Court File and Parties
COURT FILE NO.: CR-21-50000595-0000 DATE: 20240404 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and - FAZAL Zaban
Counsel: P. Zambonini and C. MacNeil, for the Crown A. Newman and P.J.I. Alexander, for Mr. Zaban
HEARD: January 15, 16, 17, 18, 19, 22, 23, 24, 25, 26; February 26, 27, 29; March 1, 4, 2024
KELLY J.
Reasons for judgment
[1] Mr. Fazal Zaban is charged with first degree murder of Mr. Dung Le on August 19, 2019. Mr. Zaban admits that he shot and killed Mr. Le while they were both inside Mr. Le’s car. However, he says that he acted in self-defence and did not intend to kill Mr. Le.
[2] Crown counsel alleges that Mr. Zaban forcibly confined Mr. Le in the car and discharged a firearm in his direction eight times. Three of the bullets hit Mr. Le, one of which killed him. Crown counsel submits that Mr. Zaban had the required intent for murder and because Mr. Zaban forcibly confined Mr. Le in the car, he is guilty of constructive first degree murder.
[3] Pursuant to s. 473(1) of the Criminal Code, and with the consent of the Attorney General, Mr. Zaban proceeded to trial before me, sitting without a jury. Mr. Zaban appears before me now for judgment.
Overview of the Facts
[4] The shooting arose out of a deal wherein Mr. Zaban intended to purchase 10 pounds of marijuana as well as a Glock firearm with a drum clip, which holds 50 rounds of ammunition. Mr. Zaban was to pay $18,000 for all three items.
[5] The transaction was scheduled to occur on August 19, 2019. The arrangements were made by Mr. Zaban and a man by the name of Trini who was in Trinidad at the time. Trini’s “minion”, Fat Boy, would orchestrate the deal in Canada on behalf of Trini. While the location of the deal changed a number of times during the day in question, Mr. Zaban eventually ended up in the Tim Horton’s plaza located at Weston Road and the 401. Also present at the time were Fat Boy and Mr. Le.
[6] Mr. Zaban testified that while awaiting the delivery of the marijuana, Glock, and drum clip, he and Mr. Le got into Mr. Le’s car. He says that while in the car, Mr. Le gifted him a loaded magazine. In anticipation of the arrival of the Glock and drum clip, Mr. Zaban says that he got so excited that he handed Mr. Le $8,000 (intended payment for the Glock and drum clip). Soon after, a fourth man (unidentified by name at this trial) arrived but the marijuana, Glock and drum clip did not. Mr. Le handed the $8,000 to the fourth man.
[7] Thereafter, Fat Boy advised that they had to go to another location. This irritated Mr. Zaban and he demanded the return of his money. The fourth man demanded that Mr. Zaban hand over the keys to his car, which contained $13,000. Mr. Zaban testified that the fourth man reached for a firearm at his waist and discharged it accidentally. He then dropped the firearm on Mr. Le’s lap, directing Mr. Le to take Mr. Zaban to the next location and to kill him if he moved. At this point, Mr. Zaban testified that he believed he was going to be robbed and/or kidnapped.
[8] Mr. Le’s car soon went into motion. It moved out of the Tim Horton’s parking lot, went over a median, then a curb and a sidewalk. It eventually careened down a grass embankment into the McDonald’s parking lot and stopped.
[9] As the incident progressed, Mr. Zaban says that he disarmed Mr. Le of the firearm. A struggle ensued and Mr. Zaban discharged the firearm several times as the car moved from the Tim Horton’s parking lot to the McDonald’s parking lot. Two of the shots hit Mr. Le in the left thigh. Another shot entered his arm, hitting a major artery, resulting in Mr. Le’s death.
[10] After the shooting, Mr. Zaban exited Mr. Le’s car. He put the still loaded firearm in his Gucci satchel with the loaded magazine. He walked across the street and discarded the Gucci satchel at a nearby embankment by the 401. He fled the scene. After making travel arrangements, Mr. Zaban left the country. He went to Jamaica two days after the shooting. He returned two months later and was arrested at the airport when he did so.
[11] Mr. Zaban admits that he shot and killed Mr. Le. He denies that he possessed the loaded firearm prior to the shooting and testified that he discharged the firearm, which he had taken from Mr. Le, in self-defence. He also denies that he intended to kill Mr. Le or forcibly confined him in the car prior to the shooting.
