bent down in front of a parked car. The car blocked the camera angle, however, Denneil Morgan was seen to bend down towards Mr. Lansdowne-Thomas. When Denneil Morgan stood up, a dark object was seen in his hand. The video footage from the Karachi Bazaar clearly showed a black firearm in his right hand.
[16] Stevie Mullings gait appeared unsteady as he walked through the parking lot. He is seen turning towards the passenger side of Dwayne Morgan’s vehicle and appeared to be speaking to himself. The video surveillance has no audio, but his mouth is clearly opening and closing, and his head went up and down a few times. Whatever he may have been saying was done with some emphasis. Mr. Mullings is seen attempting to open the passenger door to gain access to the car. This vehicle was locked at that time. The vehicle Stevie Mullings arrived in, and the one driven by Dwayne Morgan were both dark coloured SUVs, parked beside each other and reversed in.
[17] Unable to enter the vehicle, his attention seemed to be drawn to the parking lot where Denneil Morgan is seen coming into view on the camera. Stevie Mullings stepped out from between the cars and lunged at Denneil Morgan. He (Mullings) swung his right arm back behind him in a manner that suggested it would provide more power when he swung it forward. His left arm was extended towards Denneil Morgan.
[18] Immediately before Stevie Mullings lunged, Denneil Morgan could be seen struggling with the pockets of his jacket on the left and right side. His jacket was extended on both sides and his head was turned away from the parked cars towards Warden Avenue. It was at that point when Stevie Mullings jumped from between the cars as described above. Denneil Morgan turned toward Stevie Mullings and fired a number of shots in quick succession.
[19] Stevie Mullings was shot in the arm, leg, and abdomen. Upon being shot, Stevie Mullings turned and retreated between the cars. Denneil Morgan did not follow or step towards Mr. Mullings. While discharging the firearm, Denneil Morgan could be seen moving away from Mr. Mullings towards Warden Avenue and then northwards in the parking lot.
[20] Mr. Lansdowne-Thomas picked up Denneil Morgan and drove him away. While in the car, Denneil Morgan received an incoming call from Stevie Mullings’ cell number shortly after he left the area. He declined to answer the call and his phone battery died soon after.
[21] Denneil Morgan’s vehicle was still in the parking lot when the video footage from Young’s Milk and Karachi Bazaar ended.
[22] Police attended at the commercial strip plaza just after 2 am on September 30, 2019. The area was taped off and photographs taken. Denneil Morgan’s vehicle was not there.
[23] A total of six 9 mm shell casings were found in the parking lot where the shooting occurred.
[24] Blood droplets were observed between Dwayne Morgan and Nazia Rahman’s vehicles, consistent with where Stevie Mullings retreated after being shot. This is the same location where he was observed on video standing with his arms extended and gesticulating toward the north. A fragment of copper jacket from a bullet was also found at that location.
[25] A second area of blood accumulation was located outside the bar consistent with where Dwayne Morgan was observed standing, waiting to be transported to a hospital. He had been stabbed twice in the knee and once in the abdominal area.
[26] Stevie Mullings and Dwayne Morgan were separately driven to the North York General Hospital by their respective spouses. Both were subsequently transported by ambulance to Sunnybrook Hospital where they each received medical treatment for their injuries.
[27] Police took photographs of the plaza in the early morning hours and again in daylight. They also obtained the surveillance video footage from three businesses, Young’s Milk, Karachi Bazaar, and Gold Rose Wellness Centre.
Summary of Witnesses’ Evidence at Trial #1
DC Robert Jitta
[28] DC Jitta is a member of the Forensic Identification Service who was tasked to process the scene. Photographs were filed as Exhibit 1F. He also provided a general description of the layout of the plaza and identified a Google map overview. His evidence was noncontentious.
Tanya Mullings
[29] Tanya Mullings testified for the crown. She confirmed the relationships between the group and that there was no animosity amongst them. She told the court that Stevie Mullings continues to maintain a close relationship with Dwayne Morgan.
[30] Prior to going to the bar that evening, she said she had been at home making dinner and prepping for work the next day when Stevie suggested they go out.
[31] She and Stevie Mullings arrived at the bar just before or around 12 am. There were no prearranged plans and her husband simply asked her to go have a few drinks. At that time, they lived in the west end of Toronto. In cross-examination, she confirmed they had attended a memorial earlier that day and planned to connect later.
[32] They all arrived in tandem and parked beside each other in four separate vehicles. Tanya and Stevie Mullings met up with his cousins, Denneil and Dwayne Morgan, their respective partners, and Andrel McKay.
[33] Tanya Mullings was driving that night. She testified that she might have had a cooler but nothing more. Her husband, Stevie had one or two rum and cokes. When asked what his level of intoxication was, she replied “oh, fine.” She disagreed with the suggestion from Ms. Vandebeek that the group had purchased two bottles of over proof rum.
[34] According to her evidence, neither she nor Stevie Mullings had ingested or consumed any drugs and that her husband had remained beside her the entire evening, except for one or two minutes when she had used the restroom. In cross-examination, she was adamant that Stevie had not left the bar and gone outside, and that had he done so, she would have remembered. Her evidence on this point is contradicted by the video footage which clearly showed him outside talking to some males for more than one or two minutes.
[35] To her recollection, nothing unusual happened in the bar. She disagreed with Ms. Vandebeek’s suggestions that Stevie had been dancing and acting erratically inside the bar, as in her words, Stevie did not dance.
[36] At some point, Tanya Mullings decided it was time to leave as she had to work the next morning and it was late. As she and Stevie left, others were exiting the bar as well, but she didn’t pay attention. Enroute to her vehicle, she believed Stevie slowed to say hi to someone.
[37] At no time did she ever see her husband with a weapon or anything that could be construed as a weapon.
