COURT FILE NO.: CR-22-30000416-0000

DATE: 20240318

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ODAY BAZUHAIR and NIRUSAN NIRMALENDRAN

Defendants

Jon McGrath and Matthew Shumka, for the Crown

Adele Monaco and Ben Brillantes, for the Defendant Bazuhair

Brian Eberdt and Lucas Azzopardi, for the Defendant Nirmalendran

HEARD: September 11, 12, 13, 14, 20, 21, 22, 25, 26, 27, 28, and 29, October 3, 10, 12, 13, 18 and 19, 2023

MOLLOY J.:

REASONS FOR DECISION

A. INTRODUCTION

[1] Koshin Yusuf was shot to death in the early morning hours of December 29, 2019. Two armed men cornered him just outside the entrance to his apartment building and opened fire. He received 24 separate gunshot wounds, inflicted by 2 separate weapons, each in the hand of one of the assailants. A video surveillance camera recorded the shooting. Although there is footage of the perpetrators arriving, carrying out the attack, and then departing, their faces cannot be seen. There were no witnesses.

[2] Oday Bazuhair and Nirusan Nirmalendran are charged with first degree murder in connection with this shooting. They elected to be tried by a judge without a jury, to which the Crown consented. There can be no doubt that this was a planned and deliberate first degree murder. The central issue at trial was the identification of the two accused as the perpetrators of this crime.

[3] With the agreement of all counsel, the matter proceeded before me on a blended basis, with the evidence on various pre-trial applications being applied to both the applications and to the trial proper. Those applications were as follows:

(i) The Crown applied to call evidence from Mr. Bazuhair’s probation officer as to her recognition of Mr. Bazuhair in still photographs and video surveillance footage taken before and after the murder, but not at the scene of the murder. For the reasons set out below, I found that evidence to be admissible.

(ii) Mr. Bazuhair applied to exclude the evidence obtained from an apartment at 145 Willowdale Road, based on the submission that there were fatal flaws in the Information to Obtain relating to his place of residence and his identification by his probation officer. For the reasons set out below, I found no breach. The search warrant was valid and the evidence is admissible.

(iii) Mr. Nirmalendran applied to call evidence of an alternate suspect. I held, for oral reasons given on September 26, that this evidence met the air of reality test and was admissible at trial.

(iv) Mr. Nirmalendran applied to call expert opinion evidence as to the height of the two shooters as shown on video footage of their arrival on foot at the victim’s apartment building. According to that expert, the suspect alleged to be Mr. Nirmalendran was 5’7” tall, whereas Mr. Nirmalendran was only 5’4”. I ruled that photogrammetry is an accepted field of science upon which expert opinion evidence could be given and that the defence expert was qualified to give that opinion.

[4] The evidence at trial focused on tracing the movements of the car the two suspects arrived in immediately before the murder (“the Elantra”), as well as cellphone tracking and other evidence connecting Mr. Nirmalendran to the car and to the phones that were in the same location as the car both before and after the murder. There was also substantial other video surveillance evidence and objects seized from the execution of search warrants, which were relied upon for identification purposes. The murder weapons were never recovered. No motive was alleged, nor was there any evidence of a connection between the deceased and the two accused.

[5] For the reasons that follow, I am satisfied that Oday Bazuhair is one of the two men who shot and killed Koshin Yusuf. After the murder, the two shooters got into the car they had arrived in. There is solid video surveillance evidence tracking that car to an apartment building at 4100 Lawrence Avenue East, where the passenger was dropped off. That passenger was Oday Bazuhair. He was identified by his probation officer, and I also am satisfied it was him based on my own assessment of surveillance videos, the booking photograph, and my observations of Mr. Bazuhair in the courtroom. There was also considerable confirmatory evidence of a circumstantial nature found in Mr. Bazuhair’s residence at the time of his arrest. I therefore find Mr. Bazuhair guilty of first degree murder.

[6] I am also satisfied beyond a reasonable doubt that Nirusan Nirmalendran is the other shooter. There is solid evidence connecting Mr. Nirmalendran to the car used by the murderers and to the two cellphones that were also involved. The expert evidence as to height relied upon by the defence as eliminating Mr. Nirmalendran as the shooter is completely unreliable. It does not eliminate him. Further, the evidence with respect to the alternate suspect did not stand up to scrutiny. The proposition that this person was involved in the crime is completely implausible. He was in Toronto at a Raptors game and at a downtown Airbnb with his girlfriend at times that completely rule him out as a possible suspect. Mr. Nirmalendran testified in his own defence and denied any involvement in the shooting. I do not believe him. Neither does his evidence or any of the defence evidence give rise to a reasonable doubt in my mind. The evidence implicating Mr. Nirmalendran is entirely circumstantial, consisting of surveillance video, GPS tracking, and cellphone records. Nevertheless, when all of it is stitched together, the inescapable conclusion is that Mr. Nirmalendran was the other shooter along with Mr. Bazuhair. No other rational conclusion is possible based on the whole of the evidence. I therefore find Mr. Nirmalendran guilty of first degree murder.

[7] These reasons are organized under the following headings:

A. INTRODUCTION (paras. 1 – 7)

B. ADMISSIBILITY OF RECOGNITION EVIDENCE FROM THE PROBATION OFFICER

1. Background (paras. 8 – 10)

2. The Testimony of Angie Knoebelreiter (Recognition Witness)

(i) Nature and Length of Contact (paras. 11 – 15)

(ii) Circumstances Surrounding the Initial Identification by Ms. Knoebelreiter (paras. 16 – 21)

(iii) Particulars of the Identification Given at Trial (paras. 22 – 23)

3. Applicable Legal Principles (para. 24)

4. Analysis and Conclusion: The Evidence is Admissible (paras. 25 – 27)

C. CHALLENGE TO THE SEARCH WARRANT (paras. 28 – 35)

D. LEGAL PRINCIPLES APPLICABLE TO CIRCUMSTANTIAL EVIDENCE (paras. 36 – 40)

E. THE CASE AGAINST ODAY BAZUHAIR

1. First Degree Murder (para. 41)

2. Movements of the Elantra After the Murder (paras. 42 – 46)

3. Movements of the Shooter After being Dropped Off at 4100 Lawrence Avenue East (paras. 47 – 49)

4. The Man in These Images is Oday Bazuhair (paras. 50 – 61)

5. Conclusion: Guilty of First Degree Murder (paras. 62 – 63)

F. THE CASE AGAINST NIRUSAN NIRMALENDRAN

1. Overview (paras. 64 – 68)

2. The Evidence of Dan Mills

(i) Potential Impact of this Evidence (para. 69)

(ii) Qualifications to Testify as an Expert (paras. 70 – 81)

(iii) Evidence of Mr. Mills (paras. 82 – 86)

(iv) Actual Heights of the Accused (paras. 87 – 88)

(v) Evidence of the Crown’s Expert (paras. 89 – 93)

(vi) Analysis (paras. 94 – 123)

3. The Alternate Suspect

(i) Introduction (paras. 124 – 128)

(ii) Evidence Tracking the Elantra and the Cellphones (paras. 129 – 137)

(iii) The Testimony of Nirusan Nirmalendran (paras. 138 – 151)

(iv) The Testimony of Yaqub Mohamed (Brother of the Alternate Suspect) (paras. 152 – 160)

(v) The Testimony of Nicole Best (Girlfriend of the Alternate Suspect) (paras. 161 – 165)

(vi) Analysis of Evidence Relating to the Alternate Suspect (paras. 166 – 172)

4. The Cellphones and Mr. Nirmalendran’s Credibility (paras. 173 – 175)

(i) Features of the iPhone (paras. 176 – 180)

(ii) Features of the Samsung (paras. 181 – 184)

(iii) Features of the Siva Kumar Phone (paras. 185 – 188)

(iv) Credibility Issues Relating to the Cellphones

(a) Subscriber names and addresses (paras. 189 – 193)

(b) Contacts with Richard Hajjar (para. 194)

(c) Contacts with Malana Rooplal (paras. 195 – 198)

(d) Calls between the Siva Kumar phone and the Samsung (paras. 199 – 204)

(e) Patterns in the Cellphones (paras. 205 – 209)

(f) Mr. Nirmalendran’s calls to the Bazuhair cellphone on January 15, 2020 (paras. 210 – 212)

(g) Actions taken by Mr. Nirmalendran after hearing about the January 15, 2020 police raids (para. 213)

5. Conclusion: Guilty of First Degree Murder (paras. 214 – 216)

B. ADMISSIBILITY OF RECOGNITION EVIDENCE FROM THE PROBATION OFFICER

1. Background

[8] The Crown sought leave to call Angie Knoebelreiter as a witness at trial. At the time of the murder, Ms. Knoebelreiter was Oday Bazuhair’s probation officer. In that capacity, she had met with Mr. Bazuhair in person four times between August 6, 2019 and December 19, 2019, the last such occasion being within 10 days of the shooting. The Crown submitted that Ms. Knoebelreiter, because of her prior contact with Mr. Bazuhair, was in a better position than I would be to identify him as the person shown on video footage from an apartment building at 4100 Lawrence Avenue East shortly after the shooting. The Crown alleged the person on the video to be one of the two killers.

[9] Counsel for Mr. Bazuhair (Ms. Monaco) argued that Ms. Knoebelreiter’s contact with, and opportunity to observe, Mr. Bazuhair was insufficient to permit her to provide her opinion as to the identity of the person on the video. Further, she submitted that Ms. Knoebelreiter’s objectivity was compromised because the officer in charge (Det.-Sgt. Ruhl) initially provided her with still photos from the video and asked her if she was in a position to confirm whether this person was Mr. Bazuhair, rather than simply asking her if she was able to identify the person depicted.

[10] The question at this stage is the admissibility of the evidence, rather than the weight it should be given in determining the ultimate question at trial.

2. The Testimony of Angie Knoebelreiter (Recognition Witness)

(i)Nature and Length of Contact

[11] Angie Knoebelreiter has been a probation officer for the past 11 years and was assigned to supervise Mr. Bazuhair’s probation in the summer of 2019. She testified that Mr. Bazuhair telephoned her on July 31, 2019 when released from custody (as he was required to do) and their first in-person meeting was scheduled for August 6, 2019 at her office. She said that Mr. Bazuhair reported for that first meeting, but she did not record the precise time that the meeting started, nor its length. However, she said that typically that first meeting would take between 45 to 60 minutes. She had three further in-person meetings with Mr. Bazuhair at her office: November 1, 2019; November 28, 2019; and December 19, 2019. She said that the last three meetings would not be as lengthy as the intake interview and estimated them to be between 10 to 30 minutes. As with the first interview, Ms. Knoebelreiter had a record of the scheduled time for the appointment, but did not note the time of arrival, nor the length of the session. She testified that clients often arrived early and she would see them when they arrived.[^1]

[12] Ms. Knoebelreiter testified that she used the same procedure in escorting clients to and from her office where the interview was conducted, stating that she had been trained to use this procedure for purposes of safety. First, Mr. Bazuhair would arrive at the front desk. She would then go out to meet him, the door would be buzzed open, and she would hold it while he walked through. She would then escort him to her office, requiring him to walk ahead of her and to the side. This was a distance of approximately 50 feet. She said she followed from about two arms-lengths away (or perhaps only one arms-length), while closely observing him. She said the purpose of this vigilance was to look for the possibility of weapons. She testified that she would be scanning his whole body, including his feet, as weapons can sometimes be hidden inside a sock.

[13] During the interview itself, Ms. Knoebelreiter sat behind her desk with Mr. Bazuhair directly in front of her. She said there was nothing obstructing her view of Mr. Bazuhair. She took notes on her computer, which was off to one side. The notes would then be saved onto the computer system, which would record the time and date.

[14] It is not possible to be certain of the length of time spent at each meeting. However, the following information is known:

• The first meeting was scheduled for 2:30 p.m. and the notes were entered into the computer system at 2:49 p.m. Although Ms. Knoebelreiter testified that the first intake meeting would not be under 45 minutes, there are only 19 minutes between the scheduled start time and the computer entry;

• The second meeting was scheduled for 2:00 p.m. and the data was entered at 2:12 p.m. (12 minutes);

• The third meeting was scheduled for 2:00 p.m. and the date was entered at 2:02 p.m. (2 minutes); and

• The fourth meeting was scheduled for 2:00 p.m. and the data was entered at 2:24 p.m. (24 minutes).

[15] If the time from the scheduled appointment to the time of data entry is totaled, that comes to 57 minutes. The total of the ranges Ms. Knoebelreiter testified as being the norm is from 75 minutes to 120 minutes. It is unlikely that the third meeting was only two minutes. Two minutes would not even be enough time for Ms. Knoebelreiter to escort Mr. Bazuhair to the office, escort him out again, and enter some notes, leaving no time at all for the interview where a number of issues would have to have been discussed. It is also unlikely that the first meeting was only 19 minutes given the nature of that meeting. This suggests to me that Mr. Bazuhair could have been early for those meetings, as Ms. Knoebelreiter posited. While there is no way to be precise about this, it seems to me that the total time was in the vicinity of 90 minutes, but could have been as low as 75 minutes.

(ii) Circumstances Surrounding the Initial Identification by Ms. Knoebelreiter

[16] With painstaking attention to detail, Toronto police officers tracked the progress of the vehicle the two killers took to the scene of the shooting. They collected video footage from multiple locations along the route from various sources, including video cameras at private residences. They established conclusively through video footage that the car was parked on Blue Lagoon Court immediately prior to the shooting and that both shooters returned to the vehicle at 2:52 a.m., and departed at 2:54 a.m. For reasons I will develop later, there is no question that after the murder, this car went to an apartment building at 4100 Lawrence Avenue East and dropped off a male passenger. The police obtained video footage of that man entering the building at 3:04 a.m. and video of him inside the building’s elevator immediately after that, as well as on December 27, 2019 (the day before the shooting). Still photos of this man were extracted from the video and circulated among police officers. From those police sources, the police came to believe that this man could be Oday Bazuhair and learned that he was currently subject to a probation order. The officer in charge of the investigation, Det.-Sgt. Christopher Ruhl, called the probation office on January 9, 2020, seeking information about Mr. Bazuhair. He was looking for video footage and an address. He was advised by the first person he spoke to that there was no video footage available and was then transferred to Ms. Knoebelreiter for further information.

[17] Det.-Sgt. Ruhl first confirmed with Ms. Knoebelreiter that she was the probation officer for Mr. Bazuhair and asked her generally about details, including how many times she had seen him. He then told her that he would email her some images of a person to see if she could identify Mr. Bazuhair. He then immediately emailed her, attaching five still shots taken from three separate video clips. The first two were from inside the elevator at 4100 Lawrence Avenue East; the third was from video of a person wearing that same clothing (black jacket) in the lobby of 4100 Lawrence Avenue East; and the fourth and fifth were also from the 4100 Lawrence Avenue East lobby, but the individual was wearing a grey track suit. Det.-Sgt. Ruhl wrote that photos were attached and stating, “I would like your opinion concerning their likeness, if any, to Oday Bazuhair.” Ms. Knoebelreiter responded by return email indicating that the second photo from the elevator “looked like” Oday Bazuhair. At some point during his discussions with Ms. Knoebelreiter, Det.-Sgt. Ruhl told her that this was in connection with a murder investigation.

[18] On January 10, 2020, Det.-Sgt. Ruhl met with Ms. Knoebelreiter in person and showed her the same photographs, and also the video clips from which the photos were taken. He audio-recorded their meeting. Before showing her any photographs, he told her that he had identified the man in the photographs as one of the shooters, but was not yet “comfortable” confirming that it was Oday Bazuhair. Ms. Knoebelreiter then looked at the same four still shots as before. There were two in the elevator: in one photograph, the man is smiling and in the other he is not. Ms. Knoebelreiter again identified the man who was not smiling as looking like Oday Bazuhair. She said that the other photo of the man smiling could also be him, but she could not be 100% sure. She said she could not be sure about the other three photos either because they were blurry, or she could not see enough of the person’s face.

[19] Det.-Sgt. Ruhl then showed Ms. Knoebelreiter the three video clips from which the still shots were extracted. She watched each clip twice. When she first watched the elevator video, she repeated that the man wearing the black coat and grey camouflage backpack looked like Oday Bazuhair. When asked by the officer if she could provide specifics, she asked to see the video a second time. She then gave the following specifics: the way the man walked with his feet turned out and almost dragging was the same way she had seen Mr. Bazuhair walk; the structure of his mouth and facial hair was the same; he has the same distinctive bone structure in his nose; and, when he talks, he does not move his mouth much.

[20] After watching the video of the person in the grey sweat suit in the 4100 Lawrence Avenue East lobby, she confirmed that this was Oday Bazuhair. She again noted his distinctive way of walking, with his feet pointed out, and his hands in his pockets.

[21] Finally, she watched the video of the man entering 4100 Lawrence Avenue East prior to getting on the elevator. She commented that the way he walked looked the same as Mr. Bazuhair, but it was harder to tell because there were other people with him.

(iii) Particulars of the Identification Given at Trial

[22] At trial, Ms. Knoebelreiter was shown the same three video clips. With respect to the elevator video, she identified Mr. Bazuhair as the man in the black puffy jacket with the grey camouflage backpack. She said on a scale of 1 to 10, she would rate her level of certainty at 8 or 9. She said that his facial features were the same as when she met with him, including his mouth, moustache, and skin colour. She again commented on his manner of speaking without moving his mouth much. She distinguished this from the points in the video where he was laughing, explaining that she had never seen him laugh in any of their meetings. She also stated that the length of this man’s hair was the same as that of Mr. Bazuhair, reaching the top of his shoulder near his neck, although also noting he would sometimes wear his hair in different styles. When asked in cross-examination why she was not 100% sure, she said that she saw nothing inconsistent between the man in the elevator and Mr. Bazuhair, but that she did not say 100% because the man in the elevator was wearing a hat and she could not always see his whole face front on.

[23] In cross-examination, Ms. Knoebelreiter was directed to her interview with Det.-Sgt. Ruhl in January 2020 in which she said that Mr. Bazuhair would be slouched over when walking, as opposed to her testimony at the preliminary hearing in which she said he would lean back a bit when walking. In re-examination, she confirmed that it was possible Mr. Bazuhair could be slouched over as well as leaning back, but said she was unsure. However, she consistently described the unusual feature of the feet pointing out when walking in all three videos.