Overview of the Trial
[12] The shooting incident commenced in the Tim Horton’s parking lot and ended in the McDonald’s parking lot located across the street. Both plazas are located at the intersection of the 401 and Weston Road. Notwithstanding the time of day (after 10:00 p.m.), both plazas were busy. There were many civilians in the area including Mr. Le’s wife, daughter-in-law and grandson. Mr. Le’s wife, Ms. Liem Lu, believed that Mr. Le was having an affair, so she convinced her daughter in law, Ms. Hoang Tran, to take her to the plaza to see if that was true. They did not observe Mr. Le in the company of another woman. Instead, they saw the incident that resulted in Mr. Le’s death.
[13] Crown counsel called several witnesses at trial, including civilian witnesses who were at the scene. Ms. Tran testified but Ms. Lu could not. At the time of the shooting, Ms. Lu was suffering from cancer and died before testifying at the preliminary hearing.[^1] Members of the Toronto Police Service (the “TPS”) testified, as did witnesses from the Centre of Forensic Sciences. There was evidence introduced relevant to the use of telephones. Several agreed statements of fact, photographs, maps of the area and videos were filed. Mr. Zaban testified. No other witnesses were called by the defence.
The Result
[14] For the reasons set out below, I am satisfied that the Crown has negated self-defence beyond a reasonable doubt. However, the Crown has not satisfied me beyond a reasonable doubt that Mr. Zaban had the required intent to be guilty of murder. Accordingly, Mr. Zaban is convicted of the lesser included offence of manslaughter.
The Legal Framework
The Essential Elements of First Degree Constructive Murder
[15] Mr. Zaban is charged with first degree murder. As I have stated, Crown counsel alleges that Mr. Le was forcibly confined by Mr. Zaban at the time of the shooting and as such, Mr. Zaban is guilty of constructive first degree murder. In order to find Mr. Zaban guilty of first degree murder on this basis, Crown counsel must prove each of the following six essential elements beyond a reasonable doubt:
i. that Mr. Zaban caused the death of Mr. Le;
ii. that Mr. Zaban caused the death of Mr. Le unlawfully;
iii. that Mr. Zaban had a state of mind required for murder;
iv. that Mr. Zaban committed forcible confinement against Mr. Le;
v. that the forcible confinement and murder of Mr. Le were part of the same series of events; and
vi. that Mr. Zaban was an active participant in the killing of Mr. Le.
[16] Crown counsel must prove beyond a reasonable doubt that Mr. Zaban is guilty. Mr. Zaban does not have to prove anything. All evidence presented at trial must be considered in assessing whether a reasonable doubt remains at the end of the case.
R. v. W.(D.)
[17] As I have stated above, Mr. Zaban testified and there was exculpatory evidence in the Crown’s case. As such, a W.(D.)[^2] instruction is necessary. Mr. Zaban does not deny that he shot and killed the deceased. It is his position that he shot the deceased in self-defence. When assessing the exculpatory defence evidence in the context of that defence, a modified W.(D.) analysis is required because self defence contains an objective component. This principle was set out in R. v. Reid,[^3] at para. 72 where Moldaver J.A. (as he then was) held as follows:
If you accept the accused's evidence and on the basis of it, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.
Even if you do not accept the accused's evidence, if, after considering it alone or in conjunction with the other evidence, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty. [Citations omitted]
[18] The application of the modified W.(D.) instruction was explained in R. v. Ryon,[^4] as follows:
…where the defence has both a subjective and objective component the accused will not be entitled to an acquittal merely by raising a reasonable doubt as to the subjective component. To explain, some defences like provocation and self-defence, require inter alia, that the accused’s response to the situation he/she was facing be measured against the response expected of a reasonable person in the same situation. So even if an accused’s testimony is believed, he/she may still not be entitled to an acquittal if the jury finds the accused’s reaction to the situation was unreasonable.
[19] When considering Mr. Zaban’s evidence and the evidence that favours him, I have done so in the context of the evidence as a whole. I have not isolated it in a vacuum.