[38] In examination in chief, Tanya Mullings stated that as she got to her car, she heard a pow sound, turned around and realized Stevie wasn’t on the other side of her car. She saw him hanging onto a vehicle, and he told her he had been shot. She helped him to her car as he was unable to walk unassisted, put him in the front seat, and drove to the closest hospital.
[39] She was cross-examined extensively on her recollection of the events that evening. It was suggested to her that 1) she was in her car when her husband was shot; 2) that she had begun to move her car forward without her husband in the car; 3) that her husband was able to walk without assistance after being shot; 4) that he walked into the center of the parking lot/driveway, and removed his jacket; 5) that he entered the hospital on his own and was not carried into the hospital. She denied all these suggestions and was adamant that Stevie did not walk out into the parking lot and remove his jacket after telling her he was shot. She maintained that he needed assistance to get into her car and she attempted to keep him conscious enroute to the hospital.
[40] After being shown video footage that contradicted the above, she explained that this incident happened four years ago, and that may be why she did not remember. Her husband’s medical records stated that Stevie Mullings walked into the hospital unassisted. He was later transferred to Sunnybrook where he remained in hospital for a few weeks.
Stevie Mullings
[41] Stevie Mullings was called by the defence. He testified that his relationship with his cousins, Denneil and Dwayne was very good, “they were like brothers”. There was no animus, anger, or “beef” between them. At the time of his testimony, he no longer had a relationship with Denneil Morgan but still loves him dearly.
[42] On the day of the shooting, they had all attended a memorial earlier that evening for a family member who had died a few years before.
[43] Stevie Mullings has no memory of the shooting or the events at the bar aside from when he awoke in the hospital.
Dwayne Morgan
[44] Dwayne Morgan described his family’s upbringing. He was one of five boys who grew up in the west end of Toronto, at Jane and Falstaff. They moved to Scarborough when he was twelve.
[45] On the evening of September 29, 2019, he attended a memorial for a family member. His brother Denneil Morgan, Stevie Mullings, and their wives, Nicole, Nazia, and Tanya were also there. They had been drinking at the memorial before attending at the bar.
[46] It was his idea to go the Good Vibes bar. Upon arrival, they bought a bottle of Jamaican over-proof rum that everyone drank. After finishing the bottle, they bought a second bottle. He described himself as being “drunk that night”. He described Denneil and Stevie as also being intoxicated.
[47] While at the bar, Stevie saw somebody he appeared to know from his past. After this, Stevie began acting weird, and “screwing up his face” as though upset. At one point, Stevie left the bar with that individual. After about ten – fifteen minutes, Dwayne Morgan went outside to see if everything was ok. Shortly after, they all reentered the bar. The video surveillance suggests Stevie had been outside for only five minutes.
[48] Later in the evening, he saw Stevie dancing in the middle of the floor with his wife in a type of headlock while making gestures to people at the bar. Dwayne testified it looked like Stevie was having fun. Denneil approached Dwayne and asked him to speak to Stevie as it looked like he was making gestures at the person he had talked to outside. These gestures were described as a “gun finger in the air”. Dwayne explained in cross-examination by the Crown that in his culture when we hear certain music, we do certain things, and it wasn’t clear if Stevie was joking around.
[49] Dwayne spoke to Stevie who confirmed he was good. Dwayne returned to his seat and began to pour a drink when he felt a knife go in his knee. When he looked up, Dwayne saw Stevie exiting the bar. Dwayne told his wife they needed to go to the hospital as he had just been stabbed.
[50] Dwayne Morgan did not see who had stabbed him but when he looked up, the only people in his vicinity were Nicole Morgan, and Stevie and Tanya Mullings.
[51] Dwayne was helped outside while Nicole went to get the car. While standing outside waiting for her, he heard gunshots. Dwayne yelled for his wife to hurry and get the car.
[52] Dwayne Morgan was interviewed by the police on February 16, 2020. He failed to provide police any information about who was at the bar and how they came to be there. He was shown still photographs taken from video surveillance that evening of Stevie and Tanya Mullings, Denneil Morgan, and Nazia Rahman, and denied knowing who they were. He admitted on the stand that he lied to the police about his memory of that evening and his failure to identify his family members and friends.
[53] Dwayne Morgan acknowledged that he provided details to the court about the events of that night that he failed to tell the police. He acknowledged that he lied to the police about seeing Stevie or Tanya Mullings at the bar and that they had all arrived together albeit in separate vehicles. He told the court that he misled and lied to the police because he did not want to implicate anyone.
Nazia Rahman
[54] Nazia Rahman testified that she met Denneil Morgan in 2015 and they began dating that year. They are now married and share a daughter.
[55] She described Denneil Morgan’s relationship with Dwayne Morgan and Stevie Mullings as very close.
[56] On the date of this event, they had all attended a memorial and decided to go have drinks after as they were not ready to go home. At the bar, they ordered some bottles, were drinking, dancing, and having a good time. She described Stevie Mullings as being drunk, as were others in the bar.
[57] At one point, she was sitting at the table, and Dwayne Morgan was one or two chairs over, she saw Stevie Mullings and Dwayne Morgan talking. The music was loud, and she could not hear what was being said, but they were very close, and talking in each other’s ear. Moments later, she heard Dwayne Morgan scream, and he was holding his stomach and his knee, and was “bleeding out”.
[58] Nazia Rahman saw blood on the floor and people started exiting the bar. She grabbed her things and walked to her car. When she heard gunshots, she ran into a store and waited until she thought it was safe, went to her car and left.
[59] When Ms. Rahman left the bar, she did not see Denneil Morgan. She assumed he had left before her to assist his brother.
Denneil Morgan
[60] Denneil Morgan testified that he had gathered with family members and friends to commemorate a family member who had died approximately five years earlier. They attended at a parking lot and reminisced about their lost loved one. Later, they were not ready to go home and agreed to go to Good Vibes bar.