3. Applicable Legal Principles

[24] There is no question as to the legal principles to be applied, which flow from the Supreme Court of Canada’s landmark decision in R. v. Leaney.[^2] In 2006, Rosenberg J.A. summarized the test succinctly in R. v. Brown stating that “this type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator.”[^3] In 2012, Blair J.A. affirmed in R. v. Berhe that principle, referring to it as the “prior acquaintance/better position test.”[^4] The Court in Berhe specifically rejected the approach taken by the dissenting judge at the Court of Appeal level in Leaney. Harradence J.A. (dissenting) would have required that a recognition witness have sufficient, prior familiarity with the accused’s unique factors to describe idiosyncrasies of the accused shown on the video. Rather, whether the recognition witness is able to identify unique features of the accused is a matter relevant to the weight to be given to that evidence, as opposed to its threshold admissibility.[^5] However, even at the threshold level, the recognition witness must have sufficient familiarity with the accused to have “some basis” for the identification and must be in a better position than the trier of fact to make the identification, thus providing evidence that is of some assistance to the trier of fact.[^6] Several factors are relevant to consider at this stage: the nature and length of the prior relationship between the witness and the accused; the recency of any contact; and whether the witness is able to articulate the basis for the identification as opposed to offering only conclusory evidence.[^7]

4. Analysis and Conclusion: The Evidence is Admissible

[25] I find that the evidence of Ms. Knoebelreiter easily crosses the threshold for admissibility applying the “prior acquaintance/better position” test. Ms. Knoebelreiter did not have the same level of familiarity as someone like a family member or close friend might have. However, she met formally with Mr. Bazuhair on four occasions, the most recent of which was only 10 days before the shooting. She sat directly across from him and was engaged with him throughout the interview. She also had the advantage of seeing him from all angles and when seated, standing, and walking. She gave concrete details about what it was that led her to identify the man in the videos as Mr. Bazuhair, rather than a mere conclusory opinion. She also gave very specific details about a distinctive way of walking she had observed following close behind Mr. Bazuhair as he walked to and from each of his four visits to her office. Nearly four years had passed by the time I was able to observe Mr. Bazuhair in the courtroom. It would be possible for me to compare his booking videos with the videos from 4100 Lawrence Avenue East, which would have been closer in time, but his gait in the booking videos would not have been as natural as would have been observed by Ms. Knoebelreiter in her office. She also had the advantage of being able to compare her own live observations to video clips from the same time period, which is another advantage I do not have. In my view, she was in a better position to make an identification between that time and now, than I can be based on the evidence at trial and my own observations of Mr. Bazuhair in the courtroom.

[26] Obviously, there is a concern about confirmation bias. Ms. Knoebelreiter was expecting to be shown images of her client prior to looking at the photos or video. There was nothing nefarious about that. The probation office was first contacted to obtain information about Mr. Bazuhair, so it was obvious from the start that he was the person of interest. It is unfortunate that this happened, but it does not disqualify this witness from giving evidence. Rather, it is an issue to be taken into account when determining how much weight to give to her testimony.[^8]

[27] Accordingly, the evidence of Ms. Knoebelreiter is admissible. I will deal with the weight I will give to her evidence later in these reasons when dealing with the sum of the evidence implicating Mr. Bazuhair.

C. CHALLENGE TO THE SEARCH WARRANT

[28] Det.-Sgt. Ruhl obtained from Ms. Knoebelreiter the home address she had for Mr. Bazuhair, which was 415 Willowdale Avenue, Unit 907. The police sought and obtained a warrant to search that residence. In the apartment, the police found a number of cellphones and also articles of clothing and footwear matching what was worn by one of the shooters (alleged to be Mr. Bazuhair) at the time of the murder. Mr. Bazuhair seeks to exclude this evidence as having been obtained by an unreasonable search in violation of his rights under the Canadian Charter of Rights and Freedoms.[^9]

[29] The Information to Obtain (“ITO”), which was filed in support of the application for the search warrant, referred to the probation officer Angie Knoebelreiter as having identified Mr. Bazuhair in still photos and video clips. The defence submits that this identification evidence should be excised from the ITO because Ms. Knoebelreiter’s identification was tainted by the information provided to her by Det.-Sgt. Ruhl that the suspect in the homicide was believed to be Oday Bazuhair.

[30] I accept Ms. Monaco’s submission that unconstitutionally obtained information should be excised from the ITO before determining whether there was a basis for the search warrant to be issued. Likewise, information that is misleading or incorrect should either be excised or rectified. However, I do not consider that any of the case law relied upon supports the excision of the identification made by Ms. Knoebelreiter. There was no breach of anyone’s Charter rights in obtaining this evidence, nor did the police act improperly. It would have been preferable, as I have noted above, if the police had not told Ms. Knoebelreiter which of her 50 clients they believed to be the man in the images they presented to her. However, this is not a matter of admissibility, but rather of weight. There was nothing misleading or incorrect in the ITO about the nature of Ms. Knoebelreiter’s identification. The email exchange between Det.-Sgt. Ruhl and Ms. Knoebelreiter were reproduced in the ITO. It would have been clear to the issuing justice that Ms. Knoebelreiter was aware that the police were seeking to identify Oday Bazuhair. The extent to which Ms. Knoebelreiter expressed hesitation in her ability to make a positive identification in some of the images was also disclosed. In my view, the ITO makes full, fair, and frank disclosure about the identification evidence. It was open to the Justice of the Peace to take the potential weakness of this evidence into account in coming to a conclusion as to whether there were reasonable and probable grounds to issue the warrant. It is not for me to second-guess that weighing process. However, even if I did, as can be seen from my own reasons on this issue, it was not inappropriate to give weight to the identification. Ms. Knoebelreiter was a very careful witness, as would have been apparent to the Justice of the Peace. There is no basis to excise the portions of the ITO referencing her identification of Mr. Bazuhair.

[31] The defence argues that the ITO improperly referred to 415 Willowdale Avenue, Unit 907 as being Mr. Bazuhair’s residence, without a proper basis for believing this to be accurate. The defence argues that the police failed to obtain independent verification that Mr. Bazuhair lived at this address and that although surveillance was conducted on that building for six days, Mr. Bazuhair was not seen there.

[32] The ITO states that Ms. Knoebelreiter obtained the address directly from Mr. Bazuhair. The ITO also discloses that Ms. Knoebelreiter told the police that nobody at the probation office had physically attended that address to confirm that he lived there. The ITO contains one small error, however. It states that Ms. Knoebelreiter had spoken with Mr. Bazuhair’s mother “a few months ago” and confirmed he lived there. This was inaccurate. Ms. Knoebelreiter did tell that to the police, but subsequently said she had called the mother and been unable to reach her. I will therefore excise that sentence from the ITO. However, I find that it makes no difference to the result.

[33] Apart from that one minor inaccuracy, I find no basis to excise or amplify anything in the ITO. It was a legal requirement for Mr. Bazuhair to provide his current address to his probation officer and to advise her of any change of address. The police were entitled to rely on that information, as was the Justice of the Peace. It ill lies in Mr. Bazuhair’s mouth to complain that the police failed to independently verify whether he was lying to his probation officer, in breach of his probation, when he provided that address.

[34] There were ample grounds for the search warrant to have issued. The search conducted at 415 Willowdale Avenue, Unit 907 was lawful. There is no basis to exclude any evidence obtained.

[35] In light of this finding, it is not necessary to deal with s. 24(2) of the Charter.

D. LEGAL PRINCIPLES APPLICABLE TO CIRCUMSTANTIAL EVIDENCE

[36] The Crown’s case identifying the two accused as the perpetrators of this murder is dependent upon inferences that can be drawn from circumstantial evidence. The leading authority on this point is the oft-quoted decision of the Supreme Court of Canada in R. v. Villaroman.[^10] It is not uncommon for criminal cases to be based entirely on circumstantial evidence. However, in such cases, it is important that the burden of proof remain on the Crown and that the standard of proof beyond a reasonable doubt be consistently applied. The Court in Villaroman provides helpful guidance on dealing with circumstantial evidence without running afoul of those two basic tenets. Cromwell J. wrote in that case:

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.[^11]

[37] All counsel before me agree that the law set out in Villaroman applies. Where their positions diverge is with respect to how to characterize the available inferences from the evidence, in particular whether they are rational or logical as opposed to speculative. Admittedly, this if often a difficult distinction. In Villaroman, the Supreme Court of Canada made the following observation:

Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.[^12]

[38] What is often determinative, and is particularly so in this case, is the cumulative weight of all the individual pieces of circumstantial evidence. Often, there can be multiple possible inferences from one or two pieces of evidence, looked at in isolation. However, that it not the correct approach. Rather, it is necessary to look at the whole of the evidence in context and determine whether the only available reasonable inference from all the evidence is consistent only with guilt. As stated by Watt J.A. in R. v. Smith:

It is essential to keep in mind that it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 361; R. v. Uhrig, 2012 ONCA 470, at para. 13.

Often, individual items of evidence adduced by the Crown examined separately lack a very strong probative value. But it is all the evidence that a trier of fact is to consider. Each item is considered in relation to the others and to the evidence as a whole. And it is all the evidence taken together, often greater than the sum of individual pieces, that is to be considered and may afford a basis for a finding of guilt: Uhrig, at para. 13. See also: Côté v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.[^13]

[39] In a case based on direct evidence, a reasonable doubt may arise from the absence of evidence. The same principle applies in cases based on circumstantial evidence. As stated by Cromwell J.:

At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, 1965 CanLII 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point 1966 CanLII 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.[^14]

[40] That said, the absence of evidence on some issues does not mean that an inference of guilt cannot be drawn from all of the circumstantial evidence looked at cumulatively and in context. In R. v. Mebratu, my colleague Brown J. found the accused guilty of murder after an exhaustive review of a body of circumstantial evidence from which he concluded the only reasonable inference was that the accused was the shooter. This was so, even though there was no evidence of motive, no forensic evidence tying the accused to the scene, no evidence of any connection between the accused and the deceased and no firearm recovered. Relying on Villaroman and Smith, Brown J. nevertheless concluded that he was satisfied as to the identity of the shooter beyond a reasonable doubt based on the whole of the evidence and considering only those inferences that were logical as opposed to speculative. Those principles are directly applicable in the case before me.[^15]

E. THE CASE AGAINST ODAY BAZUHAIR

1. First Degree Murder

[41] This was an execution style killing. It was clearly planned in advance and then carried out by the two men who arrived at the victim’s apartment building after parking their car on Blue Lagoon Court. They can be seen on video walking together towards the apartment building at 400 McCowan Road. Both were armed and concealing their faces. Upon reaching their victim, they opened fire, shooting into his body multiple times. There can be no doubt that both these men intended to kill their target. This was a planned and deliberate killing and is clearly first degree murder. The only issue to be determined is the identity of the two men.

2. Movements of the Elantra After the Murder

[42] The man alleged by the Crown to be Oday Bazuhair was wearing a white surgical-type face mask, a black jacket, a hood pulled up over his head, lighter-coloured (possibly grey) pants, and tan boots with dark laces, tied in a distinctive manner with the tongue of the boots pushed forward. It is clear that this man arrived in the Elantra. There was constant video surveillance of the Elantra while it was parked on Blue Lagoon Court. Both shooters returned to the Elantra and got in. Nobody else was in the car the whole time it sat on Blue Lagoon Court. The man alleged to be Mr. Bazuhair was in the front passenger seat.

[43] It is clear on the evidence that this is the same Elantra rented by Mr. Nirmalendran from “Royal Car & Truck Rental” on December 27, 2019. Toronto police officers pieced together the movement of the Elantra after the murder by tracking it through multiple video surveillance cameras along the route, noting the distinctive features of the car, including that its taillights were turned off for part of the journey. The video surveillance of the car itself is also confirmed by the GPS monitoring system in the car from time to time, and by cellphones in the car pinging off nearby cell towers. This was a stunning piece of dogged and painstaking police work, as a result of which I can say with absolute certainty that the Elantra was tracked from the scene of the murder to a brief stop at 228 Galloway Road and then to 4100 Lawrence Avenue East.

[44] The stop at 228 Galloway Road is interesting for a couple of reasons. I will deal with the movements of the Elantra prior to the murder in more detail when dealing with the case against Mr. Nirmalendran later in these reasons. However, for present purposes it is worth noting that the Elantra stopped at 228 Galloway Road earlier on the night of the murder, shortly before midnight on December 28, 2019. Video surveillance from the building show that the Elantra pulled into the driveway at 228 Galloway Road for the purpose of picking up a package from one of the tenants in the building, Richard Hajjar. There are multiple contacts between an iPhone that was in the Elantra and a phone associated to Mr. Hajjar before this pickup, culminating in the iPhone sending a text to Mr. Hajjar saying “I’m here.” Mr. Hajjar then left his apartment, walked to the foyer, and then out to the driveway. He was carrying an object wrapped in a white cloth. He got into the front passenger seat of the vehicle and spent two minutes there. He then got out and returned to his apartment, this time empty handed. The Elantra emerged from the parking lot and stopped briefly in front of the entrance doors to the building. The driver of the car can be seen on the video unwrapping the package and throwing the wrapping into the back of the car. All of this was prior to the shooting.

[45] After the shooting, the Elantra left Blue Lagoon Court at 2:54 a.m. There were calls from the iPhone located in the Elantra to and from Mr. Hajjar at approximately 2:58 a.m. The Elantra arrived back at Mr. Hajjar’s apartment building at 228 Galloway Road at 3:02 a.m. Both shooters were still in the car. While the car was in the driveway, the man in the front passenger seat can be seen changing his jacket. Mr. Hajjar left his apartment unit empty-handed, walked to the foyer, and picked up what would appear to be a grocery store flyer while he was waiting. When the Elantra arrived, Mr. Hajjar went to the driveway briefly and picked up an object, which he put inside the folded-up flyer as he was walking back into the building. However, at times it is possible to see that the object inside the flyer is wrapped in white cloth and is the same in appearance as the object Mr. Hajjar delivered to the Elantra earlier that same night. As the Elantra drives away, the man in the right passenger seat can now be seen to be wearing a lighter-coloured top.

[46] After leaving the meeting with Mr. Hajjar on Galloway Road, the Elantra went to the apartment building at 4100 Lawrence Avenue East. At 3:06 a.m., a man got out of the front passenger seat and entered the building. There were no other stops along the way, as is conclusively shown by the video surveillance. The man who got out of the car at 4100 Lawrence Avenue East was one of the two shooters. No other rational conclusion is possible.

3. Movements of the Shooter After being Dropped Off at 4100 Lawrence Avenue East

[47] The man who got out of the Elantra was wearing light grey sweatpants, which appeared to be over top of a pair of sweatpants that were darker grey in colour, a light grey hoodie, and a black baseball cap. The light grey sweatpants had slash pockets at the side and just below the pocket on the front left leg, there was a white logo. The baseball cap had a large, stylized white “P” on the front (similar to the Pittsburgh Pirates logo) and a shiny gold-coloured round sticker on the brim. The man was also wearing a pair of tan boots with dark brown laces. There was a strip of dark brown across the back of the boots at the top, and the tongue of the boots hanging out. Both the pants and the hoodie were bulky, as if being worn over something else, particularly in the front area of the hoodie. After going through the lobby, the man veered towards the left, went down a hallway and went upstairs, where he was then lost from view.

[48] At 3:38 a.m., the same man, wearing the same hoodie, sweatpants, baseball cap, and boots came back down the interior staircase and out through the lobby of 4100 Lawrence Avenue East. This time, he had the hoodie pulled up over the baseball cap. The pants, and especially the hoodie, were now closer to the body than when the man entered the building half an hour earlier. Whatever had been under the hoodie appeared to have been removed. There can be no question that this was the same man who had earlier been in the Elantra.

[49] After exiting the building, the man got into a waiting car, which I have no difficulty concluding was a Lyft vehicle. The Lyft car drove the passenger to a parking lot in the vicinity of 415 Willowdale Avenue, dropping him off at 4:00 a.m. The film footage of this area is of poor quality and the lighting is bad. However, a figure can be seen coming from the parking lot area and entering Building 900 at the 415 Willowdale Avenue complex. That man is wearing a hoodie, sweatpants, and black hat that match the clothing worn by the man who came to 4100 Lawrence Avenue East in the Elantra immediately after the murder. The Lyft business records confirm the pick-up and drop-off. Again, I am certain this is the same man who got out of the Elantra, entered 4100 Lawrence Avenue East, and then left from 4100 Lawrence Avenue East to go to 415 Willowdale Avenue. There is no other possible rational inference that can be drawn from the totality of the video footage and Lyft records that were exhibits at trial.

4. The Man in These Images is Oday Bazuhair

[50] I have concluded that one of the two shooters who got into the passenger seat of the Elantra after the murder, was dropped off at 4100 Lawrence Avenue East, and then took a Lyft to the vicinity of 415 Willowdale Avenue. The next step is to determine whether that man is Oday Bazuhair. I am satisfied beyond a reasonable doubt he is.

[51] The same Lyft account that was used after the murder to take the shooter from 4100 Lawrence Avenue East to 415 Willowdale Avenue was also used on December 27, 2019 going in the opposite direction. Passengers were picked up adjacent to 415 Willowdale Avenue at 8:45 p.m. and then dropped off at 4100 Lawrence Avenue East at 9:10 p.m. Video surveillance cameras at 4100 Lawrence Avenue East show the Lyft vehicle arriving. Two men got out. One was wearing a black hoodie and black pants and carrying a yellow plastic bag in one hand. The other was wearing a black, puffy, winter jacket over a light hoodie. The puffy black jacket had a zipper up the front, two slash pockets, horizonal top-stitched rows across the chest and sleeves, and a small white Roots logo on the upper left chest area. The man also wore grey sweatpants with a Roots logo, a black baseball cap stitched with a white Pittsburgh Pirates “P” with a shiny gold round decal on the brim, and tan boots with dark brown laces, dark brown trim at the back, which were worn with the tongue hanging partially out. That man was wearing a grey and white camouflage patterned backpack. Video footage from 415 Willowdale Avenue just as the Lyft driver was arriving shows two men heading towards the parking lot wearing similar clothing. Their features cannot be detected at that point.

[52] Upon arrival at 4100 Lawrence Avenue East, the two men who got out of the Lyft were met at the front entrance by another man who appeared to be a resident of the building. He was wearing flip flops. All three men then got into an elevator, which was also equipped with a video camera. In the footage from inside 4100 Lawrence Avenue East, in both the lobby and the elevator, the face of the man in the black jacket with the black “P” baseball cap can be seen clearly. By comparing the images of the man in the grey hoodie at 4100 Lawrence Avenue East on December 29, 2019 after the murder with the images of the man in the black puffy jacket at 4100 Lawrence Avenue East on December 27, 2019 I am satisfied beyond a reasonable doubt that they are the same person. Further, based on the images of Mr. Bazuhair at the time of his arrest and in the courtroom, I am satisfied beyond a reasonable doubt that he is that person.