Self-Defence
[20] When self-defence is raised, the burden is on the Crown to satisfy the court beyond a reasonable doubt that Mr. Zaban was not acting in self-defence. The accused does not have the onus of establishing he was acting lawfully.
[21] Self-defence renders an act that would otherwise be criminal not culpable. Section 34 of the Criminal Code codifies the law of self-defence. It provides as follows:
34(1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
[22] Justice Doherty described the three elements of self-defence in R. v. Khill,[^5] at para. 42, as follows:
• the accused must believe, on reasonable grounds, that force is being used or threatened against him: s. 34(1)(a) (the trigger);
• the act of the accused said to constitute the offence must be done for the purpose of defending himself: s. 34(1)(b) (the motive); and
• the act said to constitute the offence must be reasonable in the circumstances: s. 34(1)(c) (the response).
[23] In determining whether the act committed by an accused is reasonable in the circumstances pursuant to s. 34(2), the trier of fact will consider the relevant circumstances of the accused, the other parties and the act. Section 34(2) of the Criminal Code also provides a list of non-exhaustive factors to consider when examining the reasonableness of the act. These factors will be addressed further below.
After the Fact Conduct
[24] Evidence was led as to Mr. Zaban’s conduct after the shooting. Evidence of what a person did following the alleged commission of an offence is circumstantial evidence which, in some circumstances, may be capable of giving rise to reasonable inferences about what an accused person did in relation to the commission of an offence.[^6]
[25] There are many risks associated with the consideration of after the fact conduct evidence. The trier of fact must be careful not to jump to a conclusion of guilt based on how the accused acted or what they did after the fact. The trier of fact must carefully consider alternative explanations for the conduct such as “panic, embarrassment, fear of false accusation or some other innocent explanation”.[^7] After the fact conduct must be treated with caution.
[26] Where the after the fact conduct evidence is equally consistent with the commission of two or more offences, the evidence may not assist the trier of fact in determining which of the two offences the accused committed. Additionally, where the accused admits a baseline of culpability, the after the fact conduct may lose all probative value.[^8]
[27] Lastly, where the defence of self-defence is raised, the court must consider whether the after the fact conduct sheds light on the claim of self-defence. The after the fact conduct may be relevant to assessing the claim of self-defence. It may assist in assessing the credibility of the claims of the accused regarding the nature of the offence (i.e., discharging the firearm in the context of a struggle) and his response to it (i.e., walking calmly from the scene and disposing of the loaded firearm, etc.) That said, after the fact conduct evidence is simply one piece of evidence that may be considered together with all of the evidence when considering self-defence.
Other Relevant Considerations
[28] In addition to the abovementioned legal factors, when assessing the evidence, I have considered the following:
a. That the trier of fact “must pay close attention to the entire factual context”.[^9]
b. That the trier of fact should not “parse” the reactions of the accused to the split second.[^10] Fast-paced events should not be viewed on a frame-by-frame basis.[^11]
c. That in considering the reasonableness of the use of force, “people in stressful and dangerous situations do not have time for subtle reflection.[^12]
[29] I will now turn to a consideration of the facts and my analysis. While I have tried to avoid repetition, some is necessary to properly address the legal issues raised by the evidence in this trial.
Analysis
i. Did Mr. Zaban Cause Mr. Le’s Death?
[30] Mr. Zaban testified that he discharged the firearm inside the car, shooting Mr. Le. He is the only person, inside the car, who discharged the firearm although he submits that he did so in the context of a struggle. He admits that his conduct caused Mr. Le’s death.
[31] Dr. Magdaleni Bellis is the forensic pathologist who performed the post-mortem examination on Mr. Le. She described the cause of Mr. Le’s death as a gunshot wound to his arm. The mechanism of death was bleeding (hemorrhagic shock).
[32] Based on the admission made by Mr. Zaban and the findings of Dr. Bellis, I am satisfied beyond a reasonable doubt that Mr. Zaban caused Mr. Le’s death.
ii. Did Mr. Zaban Cause Mr. Le’s Death Unlawfully?
[33] There is no dispute that Mr. Zaban assaulted Mr. Le with a firearm and that his conduct caused Mr. Le’s death. However, Mr. Zaban contends that his actions were lawful because he was acting in self-defence when he disarmed Mr. Le of the firearm and thereafter discharged it. I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Zaban cannot rely on self-defence because his actions were not reasonable in the circumstances.