[61] While at the bar, Denneil Morgan became aware that Stevie Mullings recognized someone. This individual had issues with a member of Mr. Mullings’ family which created a sense of unease that evening. According to Denneil Morgan, Mr. Mullings became more tense as the evening progressed and he made facial expressions directed to the individual.
[62] At one point, Denneil Morgan watched Stevie Mullings holding his wife around the neck, in a chokehold, and was swinging her aggressively. Mr. Mullings was making a gun gesture with his other hand. Denneil Morgan asked his brother, Dwayne Morgan, to speak to Mr. Mullings as he was concerned that others may interpret Mr. Mullings behavior as being aggressive and create problems or animosity. Denneil Morgan believed these gestures were directed to the individual Stevie Mullings had a conflict or problem with from a previous incident or event.
[63] Denneil Morgan watched his brother speak to Mr. Mullings. While they were talking, he saw Stevie Mullings’ arm move very fast three times from the leg up. Denneil Morgan was unaware of what happened at that moment, other than immediately afterwards, Mr. Mullings turned to Denneil Morgan with a knife in his hand and said, “You next pussy”.
[64] Denneil Morgan observed his brother, Dwayne Morgan bleeding from his stomach area and leg. At that moment, he thought his brother could bleed out and headed to get his car to drive his brother to the hospital. He testified that he thought he could get his brother there faster because he knew where the hospital was.
[65] Video footage from that evening, showed the individual, believed to have had a previous problem or issue with Mr. Mullings’ family member, standing outside the bar with other individuals from 1:21 am onwards. This male was still visible on the video footage when Stevie Mullings and Denneil Morgan left the bar at 1:27:35 am and 1:27:55 am, respectively.
[66] Tyler Lansdowne-Thomas called Denneil Morgan over and told him that Stevie Mullings had headed in the direction of Denneil Morgan’s car. Mr. Lansdowne-Thomas gave Denneil Morgan a loaded firearm for his protection. Denneil Morgan did not know how many bullets were in the gun, nor did he know in advance that Mr. Lansdowne-Thomas would offer him the gun.
[67] When asked why he accepted the loaded firearm, Denneil Morgan said he just wanted to get to his car safely. On the way to his car, he attempted to put the gun in his right pocket while trying to get his keys from his left pocket. While doing this, Stevie Mullings lunged at him and had a knife in his hand. Denneil Morgan immediately reacted by firing towards the ground in front of Mr. Mullings. He testified that he was trying to scare Mr. Mullings and stop him from advancing towards him. He tried to aim low to get Stevie Mullings to back up.
[68] In response to a question about when he stopped shooting, Denneil Morgan replied, when Stevie Mullings stopped advancing. After which Denneil Morgan ran to the top of the parking lot trying to assess how to get his car. Denneil Morgan could still see Stevie Mullings with the knife, waving it at him, and yelling.
[69] While this was happening, Tyler Lansdowne-Thomas pulled up and told Denneil Morgan to get in the car. Denneil Morgan returned the firearm and they drove away from the area. A few minutes later, Stevie Mullings called Denneil Morgan. He did not answer as he was mad at Mr. Mullings for stabbing his brother and trying to attack him with a knife. Denneil Morgan’s battery of his cell phone died shortly thereafter.
[70] Denneil Morgan testified that he did not intend to kill Stevie Mullings, nor did he want to hurt him. The only reason he accepted the firearm was to protect himself from Stevie Mullings.
Video Surveillance
[71] Video surveillance was retrieved from three different businesses located north of the bar in the commercial plaza. The video footage captured the arrival of Denneil Morgan and members in his group, the shooting, and a short period of time after the shooting.
[72] The video footage from the Karachi Bazaar was the only footage that was not black and white. The time stamps from this footage were approximately six minutes ahead of real time.
[73] The footage from Young’s Milk and Gold Rose was consistent with real time.
Young’s Milk Video
[74] The video footage from Young’s Milk captured the group’s arrival, how each vehicle was parked, and the order in which they parked within seconds of each other. The parties disembarked from their vehicles and headed to the bar. This footage also captured the shooting and their respective departures.
[75] Mr. Mullings can be seen walking unbalanced through the parking lot. He approached Dwayne Morgan’s vehicle and attempted to enter it on the passenger side on more than one occasion. This vehicle and Tanya Mullings were both black SUVs.
[76] Within two seconds of Denneil Morgan’s foot appearing on the video at the front passenger side of his vehicle, Stevie Mullings headed directly at Denneil Morgan. He moved quickly with his left arm in front and his right arm swung back and extended behind him. Denneil Morgan stepped backwards towards Warden Avenue and began to shoot.
[77] After the shooting, Stevie Mullings went to the sidewalk between Nazia Rahman’s and Dwayne Morgan’s vehicles. His arms were outstretched. At this time, the car lights on the vehicle driven by Denneil Morgan flashed on and off.
[78] Mr. Mullings attempted to enter the passenger side of Dwayne Morgan’s vehicle once again, but it was still locked. Tanya Mullings approached from the rear of the vehicle. Mr. Mullings made a motion consistent with tossing an object. It is unclear if an object was tossed.
[79] The lights on Dwayne Morgan’s vehicle flashed as Nicole Morgan unlocked it with a key fob. Mr. Mullings appeared to be limping between Dwayne Morgan and Ms. Rahman’s vehicles. He opened the passenger side door of Dwayne Morgan’s vehicle and then closed the door. He walked to the front of the car and placed his hand on the hood. He made hand gestures and appeared to be speaking to Tanya Mullings. He bent over and signaled towards his left knee. He lifted his shirt and opened his coat and looked down at his body. He pointed to something and pulled his shirt down.
[80] Mr. Mullings returned between the vehicles and again attempted to enter Dwayne Morgan’s vehicle. Two other males approached Tanya and Stevie Mullings after which he walked out into the parking lot. Tanya had returned to her vehicle. While in the parking lot, Mr. Mullings removed his jacket, and began limping back towards the cars with his jacket in his arms. He then went to the correct vehicle and entered the passenger seat.