[53] There is considerable corroboration for that identification.

[54] The other person with Oday Bazuhair on December 27, 2019 at 4100 Lawrence Avenue East is his brother Muaad Bazuhair. He has a very distinctive shaped face and eyes. On the way to 4100 Lawrence Avenue East, the Lyft stopped at a nearby No Frills and the man dressed all in black went inside and purchased four cans of something, which were put in a yellow bag. This is the yellow bag he was carrying when the Lyft took both men to 4100 Lawrence Avenue East. There is very clear video of his face at the No Frills. It is clear to me from the booking photos of Muaad and the video from the grocery store that he was the second man in the Lyft vehicle, along with his brother Oday. They were both coming from Building 900 at 415 Willowdale Avenue.

[55] Every time Oday Bazuhair met with his probation officer, he confirmed his address as being at 415 Willowdale Avenue, Unit 907. On January 15, 2020 at approximately 6:00 a.m., a search warrant was executed at this address. I have found that search warrant to be valid. Present in the home were: Oday Bazuhair; his brother Muaad; his sister; and his mother. At the time the police entered, Oday Bazuhair was on a bed in one of the bedrooms. There was nobody else in the room. The police seized several items relevant to the identification of Oday Bazuhair, namely:

• Discarded in a heap next to the bed occupied by Mr. Bazuhair was a pair of light grey Nike sweatpants. They are the same colour as worn by the shooter who arrived at 4100 Lawrence Avenue East after the murder, and have slash side pockets, with the white Nike logo on the left front leg immediately below the pocket;

• On the bedside table, there was a black baseball cap, identical to the one worn by that same shooter, with the white stylized “P” on the front and shiny gold decal on the brim;

• In the basement, where much of the family’s outdoor footwear was stored, there was a pair of Timberland work boots, tan in colour, with dark brown laces, and a band of dark brown leather at the top back of the boots. They are identical (including being laced in the same manner, with the tongue hanging out) to the boots worn by that shooter as shown on the video from 4100 Lawrence Avenue East immediately after the murder, and also as worn by who I have found to be Oday Bazuhair at 4100 Lawrence Avenue East on January 27, 2019. They are obviously laced in a manner that enables them to be pulled on and off without being re-laced;

• Hanging on a hook on the back of the bedroom door was a black, puffy winter jacket, with the same stitching, pockets and Roots logo as worn at 4100 Lawrence Avenue East on December 27, 2019 by the man I have identified as Oday Bazuhair;

• Lying on a chair in the living room was a pair of grey Roots sweatpants similar in colour and design to the sweatpants worn by that same man on December 27, 2019; and

• A grey camouflage backpack, similar to the one worn by that man on December 27, 2019, was found in the basement, not far from the tan boots.

[56] I turn, finally, to the evidence of Angie Knoebelreiter, Mr. Bazuhair’s probation officer. I found her to be an exceptionally careful witness. Where she was hesitant in giving a clear identification, she gave clear reasons for her hesitation (for example, that the man on the video was wearing a hat and she could not see his full face; that the man in one of the photos was laughing and she had not seen Mr. Bazuhair laugh; that a particular image was blurry; or that his manner of walking could not be picked out in a particular clip because there were other people around him). However, there were no distinctions that Ms. Knoebelreiter noted about the man in the videos that were inconsistent with the man being Mr. Bazuhair. This is another indication of the degree of care she took in her evidence. Although everything about the images was consistent with the man being Mr. Bazuhair, she would not identify him in situations where she could not be certain based on the nature and quality of the images.

[57] Not only was Ms. Knoebelreiter a careful witness, she was a very observant one. She gave two examples of idiosyncrasies she had noticed about Mr. Bazuhair that she also observed in the video, which assisted her identification. One was the way he walked, with both hands in his pockets, his feet pointing out, and his feet kind of dragging. I agree that those features can be seen on the videos, particularly the two from 4100 Lawrence Avenue East after the shooting. Although she was cross-examined about the apparent discrepancy in saying at one point she saw a familiar slouched-over posture and at another time that he was leaning back, I can see both features in the video. He walks with his head bent over, but with his shoulders back. The second distinctive feature Ms. Knoebelreiter noted was that Mr. Bazuhair talks without moving his mouth much. Like the manner of walking, this is a detail I could not appreciate based on my own observations of Mr. Bazuhair. However, from the video inside the elevator on December 27, 2019, I agree that the man Ms. Knoebelreiter identified as Oday Bazuhair appears to be talking to his companions, but that his mouth moves very little. Ms. Knoebelreiter had the opportunity of observing these traits multiple times, in a low-stress environment, on occasions when all she was doing was concentrating on Mr. Bazuhair. I find her evidence on these points to be highly reliable.

[58] Ms. Knoebelreiter was more confident of her identification after watching video clips, as opposed to still photos taken from those clips. I do not find that to be surprising. Screen grabs from video can be very useful at times, but the ability to identify a person is greatly enhanced by seeing the actual live action video. Further, there are things that appear on a video that simply do not exist in still photographs, such as the way a person moves, walks, or speaks. Det.-Sgt. Ruhl was cross-examined critically about the fact that he permitted Ms. Knoebelreiter to watch the videos more than once. I completely agree with his response that showing video to an identification witness is quite different from providing an array of still photographs to an eyewitness. It is difficult to see every aspect of a video clip at once. A person’s attention could be diverted to something else when watching for the first time, particularly where the clips are short in duration. Also, it may be important to pay attention to the face for a while, thus diverting attention from watching the feet. In my opinion, the ability to watch the video multiple times enhanced, rather than detracted from, the reliability of Ms. Knoebelreiter’s identification of Mr. Bazuhair.

[59] Finally, I acknowledge it is always preferable to have an identification witness approach the task without being advised ahead of time of the suspected identity of the person in the images she is being shown. This is less important with a recognition witness than is the case with a pure eyewitness who has no prior connection with the accused. However, the frailties of eyewitness identification must always be borne in mind, and recognition eyewitnesses are not exempt from this scrutiny. I am not being critical of the police in this case. The manner in which Ms. Knoebelreiter became aware that Mr. Bazuhair was a suspect occurred naturally in the course of the police investigation as they were searching for, and attempting to identify him. This was before it was known that Ms. Knoebelreiter might be in a position to provide an identification.

[60] Nevertheless, the fact that Ms. Knoebelreiter knew that the police believed this man to be Mr. Bazuhair is a factor I must take into account. Had she been a less careful witness, I might have discounted her evidence entirely. Further, if she had given only an impressionistic conclusory opinion as to identity, I would have been cautious. However, she did not do that. She was both careful and thoughtful, taking very seriously the implications of her evidence. I found her to be a very impressive witness and her identification to be reliable.

[61] That is not to say that Ms. Knoebelreiter’s identification alone would have been sufficient to determine Mr. Bazuhair’s guilt. However, it does not stand alone. I also am confident in identifying Mr. Bazuhair as the person in both the December 27 and 29, 2019 videos, based on my own observations and the booking images. As the trier of fact, this is something that is open to me, as is well recognized in cases such as R. v. Nikolovski.[^16] In addition to that, there is the large volume of corroborative evidence found at 415 Willowdale Avenue, Unit 907 along with Mr. Bazuhair: the boots; the hat; the two pairs of sweatpants; the black puffy jacket; and the backpack.

5. Conclusion: Guilty of First Degree Murder

[62] The pivotal issue for me to decide at this point is the identity of one of the two shooters – the one wearing the tan work boots.[^17] I must make that determination based on the whole of the evidence. I am completely certain that the shooter wearing the tan boots was dropped off at 4100 Lawrence Avenue East immediately after the shooting, following the brief detour to Galloway Road to drop off the package. The exhaustive and detailed work by the investigating team in this case has nailed that evidence down through highly reliable video surveillance evidence. In determining that Mr. Bazuhair is that person, I have taken into account my own identification of him, Ms. Knoebelreiter’s identification of him, and the highly incriminating items found at his residence where he was present. It is difficult to determine which of those pieces of evidence was most persuasive, or whether I would have come to the same conclusion if some pieces of evidence were missing. That said, it is clear to me that much of the evidence is superfluous. I consider this to be an overwhelming Crown case. Based on the whole of that evidence, there can be no other reasonable or rational inference other than that Mr. Bazuhair was the person in the tan boots who participated in the brutal shooting of Koshin Yusuf.

[63] I find him guilty of first degree murder as charged.

F. THE CASE AGAINST NIRUSAN NIRMALENDRAN

1. Overview

[64] The Crown alleges that the other shooter – the one dressed all in black – is Nirusan Nirmalendran. If he was that person, he is clearly guilty of first degree murder. As was the case with Mr. Bazuhair, the central issue is identification.

[65] There were two pretrial applications brought by Mr. Nirmalendran. They were heard on a blended basis along with the other evidence at trial. One was an application to call evidence relating to an alternate suspect. For oral reasons provided at the time, I ruled that there was a sufficient air of reality to permit the accused to raise this defence. I heard evidence from three witnesses in relation to the alternate suspect, one of whom was Mr. Nirmalendran. Having considered the whole of the evidence, I reject the alternate suspect theory for the reasons set out below.

[66] The other pretrial application related to an expert witness, Dan Mills, from whom the defence proposed to tender evidence to establish that Mr. Nirmalendran could not possibly be one of the murderers because he was significantly shorter than the man on the video with Mr. Bazuhair. I found Mr. Mills to be qualified to give opinion evidence on this point as an expert in photogrammetry. However, ultimately, I rejected his evidence as unreliable. Again, my reasons are set out below.

[67] Mr. Nirmalendran testified in his own defence. His evidence was pivotal on the alternate suspect issue. I did not find his evidence to be credible, nor did it cause me to have a reasonable doubt, both with respect to the alternate suspect’s involvement and with respect to the involvement of Mr. Nirmalendran himself in the murder.

[68] The Crown’s evidence against Mr. Nirmalendran is entirely circumstantial, consisting of evidence in relation to the Elantra and cellphone records. Based on the whole of the evidence, I am satisfied beyond a reasonable doubt that Mr. Nirmalendran drove the Elantra to and from the murder and was one of the two shooters. There is no other rational explanation that can be drawn from the evidence. He is guilty of first degree murder.

2. The Evidence of Dan Mills

(i) Potential Impact of this Evidence

[69] I will deal first with the expert evidence provided by Dan Mills. If I accept his evidence, the shooter dressed all in black is 5’7” tall (give or take an inch). Mr. Nirmalendran is several inches shorter than that. Therefore, if the expert evidence is reliable, it provides an absolute defence. The shooter could not be Mr. Nirmalendran.

(ii) Qualifications to Testify as an Expert

[70] Dan Mills graduated in 1996 from what was then Ryerson Polytechnic University, with a Bachelor of Technology in Survey Engineering. He also received a post-graduate Certificate in Digital Geographic Information Systems from that same university in 2001. In 1996, he formed his own consulting company, DCM Technical Services Inc., which he continues to own and operate to date. However, he worked from 2001 to 2003 at Ryerson as a collision reconstructionist in a research project with Transport Canada. During that time, he had free tuition for courses at Ryerson and completed four courses towards a Master of Civil Engineering degree, but never completed it. After 2003 he has continued his consulting work through his company. The company has two employees, but they do not do any of the forensic work.

[71] Mr. Mills testified that his consulting company’s work in the field of “measurement and mapping solutions” mainly uses photogrammetry. He explained photogrammetry as the process of taking measurements from photographs. He testified that those kinds of measurements can be done manually, or by using a computer software program. He uses a software program called “PhotoModeler.” This technology is frequently used in vehicle collision reconstructions, but has other applications, including calculating the height of objects seen in a photograph.

[72] In his curriculum vitae, under the heading “Expert Testimony,” Mr. Mills listed seven courts in which he purportedly had been qualified as an expert. The three Canadian entities listed were the Ontario Court of Justice, the Ontario Superior Court of Justice, and the Financial Services Commission of Ontario. It was apparent from Mr. Mills’ testimony in chief that he has little understanding of the justice system either here or in the United States. It was difficult to determine from his evidence the extent to which he has ever been qualified as an expert by a court here. He said that the Ontario Court of Justice case was a civil matter in Newmarket involving an accident reconstruction. There are no civil matters in the Ontario Court of Justice. When pressed, he thought there might have been a ticket under the Highway Traffic Act involved, which would likely make it a provincial offences proceeding, but this was by no means clear. He could not name the case or the judge who heard it and the case dated back to 2006. I consider this particular occasion of qualification as an expert, if in fact that happened, to be of no assistance to me here.

[73] The only other occasion in which Mr. Mills was qualified as an expert in Canada was in a 2008 civil case in the Superior Court of Justice in Brantford. He could not remember the name of the case, but subsequently recognized it as being Matthews v. Krentz based on a list of cases published on the website for PhotoModeler. He said that he was qualified as an expert by the judge in that case, whose name he cannot remember, and that after he testified, the case settled. There is no reported decision. Again, this was an accident reconstruction situation, but his only involvement was with respect to the measurement of tire tracks in relation to the center of the road. Again, this is very dated and quite vague, and not similar to the situation before me.

[74] Mr. Mills also claimed to have testified in Ontario at about six examinations for discovery. That would be highly unusual under the Ontario Rules of Civil Procedure and I doubt that this is accurate. I believe Mr. Mills is confused with respect to the terminology. In any event, in those situations he would only have been retained by a lawyer to give an opinion. This has nothing to do with a court qualifying him as an expert to give an opinion at trial. Likewise, he testified that he was hired by the Hamilton Police Service in 2004 to take measurements from video footage to determine the height of a person at a bank machine. He said that this involved a murder trial, which resolved before it even got to discovery (again likely confused about the terminology). In any event, he did not testify, so this has no bearing on anything I have to decide.

[75] Essentially, I am treating Mr. Mills as a person who has never before been qualified to testify in the field of photogrammetry by a court in this jurisdiction. Apparently, he has testified before a number of courts in the United States (although on one of those, he claims to have testified at the appeal, which I find odd). I do not have sufficient information to evaluate those situations and I have not taken them into account. That said, the top expert in every field will, at some point in his or her career, have been qualified as an expert for the first time. It is not an impediment to receiving Mr. Mills’ evidence as an expert that he has not previously been qualified as such.

[76] In his curriculum vitae Mr. Mills listed seven publications, most of which related to accident reconstruction or to conferences promoting his technological inventions, such as the Bublcam, a four-lens spherical video camera. None of these publications were from the past decade. Under the heading “Skills and Training,” Mr. Mills listed many technology type conferences he had attended mainly in the United States, from 1998 to 2023. Again, most of these do not relate to the issue in this case. However, included in the list were 13 conferences in Las Vegas. These did involve the PhotoModeler software, but essentially Mr. Mills’ role was as a salesman for that product. He operated a booth at the conference site displaying and demonstrating the PhotoModeler software. Mr. Mills testified that he does not earn a commission from selling the software. However, he is the exclusive worldwide trainer for PhotoModeler software. Therefore, he receives a direct benefit every time an agency or individual purchases the software as he is the only person authorized by the company to provide the training needed to operate the system. According to Mr. Mills, his fees as a trainer for PhotoModeler represent 15% of his company’s income.

[77] The Crown concedes in this case that photogrammetry is a legitimate area of expertise and is not junk science. I agree. However, the Crown challenges Mr. Mills’ qualifications to provide an opinion in that field.

[78] In R. v. Mohan,[^18] the Supreme Court of Canada established four requirements for the admissibility of expert opinion evidence: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert. The Crown concedes that the first three criteria are met. I agree. The evidence of height is clearly relevant to the identity of the shooter, particularly if it would rule out Mr. Nirmalendran. Such measurement is beyond the expertise of a layperson and the evidence of an expert is necessary to assist me on this point. It is not something I could determine on my own. There is no exclusionary rule.

[79] The Crown does not concede the fourth point and challenges the expertise of Mr. Mills to give evidence on this issue. The Crown points out, correctly in my view, that while Mr. Mills has considerable experience in the measurement of static and inanimate objects, he has little expertise in measuring the height of people in motion as shown on a video. Further, although he may have expertise and experience in the use of the PhotoModeler software, he is not completely impartial on this issue given how he earns his living and his close connection to the developer of this software.

[80] As I indicated in my brief oral reasons at the conclusion of the argument on the voir dire, I had some reservations about whether Mr. Mills should be qualified as an expert on this issue. However, the evidence Mr. Mills would be providing to the court is of utmost importance to the defence. If Mr. Mills is correct, Mr. Nirmalendran is innocent of the crime with which he is charged, because his height rules him out as the man the Crown alleges to be him shown on video committing the crime. In my view, the objections made by the Crown went more to the issues of the weight and reliability of the expert evidence, rather than the admissibility. This is a judge alone trial, so I do not need to be as concerned about any prejudicial impact on a jury in hearing evidence that is not reliable. Accordingly, I permitted Mr. Mills to testify as an expert in photogrammetry and to provide his opinion as to the height of the man on the video alleged to be Mr. Nirmalendran.

[81] I indicated at the time of my oral ruling that I would provide more detailed reasons for admitting the evidence later. However, having heard the evidence of Mr. Mills on the trial proper, and the evidence of the Crown’s expert Tracy Peloquin, I have concluded that the evidence given by Mr. Mills is completely unreliable and I reject it. Given that conclusion, I will say nothing further concerning the basis for my initial decision to admit the evidence.

(iii) Evidence of Mr. Mills

[82] Mr. Mills testified that he studied the video files and still images given to him by defence counsel, all of which showed the two shooters at approximately 2:45 a.m. on December 29, 2019, as they proceeded along the driveways of 400 McCowan Road and 410 McCowan Road towards the scene of the murder. One of the images he considered was a compilation video prepared by the TPS from various surveillance cameras on these two properties.

[83] Mr. Mills then went to the scene on August 21 and September 1, 2023 to see if there were sufficient “control points” available in that physical location which were also shown on the videos and which could be used as points of comparison for purposes of the photogrammetric process. He concluded that two of the videos were appropriate for use in determining the height of the person he labelled as “Individual 1” (alleged by the Crown to be Mr. Nirmalendran): Camera 1 (which was mounted on the side of 410 McCowan Road); and Camera 2 (which was mounted on a post at 400 McCowan Road). He had raw footage from Camera 2 (from 400 McCowan Road), but used clips included in the compilation video for the Camera 1 (which was at 410 McCowan Road). There were also three other cameras that provided video of the two men at various points. Mr. Mills rejected those as viable options based on various factors including the lack of sufficient control points and the fact that the cameras were too far away from the subjects.