[34] I will begin my analysis with an overview of Mr. Zaban’s evidence. In doing so, I remind myself that I am required to assess the credibility and reliability of all evidence, including the credibility and reliability of the exculpatory evidence advanced by the defence. I also remind myself that the evidence of Mr. Zaban must be considered in the context of the evidence as a whole.[^13]
[35] I have concluded that Mr. Zaban is not a credible witness and further, that there are significant reliability concerns with his evidence. It is contradicted by the evidence of other witnesses and some of the physical evidence. The explanations Mr. Zaban provided for some of his conduct are simply not credible. However, I do accept some of the testimony of Mr. Zaban. I do believe his testimony about his antecedents and that he is a veteran drug dealer. I also believe that Mr. Zaban attended the drug and firearm deal with Mr. Le on August 19, 2019.
[36] I do not believe that the firearm was dropped into the lap of Mr. Le during the firearm and drug deal. I find that Mr. Zaban attended at the deal with a loaded firearm and loaded magazine. After producing the firearm, Messrs. Zaban and Le struggled for it. During the course of the struggle, Mr. Zaban discharged eight bullets. Mr. Le was hit with three bullets: two to his left thigh and one to his arm.
Mr. Zaban’s Evidence
[37] I will begin with an overview of the relevant portions of Mr. Zaban’s evidence. I will then explain why I do not accept some of it.
Background
[38] Mr. Zaban testified about his upbringing and some of his background. This is relevant as to why he was engaged in a drug and firearm transaction at the time of the shooting. It shows that he was a very experienced participant in the criminal underworld.
[39] Mr. Zaban was born and raised in Guyana. He testified that his family was very poor. He stayed in school until grade nine and has obtained his high school diploma since being incarcerated.
[40] Mr. Zaban testified that he became involved in drug trafficking shortly after leaving school in grade nine because he liked nice things. He would buy and sell marijuana and cocaine. On occasion, he also bought firearms. He testified that until this time, he had not sold firearms. He agreed that he has discharged firearms in the past – at a firing range.
[41] Mr. Zaban has a youth record. Mr. Zaban has the following entries on his adult criminal record:
| Date | Offence | Disposition |
|---|---|---|
| 1994-10-20 | Assault | 30 days (time served) and one day |
| 1996-11-01 | Trafficking in a narcotic | 163 days (time served) and 2 years’ imprisonment |
| Trafficking in a narcotic | 2 years, concurrent | |
| Possession of a narcotic for the purpose of trafficking | As above, concurrent | |
| 2005-04-22 | Possession of a prohibited or restricted firearm with ammunition | 1 year imprisonment and mandatory weapons prohibition order pursuant to s. 109 |
| Possession of counterfeit money | 3 months concurrent | |
| 2007-07-03 | Possession of a Schedule II substance | 2 days (pre-sentence custody) and $250 fine |
| 2017-03-06 | Kidnapping | 3 years (time served) plus 1 year imprisonment and a mandatory weapons prohibition pursuant to s. 109 |
| Forcible confinement | As above, concurrent | |
| Robbery | As above, concurrent | |
| Assault with a weapon | As above, concurrent | |
| Assault | As above, concurrent |
[42] Although criminal antecedents can be important and relevant in assessing the credibility of witnesses, Mr. Zaban’s criminal record has not significantly factored into my assessment of his crediblity. Additionally, and importantly, I have not relied on his criminal record to reason that he is the type of person who would commit the offence charged. The fact is that he is an admitted criminal who, in the context of criminal conduct (acquiring a firearm and marijuana), was involved in an incident that led to someone’s death. That reality does not mean that it is more likely that he did not act in self-defence or more likely that he was the aggressor.
[43] In addition to earning an income from drug trafficking, Mr. Zaban worked in various lawful capacities. When he obtained parole following the drug trafficking conviction in 1996, he got a job at Oil Changers. He worked there for a few years and was promoted to manager of two locations. Most recently, Mr. Zaban’s lawful employment included owning and operating his own recording studio and assisting in home renovations.
[44] At the time of the incident, Mr. Zaban was living in a four-bedroom home in Brampton with his common-law spouse and their seven-year-old son. Mr. Zaban has a twenty-nine-year-old son and a grandchild as well.