[81] Nicole Morgan entered her vehicle while Stevie Mullings was in the middle of the parking lot. She pulled out and turned towards the bar and picked up Dwayne Morgan.
[82] Tanya Mullings left with Stevie Mullings headed north on Warden Avenue.
[83] Nazia Rahman was seen entering her vehicle. Nicole Morgan’s vehicle headed north on Warden and Nazia Rahman left the area a few minutes after.
[84] Denneil Morgan’s vehicle was still in the parking lot when the video ended at 1:36:11 am.
Gold Rose Video
[85] The Gold Rose video footage captured Stevie and Tanya Mullings leaving the bar. Stevie Mullings was unsteady on his feet as he followed behind.
[86] An individual identified as “Randall” was seen headed in the same direction as Stevie Mullings. Tyler Lansdowne-Thomas was directly behind him with the hood of his sweater pulled up over his head.
[87] Denneil Morgan appeared on the video headed north on the sidewalk with his hands in his pockets. He stopped and headed towards the parking lot where he met up with Randall and Mr. Lansdowne-Thomas. The three stopped in front of a car and Mr. Lansdowne-Thomas bent down. It appeared something was transferred to Denneil Morgan who had also bent down. When he stood a black object was visible in his right hand.
[88] The video showed him heading north in the parking lot, with his left arm bent in front of him and his right hand hanging down by his side. As he continued walking, his right arm was bent at the elbow, and his jacket was extended from his body. It appeared he was trying to put the hand holding the firearm into his pocket. As he walked in the direction of his car, he continued to struggle with the right side of his jacket.
[89] At the same time Denneil Morgan headed north thru the parking lot, Dwayne Morgan exited the bar with Nicole Morgan and Nazia Rahman. The two females headed toward their cars via the sidewalk.
[90] Stevie Mullings can be seen jumping out from between Nazia Rahman’s and Dwayne Morgan’s vehicles towards Denneil Morgan. Denneil Morgan immediately jumped backwards towards Warden Avenue before putting his arm out and shooting at Stevie Mullings.
[91] Tyrone Lansdowne-Thomas entered his vehicle and headed north in the parking lot. The video footage does not show Denneil Morgan being picked up, but the car can be seen on Sybil Avenue before turning southbound on Warden Avenue.
Karachi Bazaar Video
[92] The video footage from Karachi Bazaar was the only colour video footage.
[93] When Denneil Morgan initially left the bar, his hands were loose by his side.
[94] One can clearly see Denneil Morgan, Tyler Lansdowne-Thomas, and Randall together and bending down in front of a car. When Denneil Morgan stood up and headed north, a gun was clearly visible in his right hand.
[95] This footage did not capture the shooting itself, but it showed people running in the opposite direction from where the shooting occurred. Nicole Morgan and Nazia Rahman entered the convenience store for coverage during the shooting.
[96] Denneil Morgan’s vehicle was still visible in the parking lot when the video footage stopped at 1:37:13 am.[^1] The car was no longer present when police arrived twenty minutes later.
ANALYSIS
[97] There is no dispute that Denneil Morgan shot Mr. Mullings with a handgun. The issue is whether Denneil Morgan was acting in lawful self-defence when he took possession of the firearm and shot Stevie Mullings.
[98] Section 34 of the Criminal Code sets out the law of self-defence and provides as follows:
34(1) A person is not guilty of an offence if,
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
[99] In answering the last question, I must consider the relevant circumstances of Denneil Morgan, Mr. Mullings, the act(s), and a non-exhaustive list of factors set out in section 34(2) as follows:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person's role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident.
[100] It is the Crown’s burden to establish beyond a reasonable doubt that Denneil Morgan did not act in self-defence. To be clear, it is not Mr. Morgan’s onus to establish he was acting lawfully. If the Crown proves beyond a reasonable doubt that at least one of the three conditions as set out in section 34(1)(a) is absent, the defence of self-defence fails.
[101] In determining whether the Crown has met its onus with respect to self-defence, I must answer the following three questions:
Has the Crown proved beyond a reasonable doubt that Denneil Morgan did not believe that force or the threat of force was being used against him or that his belief was not based on reasonable grounds? (s.34(a))
Has the Crown proved beyond a reasonable doubt that Denneil Morgan did not commit the act(s) for the purpose of defending himself from the use or the threat of force? (s.34(b))
Has the Crown proved beyond a reasonable doubt that Denneil Morgan’s act(s) was/were not reasonable in the circumstances? (s.34(c))
[102] I have addressed counts 1- 3 separate from count 4 as those counts arise solely from the discharge of the firearm at Mr. Mullings. The conduct for count 4 is different and therefore so is my analysis and findings.
COUNTS 1 – 3
[103] To constitute lawful self-defence in relation to Mr. Morgan’s action in firing a gun towards Mr. Mullings, the answer to all three of the above questions must be no. If the answer to any of the questions is yes, the defence must fail as the Crown would have established beyond a reasonable doubt that Mr. Morgan was not acting in self-defence when he shot at Mr. Mullings.
Section 34(1)(a)
[104] Jurisprudence has made it clear that when considering this section, the trier must address the state of mind of the accused and their perception of events that led them to act.[^2] In this case, Denneil Morgan must have a subjective belief that force was being used or threatened against him. This belief must be based on reasonable grounds.
[105] In determining whether Denneil Morgan’s belief was reasonable, I must consider whether an ordinary person who shares his attributes, experiences and circumstances would have held the same belief.