[84] Mr. Mills testified that he used his “calibrated camera” to photograph the area shown on the two videos and then marked 42 control points on the physical scene that were also located on the videos. He went through the two video clips and selected the points at which the two men walking along the road were at their most vertical (i.e., standing at their most straight point). He then placed an “X” at what he considered to be the top of the man’s head. From there, the computer software drew a vertical line to the ground and measured the distance in between. There was considerable confusion in his evidence as to how the bottom point was chosen. At times, he indicated that he affixed both the top and bottom points of the line, but ultimately, he testified that it was the computer software that determined the end point based on the information it had from the calibrated camera as to where the ground was.

[85] Using the PhotoModeler software, Mr. Mills took three measurements of each man from the Camera 1 footage. The height of the individual alleged to be Mr. Nirmalendran was recorded as being: 66.97;” 66.62;” and 66.90.” The average of those three numbers is 66.83.” From the Camera 2 footage, Mr. Mills was able to generate five separate height measurements for the individual alleged to be Mr. Nirmalendran: 67.17”; 67.13”; 66.94”; 67.21”; and 66.89”. The average of those five measurements is 67.07.” From these measurements, Mr. Mills opined that the height of the individual alleged by the Crown to be Mr. Nirmalendran was 66.95,” while wearing shoes. He wrote in his report, and testified at trial, that the overall accuracy of that measurement is plus or minus one inch. In other words, he put this man’s height at between 5’6” and 5’8”. In his report, in describing this margin of error, he stated that it “accounts for the accuracy of the inverse camera determination as well as point selection of a vertical point that touched the ground and intersects the top of each individual’s head across all of the images used in the analysis.”[^19] Mr. Mills acknowledged that his was a height measurement which included shoes, but noted that the shoes appeared to have average sole thickness, neither overly thin nor platform style. He also noted that both men were wearing hooded sweatshirts with the hoods up, but he made no adjustment for that because he considered the thickness of the hood materials to have a “negligible effect” on the overall height determined.

[86] Using the same methods, but with slightly fewer measurements, Mr. Mills determined the height of Mr. Bazuhair to be 70.72,” give or take an inch. That would put him at between 5’10” to 6’ tall.

(iv) Actual Heights of the Accused

[87] On two occasions during the course of the trial (on September 29 and October 10), counsel measured the heights of both accused, with and without shoes. On both occasions, Mr. Nirmalendran’s height in socks without shoes was 5’3.25”. On the second occasion, he was also measured wearing shoes that had been seized from his home at the time of his arrest, with the resulting height being 5’4.37”.

[88] Mr. Bazuhair’s measured height was as follows:

• September 29 with socks and no shoes – 5’9.5”;

• September 29 wearing the shoes worn at the time of his arrest – 5’11.5”;

• October 10 with socks and no shoes – 5’10.5”; and

• October 10 wearing tan boots seized from his home – 6’0.24”.

(v) Evidence of the Crown’s Expert

[89] The Crown called Tracy Peloquin as an expert witness to provide an opinion in the nature of a critique on the weaknesses in Mr. Mills’ report. Ms. Peloquin is a certified forensic video analyst with extensive expertise in her field and has been qualified to provide opinion evidence in numerous legal proceedings, including in trials in this court. Ms. Peloquin testified that photogrammetry is a species of forensic video analysis. She has done photogrammetry using reverse projection (which involves using the original camera that took the images in question), but has not done the form of photogrammetry used by Mr. Mills and has no knowledge or experience with the PhotoModeler software Mr. Mills employed. However, she was not tendered as an expert in photogrammetry per se, but rather on the general principles and techniques important in any forensic video analysis. Ms. Peloquin’s expertise to offer opinion evidence on the principles of forensic video analysis was not challenged by the defence. Her credentials and experience are impressive. I had no issues qualifying her as an expert in this field.

[90] Ms. Peloquin did not do any calculations of the height of either of the two shooters shown on the video. Essentially, her opinion was that reliable and accurate measurements of height were not obtainable from the video footage available. Ms. Peloquin referred to various factors that made an accurate measurement impossible and also pointed out flaws in the analysis done by Mr. Mills.

[91] With respect to weaknesses with the video itself, Ms. Peloquin testified that the video was taken by a camera that did not produce high quality images, which she acknowledged is common in surveillance video cameras. She noted as well that it is more difficult to be precise about the edges of objects when the video is dark. The lighting was poor in the area the video covered. She said that the first thing she would have done with this video, before attempting to measure anything, would be to attempt to brighten the image to see the footwear better. In the existing video, it is hard to tell where the image and shadows begin and end. In addition, the figures in the video were small. The smaller the object to be measured within the area captured on video, the higher the error rate. Given the size of the individuals in the frame, one pixel might be covering four or five inches of the person. Also, the camera angle is problematic. She testified that it is difficult to measure height accurately when the camera is looking down on the object to be measured, which was the case here. Ms. Peloquin noted as well that there was some distortion in the images because of the nature of the lens used, which would create images that looked curved at the edges and affect the accuracy of the height and width of objects within the frame.

[92] Ms. Peloquin was critical of some of the methodology used by Mr. Mills. She testified that a proper application of the scientific method requires that any potential problem that could affect the accuracy of the result should be identified in the expert report, even if that problem can be explained. In dealing with video, she said raw footage must be used. That is because compilation video taken from raw sources will never be as clear or have as many pixels as the raw data. Therefore, every effort must be made to obtain raw video footage. If an attempt is made to take measurements from a secondary source (such as the compilation video in this case), that would need to be addressed in the report as a potential weakness. Mr. Peloquin was also of the view that any report of this type should be peer reviewed, which Mr. Mills did not do.

[93] Ms. Peloquin explained the difference between an “I frame” and a “P frame.” The video footage in this case uses temporal compression. Not every frame in the video is a full image. A complete image, like a photograph, is an I frame. In between each I frame, there are 30 P frames. Those frames contain predicted images that fill in the spaces between each I frame. The P frames look back to the previous I frame and save only the data specifying the changes from the last I frame. Ms. Peloquin testified that P frames should never be used to take measurements as they will not contain the full image and this could affect the accuracy of the measurements. All of the measurements taken by Mr. Mills were from P frames.

(vi) Analysis

[94] Having heard the evidence of Mr. Mills and the evidence of Ms. Peloquin, I have concluded that the weaknesses in Mr. Mills’ approach and methodology are such that I do not consider any of his evidence to be reliable. Many of the criticisms could be seen as minor, and many of my concerns about the nature of Mr. Mills’ report and testimony might also be characterized as minor. However, the combined result leaves me with a complete lack of confidence in the accuracy of the measurements done by Mr. Mills.

[95] I have a concern that Mr. Mills has inflated his accomplishments and expertise. One example from his curriculum vitae is that he started the very first section (Education) with the heading “Masters of Civil Engineering (partially complete).” While this is not a complete misrepresentation, it is somewhat of an overstatement, given that he took four courses when he was employed at Ryerson and had free tuition, but did nothing thereafter. At best, he has taken four graduate level courses. That is not the same thing as a “partially complete” Master’s degree. Another example is the manner in which he inflated his “Skills and Training” section by including 13 conferences he attended when his role was essentially to sit in a booth and promote the PhotoModeler software. He also exaggerated the extent to which he has ever testified as an expert in Canada, although perhaps much of that was a lack of understanding about the court system. Similarly, much of his expertise and training experience is also as a promoter of the PhotoModeler software. He is the worldwide trainer for that software and has a vested interest in it being accepted and used by video analysts. That does not mean that it is not a highly reliable software program. However, it is directly related to an income stream for Mr. Mills, which raises a concern about whether his endorsement of it is fully impartial. I do not have anything other than the testimony of Mr. Mills as to its reliability, and his report was not peer reviewed.

[96] Most of Mr. Mills’ experience is in the field of accident reconstruction. He has very little experience calculating the height of people, particularly people who are walking, which is quite different from somebody standing still. When cross-examined on this point, he took the position that “the math of a moving object is the same regardless of the moving object.”[^20] In preparing his report, he does not appear to have taken into account any of the differences that would be attributable to the position of a person’s head and the positions of their feet as they were walking, explaining, “I’m not a human factor’s expert.”[^21] All he did was to try to take the measurements based on frames from the video when the person was standing the most erect. I do not know what the correct approach is to determining height when a person is moving, but it troubles me that Mr. Mills appears to have given no thought at all to how measuring the height of a car from the ground might be different from a person walking, particularly given that it is outside his usual area of practice.

[97] Overall, I found Mr. Mills to lack the precision and degree of care I expect of an expert scientific witness, particularly given the nature of this case and the potential consequences of his testimony. There are numerous examples.

[98] There was an error in Mr. Mills’ report with respect to his opinion as to the height of the person I have found to be Mr. Bazuhair. In the report, Mr. Mills stated (in two places) that the overall average of the seven calculations of Mr. Bazuhair’s height taken from the two video cameras was 179.51 cm. In his examination-in-chief, he said that defence counsel had drawn to his attention that this appeared to be inaccurate. He testified that he had made a “typographic error,” and that the correct number was 179.63 cm.[^22] He further testified that the error arose because he had taken the four measurements from one camera and averaged them and then taken the three measurements from the second camera and averaged those together. He said that the error he made was by averaging the two averages. On cross-examination, Mr. Mills agreed that the nature of his error was in averaging the two averages as opposed to taking the average of all the numbers. He said he had been debating in his head how to do it properly, but made an error, although it made very little difference to the result. Counsel put to him (correctly, in my view) that this was not a typographical error, but rather an error in the analysis. However, Crown counsel then reviewed the math with Mr. Mills. If all seven measurements are added together to get the overall average, the result would be 179.72 cm. This is a different number from the original report and also different from the corrected number of 179.63 cm. It turns out that what Mr. Mills did to make the correction was calculate the average of the two averages, which results in 179.63 cm. When confronted with this and asked where the 179.51 cm came from, he again said it was a simple typographical error. None of this actually matters in terms of the numbers themselves, because the degree of difference is so slight. What does matter, however, is the lack of precision in Mr. Mills’ evidence and the way he shifted his evidence without acknowledging that he was unsure of the answer, then gave evidence as to his mathematical methodology which was in fact untrue.

[99] Mr. Mills went to the scene to carry out his analysis in August 2023, which was over three years after the murder. He correctly recognized that it was important to ascertain any changes to the site since the time the videos were recorded, and noted in his report that there were changes to “the 400 McCowan Road building facade as well as sidewalk, bus stops, signage and pavement cracks.”[^23] One glaring omission, as can be seen from the photographs he took on scene, is that speed bumps have been added to the very surface upon which the two shooters walked on their way to the murder. When this was pointed out to Mr. Mills on cross-examination, he acknowledged that the speed bump represented a change in the elevation of the road surface, but said he had not marked a single point on the speed bump. He was then directed to one of the images in which he had placed an “X” right on top of the speed bump. He maintained, however, that this would have no impact on his calculations. Although he seemed to me to be surprised about the absence of the speed bump in the original still photos from 2019, he said that he had noticed it before. Nevertheless, it was not mentioned in the report, and I would expect a careful report to have included it and made allowances for it. In addition, it can be seen from the video footage of the scene that in December 2019, there was construction going on at this address. Mr. Mills took no steps to verify that the road surface at the time he took his measurements was the same as it was at the time of the murder. If the road was resurfaced by even an inch, that would dramatically change the resulting height measurements.

[100] Mr. Mills was a difficult witness to follow and understand. His way of describing things was at times very convoluted and unnecessarily complicated. I will provide two examples from the early portion of his cross-examination:

Q. What’s frame rate?

A. It’s the rate at which frames are derived with by the camera. It may be static, it may be variable, but within a time second -- a time period, a lot of times within one second, a discussion about how many frames are recorded during that one second period.[^24]

Q. Tell me what a compression algorithm is?

A. Compression algorithm, they vary as in there are different ones, but it is -- there’s not always a -- say a -- and that -- that is -- okay. So that is the distinction that I -- part of the distinction that I made in the difference between an image and a frame of video --

A. An image still can go through some compression, but video goes through various compression algorithms and -- and they differ between different cameras that may or may not be applied to say van with (sic) [likely mis-transcribed from bandwidth] to do various things to make the picture look crisper, to do various things to an image to -- to provide, I guess, with their desiring out of the camera, depends on the desire -- the design of the camera as to what’s used for compression algorithm, but it’s essentially ways to optimize how pixels are recorded.[^25]

[101] Needless to say, I learned nothing about frame rates or compression algorithms from those answers. Fortunately, later in his questioning, Mr. Shumka (for the Crown) explained what they were and asked Mr. Mills if that was correct, to which he replied in the affirmative. I also had the assistance of Ms. Peloquin who was quite good at explaining things. Again, not a lot depends on my understanding of how a compression algorithm works or what a frame rate is. However, these types of answers from Mr. Mills were not infrequent.

[102] Mr. Mills started his description of the steps he took at the scene by saying that he took a series of photographs with his “calibrated camera.” Defence counsel asked him what the process was for calibrating his camera. Mr. Mills answered as follows:

Yes, the process of calibrating a camera is taking, in this instance, my -- my camera, and taking a series of images of targets that are placed in specific positions, and -- and more specifically nonmoving positions between each of the images, that you take a series of images at points, or at locations around the targets with different angles to then determine within the software what the focal length, and all this internal geometry information that is included in Figure 1 on page 1 of my report, where determining that information specific to the camera and specific to the settings of a camera at the time that I’m utilizing in its calibrated form.[^26]

[103] At that point, I interjected that I “didn’t understand any of that; not a word.”[^27] Defence counsel then asked him to explain it in simpler terms. His response to that continued from page 48 to page 77 of the transcript, interspersed with questions for clarification. At the end of that, I summarized what I thought was the process (in 18 lines of transcript) and he agreed this was correct.[^28] Again, the process of calibration is not critical; what is critical is that the process was done and when. Mr. Mills testified that the software will simply apply what it knows from the last calibration and will not be able to detect any change in the actual camera settings since that time. This could significantly skew the result if there is any change in the camera. Mr. Mills testified that he teaches his students (i.e., people who have purchased the PhotoModeler software for which he is the only authorized worldwide trainer) to calibrate their cameras once or twice a year and anytime the camera has been dropped, there have been major climate differences such as extremely warm or extremely cold conditions, or if they have changed the setting of the camera in any way (e.g., if they have changed the lens). He said that he calibrates his camera more often because, as part of any class on how to do the calibration, he does a demonstration of the process using his own camera.

[104] Because counsel did not ask Mr. Mills when he last did the calibration process on his camera, I asked him. He said that he had last done it when he last taught a course on how to use the PhotoModeler software, which he said would have been at the end of July 2023. As was established repeatedly in the evidence, photogrammetry is not a discipline for which there are established standards or procedures. Since Mr. Mills does all the training, it would appear that he is the one that sets the standards, to the extent there are any. The data obtained is useless unless the camera and software are calibrated. I find Mr. Mills’ approach to be less than scientific. Given the issues at stake here, I would have hoped that Mr. Mills would have taken pains to ensure that the calibration was done immediately before taking the photographs at the scene with his “calibrated camera.” That said, I have no means of determining that anything was wrong with the interaction between the camera and the software, but as Mr. Mills himself said, the software would not reveal such a discrepancy anyway.

[105] Mr. Mills chose not to do any kind of manual measurement of objects at the scene which he could photograph and then run through the PhotoModeler to verify that it was correctly interpreting the data from the camera. He had a tape measure with him. There are structures on the video that are static. It was open to him to measure things such as a fence or a metal gas meter post. Those types of static objects were in his photographs of the scene and also on the video. If he had done an actual measurement of various objects situated around the shooters and the measurements generated by the PhotoModeler were the same, I would have some reassurance that the calibration was correct and that the PhotoModeler software was generating accurate measurements at least for static, measurable objects. The more of those that were done, the greater the level of confidence I would have in the accuracy of the software and of Mr. Mills. However, when asked if he had measured the height of the gas meter (which was a feature in the videos as the two shooters walked past it), Mr. Mills stated, “I took pictures of the gas meter.”[^29] When pressed on cross-examination about why he did not take a physical measurement in order to create a redundancy and demonstrate reliability, he answered, “[t]he science of photogrammetry has already been proven. I didn’t need to prove it to myself further on the redundancies.”[^30] That degree of certainty may have been enough for Mr. Mills, but it is not a careful or scientific approach and it does not demonstrate to me that the process generates accurate results. Essentially, Mr. Mills is asking me to take it on faith that the answers are accurate because he believes in the software. However, it is his responsibility to establish the reliability of the results and I am not prepared to render my conclusion based solely on his level of confidence in the software program, particularly given his vested interest in the software being reliable.

[106] Ms. Peloquin testified that when performing measurements of this kind from video, the raw video footage must be used. Mr. Mills had raw footage from one video camera, which he used for one set of measurements. For the other set of measurements, he used video taken by a different camera that was included as part of a compilation video prepared by the police, with bits and pieces of video from various cameras spliced together. On cross-examination, he conceded that he was aware that using clips from the compilation video involved a risk of distortions in the images caused by the process of transferring them to the new file format. He also acknowledged that working from the raw footage video is always preferable. He testified that he used the compilation video because that was what defence counsel provided to him. At no time did he ask if the raw footage could be obtained. Further, he did not disclose anywhere in his report that half of his data was taken from a source that carried the risk of distortion. I find that unacceptable. He ought to have at least made the inquiry. If he had, the raw footage could have been provided to him. At the very least, he should have explained the use of the video from the altered file and allowed an adjustment for the risk of distortion from that. When asked why he did not even ask for the raw data, he stated, “I had sufficient information to derive a result off of this within the accuracy that I -- that I had quoted.”[^31] In this regard, he appears to be referring to the “plus or minus one inch” accuracy range he set with respect to his conclusions (a point to which I will return).