Mr. Zaban’s Introduction to the Parties in Question
[45] Mr. Zaban testified that a few days before the shooting, he was at Divine Motors in Brampton. He had had his car serviced there for years. He was looking to purchase a large quantity of marijuana for a client, B.I. Mr. Zaban testified that he mentioned this to his mechanic, Mr. Kevin Wharwood. Mr. Wharwood told Mr. Zaban, “I know a guy”.
[46] Mr. Zaban testified that Mr. Wharwood contacted “Trini” on WhatsApp and introduced him to Mr. Zaban. Trini was in Trinidad at the time. Mr. Zaban believed that Trini was on the run for “a body” which he defined as murder.
The First Drug and Firearm Deal
[47] A couple of days before the shooting, Trini set Mr. Zaban up with their first deal. Trini would use his minion, Fat Boy (Trini’s runner in Canada), to facilitate the deal. As agreed, Mr. Zaban traveled to a Scarborough strip mall to purchase 20 pounds of marijuana and a TEC-9 machine gun. Mr. Zaban was to pay $20,000 for both.
[48] When he arrived, Mr. Zaban met with Fat Boy. There was also a “black gentleman” present (later identified as Mr. Conley Henderson). Mr. Zaban described that he saw Mr. Le “standing out by the wall and I seen his demeanour, like he has a face that you can’t forget”. Mr. Zaban testified that Mr. Le was, “grilling me, like he’s watching me, like hard. I was wondering, like, why is this guy watching me like this?”
[49] Mr. Zaban testified that the first drug and firearm deal went “without a hitch”. Fat Boy entered Mr. Zaban’s car. He asked Mr. Zaban if he had the money. Mr. Zaban replied that he did and showed it to Fat Boy. Fat Boy left and returned with a garbage bag. Mr. Zaban looked at it and then looked in another bag that contained the firearm and a magazine. Fat Boy gave Mr. Zaban the drugs, firearm, and magazine. Mr. Zaban gave Fat Boy $20,000. After that, Fat Boy and Messrs. Conley and Le entered a Honda Accord. Mr. Zaban left.
[50] Mr. Zaban sold 10 pounds of marijuana and the TEC-9 to B.I. That left him with a further 10 pounds of marijuana to sell. The success of this drug and firearm deal led to the second deal which resulted in Mr. Le’s death.
The Second Drug and Firearm Deal
Prior to the Day of the Shooting
[51] Mr. Zaban testified that he spoke with Trini following the first drug and firearm deal, two days before the shooting (i.e., August 17, 2019). He advised Trini that the “weed” that he obtained during the first deal “wasn’t all that”. Trini would rectify Mr. Zaban’s dissatisfaction.
[52] Trini advised Mr. Zaban that he had some “quads” which is a higher quality of marijuana (four star). It costs, on average, $2,500 a pound but Trini said he would sell it to Mr. Zaban for $1,000 per pound. Mr. Zaban considered this to be a “great deal”. Trini also told Mr. Zaban that he had a fully automatic Glock with a “drum clip” (an overcapacity clip that holds at least 50 rounds of ammunition). Mr. Zaban was interested.
[53] Mr. Zaban agreed to buy the Glock firearm, drum clip and 10 pounds of marijuana. He would pay $18,000 for both ($8,000 for the firearm and $10,000 for the marijuana).
[54] Mr. Zaban communicated with Trini and Fat Boy via WhatsApp to set up the location of the deal. They agreed it would happen on Monday, August 19, 2019. Mr. Zaban chose the location for the second deal: a Goodyear Tire store located at 2377 Keele Street. He testified that that is “his spot”. It is a “safe zone” for him because his friend owns the Goodyear and he has been conducting drug deals there for years.
Earlier in the Day of the Shooting
[55] Mr. Zaban arrived at the Goodyear at around 7:00 p.m. or so. He advised Trini when he was on his way there so that the parties could meet to complete the transaction. He waited but Fat Boy did not arrive.
[56] Mr. Zaban decided to go to the LCBO to get some bottles of Remy-Martin to “pre-celebrate”. After purchasing two bottles, Mr. Zaban returned to the Goodyear. He was driving his Mercedes Benz SUV (hereinafter referred to as the “Mercedes”) when he did so.