[106] In assessing this portion, I have summarized Denneil Morgan’s background. He is the second oldest of five siblings raised by a single mother. His family initially lived at Jane Street and Falstaff Avenue and moved to Leslie Street and the 401 when he was ten years old. The housing units and neighbourhoods were part of subsidized government housing complexes. Denneil Morgan completed part of grade ten and then entered the work force. He has worked as a barber, construction, manual labourer, and was employed as a drywaller at the time of this incident. Denneil Morgan is 5’11 and weighed approximately 200 lbs. in September 2019.
[107] The video footage shows Denneil Morgan walked north in the middle of the parking lot and was struggling with both sides of his jacket when Stevie Mullings lunged at him from between two parked cars. Denneil Morgan testified that Mr. Mullings was in possession of a knife. He believed Mr. Mullings was about to attack and stab him when this occurred. The description provided by Denneil Morgan of Mr. Mullings actions was consistent with the arm movements and body position of Mr. Mullings as seen on the video. The video is not clear enough to determine what, if any, object Mr. Mullings had in his right hand when he swung it back in a manner suggestive of someone winding up to swing forward in an upward motion or thrust.
[108] The Crown argued that Denneil Morgan continued to fire the gun after Mr. Mullings had stopped moving towards him, had lowered his upper body, and turned to retreat. Denneil Morgan testified he did not have time to think and simply reacted. He attempted to fire the gun towards the ground to dissuade Mr. Mullings from continuing his approach.
[109] During the trial, the video footage was slowed down, paused, replayed, and screen captures of discreet moments were filed as photographs with the Court. I have had the opportunity to view the footage. This was a very fast paced event that took seconds from the time Stevie Mullings jumped out from between the cars until Denneil Morgan stopped firing and headed north in the parking lot. Courts have repeatedly stated that triers should not try to “parse” the actions or reactions on a frame-by-frame basis. Further, it is unrealistic for people in a dangerous and fast-paced situation to pause for reflection when reacting.[^3]
[110] While the video showed Mr. Mullings attempted to lower his upper body, turned, and retreated, it also showed Denneil Morgan moving further away from Mr. Mullings as opposed to pursuing him. The locations of the shell casings were consistent with Denneil Morgan’s movements.
[111] Based on all the evidence, including Denneil Morgan’s viva voce testimony with respect to the shooting, and the video footage, it is clear force was being used or threatened against him. The Crown has failed to satisfy me that Denneil Morgan did not believe, on reasonable grounds, that force was being used or threatened against him. Therefore, the answer to question one is “no”.
Section 34(1)(b)
[112] This part of the inquiry is focused on Denneil Morgan’s reasons and motivation for firing the gun. It is a subjective examination as to why and for what purpose he fired the gun. His purpose must have been defensive, not vengeful or undertaken for the purpose of harming Mr. Mullings out of anger or some other personal motivation.
[113] Mr. Morgan testified. In addition to the factors set out under the section 34(1)(a) analysis, Denneil Morgan stated he was taken by surprise when Stevie Mullings jumped out at him.
[114] The Crown argued that Mr. Morgan was not surprised and deliberately looked away to feign ignorance as to Mr. Mullings’ presence, all the while readying the gun for use. Denneil Morgan disagreed with this suggestion.
[115] Given how quickly the sequence of events occurred from the moment Mr. Mullings moved towards Denneil Morgan as seen on video, and Denneil Morgan’s testimony, I find that Mr. Morgan’s purpose in shooting the gun was to protect and defend himself from Mr. Mullings. My finding in this regard is based on how the event unfolded at that moment when triggered by the actions of Mr. Mullings. Therefore, the answer to question number two is “no”.
Section 34(1)(c)
[116] Lastly, I must consider Denneil Morgan’s response to the perceived or actual use or threat of force. I must determine whether the Crown has proved beyond a reasonable doubt that Denneil Morgan’s actions were not reasonable in the circumstances. To assess the objective reasonableness of his conduct, I must consider what an ordinary person who shares Denneil Morgan’s attributes, experiences, and circumstances would have done in his position including all the relevant circumstances of him and Mr. Mullings and both their actions. No single factor is determinative.
Nature of Force or Threat
[117] Denneil Morgan testified Mr. Mullings had a knife in his right hand when he jumped out at him. Denneil Morgan also testified he believed Mr. Mullings had stabbed his brother just minutes before and had threatened he was next.
Extent to Which Use of Force was Imminent, and Other Means Available to Respond
[118] The video shows Mr. Mullings lunged at Denneil Morgan, who was facing away from the cars. Denneil Morgan testified he was trying to pull his car keys out of the left side pocket and attempting to put the gun in the right-side pocket. The video showed Denneil Morgan’s jacket extended on both side of his body consistent with what he described in his testimony. The reaction of Denneil Morgan as seen on video was immediate and reactionary and the speed with which it all unfolded was demonstrative of a person who reasonably believed they were under attack and had to react without time for considered reflection.
Denneil Morgan’s Role in the Incident
[119] In assessing Denneil Morgan’s role in the incident, I must consider his actions, omissions, or exercises of judgment during the incident from beginning to end.[^4] The defence argued this was a continuous event from the moment Denneil Morgan received the loaded firearm to when he shot Mr. Mullings.
[120] Ms. Vandebeek argued that the incident took a total of fifty-five seconds. Her position was he had no choice but to take the gun to protect himself from Mr. Mullings. Denneil Morgan was frightened and concerned for his brother’s medical well-being and was intent on getting his car to transport him to the hospital. He was told Mr. Mullings had headed in the direction of their parked cars. Mr. Mullings was acting strangely in the bar and Denneil Morgan believed Mr. Mullings was armed with a knife. Further, Mr. Mullings last words to Denneil Morgan indicated he was next.
[121] The Crown argued Denneil Morgan took the gun and was intent on extracting revenge on Mr. Mullings based on his belief that he had stabbed Dwayne Morgan.
[122] It took less than a minute from the moment Denneil Morgan received the gun until the shooting. His decision to take possession of a loaded firearm and head towards the area of the parking lot where he believed Mr. Mullings was located is a factor I must consider in my analysis.