[107] All of the measurements Mr. Mills did were taken from P frame images. He testified he did that because he chose images where the individuals were closest to the camera and in the most straight vertical position. In her report, Ms. Peloquin clearly described the difference between an I frame and P frame and why measurements should always be taken from an I frame. In his examination-in-chief, Mr. Mills was directed to that portion of Ms. Peloquin’s report and testified that he understood the difference between the two kinds of frames. He said he believed that photogrammetry would correct for those possible defects. I confess I did not completely understand his answer on that point, and I am not sure that it made sense. He agreed with Ms. Peloquin’s description of the nature of the frames and then stated:

I do agree that this is a good description of the frames and -- and how things are encoded. And then I do not feel that it -- it can have an effect on photogrammetry, yes. Doing a proper photogrammetric analysis of it will remove that and prove that you are getting consistent and precise results, because you’re getting -- photogrammetry is meant to analyze the image, or segments of video that are being presented; the calibration that is being completed is being done on that camera and that footage with control points as they’re visible in ‘P’ or Iframes. So it is inherently designed within photogrammetry to calculate for that if you identify the correct points.[^32]

[108] As I said, I am not sure about the meaning or logic of that statement. However, nothing in particular turns on that because, Mr. Mills testified that, as a result of reading Ms. Peloquin’s report, he redid the analysis using the I frame and that it did not affect the result. That may be the case. If so, it begs the question of why he did not use the I frames in the first place, or at least check the P frame results against the I frame results to see if there were differences. Again, in my view, this is a step a careful scientist would have taken in the first instance. That he did not bother to do so, undermines my confidence in the reliability of his work.

[109] One of the most critical steps in this process was defining the points on the two individuals at which the measurements would be taken. Mr. Mills testified that he chose a frame where the individual was at his most erect. In the still images he extracted from the video and included in his report, it can be seen that the height measurements come from a point marked by an X at the top of the individual’s head to another X either on the ground or at a place on or near the individual’s foot. It was extremely difficult to follow Mr. Mills’ evidence on how he performed this task, particularly with respect to what he did and what the software program did. At one point, I asked him to clarify based on a still shot towards the end of his report (at page 32), which showed a series of “vertical” lines with a numbered X at the top and bottom, each line representing a height measurement that had been taken. I directed Mr. Mills to the X marked as 78, which was on the ground. The following exchange occurred:

THE COURT: Number 78, see where that cross is?

THE COURT: What’s that meant to be?

THE WITNESS: That is a point on the ground surface vertically below the point that I identified on that individual’s head. It’s a vertical line that is in -- in -- that is --

THE COURT: Who put that in?

THE WITNESS: I did.

THE COURT: You mechanically put that in?

THE WITNESS: Yes

THE COURT: So you decided the point on the ground and the point on the head that were his height?

THE WITNESS: Yes.[^33]

[110] He repeated that same explanation later in his examination-in-chief, as follows:

THE COURT: But you decide where it’s going to end, and where it’s going to start?

THE WITNESS: I decide -- I decide where along the ground plane to mark the point that is from the ground, as calculated by the software. I decide where along that ground plane to mark 78, and then it projects a vertical line from there to where I decide the top of the head is, and the software provides a calculation of the actual measurement.[^34]

[111] And a short while later, he again said essentially the same thing, after explaining that the software will always generate a vertical line:

THE WITNESS: I have selected the bottom point, and projected the top point --

THE COURT: You did, okay.

THE WTINESS: Up.

THE COURT: But you selected the bottom point, and the end of the top point. Just not --

THE WITNESS: Correct.

THE COURT: The angle of the line.

THE WITNESS: Right. And -- and I select the bottom point. The software calculates its intersection with the surface….[^35]

[112] At that point, I thought I understood the process. Mr. Mills selected a point at the ground where the individual was and the software projected a vertical line from there, at which point Mr. Mills marked the top of the individual’s head on that line, and the computer calculated the height between the two points. However, Mr. Mills’ evidence was quite different under cross-examination the next day. At that point, he said he started the process by marking an X at the top of the individual’s head and the software then projected a vertical line to what it determined to be the ground and provided a measurement between those two points. He stated:

THE WITNESS: It [referring to the software] calculates the position of the ‘X’ at the bottom, yes. I place the position at the top of the head.[^36]

THE COURT: The software is not looking at the feet; not paying any attention to the feet, and Mr. Mills is not marking the feet, is that right?

WITNESS: That is correct --

THE COURT: So the software drops a vertical line down, which ends at what the software believes is the horizontal plane, and the software gets the horizontal plane from all these little contact points that are on the ground.

MR. SHUMKA: Right. And when he says he’s endeavoring to measure height by using those drop down markers, he says the top point drops down straight --

THE COURT: Yeah.

MR. SHUMKA: He’s trying to line it up with the erect -- the individual at the --

THE COURT: He’s trying to pick points --

MR. SHUMKA: Yes.

THE COURT: On the video where the person is standing the most straight --

MR. SHUMKA: Yep.

THE COURT: And the person is the most straight when their leg is not bent --

MR. SHUMKA: Yep.

THE COURT: And their body is not bent over, their back is up right, and their legs are straight.

MR. SHUMKA: Yes.

THE COURT: Is that right?

THE WITNESS: Yes.

MR. SHUMKA: Yeah, so we got that. So, you’re picking the mark where you chart the top of the head, right?

THE WITNESS: Mm-hm. Yes.[^37]

[113] Getting clarification from Mr. Mills on this process was torturous. It was extremely difficult to follow his evidence, and this was made all the more difficult by his shifting position. The second explanation makes more sense to me than the first. However, the lack of clarity in examination-in-chief is troubling.

[114] Finally, I come to the biggest problem with the analysis done by Mr. Mills. He testified that the height of the person on the video alleged to be Mr. Nirmalendran was 5’7” (66.95 inches), plus or minus one inch. In other words, the estimated height range is from 5’6” to 5’8”. Mr. Mills was unable to provide any basis for why the margin of error was plus or minus one inch. There are no industry standards and no studies have been done concerning accuracy rates. This is simply a number he pulled out of the air based, he said, on his experience. As he put it, “[i]t’s -- a large experience with -- it’s the results of the software, combined with my experience with using the software and having done -- as you mentioned earlier about the scientific process, having done previous experiments with video footage and staging these same types of scenarios.”[^38] He agreed that the margin of error was entirely personal to him and not drawn on anything other than his own experience. On this point, I note that he actually has very little, if any, experience measuring the height of an individual who is walking. That makes a margin of error based on nothing but his own experience even more problematic.

[115] Mr. Mills refused to agree that the margin of error should increase if there are factors affecting reliability that he did not take into account. I also find that to be problematic. If the margin of error took into account specific variables, I would expect those to be itemized in the report. In fact, there were many issues that would affect the reliability of the measurements to which Mr. Mills made no reference in his report. In particular: the individuals were far away from the camera; it was nighttime and the images were dark and blurry making it difficult to see the edges of the individuals’ heads and feet with any clarity; the video cameras were not of the highest quality; the nature of the camera lens (similar to a fisheye lens) produced some distortion in the images which would affect the width and height of objects shown; and the camera angle was from above, which can distort the measurement of height. Mr. Mills acknowledged that all these factors could affect the accuracy of the measurements, but does not appear to have taken them into account in assessing the accuracy of the measurements. There is also a difficulty in determining height precisely from a moving figure because of the natural rhythm of walking. Perhaps it was built into the margin of error rate already. If so, there is no indication of it.

[116] Further, there are two major areas of uncertainty undermining the accuracy of the estimated height: the location of the top of the head and the height added by the shoes.

[117] First, it is not possible to actually see the top of the head of the man alleged to be Mr. Nirmalendran because both men were wearing hooded sweatshirts or jackets of some sort. The precise nature of the hooded garment cannot be ascertained from the video because of the poor quality of the images. In his report, Mr. Mills specifically said he did not take the hood into account, stating, “[n]ote the thickness of the hood material is not subtracted from this height analysis and would have a negligible effect on the overall height determined.”[^39] In cross-examination, Mr. Mills conceded that his conclusion that the effect of the hood on the height measurement being “negligible” was based on his factual assumption that this was a thin sweatshirt type hood that was pulled close to the head. He acknowledged the possibility that the hood could have been thicker, could have been not as tight to the head creating a false impression of extra height, could have been worn over hair that was thick or styled in a way that raised the hood higher, or could have been worn over a hat. Notwithstanding having accepted those possibilities and the fact that he had not factored that into the height measurement, he testified that this would not cause him to adjust his margin of error. I find that to be surprising.

[118] With respect to the impact of the shoes, Mr. Mills also conceded that he had not taken into account the height of the shoes in providing an overall height assessment. However, it is clear from his report and his testimony that the height measurement he provided included the shoes. In his report he wrote that the shoe sole “did not appear to be overly thin as well as not looking like ‘platform’ style shoes.”[^40] There is absolutely no way this can be determined by looking at the video itself. This, in my view, is nothing more than a guess by Mr. Mills. It also does not take into account the possibility that one of the men could have been wearing a lift inside the shoe to add height. It is clear that the height of the shoes, standing alone, could easily skew the results by more than the margin of error proposed by Mr. Mills.

[119] The actual heights of both accused were measured on two separate days during the trial. One set of measurements was done in the morning on September 29, 2023 and a second set of measurements in the afternoon on October 10, 2023. This was deliberately done based on the acknowledgment that a person’s height can vary from time to time. Two measurements of both men were taken: one in socks only and one while wearing shoes. All counsel were present and agreed on the heights as measured. Interestingly, Mr. Bazuhair’s height varied by a full inch from one day to the next. I also note that Mr. Bazuhair was measured with the shoes he was wearing at the time of his arrest and also with a pair of boots found at his residence which were almost certainly the same boots he was wearing on the night of the murder. In both cases, the footwear added two inches to his height. His height on October 10, 2023 wearing those boots was 6’0.24”. It is worth noting that Mr. Mills found Mr. Bazuhair to be 5’9” (70.72”) wearing those boots. That is a number outside his own margin of error.

[120] Mr. Nirmalendran was measured at 5’3.25” without shoes and 5’4.37” with shoes (although it cannot be determined that these were the shoes worn at the time of the murder). It is impossible to know the height of the shoes worn by the individual alleged to be Mr. Nirmalendran. If that person was Mr. Nirmalendran, it is easily possible that he was wearing shoes that added two inches to his height, perhaps more. It is also possible that his hood was an inch or more above his head. These are known variables. Even accepting Mr. Mills’ plus or minus one inch margin of error, these known variables put him very close to the bottom of the range of 5’6” to 5’8” postulated by Mr. Mills.

[121] However, because of all the frailties in the evidence I have noted above, I do not accept that the margin of error provided by Mr. Mills is a supportable one. There is no science or data to support this range. Further, Mr. Mills chose the margin of error himself, rather from any standardized and supportable universal measurements. His own experience using this software to measure moving people is almost nothing, and none of his assessments are verified by hard data showing their correctness. In my view, in light of all the problematic circumstances with the video and the manner in which Mr. Mills conducted his assessment, the margin of error is considerably higher. In short, the evidence of Mr. Mills does not rule out Mr. Nirmalendran as the shooter dressed all in black.

[122] In coming to that conclusion, I have not taken into account the affidavit of James Marlow, a private investigator retained by counsel for Mr. Nirmalendran (Exhibit 71 at trial). Mr. Marlow went to the Scarborough Town Centre in September 2023 and took measurements of 22 random people who agreed to participate. He measured their height with and without shoes, after excluding anyone wearing boots, high heels, or platform shoes. He reported that the shoes added between 0.5 inch to 1.5 inches to the person’s height. This “study” has no statistical significance. It is irrelevant to any scientific, or even merely logical, analysis.

[123] I found Mr. Mills to be an unreliable witness. He was careless and unscientific in the assessments he carried out and also less than careful in his evidence at trial. In the end, I have found his evidence when properly evaluated does not eliminate Mr. Nirmalendran. However, I equally could have found that Mr. Mills’ evidence on the whole was so unreliable that I cannot rely on it for anything. In retrospect, I probably should not have qualified him as an expert in this field.

3. The Alternate Suspect

(i) Introduction

[124] Part of the defence theory is that Younis Mohamed (“Younis”) was the driver of the Elantra at the time of the murder and one of the two shooters. After hearing the pre-trial application on this issue, I ruled that there was a sufficient air of reality to this theory to permit it to be advanced at trial.

[125] In support of this theory, the defence relied on the testimony of Mr. Nirmalendran and the testimony of Yaqub Mohamed, who is Younis’ brother. In response, the Crown called evidence from Younis’ girlfriend, Nicole Best. Younis Mohamed was shot and killed on May 20, 2020. Nobody has ever been charged in connection with that crime.

[126] For the reasons more fully developed below, I have rejected the theory that Younis was one of the two shooters in this case. I accept the evidence of Ms. Best that Younis was in Toronto with her at the time the second shooter was in St. Catharine’s, having driven there in the Elantra following the murder. I do not believe the evidence of Mr. Nirmalendran as to Younis having the Elantra and the cellphones at the time of the murder. I find his evidence on this point to be a fabrication. The testimony of Younis’ brother adds nothing tangible to the mix. There is no reliable or credible evidence to support the theory that Younis Mohamed was connected in any way to this murder.

[127] It is important to emphasize at this point that there is solid evidence putting the Elantra at the murder scene and that its driver was one of the two shooters. It is also clear that two cellphones connected to Mr. Nirmalendran were in the Elantra when it left the murder scene, dropped off Mr. Bazuhair and then went to St. Catharine’s, returning on December 30. Those two phones were an iPhone (which, at the time, had a number ending in 1675) and a Samsung (which, at the time, had a number ending in 9407).

[128] I will deal first with the evidence tracking the Elantra and the cellphones and then with the testimony of the witnesses relevant to the alternate suspect. My findings with respect to the credibility of Mr. Nirmalendran are connected to the evidence relating to the cellphones. I will therefore deal with the cellphone evidence before finally addressing my conclusions with respect to the truthfulness of Mr. Nirmalendran’s testimony.

(ii) Evidence Tracking the Elantra and the Cellphones

[129] On the morning of December 27, 2019, Mr. Nirmalendran attended at the business premises of Royal Car & Truck Rental and signed an agreement to rent a Hyundai Elantra with license plate #CJAR829. He used his own name, his own driver’s license, his own address (808-30 Gilder Drive), and his own credit card. The proprietor of the business checked the photograph on his driver’s license to ensure it was the same person who was renting the car. He provided two phone numbers: a home # (416-265-1909) and a cellphone # (437-223-9407). The 1909 number is the landline at Mr. Nirmalendran’s apartment (where he lived with his father) and the 9407 number is associated with the Samsung cellphone. There was also additional corroborative evidence in the form of audio recordings of his calls to his credit card company about problems he was having with the limit on his card while he was at the rental car office, including personal information he provided so his identity could be verified. The evidence is conclusive. Mr. Nirmalendran rented the car that morning and drove it off the lot. When Mr. Nirmalendran testified in his own defence at trial, he confirmed that he had rented this car on December 27, 2019.

[130] Royal Car & Truck Rental had a contract with another company to provide GPS tracking devices and monitoring for all its rental vehicles. The Elantra rented by Mr. Nirmalendran on December 27, 2019 was equipped with such a device. The company could check the whereabouts of its vehicle at any time, but did not do a specific check on this car at any time. The device was also programmed to send an alert, which included its GPS coordinates, anytime the car was driven at a speed of 113 kph for more than 30 seconds. In addition, at 4:00 a.m. each day, the device sends an automatic message providing the coordinates of its current location. I heard credible testimony from Aaron Neufeld (an employee of the monitoring company) that the coordinates generated by these devices are accurate within 20 feet, 95% of the time. He said this was a conservative estimate to take into account things such as multiple tall buildings in an urban environment that can cause the signal to refract.

[131] The scheduled inventory alert from the Elantra’s GPS at 4:00 a.m. on December 28, 2019 showed that it was stopped and was at 30 Gilder Drive, which was Mr. Nirmalendran’s residence. There were no further alerts that day.

[132] However, as I referred to earlier in these reasons, there is extensive video surveillance showing the Elantra arriving at 228 Galloway Road at 23:58 a.m. on December 28, 2019. Just as the vehicle arrives, there is a text message sent from iPhone, which is at the same location as the Elantra. The message says, “here.” In response, Mr. Hajjar comes out to the driveway with a package wrapped in white cloth, gets into the front passenger seat for a short while, and then exits the car and goes back into the building. Clearly, at this point both the Elantra and the iPhone are in the same place. The iPhone and the Samsung then went silent until after the murder was committed. Just after midnight, the Elantra is shown travelling at excessive speeds for about half an hour on Brimley Road, then on Wishing Well Drive, Village Greenway, the Don Valley Parkway, and Birchmount Road. It is not known where it went from there. However, it is again picked up on video surveillance cameras on Markham Road at 2:39 a.m., heading south. Again, at the same time, the iPhone is pinging off towers close to the location of the Elantra. The Elantra is followed on various videos going south on Markham, weaving through a number of side streets, and finally onto Blue Lagoon Court, where it parks and its two occupants exit to carry out the murder. There is no evidence as to when and where the Elantra picked up Mr. Bazuhair.

[133] Earlier in these Reasons I reviewed the tracking of the Elantra on surveillance video cameras after it left the scene of the murder and up until 3:06 a.m. when Mr. Bazuhair got out of the car and headed into 4100 Lawrence Avenue East. I will not repeat that here. After the Elantra left 4100 Lawrence Avenue East at 3:06 a.m., it headed west on Lawrence and was picked up by various video surveillance cameras along the way. The police were able to track the car’s movements along Lawrence and then north on Markham Road. It was picked up on cameras along Markham Road, still heading north. The last footage available was after the Elantra crossed the intersection with Tuxedo Court at 3:11 a.m., at which point it was still heading north on Markham towards Highway 401 (“the 401”).

[134] From there, the GPS system in the Elantra provides tracking information. At 3:15 a.m., it is picked up travelling at speeds in excess of 112 kph going west on the 401 and continuing all the way to St. Catharine’s. At the time of the scheduled inventory alert at 4:00 a.m., the Elantra was still on the move, doing 148 kph in Grimsby, heading for St. Catharine’s. The last entry for that day shows the car in St. Catharine’s at 4:14 a.m. The scheduled inventory alert at 4:00 a.m. on December 30, 2019 showed the Elantra was still in St. Catharine’s and was stationary at 11 Tara Crescent. This was the residence of Mr. Nirmalendran’s drug-dealing associate. At 10:25 a.m. that day, it started its return trip back to Toronto and is shown at excessive rates of speed heading east to Toronto until 11:28 a.m. that morning.