[57] Mr. Zaban, again, waited for Fat Boy to arrive at the Goodyear. While he did so, a friend, Mr. Shawn Chughtai,[^14] arrived to visit. He also says that he sold three pounds of marijuana (that he had purchased during the first deal) to “Rasta” while he waited.
[58] Mr. Zaban called Trini to advise that he was waiting for his “peoples”. He called Trini a second time to ask, “what’s going on?” Fat Boy then called Mr. Zaban and told him that they would meet at Armel Court. Mr. Zaban was familiar with Armel Court because he had lived in that complex (comprised of three buildings) for approximately 15 years with his parents. His parents continued to live there although he had moved out. He had no problem meeting there.
[59] Mr. Zaban testified that he went to Armel Court in his Mercedes. When he arrived, Fat Boy was in a “different vehicle”. He testified that Fat Boy usually drives a Mercedes but that on this occasion he was in a minivan with a female driver. Mr. Zaban testified that he pulled up and asked Fat Boy, “what’s going on”? Fat Boy advised that they had to go over to the “plaza” to meet “the guys” there.
[60] Fat Boy told Mr. Zaban to park his Mercedes because Mr. Zaban was going to “roll with him”. Mr. Zaban did so. He took $8,000 (the price of the Glock and drum clip) out of the Mercedes and left $10,000 (the price of the marijuana) in his glove compartment. He also left $3,000 from the sale of the three pounds of marijuana in the Mercedes.
[61] Mr. Zaban explained that he left the $10,000 in the Mercedes because he wanted to see the marijuana first. He further explained, “And it was kind of – a vibe thing because it was an instinct thing because when I went there, [Fat Boy]’s in a totally different car, it was kind of weird. … it was an instinct … It’s not like I’m going there with no money so they can’t tell me I’m fucking around with them or nothing like that”.
[62] Mr. Zaban entered the minivan. It was about 10:00 p.m. It took them only a “couple of minutes” to get to the Tim Horton’s plaza located at Weston Road and the 401.
Arrival at the Plaza
[63] When they arrived at the Tim Horton’s plaza, Mr. Zaban and Fat Boy got out of the minivan. Mr. Le was there smoking a cigarette. Mr. Zaban pumped fists with Mr. Le and introduced himself. They made some small talk and then Mr. Zaban asked, “what’s happening”. Although he described the meeting as cordial, Mr. Zaban wanted to get the “ball rolling”.
[64] Approximately five minutes later, Mr. Zaban testified that he asked, again, “what’s going on, like why are we here”. Mr. Le advised that they were waiting for somebody and then he got on his phone. Mr. Le passed the phone to Fat Boy. Fat Boy talked on the phone and was pacing.
[65] Fat Boy then asked Mr. Zaban if he had the money. Mr. Zaban said “yeah, I have the money, but I don’t have all the money, but you guys are gonna bring me back to my car anyways so it’s not gonna be no issue, I just want to see the weed anyways”. Fat Boy appeared to communicate the message into the phone and then continued talking.
[66] Fat Boy then asked Mr. Zaban, again, about the money and put the phone in a position where the person on the other end of the phone could hear the answer. Mr. Zaban asked again, “what’s going on here bro?”. He was told that they were waiting for another person. Eventually, Fat Boy said, “Let’s go in the car. He is here.”
Inside the Car
[67] Mr. Zaban described himself as agitated by this point. He had been waiting several hours and they had changed the location of the deal twice. Despite that, Mr. Zaban got into the front passenger seat of the car involved in the shooting (an old, rusted Toyota Camry belonging to Mr. Le). Mr. Le got into the driver’s seat. Fat Boy remained outside, still talking on the phone.
[68] While they were sitting in the car, Mr. Le produced a loaded magazine. Mr. Le handed the magazine to Mr. Zaban and said, “this is a bonus for the firearm”. Mr. Zaban was pleased and said to himself, “whoa, I’ve got an extra clip so I’m gonna make some more money with an extra clip”. He put it in his Gucci satchel.