[123] As argued by the Crown, Denneil Morgan walked with a purpose after receiving the firearm from Tyler Lansdowne-Thomas. The lack of hesitancy in his step was visible on the video. The Crown position is upon receipt of the firearm, Denneil Morgan was intent on finding Mr. Mullings to seek revenge and kill him. This, however, is not the only conclusion open to the Court.
[124] Denneil Morgan testified he took the gun for protection. At the time he received the firearm, Stevie Mullings was not visible to him nor did Denneil Morgan know where he went, aside from information received from Tyler Lansdowne-Thomas. The Defence argued he was in a rush to get his car to assist his brother.
Whether Any Party to the Incident Used or Threatened to Use a Weapon
[125] It was Denneil Morgan’s belief Mr. Mullings had stabbed his brother with a knife and wielded the knife in his right hand when he jumped out and lunged at him. Denneil Morgan was in possession of a loaded firearm which he discharged.
Size, Age, and Physical Capabilities
[126] Denneil Morgan and Mr. Mullings are approximately the same size and weight. Mr. Mullings is a few inches taller and few years older than Denneil Morgan.
[127] Mr. Mullings and Denneil Morgan are cousins and all witnesses testified to the close relationship they had. There was no animus between the parties prior to that night until after Dwayne had been stabbed and Mr. Mullings threatened him with “you next”.
Nature and Proportionality of Response
[128] Denneil Morgan fired multiple shots at Mr. Mullings which is evident from the video but also from the six shell casings found. Denneil Morgan testified he did not count the shots; he just pulled the trigger. Given the speed with which events unfolded, and the shooting itself was under two seconds, this is not an unreasonable response to Mr. Mullings attack. Further, the video shows both parties backed away from each other once Denneil Morgan began firing the gun.
[129] Having considered all the circumstances of both Mr. Mullings and Denneil Morgan, the act itself, and the enunciated factors in section 34(2), I find that the Crown has failed to prove beyond a reasonable doubt that Denneil Morgan’s actions were not reasonable in the circumstances. Therefore, the answer to the third question is “no”.
[130] I have concluded that the Crown has failed to disprove self-defence with respect to Counts 1 – 3 and accept that when Denneil Morgan fired the gun at Stevie Mullings he acted in self-defence.
COUNT 4
[131] Like the analysis for counts one to three, to constitute lawful self-defence in relation to possession of a firearm with ammunition, the answer to all three questions must be no. If the answer to any of the questions is yes, the defence must fail as the Crown would have established beyond a reasonable doubt that Mr. Morgan was not acting in self-defence when he took possession of the loaded firearm.
[132] I do not propose to repeat the law and have simply set out my analysis of self-defence as it relates to possession of a firearm with ammunition (count 4). This defence is not available if the answer to one of the three questions is yes. I have determined the answer to all three questions above is “yes” and therefore, the defence of self-defence fails with respect to this count. In this case, I have addressed all three components to contextualize the different analysis between count 4 and the offences related to the shooting.
[133] I appreciate the entirety of the series as argued by the defence took less than a minute, however, the events and the assessment of self-defence are distinguishable due to the change in trajectory caused as a direct result of Mr. Mullings’ actions. It is that distinct event that changed the circumstances such that I found self-defence available with respect to the shooting and discharge of the firearm.
Section 34(1)(a)
[134] The first issue I must determine is whether the Crown has proved beyond a reasonable doubt that Denneil Morgan did not believe that force or the threat of force was being used against him based on his perception of the circumstances and whether that perception was reasonable.
[135] Denneil Morgan testified after Mr. Mullings stabbed his brother, he threatened him, stating “you next, pussy” before exiting the bar. Denneil Morgan was concerned for his brother’s life and left the bar to get his car to drive Dwayne Morgan to the hospital. As he left the bar, he was told that Mr. Mullings had gone in the direction of where he needed to go to get his car. He could not see Mr. Mullings but was concerned he may be ambushed by him.
[136] If I believe or have a reasonable doubt that Denneil Morgan apprehended the use of force from Mr. Mullings when he took possession of the gun, I must consider the reasonableness of his belief. In determining whether his belief is reasonable, I must consider whether an ordinary person who shares Denneil Morgan’s attributes, experiences, and circumstances would have held the same belief. This belief can be based on an honest mistake on his part but must not be based on factors such as intoxication, excessive fear, or abnormal vigilance.
[137] I must consider Denneil Morgan’s testimony when assessing each question. If I accept his evidence, or am left with a reasonable doubt, the Crown would have failed to prove beyond a reasonable doubt that Denneil Morgan was not acting in self-defence. Even if I do not accept his evidence, if after considering it standing alone or with other evidence, it leaves me with a reasonable doubt, the Crown will have failed to establish he was not acting in self-defence. However, determining whether an accused person acted in self-defence is not solely a subjective analysis. There are objective considerations that must be considered, thereby limiting the weight to be placed on subjective beliefs.
[138] I have difficulty with Denneil Morgan’s evidence as it relates to his belief that force was being used or threatened against him when he took possession of the firearm. He was headed north on the sidewalk when his friends called to him. Rather than continue directly to his car to transport his brother to the hospital, he chose to head to his friends. He testified he was unaware he would be offered a firearm. If his true priority was his brother, there should have been no deviation enroute to his car.
[139] There was no evidence of any communication between him, his brother, Nicole Morgan, or Nazia Rahman on the fact that Denneil Morgan was to get the car to transport his brother to the hospital. In fact, Ms. Rahman’s response to Denneil Morgan’s whereabouts after the stabbing was an assumption or guess on her part that he may have gone to help Dwayne with no further details. Further, there was no evidence that anyone was aware that Denneil Morgan had left to get his car for that purpose.