[135] The tracking information for the cellphones tells the same story. The iPhone sent a text to Richard Hajjar at the same time the Elantra arrived at his residence to pick up the package, stating “here.” Clearly, the iPhone was in the car at that time. That phone then went silent until 2:38 a.m., within minutes after the murder. Thereafter, the evidence is unassailable that the iPhone had to have been in the Elantra. Just as the Elantra was captured on various video cameras as it drove along its route, so too was the iPhone connecting to cellphone towers in those same locations. This continued for the entire trip, including all the way to St. Catharine’s and back again on December 30, 2019. Likewise, although the calls with the Samsung were not as frequent, it too was clearly in the Elantra at the time of the murder and for the post-murder journey to St. Catharine’s and back again on December 30, 2019. At 4:18 am the Samsung placed a call to Ryan Clark, Mr. Nirmalendran’s drug dealing contact who lived in St. Catharine’s. At that time, the Samsung was also in St. Catharine’s. I find that both cellphones were in the Elantra before the murder and after the murder and that whoever then drove the Elantra to St. Catharine’s (after first dropping off Mr. Bazuhair at 4100 Lawrence Avenue East) was in possession of both the iPhone and the Samsung. There is no other rational conclusion possible from the evidence. Indeed, this is not really controverted by the defence. The issue raised by the defence is that the person who was in possession of the phones and the car was not Mr. Nirmalendran.

[136] It follows that the person who drove the Elantra to and from the scene of the murder, and then to and from St. Catharine’s, was one of the two men who murdered Koshin Yusuf. I see no other possible rational inference from the evidence and, indeed, no alternative inference was ever suggested by the defence. The only real issue is whether that man was the accused, Mr. Nirmalendran.

[137] At the time of the 4:00 a.m. scheduled inventory alerts on December 31, January 1, and January 2, the Elantra was stationary at Mr. Nirmalendran’s residence. On January 3, 3020, Mr. Nirmalendran drove the Elantra to Royal Car & Truck Rental and, for no apparent reason, switched it for the same make car in a different colour, this one bearing the license plate CJFV835. Thereafter, at virtually every 4:00 a.m. scheduled inventory alert, that car was parked at Mr. Nirmalendran’s residence, until he returned it on January 17, 2020.

(iii) The Testimony of Nirusan Nirmalendran

[138] Nirusan Nirmalendran testified in his own defence. He said that in 2019 and up until his arrest in 2020, he had been living with his parents and brother in an apartment at 30 Gilder Drive in Scarborough. He described having on-and-off random jobs, mainly as a general labourer in the construction industry, with one month being the longest at any one job. Essentially, since 2013, he has earned his living selling illegal drugs, starting with marijuana while he was still in school, and later including cocaine and crack. I accept these facts as true.

[139] Using his profits from drug dealing, Mr. Nirmalendran bought himself a car. However, he was involved in a car accident in October 2019 and said the car was a “write-off.”[^41] The insurance company provided him with a rental car for a limited time after the accident, and ultimately paid out his claim for $3500.00 in the fall of 2019. I accept this as essentially true, as there is some corroboration for it in the evidence.

[140] Mr. Nirmalendran acknowledged being a friend of Kwami Garwood, who was also a drug dealer. Through Kwami Garwood, he met Muaad Bazuhair (Oday Bazuhair’s brother) and Muaad would sometimes “be around” when Mr. Nirmalendran was hanging out with his friend Kwami Garwood.[^42] However, he denied ever knowing who Oday Bazuhair was. When asked if he had ever seen him before they were in court together on this charge, he answered, “No, I don’t think so.”[^43] Kwami Garwood lived at 4100 Lawrence Avenue East (at his father’s apartment) and sometimes in Willowdale with his mother. Mr. Nirmalendran denied knowing the deceased, Koshin Yusuf, or anyone he knew. I accept that Mr. Nirmalendran was an associate of Kwami Garwood as this is corroborated by phone records. I also accept that he knew Muaad Bazuhair.

[141] Mr. Nirmalendran did not claim to have any first-hand knowledge of the murder, although he did claim to have some knowledge of circumstances that could be considered to implicate Younis Mohamed in it. Mr. Nirmalendran testified in chief that he first met Younis Mohamed at a bar called Happyland, sometime in October or November of 2019. He was not certain of the precise date, and could not pinpoint it with any more accuracy, but said he was “pretty sure it was either October or November.”[^44] On cross-examination, he recalled that it was in November 2019, and could have been as late as a “couple weeks into November.”[^45] He explained that he was trying to “refresh” his memory by going over the disclosure and trying to remember what was going on at the time.[^46]

[142] Mr. Nirmalendran said he was introduced to Younis at the bar by his brother Yaqub Mohamed (who was a witness at trial). According to Mr. Nirmalendran, he saw Younis selling drugs at the bar. Mr. Nirmalendran was also selling drugs to customers at the bar. At some point they started talking about that and Mr. Nirmalendran told Younis that he was building up a “program” (referring to a drug dealing operation) on his phone.[^47] He said Younis proposed they build a program dealing drugs together in both Toronto and St. Catharine’s. Mr. Nirmalendran found this to be an attractive offer because Younis had more customers and knew more people than he did, as well as having more experience dealing in cocaine. Also, Younis had a contact with someone they could “re-up” from (a drug supplier), who was less expensive than the source Mr. Nirmalendran had, so his profits would be larger.[^48] He said he did not think Younis’ brother heard any of that conversation.

[143] Further, according to Mr. Nirmalendran, when Younis heard that Mr. Nirmalendran no longer had a car because of his recent car accident, he proposed that Mr. Nirmalendran rent cars for them to use, which Younis would then pay for. Younis explained that he could not rent the cars himself because he did not have a driver’s license. He told Mr. Nirmalendran to rent from Royal Car & Truck Rental because the owner was Sri Lankan and would give him a better deal. According to Mr. Nirmalendran, Younis drove the cars most of the time and would park wherever he was staying, although he did not know where any of those places were. Mr. Nirmalendran also said that “sometimes” he would drive the cars, and when he did, he would park close to his home.

[144] According to Mr. Nirmalendran, he and Younis would share the phones they used in their drug dealing. Mr. Nirmalendran would buy them and would typically have up to three at a time. He said he bought them at various private stores on a pre-paid plan (typically for one month at a time), and would switch out the SIM cards frequently, under the mistaken belief that his phone could not then be tracked. He referred, in particular, to an iPhone and a Samsung he was using in December 2019, which he initially said were both used in drug dealing and were both shared with Younis. He said he bought the iPhone previously from a client. Later, he explained that the iPhone was the main drug dealing phone and had all the clients’ contacts on it and the Samsung was there as a “backup” if there was an emergency and they had to switch phones or if the other phone died.[^49] He said he would also use the Samsung to play music in the car or to talk to his parents. He did not use the Samsung for drug dealing. Finally, he said he also had a third phone, which was a “cheap flip-phone” registered to Siva Kumar, and which he kept at home and would use when Younis had the other two phones.[^50] That phone was never used for drug dealing. Mr. Nirmalendran testified that Younis did not have a phone of his own. He said that when Younis was doing drug deals in the rental car, sometimes he took the iPhone and the Samsung, and sometimes just the iPhone. He maintained that he did not remember if the iPhone was password protected, or what the password might have been if there was one.

[145] The nature of this joint drug dealing enterprise was somewhat vague. Mr. Nirmalendran said that Younis Mohammed paid for the car rental by reimbursing him in cash for the charges he put on his credit card. He said they would go together to “re-up” from Younis’ supplier, who gave them a better price. However, he said they would each buy their own supply and sell it, and “what I sell is my -- is my money. What he sells is his money.”[^51] They did not pool their money and did not share the profits. However, he said they did share the clients. He said sometimes they went together to sell drugs, and other times they worked in shifts. The phones belonged to Mr. Nirmalendran, but he would give them to Younis if Younis was using the car to do drug deals.

[146] Mr. Nirmalendran said he had two contacts in St. Catharine’s and that they were his contacts, not those of Younis: one was a friend named Vinoraj who lived at 13 Tara Crescent and was also a drug dealer; the other was someone he only knew by the name Raymond, but whose phone number showed up as “Ryan Clark” on the call logs, and who operated the “stash house” in St. Catharine’s. He said sometimes both he and Younis would go together to St. Catharine’s to sell drugs, and sometimes they would go alone. Sometimes they stayed overnight there. Mr. Nirmalendran said that prior to he and Younis working together as drug dealers, Younis never sold drugs in St. Catharine’s.

[147] When asked to describe a typical day in December 2019, he said that he and Younis could be dealing together, but that there were days when Younis had the car and the phones doing deals, and other days when he did. He acknowledged renting the Elantra from Royal Car & Truck Rental on the morning of December 27, 2019. This was the first time he had rented a car from Royal. He said he remembered being with Younis on December 28, 2019 and that it was a “typical day selling drugs” and that “at some point [Younis] left with the phones and the vehicle to take his shift.” [^52] At a different point in his evidence when asked when Younis took the Elantra, he said he did not think anything of it at the time and that Younis had just come for the car (which, I note, is not fully consistent with what he said earlier). He could not remember if this was outside his building or at the Happyland bar, but thought it was around late afternoon. Mr. Nirmalendran made a call on the Samsung at 5:11 pm to EyeZ optical, which is clearly associated with him and his eyeglasses. Certainly, the phone was still in his possession at that time.

[148] He could not recall what he was doing on the night of December 28, or anytime on December 29, 2019. However, he did recall getting a phone call on his flip phone on December 30, 2019 from a number he did not recognize. He said this was a call from Younis, who immediately told him that he had changed the SIM card in the iPhone because he had a situation with a customer who he thought was going to call the police. According to Mr. Nirmalendran, Younis told him that he purchased the new SIM card at the phone store across the street from Mr. Nirmalendran’s apartment.[^53]

[149] Mr. Nirmalendran said he got both phones and the car back from Younis on December 30, 2019. On January 3, 2020, he went to Royal Car & Truck Rental, and switched the Elantra he had previously rented for another car of the same type, but of a different colour and with a different license plate.

[150] He said that after December 30, 2019, he and Younis continued with their drug dealing as before. However, on January 15, 2020, someone told him that the police had raided Kwami Garwood’s apartment, kicked in the door, and arrested him. He said he was worried that the police would have Kwami Garwood’s phone and find his number in it, so he again changed the SIM cards in both the iPhone and the Samsung. He described being “freaked out” by the information about the raid, but could not remember who told him.[^54]

[151] Mr. Nirmalendran denied any knowledge of the shooting and denied hearing anything about a shooting from Younis.

(iv) The Testimony of Yaqub Mohamed (Brother of the Alternate Suspect)

[152] The defence motion for leave to call evidence of an alternate suspect was supported by the affidavit of Yaqub Mohamed (“Yaqub”), the older brother of Younis. Younis was shot and killed on May 20, 2020. His killer was never identified.

[153] In his affidavit, sworn on August 10, 2023, Yaqub stated that his brother “lived a much different life” than he had. He said that although his brother was involved in drug trafficking and other gang related conduct, he would try to hide that from him. He further said that his brother was sentenced to a lengthy term in the penitentiary and had been released “a couple of years prior to his death.” Yaqub believed this experience caused his brother to become a more hardened criminal and that he became more involved in drug dealing after his release. In the affidavit, Yaqub gave four reasons for believing his brother Younis was involved in drug dealing with Mr. Nirmalendran:

(1) Younis and Mr. Nirmalendran were often together and frequently tried to hide what they were doing and whispered to each other so that he could not hear;

(2) They shared cellphones. Younis would sometimes have multiple cellphones, would never have the same number for long, and sometimes would have no cellphone at all;

(3) Mr. Nirmalendran and Younis would regularly rent vehicles together to facilitate their drug dealing; and

(4) He “observed Younis in possession of a gun on at least two occasions” although he had never seen Mr. Nirmalendran with a gun.

[154] Yaqub suggested in his affidavit that he “wondered” whether his brother’s shooting so close after the shooting of the deceased in this case meant that “the two killings were interconnected.”

[155] Yaqub testified at trial, with his testimony being treated as relevant on the voir dire with respect to the admissibility of the evidence and on the trial proper. Some of his evidence at trial was a little less definitive than stated in his affidavit. Although reiterating that his brother tried to hide his drug dealing from him, Yaqub stated that he had personally purchased marijuana from his brother, and also from Mr. Nirmalendran. When asked about his statement that his brother was involved in “gang related conduct,” Yaqub relied only on the fact that he “felt like” Younis was selling drugs and had more than one phone.

[156] At one point in his evidence, he said that Younis met Mr. Nirmalendran “in the fall of 2019, or into the winter of 2020.” At other times, he said it was the fall of 2019. He could not remember when his brother was released on parole. He was consistent that they had met at the Happyland bar, but did not say that he was the one who introduced them. He said they knew people in common.

[157] With respect to cellphones, Yaqub said his brother did not have a cellphone in his own name, and would sometimes come home without a cellphone, whereas at other times he had two cellphones. However, he said he did not know where his brother got his cellphones. When asked about his statement in the affidavit that Younis and Mr. Nirmalendran shared cellphones, he said this was his “feeling” because they were selling drugs together and he had seen them use the same phone. He said he would call his brother Younis on whatever number he had at the time, but that his number would change frequently. He testified that on one day he would call his brother on his cellphone and on another day Mr. Nirmalendran would answer that phone. He provided his own cellphone number at the time, which I will not record fully here as I believe he still has the same number. The number ended in 5304. That number does not appear on any of the three cellphones Mr. Nirmalendran said were his.

[158] Yaqub said he had seen his brother driving one or two cars, even though he had no license to drive. He “assumed” these were rental cars because they looked clean, and he “assumed” Mr. Nirmalendran and Younis had rented the cars together because he had seen them in the same car together and alone at different times.

[159] When asked about seeing Younis with a gun, he said he had seen a bulge at his brother’s waist, which he “thought” was a gun. He had never seen an actual gun or ammunition. He assumed it was a gun from the bulge and because Yousuf was being secretive and fidgeting with it.

[160] He acknowledged that his brother Younis had a girlfriend named Nicole and that she had been in the picture since before 2013. He also noted she was around “off and on” while Younis was on parole.

(v) The Testimony of Nicole Best (Girlfriend of the Alternate Suspect)

[161] Nicole Best testified that she was with Younis in Toronto from December 29, 2019 to January 1, 2020 and that he was in her presence that whole time. If I accept her evidence, Younis could not have been in St. Catharine’s with the Elantra and the two cellphones from the early morning hours of December 29, 2019 through to December 30, 2019.

[162] Ms. Best she had been in a relationship with Younis for 11 years as at the time of his death in May, 2020. She acknowledged that through most of that time, Younis was in trouble with the police, largely because of trafficking in marijuana. He also spent time in jail, the most recent conviction being for possession of a firearm, for which he received a six-year sentence. She initially testified that he was released on parole in 2019, but in cross-examination acknowledged that it was probably 2018. At first upon release, he was living with her at her residence in Pickering. However, he was charged with breaching his parole and went back into custody for some period of months. When he was again released, he stayed with his sister from June 2019 until sometime in October or November 2019. At that point, he was free of restrictions and would sometimes be at his mother’s home (at Albion and Martingrove) and sometimes with Ms. Best in Pickering.

[163] Ms. Best testified that she had a clear memory of the Christmas of 2019, as it was the first time Younis was free for a long time. Since Younis’ family was Muslim, and she was Catholic, he came to her home for the Christmas holidays. Her grandmother had been in and out of the hospital through November and December. Ms. Best said that she and Younis were both quite ill, starting around December 23. They did go to her mother’s home on Christmas Day, but otherwise stayed at home with fever, sore throats, aching, and laryngitis. She got it first and speculated that she probably picked it up at the hospital when visiting her grandmother. She said they were diagnosed with pneumonia, but that she now thought it must have been COVID.[^55]

[164] Ms. Best had a very specific recollection of wanting to celebrate New Year’s with Younis upon his release. She said she had obtained courtside tickets for the Raptors game on December 31, 2019 and rented an Airbnb in downtown Toronto starting on December 29. She said that by December 29, they were still somewhat ill, but decided to go to the game anyway because they already had the tickets. They therefore went to the Airbnb on December 29, and were together from then through the whole time through to New Year’s Day, including attending the Raptor’s game on New Year’s Eve. This was just five months before Younis was murdered. The occasion sticks in her memory.

[165] Ms. Best acknowledged that she has a criminal record for credit card fraud from 2014. She said she found the credit card in Pickering and used it, knowing it was not hers. She was sentenced to a three-month conditional sentence, a restitution order in the amount of $7,000 and a probation order for two years. She testified that she actually repaid the full $12,000 she spent on the card and regrets what she did.

(vi) Analysis of Evidence Relating to the Alternate Suspect

[166] Apart from the testimony of Yaqub Mohamed and Mr. Nirmalendran, there is no evidence whatsoever relating to Younis, and in particular nothing linking him to anyone or anything connected to the murder committed on December 29, 2019. Further, on its own, the evidence of Yaqub Mohamed does nothing to connect his brother Younis to the murder. His testimony was based on nothing more than innuendo and speculation. He claimed to have been in touch with his brother on various cellphone numbers, including having Mr. Nirmalendran answer one of those phones on one occasion when he thought he was calling Younis. However, Yaqub’s own telephone number during this time, was never in contact with the iPhone, the Samsung, or the flip phone registered to Siva Kumar. Either his evidence about Mr. Nirmalendran answering a phone Younis had is untrue, or Younis had a phone other than those supplied to him by Mr. Nirmalendran. If the former is true, this raises concerns about the truthfulness of Yaqub’s evidence overall and whether he is embellishing his evidence to support Mr. Nirmalendran’s defence. If the latter is true, this contradicts the evidence of Mr. Nirmalendran that Younis never had a phone and casts doubt on why he would have given him two phones along with the Elantra prior to the December 29 murder. Both alternatives are problematic for the defence.

[167] I did not find Yaqub to be a credible witness. Although stating that his brother led a “different life” from him, in fact Yaqub Mohamed’s criminal past is not dissimilar. While he attempted to minimize that criminal past, claiming everything was a “misunderstanding” on his part, I reject that explanation. He was neither a credible, nor a reliable witness. However, even taken at its highest, Yaqub Mohamed’s evidence (if accepted) shows only that his brother knew Mr. Nirmalendran and could corroborate some aspects of Mr. Nirmalendran’s evidence about sharing cars and phones.