[69] Mr. Le then asked Mr. Zaban if he had the money. Mr. Zaban pulled out $8,000 from his Gucci satchel and gave it to Mr. Le. The fourth man then appeared and asked, “you guys got the money”? Mr. Le passed the fourth man the money. The fourth man left with it, walking in a direction behind the car and out of Mr. Zaban’s sight.
Another Change of Location
[70] The fourth man then returned to the car. Mr. Zaban could see him having a conversation with Fat Boy at the B-pillar of the car that separates the driver’s seat door from the back seat door. Fat Boy then said, “Yo, we’re gonna have to go somewhere else”. Mr. Zaban testified that he said, “what” and then started “freaking out”. He stated yelling, “give me my fucking money back. I’m not having this”. He testified that he wanted the “deal dead”.
The Shot by the Fourth Man
[71] Mr. Zaban testified that the fourth man then “pops up by the [driver’s side] door”. He said, “run the fuckin’ keys pussy” which means “give me the car keys”.
[72] The fourth man had his hand on a firearm that was down the front of his pants, “where the genital area is”. Mr. Zaban testified, “he was gonna go pull it out on me because he has that demeanour on his face, but as he was pulling it out, it went off and everybody started freaking out”. Mr. Zaban did not see where the firearm was pointed when it discharged. This, he says, was the only shot that was discharged in the Tim Horton’s plaza.
[73] The fourth man then put the firearm on Mr. Le’s lap and said, “Minh Le, bring him to the spot. If he moves, shoot him.” Mr. Zaban started screaming, “Fat Boy, you fucking set me up you little pussy. You set me up. You set me up.” Fat Boy and the fourth man disappeared. Mr. Zaban testified that he really started freaking out because he believed the drug and firearm deal was escalating to a robbery and kidnapping.
Disarming Mr. Le
[74] Mr. Le then put the car in drive and Mr. Zaban reached for the passenger door handle to get out. Mr. Le grabbed the strap of Mr. Zaban’s cross body satchel, “twirled it around and pulled”, stopping him from getting out of the car.
[75] Mr. Le said, “key, key” and the car “jerked”. Mr. Zaban said, “okay, I’ll give you the key”. As that occurred, an SUV (now known to have been driven by Ms. Tran, Mr. Le’s daughter-in-law) pulled up in front of Mr. Le’s car. Mr. Zaban heard somebody say, “get the fuck outta the way”. Mr. Le then said something in “his language”. The SUV backed off in reverse.
[76] Mr. Le started driving the car out of the Tim Horton’s parking lot. He had the gun in his hand. When they got to the intersection of the road that leads out of the Tim Horton’s plaza, Mr. Zaban implemented a trick that he uses on his own son (the “switcheroo” trick). He dangled the key in front of Mr. Le. Mr. Le put the firearm in his lap. As Mr. Le reached for the key with his right hand, Mr. Zaban moved the key. Mr. Zaban was able to grab the firearm out of Mr. Le’s lap when he did so.
[77] Mr. Zaban testified that he grabbed the firearm because he believed he was being robbed and kidnapped. He thought that they would take his car with the $13,000 in it. He testified that he has his “home address there, my home keys, is in my wife and kids at home”. He did not know what they were going to do. He was scared.
The Shooting
[78] Mr. Zaban described what happened after he obtained the firearm from Mr. Le:
a. Mr. Le “lift up his leg and was reaching under it”. Mr. Zaban fired a shot in the direction of the driver’s side floor and told Mr. Le to stop.
b. Mr. Le appeared startled and then took a swing at Mr. Zaban with something in his left hand. Mr. Zaban does not know what Mr. Le had in his hand but Mr. Le “grabbed something somewhere”. It was “kind of silver”. When he did that, Mr. Zaban “shot up”.
c. Mr. Le then lunged at him. As he was leaning over the centre console, Mr. Le tried to grab the firearm. Mr. Le grabbed the wrist of Mr. Zaban’s hand that was holding the firearm and squeezed it. He bent Mr. Zaban’s wrist, at a 90 degree angle, so that the firearm was pointing towards him (Mr. Zaban). They hit a bump (the median) and a “shot went off”, accidentally, because Mr. Zaban’s finger was on the trigger of the firearm. Mr. Zaban “got free” of Mr. Le’s grip.
d. Mr. Le lunged at him again and tried to grab his neck with one hand. Mr. Le also had one hand on the firearm as he was doing so.
e. Mr. Zaban testified that he could see that they were going to hit another vehicle and he said, “Yo, we’re gonna hit a car” to distract Mr. Le but that did not work. Mr. Le was not holding the steering wheel because he was on the passenger side of the car by this time.
f. Although he cannot say how many shots were fired and where they were fired, Mr. Zaban agrees that he both accidentally and intentionally discharged the firearm and he did so in Mr. Le’s direction. He testified that he did so to get Mr. Le off him. He testified that he believes that he only pulled the trigger when Mr. Le’s hand was on his hand or arm trying to get control of the firearm.