[140] Denneil Morgan did not know where Mr. Mullings was, and he could not see him. At the point in time that Denneil Morgan accepted the firearm, there was no immediate threat nor was force being used against him.
[141] After the shooting, Denneil Morgan testified about an incoming call from Mr. Mullings that was ignored. There was no evidence about any steps or actions taken to advise his brother or anyone else that he would not be bringing the car up front to take Dwayne to the hospital.
[142] Had I accepted Denneil Morgan’s evidence that his belief was reasonable, the analysis would not end there as I would next have to determine whether an ordinary person who shared his attributes, experiences, and circumstances would have held the same belief.
[143] Denneil Morgan testified their group had ordered two bottles of overproof rum. Almost all of them were intoxicated to some degree, including Denneil Morgan. Reasonableness is not considered where perceptions are affected by extreme fear or intoxication all of which were factors present in Denneil Morgan’s mindset at the time. I am not satisfied that an ordinary person who shares Denneil Morgan’s attributes, experiences, and circumstances would have held the same belief.
[144] Having rejected Denneil Morgan’s evidence on this point, and not being left in a state of doubt, I am satisfied that the Crown has established that Denneil Morgan did not believe on reasonable grounds that force was being used or threatened to be used against him when he took possession of the gun and therefore the Crown has disproved, he acted in lawful self-defence. The answer to question number one is “yes”.
Section 34(1)(b)
[145] As stated, Denneil Morgan testified the basis for taking the loaded firearm was to protect himself from Mr. Mullings. At the time he accepted the firearm, he did not know where Mr. Mullings was other than Mr. Mullings had headed in the direction of their vehicles. He told the court he did not hesitate when accepting the gun and denied that he was seeking revenge for the stabbing of Dwayne Morgan or for any other purpose than to protect himself.
[146] The difficulty I have with Denneil Morgan’s evidence on this point is the absence of any immediate force or the threat of force being used against him such that he needed the firearm to protect himself.
[147] Once in possession of the firearm, he picked up his step as he headed north in the parking lot. His path was not a direct line to his vehicle. The video footage showed him in the middle of the parking lot as he approached the front driver’s side of his car and would require him to make a hard left so as not to pass his vehicle.
[148] Having found there was no immediate use or threat of force, at the time Denneil Morgan took possession of the loaded firearm there was no defensive purpose.
Section 34(1)(c)
[149] As above, I must be satisfied that the Crown has established that Denneil Morgan’s actions were not reasonable in the circumstances. I must examine the objective reasonableness of Denneil Morgan’s conduct having regard to all the relevant circumstances and to community norms of conduct.
Nature of Force of Threat
[150] Denneil Morgan believed Mr. Mullings was responsible for stabbing his brother and threatened him before he left the bar. He thought Mr. Mullings was near their vehicles and feared being attacked by Mr. Mullings who he believed was in possession of a knife.
Extent to Which Use of Force was Imminent, and Other Means Available to Respond
[151] Mr. Mullings was not near Denneil Morgan when he took the loaded firearm. Denneil Morgan denied he could see where Mr. Mullings was when he met with Mr. Lansdowne-Thomas. He believed Mr. Mullings had headed north toward where their vehicles were parked but had no information if he was still present or had left with his wife in their vehicle.
[152] Denneil Morgan testified he needed his car to drive his brother to the hospital or he would not have headed in the same direction as Mr. Mullings.
[153] The Crown argued that there were other legal alternatives Denneil Morgan could have taken opposed to arming himself with a firearm. The Crown suggested he could have called an ambulance or the police. The Crown asked about the availability of other persons transporting his brother to the hospital, including Tyler Lansdowne-Thomas, who had parked much closer to the entrance to the bar. In response to calling 911, Denneil Morgan testified he thought it would take too long and his brother was bleeding excessively.
[154] There was no evidence about what if any steps Denneil Morgan took to ascertain how and who would transport his brother to the hospital after the shooting occurred. According to him, that was his sole purpose for heading to his car. That was the foundation for why he accepted the firearm – to protect himself from an ambush so he could get his car to transport his brother.
[155] Further, the video showed both Tyler Lansdowne-Thomas and “Randall” head north in the direction of Stevie Mullings seconds after he exited the bar. After providing Denneil Morgan with the loaded firearm, the two continued behind him before scattering after the shots were fired.
[156] Denneil Morgan had other options available to him when he chose to accept the proffered firearm, which would have deescalated the situation and avoided the confrontation that occurred. This is important given there was no imminent use of force or threat of force when he took the gun.
[157] When considering all the evidence before the Court, I do not accept Denneil Morgan’s testimony on this point.
Denneil Morgan’s Role in the Incident
[158] Denneil Morgan was adamant he was headed to his vehicle to transport his brother to the hospital. Enroute to the vehicle, he allowed his attention to be drawn to his friends, one of whom offered him a firearm.
[159] There were many alternatives available to Denneil Morgan to de-escalate the situation. Taking possession of a loaded firearm and heading in the direction of where Stevie Mullings had gone was analogous to lighting a match to a trail of gas and awaiting the explosion.
[160] Denneil Morgan made a conscious decision to accept possession of the loaded firearm.
Whether Any Party to the Incident Used or Threatened to Use a Weapon
[161] When Denneil Morgan accepted the firearm, he believed Mr. Mullings stabbed his brother with a knife. Mr. Mullings had left the bar and had headed north in the parking lot. Denneil Morgan did not know where Mr. Mullings was, nor could he see where he was. There was no immediate threat to Denneil Morgan at that time.
Size, Age, and Physical Capabilities
[162] Denneil Morgan and Mr. Mullings are approximately the same size and weight. Mr. Mullings is few inches taller and few years older than Denneil Morgan.
[163] As stated earlier, Mr. Mullings and Denneil Morgan are cousins and all witnesses testified to the close relationship they had. There was no animus between the parties prior to that night until after Dwayne had been stabbed and Mr. Mullings threatened him with “you next”.