[168] Mr. Nirmalendran testified in his own defence and said he had nothing to do with the murder. According to Mr. Nirmalendran, Younis had his car and both his iPhone and Samsung cellphones from the evening of December 28 until December 30, 2019. The necessary implication of that evidence is that Younis was the second shooter. Obviously, if I believe Mr. Nirmalendran, he was not even there at the time of the murder and I must therefore acquit him.

[169] I do not believe Mr. Nirmalendran on this point. His description of his arrangement with Younis Mohamed is completely implausible. According to him, he rented the cars and Younis paid for them. However, the GPS data shows that the car was almost always parked overnight where Mr. Nirmalendran lived. According to Ms. Best, Younis was mostly with her in Whitby and she would drive him places when he needed, for example, to visit family members in Toronto. This is beyond odd if Younis was in fact paying for the rental of a car for this whole period of time. If Younis was paying for it, why did Mr. Nirmalendran have the car for such extended periods of time? According to Mr. Nirmalendran, Younis had no cellphone whatsoever. Therefore, any time he gave Younis the car to do drug deals, he also had to give him at least the iPhone and sometimes also the Samsung, in case the iPhone failed. According to Mr. Nirmalendran, Younis had more customers and was more established in the drug trade than he was. I am mystified as to how Younis managed that without a cellphone. Further, if they were sharing these things and working together at selling drugs, how did Mr. Nirmalendran ever contact Yousuf to arrange the drug deals? On his evidence, it would appear he would just have to wait until Yousuf randomly showed up as he had no telephone number he could use to reach him. If all the customers were on Mr. Nirmalendran’s phone, and Mr. Nirmalendran was also the only one with contacts in St. Catharine’s where they also dealt drugs, it is unclear what Younis was contributing to this relationship. The “business” arrangement he described with Younis also made little sense. According to his evidence, Younis paid the entire cost of the car they used to do drug deals. They would go together to purchase the drugs from a supplier and they would also share customers. However, he said they never shared profits and what Mr. Nirmalendran got from customers was his own and what Younis got he also kept for himself. The whole thing simply makes very little sense.

[170] However, regardless of whether this business arrangement described by Mr. Nirmalendran is plausible, the bottom line is that it cannot possibly have been Younis who was the man all in black who, together with Mr. Bazuhair, shot the deceased. It is absolutely clear that the driver of the Elantra, after dropping off Mr. Bazuhair, went to St. Catharine’s in the early morning hours of December 29, 2019 and stayed there until December 30, 2019. That man cannot have been Younis for the simple reason that while the murderer was in St. Catharine’s with the Elantra, Younis was with his girlfriend Nicole Best in Toronto. Ms. Best was very clear in her recollection of the time she and Younis spent in Toronto prior to the Raptors game on New Year’s Eve. She also had a very good reason for remembering it. It was a special time to celebrate that he was finally free from prison. It was also the last holiday season they spent together before he was killed in May 2020. She may have been uncertain with respect to particular dates of the offences Younis committed and precisely when he was released from prison. Also, she is obviously incorrect about believing in retrospect that her illness in December 2019 was likely COVID. I find both mistakes to be understandable and inconsequential. However, I accept her evidence about the times she said she was with Younis in Toronto. I found her to be a truthful and careful witness. She was sure about these dates and I accept her evidence on this crucial point. I also note that she had no idea which dates were critical to the case and indeed showed genuine surprise during her testimony when she realized, after the fact, how pivotal those dates were.

[171] I also find that Mr. Nirmalendran’s evidence about the cellphones does not stand up to scrutiny in light of the history of calls made on the three critical cellphones. Quite apart from the testimony of Ms. Best, I do not believe Mr. Nirmalendran’s testimony about giving the car and the phones to Younis prior to the murder and not getting them back until December 30, 2019. My analysis of the cellphone evidence follows.

[172] In coming to this conclusion, it is not necessary to address in any depth whether the ante mortem statements attributed to Younis are admissible. Obviously, the necessity requirement is met. However, Mr. Nirmalendran is not a credible witness, nor did he have an accurate memory about most things. There is no particular reason he would remember what Younis supposedly said about switching the SIM cards. In any event, even if the statement is admissible, it is clearly untrue. The reason for switching the SIM cards was a direct result of the Elantra and the phones being connected to the murder. Any story about a dissatisfied drug customer is false, even if this ever happened, which I have found it did not.

4. The Cellphones and Mr. Nirmalendran’s Credibility

[173] Mr. Nirmalendran testified that during the relevant periods he had three cellphones: an iPhone (which was the main drug dealing phone); a Samsung (which he said was a backup); and a flip phone registered to Siva Kumar (which he said was his personal phone).

[174] All three phones were pay-as-you-go, which means that there is no customer account with a service provider (to whom monthly bills would be sent) and no independent verification of the subscriber information. All were Chat-R accounts through Rogers.

[175] It is clear from the evidence that Mr. Nirmalendran was a regular user of both the iPhone and the Samsung. He made calls from each of them that are clearly traceable to him, including calls relating to his optician, his credit card company, his insurance company, the rental car company, and calls where he personally identified himself and provided biographical information to confirm that identity. There is nothing of that nature on the Siva Kumar phone (the flip phone) and no evidence to confirm that Mr. Nirmalendran ever used it.

(i) Features of the iPhone

[176] The iPhone account was activated on September 15, 2019. The subscriber name was Smith Hopkins, with an address at 2657 Eglinton Ave. in Scarborough. Its initial phone number ended in 1675.

[177] A new SIM card was put in this phone on December 30, 2019. The new subscriber name was Jason Ford, with the same 2657 Eglinton Ave. address. The new number ended in 4525.

[178] On January 15, 2020, another new SIM card was put in the phone. The new subscriber name was Jason Chow, with the same 2657 Eglinton Ave. address. The new number ended in 4891.

[179] The iPhone number was one of the contact numbers Mr. Nirmalendran provided to the car rental company. It is also one of the numbers associated to him on a credit report about himself that he requested from Equifax and was found on the search of his home pursuant to a warrant at the time of his arrest.

[180] It is obvious from the volume and variety of calls that the iPhone was the primary phone used for drug trafficking, as Mr. Nirmalendran testified. There are numerous contacts with the person identified as Mr. Nirmalendran’s drug dealing contact who lived at 30 Tara Crescent in St. Catharine’s.

(ii) Features of the Samsung

[181] The Samsung account was activated on February 7, 2019. The subscriber is shown as Ajay Josan, with an address at 78 Gilder Drive in Scarborough. Its initial phone number ended with 9407.

[182] A new SIM card was put in this phone on December 30, 2019. The new subscriber name was Ford Hopkins, with an address at 2657 Eglinton Avenue in Scarborough. The new phone number ended in 9747.

[183] On January 15, 2020, another new SIM card was put into this phone. The new subscriber name was Joseph Hopkins, with the same Eglinton Avenue address. The new number ended in 5364. For a very brief period the 4891 SIM card was put into the Samsung, but was then switched back to the iPhone.

[184] The original 9407 number was one of the contact numbers given by Mr. Nirmalendran to Royal Car & Truck Rental when he rented the Elantra. In a subsequent rental, he used the 9747 number, a later Samsung number. It is also the phone number he provided to Revenue Canada when he filed his income tax return for 2018. Mr. Nirmalendran also made numerous calls to EyeZ Optical about his eyeglasses from the Samsung.

(iii) Features of the Siva Kumar Phone

[185] The phone Mr. Nirmalendran referred to as a flip phone had a phone number ending in 0449. The subscriber name was Siva Kumar, with an address of 2111 Eglinton Ave. in Scarborough. The account became active on August 19, 2019. In contrast to the iPhone and Samsung, the number for this phone never changed, nor did the subscriber information.

[186] The Siva Kumar phone was in regular contact with the Samsung, but not with the iPhone. Based on the available records from December 18, 2019 to January 15, 2020, there was only one call from the iPhone to the Siva Kumar phone, which was on December 18 for a duration of 5 seconds.

[187] This phone was never used to call, or to receive calls from, Malana Rooplal.

[188] This phone was frequently, but not exclusively, used when located in the area of 31 Gilder.

(iv) Credibility Issues Relating to the Cellphones

(a) Subscriber names and addresses

[189] Mr. Nirmalendran testified that he would change the SIM cards in the cellphones from time to time. He gave somewhat inconsistent evidence about where he purchased the SIM cards. Initially, he said he would purchase them from one of two shops near where he lived, either in the plaza across the street from his apartment or the shop at Markham and Lawrence. He was clear that he purchased from both those places. He initially said that Younis did that too, but then clarified that Younis had only done this once. Mr. Nirmalendran maintained that he had no knowledge of the subscriber names and addresses on the SIM cards. He said that the names were just randomly put on the phones by the store and the subscriber address was the address of the store.

[190] Mr. Nirmalendran was confronted on cross-examination with the seeming impossibility of the subscriber address being identical in all six versions[^56] of the Samsung and iPhone if the address was the address of the store and he purchased them at two different stores. To this he responded:

A. I'm not saying that I bought individual SIMs from different stores…

Q. I'm pretty sure you said you put two different SIM cards from two different stores into two different phones?

A. No, that's not what I was saying.[^57]

[191] However, he was clear in his earlier testimony that he did purchase SIM cards from both stores, as follows:

Q. Where would you have gotten SIM cards from?

A. I would get it at the phone store.

Q. Which phone store?

A. The phone store across from where I lived at the plaza, or the phone store at Markham and Lawrence, whichever one was convenient for me at the time.

Q. Okay. So you -- you purchased SIM cards from both of those places?

A. Yeah.[^58]

[192] Mr. Nirmalendran testified that on December 30, 2019 a SIM card exchange was done by Younis. It is an extraordinary coincidence that both SIM cards would have been purchased by Younis at the same store Mr. Nirmalendran had used, and which was close to his home. Younis had no connection with that store. Why would he choose to change the numbers there, instead of at any number of other stores in St. Catharine’s, or between St. Catharine’s and Mr. Nirmalendran’s home? Further, there is a connection between the subscriber names on the phones. The iPhone subscribers are: Smith Hopkins; Jason Ford; and Jason Chow. The iPhone subscribers are: Ajay Jasan; Ford Hopkins; and Joseph Hopkins.

[193] Although Mr. Nirmalendran testified that he often switched the numbers on his phones, the Samsung had the same number from February 19, 2019 until it was switched on December 30, 2019 (which Mr. Nirmalendran said had been done by Younis). Likewise, on the Samsung, the December 30 switch was the first one since the phone was activated on September 15, 2019. The only other time the numbers were switched was on January 15, 2020, after Mr. Nirmalendran heard about the police raids. Again, there were marked similarities between the new subscriber names used and the previous ones on the phone.

(b) Contacts with Richard Hajjar

[194] Mr. Nirmalendran denied knowing Richard Hajjar, at whose residence the two shooters stopped shortly before and shortly after the murder, picking up and then dropping off a suspicious package. I note that Mr. Nirmalendran’s iPhone was in frequent contact with Richard Hajjar on multiple occasions, not just on the night of the murder. Mr. Nirmalendran testified that when Younis had the car, he would give him at least the iPhone, and sometimes both the iPhone and the Samsung. However, Mr. Nirmalendran did not rent the Elantra until December 27, 2019 and, even on his own evidence, Younis did not have the car until the afternoon or evening of December 28. However, Mr. Nirmalendran’s iPhone was in frequent contact with Mr. Hajjar prior to the period he said Younis had the car. Between 4:53 p.m. December 21, 2019 and 6:07 p.m. December 24, 2019, there were 12 telephone calls back and forth and 2 text message exchanges. When those calls were made, Mr. Nirmalendran’s iPhone was sometimes in the vicinity of 4110 Lawrence Avenue East or near his own home at 31 Gilder Drive. Mr. Hajjar placed some calls to the iPhone shortly after midnight on December 26, but they were not connected. There were then three calls between the iPhone and Mr. Hajjar at 9:38 p.m., 10:22 p.m., and 10:40 p.m.. Again, the location of the iPhone at the time of these calls is strongly suggestive that the phone was in Mr. Nirmalendran’s possession. It is highly unlikely that all those calls prior to December 28, 2019 were made between Younis and Mr. Hajjar, particularly since on Mr. Nirmalendran’s own evidence, Younis did not have the phone until the evening of December 28, 2019.

(c) Contacts with Malana Rooplal

[195] The iPhone was in regular contact, back and forth, with Malana Rooplal. Between December 1, 2019 and January 29, 2020, there were 155 such contacts. Many of these contacts were brief, but others were for extended periods of time. Mr. Nirmalendran denied that Ms. Rooplal was his girlfriend. In cross-examination it was put to him that Ms. Rooplal was in in his bed with him at 30 Gilder Drive when the police arrived to arrest him. He then acknowledged that they were intimate partners, but again insisted she was not his girlfriend.

[196] After the text message to Richard Hajjar stating “here” at 11:53 p.m. on December 28, 2019, the iPhone went silent. It remained unconnected to any network until 2:38 a.m. on December 19, 2019, immediately after the murder was completed and the shooters returned to the Elantra. That call was to Richard Hajjar. At 3:05 a.m. and again at 3:06 a.m., the iPhone called Malana Rooplal. There were no further calls on the iPhone until 4:18 a.m., which was the call to Ryan Clark (the St. Catharine’s associate), by which time both the iPhone and the Elantra had arrived in St. Catharine’s. The iPhone then went offline and did not come back into service until December 30, 2019 after the SIM card was replaced and the phone number changed. On December 29, 2019, while the iPhone was offline or turned off, Malana Rooplal placed five calls to it, all of which went to voicemail. Given that, according to Mr. Nirmalendran, the 3:05 a.m. and 3:06 a.m. calls to Ms. Rooplal were placed by Younis and she would therefore have known he had the phone, it is odd that she be calling that phone five times the next day.

[197] Mr. Nirmalendran provided an explanation for why Younis would be calling his “intimate partner.”[^59] He said Younis had Malana’s number because he knew he “would hangout with [her] sometimes” and Younis could “get a hold of her to get a hold of [him].”[^60] He said if he was doing deals and had the iPhone and Samsung with him, he would contact him through Ms. Rooplal and would also try to contact him sometimes by calling the landline at his apartment or calling his father’s cellphone. This explanation makes no sense. Why would Younis need to call around to three different numbers trying to reach Mr. Nirmalendran if Mr. Nirmalendran in fact had a third phone (the Siva Kumar phone) specifically for the purpose of having a contact phone when his drug partner had his other two phones? I note as well that after the iPhone called Malana Rooplal at 3:05 a.m. and 3:06 a.m., there were no corresponding calls from Ms. Rooplal to the Siva Kumar phone to pass on any messages. Indeed, there was never any contact between her phone and the Sivar Kumar phone. Further, there was no attempt by the iPhone at that time to reach Mr. Nirmalendran through his father or his landline.

[198] In my view, Mr. Nirmalendran’s explanation for the calls between the iPhone and Ms. Rooplal’s phone does not make sense. Rather those calls are more consistent with the iPhone being in Mr. Nirmalendran’s possession at the time. I appreciate that this is not the test in Villaroman. However, individual pieces of circumstantial evidence are not required to meet the test individually. It is the whole of the evidence that must be considered.

(d) Calls between the Siva Kumar phone and the Samsung

[199] At 1:23 a.m. on December 29, 2019, the Siva Kumar phone attempted to connect with the Samsung, but the call went to voicemail. This was after the trip to Mr. Hajjar’s to pick up the suspicious object and prior to the murder. The Siva Kumar phone at that time was at 31 Gilder Drive and the Samsung was in the Elantra. If this call was Mr. Nirmalendran attempting to reach Younis (as he contends), I would expect him to next try the iPhone, particularly since the iPhone is the drug dealing phone and Younis supposedly has it for this purpose. However, there was no such attempt.

[200] At 8:45:31 a.m. on December 29, 2019, the Samsung called the Siva Kumar number. At that time, the Samsung was in St. Catharine’s. The call lasted 4 seconds. Immediately thereafter (at 8:46:08 am), the Samsung called Mr. Nirmalendran’s father’s cellphone. That call also lasted 4 seconds. The Samsung then went dead, until its number was changed on December 30.

[201] Shortly after the calls placed by the Samsung at 8:45 a.m. and 8:46 a.m., both the Siva Kumar phone and Mr. Nirmalendran’s father tried calling the Samsung back. Siva Kumar’s phone called the Samsung at 9:39:19 a.m., but the call went to voicemail. The duration of the call was 12 seconds, which suggests that a message was likely left. Likewise, Mr. Nirmalendran’s father called the Samsung at 9:42:09 a.m., but the call (which lasted only 5 seconds) went to voicemail. He called the Samsung again at 10:48 a.m. Again, the call went to voicemail. This call was 10 seconds long, which again is suggestive of a message being left. Between 9:42 a.m. on December 29, 2019 and 13:13 p.m. that same day, Mr. Nirmalendran’s father unsuccessfully tried to contact his son five times. Based on the duration of those calls, he appears to have left one voicemail message, possibly two. The next morning, at 11:47 a.m., he made another attempt, which again went to voicemail. Based on its 10 second duration, a message was likely left. During this time, the Siva Kumar phone was at 31 Gilder Drive. If the Siva Kumar phone was in the Mr. Nirmalendran’s possession at 31 Gilder Drive for all of this time, it seems odd that Mr. Nirmalendran’s father (who lives in the same apartment) would be repeatedly trying to call his son’s Samsung. This is another detail that does not fit logically with the evidence given by Mr. Nirmalendran.

[202] The first call from the Samsung on its new phone number after the SIM card is switched on December 30, 2019 was at 11:59:13 a.m. to the Siva Kumar number. The call lasted 32 seconds. Mr. Nirmalendran testified that this was a call he received from Younis in which Younis told him he had switched the SIM card because of a problem with a customer. The first call made by the iPhone from its new number was to Malana Rooplal at 12:01:36 p.m. on December 31, 2019. Mr. Nirmalendran’s explanation for why Younis would ever call Malana Rooplal completely breaks down in light of this call. He testified that Younis would call Ms. Rooplal when trying to reach him. However, Mr. Nirmalendran also testified that Younis had a discussion with him at 11:59:13 a.m. They had already been in touch. On Mr. Nirmalendran’s evidence, Younis would have barely gotten off the phone from talking to Mr. Nirmalendran when he called Ms. Rooplal. This makes no sense whatsoever and undermines the truth of the entire theory.

[203] On January 15, 2020, Mr. Nirmalendran switched the SIM cards in both the Samsung and the iPhone. He testified that he did this because of his alarm arising from the police raid that morning and his concern that his drug dealing activities could be traced because of his contact with Kwami Garwood. The number was changed at approximately 4:00 p.m. On his own evidence, Mr. Nirmalendran had the iPhone and Samsung that day. However, at 7:55 p.m, the Samsung called the Siva Kumar number and was connected for 25 seconds. There is no logical explanation for why Mr. Nirmalendran would call himself, from the Samsung to the Siva Kumar number. This is another discrepancy in the call records that undermines the truth of Mr. Nirmalendran’s version of events.

[204] Similarly, after Younis returned the Elantra and the two phones on December 30, 2019, the GPS records for the Elantra suggest that the car was in Mr. Nirmalendran’s possession until he switched the car for a new colour on January 3, 2020. At 1:53 p.m. on the afternoon of December 30, the Samsung called EyeZ Optical and was clearly in Mr. Nirmalendran’s possession at that time. On January 1, 2020 at 11:22 a.m., the Samsung called Royal Car & Truck Rental. This call also demonstrates that the Samsung was in Mr. Nirmalendran’s possession on that date since he agreed that he was always the one dealing with the rental company. Mr. Nirmalendran was also in possession of the Samsung on January 3, 2020, when he again called Royal Car & Truck Rental. The Elantra appears to be stationary at 30 Gilder Drive throughout the intervening time. Therefore, the phones would also have been with Mr. Nirmalendran throughout that time, although he claimed in his testimony to have no recollection of that. However, on January 2, 2020 at 12:29 p.m. and 12:56 p.m., there are two telephone contacts between the Samsung and the Siva Kumar phone, for 47 seconds and 62 seconds respectively, each initiated by the Samsung. Again, on Mr. Nirmalendran’s evidence with respect to his use of the Siva Kumar phone, it appears he must have been talking to himself for those calls. This is another example of the details in the call records being inconsistent with the testimony of Mr. Nirmalendran.

(e) Patterns in the Cellphones

[205] The iPhone and the Samsung never call each other. That makes sense as both phones belong to Mr. Nirmalendran. However, Mr. Nirmalendran testified that sometimes he would give both phones to Younis when he was off doing drug deals, and sometimes he would just give him the iPhone. Therefore, even when Mr. Nirmalendran had the Samsung and Younis supposedly had the iPhone, neither of them would call the other. That makes no sense.

[206] There are many calls between the iPhone and Malana Rooplal. She and Mr. Nirmalendran are in constant contact. However, there is never any contact between Ms. Rooplal and the Siva Kumar phone. If the other two phones were given to Younis when he was doing drug deals, and if the Siva Kumar phone is the one used by Mr. Nirmalendran at those times, it is odd that the Siva Kumar phone never called Ms. Rooplal.

[207] The Siva Kumar phone is never in St. Catharine’s. That may not be surprising as the St. Catharine’s location relates to drug dealing and the iPhone is used for that purpose. What is odd, however, is that the Siva Kumar phone (allegedly used by Mr. Nirmalendran for his personal matters) is never in contact with Malana Rooplal, or the rental car company, or EyeZ Optical, or the credit card company, or the insurance company. Also, this number is not provided as a contact number to those entities, or to Equifax, or to Revenue Canada. That makes no sense, if this was actually Mr. Nirmalendran’s personal phone.

[208] Between December 1, 2019 and January 27, 2020, the iPhone (through its three different numbers) was frequently in contact with a cellphone number ending in 6063, which is registered to a subscriber name John Thomas. There must be over 300 calls and messages between these two phones, including a very large number when the iPhone was at Mr. Nirmalendran’s home address. When the iPhone number was changed at about noon on December 30, 2019, one of the first calls placed from the new number was to John Thomas (at 12:06 p.m.). There are several more exchanges between those two phones on December 30, as well as on December 31, and January 1, 2020 and further into January on an almost daily basis, several times a day. After Mr. Nirmalendran changed the phone number of the iPhone on January 15, 2020, again the first person he called from the new number was John Thomas (at 5:00 p.m. that same day). In his testimony at trial, Mr. Nirmalendran claimed to have no recollection of who that person could be. I find that to be unbelievable.

[209] There were a large number of calls between the iPhone and a telephone number ending in 9415. The police were unable to determine who owned that phone and the Crown referred to this person throughout as “Mr. X.” Given the timing of many of these calls it is an almost inescapable conclusion that he had some connection to the murder. There are many calls between Mr. X and the iPhone on December 27 and the early morning hours of December 28, 2019 when the iPhone was in Mr. Nirmalendran’s possession, the last of which was at 44 minutes past midnight. The murder took place at 2:52 a.m. on December 29. The first call placed after the murder on the iPhone was to Mr. X at 2:58 a.m., a mere 6 minutes after the murder. There are then several calls back and forth between those two phones. At 3:04 a.m., the iPhone then contacts Ryan Clark (the St. Catharine’s connection), presumably to tell him the caller is heading to St. Catharine’s. Mr. Bazuhair is dropped off at 4110 Lawrence Avenue East at 3:06 a.m. and at 3:05 a.m. there is a call from the iPhone to Mr. X, followed immediately by two calls to Malana Rooplal. Then at 4:18 a.m. there is a final call to Ryan Clark, presumably to tell him that the caller has arrived in St. Catharine’s. The iPhone is then switched off and does not come back into service until after its SIM card has been replaced just before noon on January 30. The first call placed by the iPhone from the new number on December 30, was to Malana Rooplal at 12:01:36 p.m. The very next call was to Mr. X at 12:02:38 p.m., but it did not appear to connect. At 6:08 p.m. on December 30, when the iPhone was clearly in Mr. Nirmalendran’s possession, there was a connected call to Mr. X. and then further calls on December 31, 2019 and on January 2, January 3, and January 4, 2020. Again, Mr. Nirmalendran claims to have no memory of this telephone number or who used that phone, which is difficult to believe.

(f) Mr. Nirmalendran’s calls to the Bazuhair cellphone on January 15, 2020

[210] On January 15, 2020, Mr. Nirmalendran placed a flurry of calls from his iPhone to a number ending in 2342. The calls started at 7:26 a.m., an exceedingly unusual time of day for Mr. Nirmalendran to be placing calls on either the Samsung or iPhone. He called that number at 7:26:27 a.m., 7:26:58 a.m., 7:27:28 a.m., 7:54:11 a.m., and 7:54:40 a.m. That number belongs to a cellphone that was seized by the police when they searched the apartment of Oday Bazuhair after a surprise entry with a warrant at 6:00 a.m. on January 15, 2020. Also present in the apartment at the time of the raid were Oday Bazuhair’s mother, his sister, and his brother Muaad. Oday Bazuhair was the only person in what the police referred to as the “blue bedroom” at the time of the raid. Also located in that bedroom next to the bed was an iPhone that had the number ending in 2342, which had been called by Mr. Nirmalendran. That phone might have belonged to Muaad, who was also present in the apartment at the time of the raid, as there were two text messages in the phone which referred to Muaad by name. All of this information about the phone was part of the Agreed Facts, which was marked as Exhibit 50 at trial.

[211] Notwithstanding these admissions, Mr. Nirmalendran denied that this phone was associated to Muaad Bazuhair and testified that he knew the phone belonged to Kwami Garwood, pointing out that the subscriber name was Georgia Crawford, a fact which he had learned from the disclosure. When challenged on cross-examination about this, he insisted that this was a number that he used to contact Kwami Garwood and said that perhaps Kwami and Muaad were sharing the phone. There had been no contact between the iPhone and this 2342 number until January 1, 2020. Between then and the flurry of calls on January 15, there were a total of 11 calls between the iPhone and this number, one of which did not connect. Ten of these calls were placed by the iPhone, including when the iPhone was at 31 Gilder Drive. There were no calls between either the Siva Kumar phone or the Samsung and this 2342 number. Notwithstanding this relatively small amount of contact with this number, Mr. Nirmalendran testified that this was Kwami Garwood’s number. Given Mr. Nirmalendran’s complete inability to remember other numbers he called frequently (such as John Thomas, Richard Hajjar, and Mr. X), I find it hard to believe that Mr. Nirmalendran now recalls what Kwami Garwood’s number was. Further, it is unlikely that he had no contact with Kwami Garwood prior to January 1, 2020. The Bazuhair phone had the same number in November and December 2019, when I would certainly expect Mr. Nirmalendran to have been in contact with Kwami. I do not believe his testimony that he remembers the 2342 number as being used by his friend Kwami.

[212] Mr. Nirmalendran testified that these calls were made by him to Kwami Garwood. However, he said he did not hear about the police raid on Kwami Garwood’s apartment until after he had made this series of calls. He was not able to provide any rational explanation for why he would need to call this number five times within less than half an hour starting at 7:26 a.m., if he had no idea about the police raid at 6:00 a.m. He testified that someone told him that there had been a police raid on Kwami’s home and he was worried that the police would seize Kwami’s phone and find Mr. Nirmalendran’s number in it. His concern that the police could trace him to Kwami Garwood was so great that he again changed the phone number in both the iPhone and the Samsung on the afternoon of January 15, 2020 and two days later switched the rental car again. Notwithstanding the impact of this information about the police raid, Mr. Nirmalendran maintained that he has no memory of who told him about it or by what means. I do not believe that he has no memory of who told him this significant piece of information. I also do not believe that he did not know about the raids until he made this series of calls to the Bazuhair phone. It is far more likely that he heard about the raids on Kwami Garwood’s apartment (which was in the same complex as the Bazuhair apartment) and then made a series of panicked phone calls to the Bazuhair number out of concern that the Bazuhair apartment had also been raided (which in fact it had).

(g) Actions taken by Mr. Nirmalendran after hearing about the January 15, 2020 police raids

[213] Mr. Nirmalendran testified that he switched the SIM cards in both the iPhone and the Samsung because he feared the police would connect him to Kwami Garwood and drug dealing. On January 15, 2020, he went to the very same store where the December 30, 2019 SIM card switches were made. There are clear connections between the fake subscriber names he used and the ones used at the time of the December 30th switch and the original subscriber name on the Samsung. The same subscriber address was also used, which may indeed be the address of the store. Although only the iPhone had ever been in contact with the 2342 number Mr. Nirmalendran claimed was associated to Kwami Garwood, he also changed the SIM card in the Samsung. He made no attempt to change the phone number or subscriber information for the Siva Kumar phone. He also switched cars again, getting yet another car from Royal Car & Truck Rental on January 17, 2020.

5. Conclusion: Guilty of First Degree Murder

[214] I have determined that the evidence of Dan Mills is not sufficiently reliable to rule out Nirusan Nirmalendran as one of the two shooters. I have also completely rejected the defence that the shooter was Younis Mohamed. Even if there was any reliable or credible evidence implicating him, which there is not, I am satisfied that he was somewhere else at the time.

[215] It remains then for me to determine whether, based on the whole of the evidence, Mr. Nirmalendran was one of the two shooters and guilty of first degree murder. He has denied any involvement. If I accept that evidence, or if it causes me to have a reasonable doubt, I must find him not guilty. I do not believe his testimony on anything that cannot be independently corroborated. His testimony is a complete tissue of lies. I have reflected on the absence of evidence on many points. There is no direct evidence placing him at the scene and no forensic evidence pointing to him. There is no evidence of motive and no evidence that he even knew the deceased. The gun he used was never recovered. Apart from the vague connection to Muaad Bazuhair and Kwami Garwood, there is also no evidence connecting Mr. Nirmalendran to Oday Bazuhair. Notwithstanding this, I am satisfied beyond a reasonable doubt that Mr. Nirmalendran committed this murder. The absence of evidence on these points does not cause me to have a reasonable doubt.

[216] Looking at all of the evidence as a whole, it is clear to me that throughout December 28 and December 29, 2019, Mr. Nirmalendran had exclusive possession of his two phones (the iPhone and the Samsung) as well as possession of the Elantra. That conclusion is the only rational conclusion possible from the combination of circumstantial evidence involving the phones and the car. Although there might be other possible explanations for bits and pieces of this evidence, there is no such logical conclusion possible when the whole of the evidence is taken into account. In particular, I am satisfied beyond a reasonable doubt that the Siva Kumar phone did not belong to Mr. Nirmalendran, although it was closely connected to some member of his family. It is even possible that he used it on occasion, but it was certainly not a phone he used regularly. There is no plausible explanation for anyone else being in possession of the phones and the car at the time of the murder. Mr. Nirmalendran was clearly in communication with Mr. Hajjar on his iPhone prior to December 28, 2019, and also with Mr. X. It was he who obtained the Samsung and iPhone, and he who changed their SIM cards on December 30, 2019 and again on January 15, 2020. The circumstantial evidence connecting Mr. Nirmalendran to the phones and the car for the entire time between December 28 to December 30 is overwhelming. No other rational conclusion is possible on this evidence. It is clear that the same person drove the Elantra to the murder and then afterwards drove it to St. Catharine’s. Further, it is clear that the person who did that was one of the two shooters responsible for the murder. I have no doubt whatsoever that Nirusan Nirmalendran is that person. He is guilty of first degree murder.

MOLLOY J.

Released: March 18, 2024

COURT FILE NO.: CR-22-30000416-0000

DATE: 20240318

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

ODAY BAZUHAIR and NIRUSAN NIRMALENDRAN

Defendants

REASONS FOR DECISIOn

Molloy J.

Released: March 18, 2024

[^1]: Ms. Knoebelreiter also had telephone interviews with Mr. Bazuhair in between the personal reporting dates, but they are not relevant to her identification evidence.

[^2]: R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393.

[^3]: R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.), at para 39.

[^4]: R.v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, at para. 14.

[^5]: Ibid at paras 16 – 23.

[^6]: R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, at para. 30 [Hudson].

[^7]: R. v. Bewley, 2021 ONSC 5216, at paras. 22 – 25; R. v. R.D., 2019 ONSC 4536, at para. 15; R. v. John, 2010 ONSC 6085, at paras. 23 – 24.

[^8]: Hudson, supra note 6, at para. 33; R. v. Chaudry, 2020 ONSC 7511, at paras. 39 and 49.

[^9]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[^10]: R. v. Villaroman, 2016 SCC 33, [2016], 1 S.C.R. 1000 [Villaroman].

[^11]: Ibid at para 37.

[^12]: Ibid at para. 38.

[^13]: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81 – 82.

[^14]: Villaroman, supra note 10, at paras. 35 – 36.

[^15]: R. v. Mebratu, 2021 ONSC 5875, at paras. 239 – 242.

[^16]: R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197.

[^17]: I say that merely to distinguish him from the other shooter. It is not possible to tell from the video of the shooting whether the boots are the same as those found in Mr. Bazuhair’s home, notwithstanding their similarity.

[^18]: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at para. 17.

[^19]: Exhibit 65: Mr. Mills’ Report (made an exhibit on September 27, 2023), at p. 18 [Dan Mills Report].

[^20]: Transcript, Cross-Examination of Dan Mills (September 26, 2023), at p. 116, line 11 [Mills Cross-Examination – September 26].

[^21]: Ibid at p. 116, line 24.

[^22]: Transcript, Examination-In-Chief of Dan Mills (September 28, 2023), at p. 55, lines 1 and 13 [Mills Examination-In-Chief – September 28].

[^23]: Dan Mills Report, supra note 19, at p. 6.

[^24]: Mills Cross-Examination – September 26, supra note 20, at p. 124, lines 6 – 11.

[^25]: Ibid at p. 125, lines 4 – 20.

[^26]: Mills Examination-In-Chief – September 28, supra note 22, at p. 47, lines 7 – 18.

[^27]: Ibid at p. 47, lines 19 – 20.

[^28]: Ibid at p. 77, line 9 – p. 78, line 2.

[^29]: Transcript, Cross-Examination of Dan Mills (September 28, 2023), at p. 155, line 7 [Mills Cross-Examination – September 28]..

[^30]: Ibid at p. 157, lines 16 – 18.

[^31]: Ibid at p. 234, lines 22 – 24.

[^32]: Mills Examination-In-Chief – September 28, supra note 22, at p. 79, line 19 – p. 80, line 6.

[^33]: Transcript, Examination-In-Chief of Dan Mills, (September 27, 2023), at p. 106 line 15 – p. 107, line 4 [Mills Examination-in-Chief – September 27].

[^34]: Ibid at p. 110, lines 14 – 22 .

[^35]: Ibid at p. 112, lines 6 – 16.

[^36]: Mills Cross-Examination - September 28, supra note 29, at p. 203, lines 19 – 21.

[^37]: Ibid at p. 209, line 4 – p. 210, line 11.

[^38]: Ibid at p. 182, lines 19 – 24.

[^39]: Dan Mills Report, supra note 19, at p. 8.

[^40]: Ibid at p. 8.

[^41]: Transcript, Examination-In-Chief of Nirusan Nirmalendran (September 29, 2023), at p. 32, line 2 [Nirmalendran Examination-In-Chief – September 29].

[^42]: Ibid at p. 16, line 15.

[^43]: Ibid at p. 15, line 15.

[^44]: Ibid at p. 19, line 11.

[^45]: Transcript, Cross-Examination of Nirusan Nirmalendran (September 29, 2023), at p. 92, line 18 [Nirmalendran Cross-Examination – September 29].

[^46]: Ibid at p. 88, lines 17 – 21.

[^47]: Ibid at p. 96, line 16.

[^48]: Ibid at p. 126, at line 9.

[^49]: Ibid at p. 141, line 24 – p. 142, line 2.

[^50]: Nirmalendran Examination-In-Chief – September 29, supra note 41, at p. 55, line 4.

[^51]: Nirmalendran Cross-Examination – September 29, supra note 45, at p. 113, lines 10 – 12.

[^52]: Nirmalendran Examination-In-Chief – September 29, supra note 41, at p. 64, lines 8 – 14.

[^53]: See paragraph 172 re admissibility of this ante-mortem statement.

[^54]: Nirmalendran Cross-Examination – September 29, supra note 45, at p. 228, line 18.

[^55]: I note that she must be wrong about that as there were no COVID cases in Ontario as early as December 2019.

[^56]: In fact, the address was the same for all three iPhone subscribers and the second two Samsung subscribers. The first Samsung subscriber is listed as living on Gilder Drive.

[^57]: Nirmalendran Cross-Examination – September 29, supra note 45, at p. 187, line 19 ff.

[^58]: Ibid at p. 159, lines 10 – 15.

[^59]: Nirmalendran Cross-Examination – September 29, supra note 45, at p. 122, lines 11 – 17.

[^60]: Nirmalendran Examination-In-Chief – September 29, supra note 41, at p. 58, lines 21 – 23.