Nature and Proportionality of Response
[164] Denneil Morgan took possession of a loaded firearm and walked through the parking lot with it in his right hand.
[165] Having considered all the circumstances of both Mr. Mullings and Denneil Morgan, the act of taking possession of the firearm, and the enunciated factors in section 34(2), I find that the Crown has proved beyond a reasonable doubt that Denneil Morgan’s actions were not reasonable in the circumstances. Therefore, the answer to the third question is “yes”.
[166] Based on the facts as I have found them, the Crown has established beyond a reasonable doubt that when Denneil Morgan took possession of the firearm he was not acting in self-defence.
COUNT 5
[167] It was conceded by the defence, if Denneil Morgan was found guilty of count 4, he should also be found guilty of count 5.
[168] The evidence before the Court established that Denneil Morgan was subject to a weapons prohibition order on the date of this offence. He knew he was prohibited from possessing any firearms or weapons as defined by the Criminal Code and made a conscious decision to take possession of the loaded firearm. Therefore, he is also found guilty of count 5.
ESSENTIAL ELEMENTS of COUNTS 1 - 3
[169] In the event I have erred in my analysis of the Crown’s failure to disprove self-defence with respect to counts 1 to 3, I found the crown has failed to prove beyond a reasonable doubt the essential elements of counts 1 and 2.
Count 1 - Attempt Murder
[170] For Denneil Morgan to be found guilty of attempted murder, the Crown must establish that he intended to kill Mr. Mullings when he fired the gun. Proof of an intent to wound or cause serious bodily harm is not enough.
[171] Denneil Morgan testified that he did not intend to kill Mr. Mullings. He explained the reason he fired the gun was to stop Mr. Mullings from advancing towards him. He said that he shot at the ground.
[172] The video showed Denneil Morgan backed and moved away from Mr. Mullings when he discharged the gun. If Denneil Morgan’s intention was to kill Mr. Mullings, he would have shot at the upper body and pursued Mr. Mullings. After the first shot was fired, Mr. Mullings crouched or lowered his body to turn and back away. He was shot in the arm, abdomen, and leg. The injuries are not inconsistent with Denneil Morgan’s testimony that he directed the gunshots to the ground when considering that Mr. Mullings had crouched over.
[173] The Crown argued that Mr. Morgan continued to pull the trigger until the firearm was empty. Denneil Morgan did not know how many rounds of ammunition were in the gun. He was unable to tell the court if he stopped firing when he ran out of ammunition or if he simply stopped. He said it all happened so quickly that he didn’t pause to think about it and does not know.
[174] Based on the evidence, I accept Mr. Morgan’s evidence as to his lack of intent to kill Mr. Mullings.
[175] Even had I rejected Mr. Morgan’s testimony on this point, the Crown had not proven that Denneil Morgan intended to kill Mr. Mullings based on the evidence presented. I rely heavily on the video footage of the shooting itself for my conclusion.
Count 2 – Discharge Firearm with Intent to Wound, Maim, or Disfigure
[176] The evidence in this case clearly demonstrated that Denneil Morgan intentionally discharged the firearm multiple times and Mr. Mullings was struck in the arm, abdomen, and leg. The question to be determined is whether in doing so, he intended to wound, maim, or disfigure Mr. Mullings when he discharged the gun.
[177] For similar reasons as set out above, I accept Denneil Morgan’s evidence on the issue of his intent when he discharged the firearm that it was not his intent to wound, maim, or disfigure Mr. Mullings.
Count 3 – Aggravated Assault
[178] To convict Denneil Morgan of aggravated assault, the Crown must establish that Denneil Morgan acted intentionally in applying force to Mr. Mullings or that bodily harm was objectively foreseeable. That is, would a reasonable person have foreseen that Denneil Morgan’s conduct would likely put somebody at risk of bodily harm.
[179] There is no dispute that Denneil Morgan applied force to Mr. Mullings or was threatening to apply force to him by firing the gun in his direction. The question to be answered is whether his actions were dangerous and that a reasonable person would have foreseen that shooting a firearm in close proximity to another individual would inevitably put them at risk of suffering bodily harm.
[180] I find that a reasonable person would have foreseen shooting a firearm near another person would put them at risk of suffering bodily harm and therefore the essential elements were made out but found that Denneil Morgan acted in self-defence.
CONCLUSION
[181] It is not in dispute that Dwayne Morgan was stabbed that evening and it is unnecessary for me to determine who is responsible for the stabbing. Suffice to say, for purposes of this trial, Denneil Morgan believed that Stevie Mullings was responsible for his brother’s injuries.
[182] I found that the circumstances changed when Stevie Mullings lunged at Denneil Morgan, catching him by surprise, thereby, he reacted by firing the gun to make Mr. Mullings stop. It is that distinct action that broke up the incident into two discrete events. I do not have a crystal ball, nor can I speculate as to how the events may have unfolded had Mr. Mullings not taken Denneil Morgan by surprise and was clearly advancing in an aggressive state based on the video footage.
[183] It is for these reasons that I find Denneil Morgan not guilty of attempt murder, discharge firearm, and aggravated assault, and find Denneil Morgan guilty of possession of a loaded firearm and possession of a firearm while prohibited.
Justice Catherine Rhinelander
Released: October 6, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DENNEIL MORGAN
REASONS FOR JUDGMENT
Justice C. Rhinelander
Released: October 6, 2023
[^1]: The timestamp on the Karachi Bazaar showed 1:43:13 am. I subtracted six minutes from that time, as the Agreed Statement of Facts stated the time reflected on this footage was approximately six minutes fast.
[^2]: R v Khill, 2021 SCC 37
[^3]: R v. Cunha, 2016 ONCA 491 at paras. 10, and 24 – 25.
[^4]: R v Khill, para 74