[79] Mr. Le’s car hit a vehicle parked in the McDonald’splaza. Mr. Le was on top of Mr. Zaban, facing him. Mr. Zaban testified that he tried to grab the door handle, but that Mr. Le pulled his hand away. Mr. Zaban was able to “bust the door ajar” and Mr. Le fell forward. Mr. Zaban managed to get out of the car and “some stuff dropped out of the car”, including a phone.
After the Shooting
[80] After the shooting, Mr. Zaban testified that he walked behind a light post and tucked the firearm in his Gucci satchel (that already contained the loaded magazine gifted to him by Mr. Le). He said, “I kinda tried to be as casual as possible so people don’t notice that I was the guy that came out of the car, so I tried to be as normal as possible.”
[81] Mr. Zaban testified that he took the firearm with him because he did not want Mr. Le to get it. He described Mr. Le as a “pretty strong guy” and at the time he left, Mr. Le was “still moving around”.
[82] Mr. Zaban testified that he had no interaction with anybody when he left the scene. However, he did dispose of the Gucci satchel (containing the loaded firearm and partially loaded magazine) close to the on ramp to the 401. He did so because he did not want to be caught in possession of the firearm.
[83] Mr. Zaban testified that he returned to Armel Court. He could not get into his Mercedes because he did not have the key as he had given it to Mr. Le. He saw a young man in the area and offered him $100 to take him to his home in Brampton. The man accepted.
[84] When he got home, Mr. Zaban took a shower and put his clothes in a garbage bag. He drove his wife’s car to the Goodyear and disposed of his bloody clothes there. He returned to his home and was picked up by “Rasta”. They went to a parking lot at Airport Road and Castlemore. They smoked some marijuana and waited for travel agency in the area to open. When it did, he purchased the “quickest ticket” to Jamaica. It was for the following morning, August 21, 2019.
[85] Mr. Zaban returned to Divine Motors. Mr. Wharwood rented him a hotel room for the night of August 20, 2019. Mr. Zaban said nothing to Mr. Wharwood about what had happened the night before. On August 21, 2019, Mr. Zaban left for Jamaica. He returned to Canada on October 9, 2019, and was arrested at the airport.
Analysis of Mr. Zaban’s Evidence
[86] While I believe some of Mr. Zaban’s evidence, (i.e., that he had been involved in the drug business for many years and was participating in a drug and firearm deal at the time of the shooting and two days before), I do not find that Mr. Zaban is a credible witness, nor do I find his evidence reliable about possessing the firearm prior to the shooting. My findings in support of this conclusion may be summarized as follows.
Time and Place of Introduction to Trini
[87] Mr. Zaban’s account of his introduction to Trini only days before the incident is contradicted by the evidence of the man who introduced them, Mr. Wharwood. Mr. Wharwood was called as a witness in reply. The contradictory evidence may be summarized as follows:
Evidence of Mr. Zaban: As described in more detail above, Mr. Zaban testified that he was only introduced to Trini by Mr. Wharwood days before the shooting. He was at Divine Motors when he told Mr. Wharwood (his mechanic) that he was looking for 20 pounds of marijuana. Mr. Wharwood told him that he knows “a guy”, contacted Trini on Whatsapp and introduced them.
Evidence of Mr. Wharwood: Mr. Wharwood agrees that he was Mr. Zaban’s mechanic and had known him for 15 to 20 years. Mr. Wharwood denies that Mr. Zaban ever told him that he needed help to purchase 20 pounds of marijuana in the days before the shooting. While Mr. Wharwood agrees that he introduced Mr. Zaban to Trini and knew they both sold “weed”, the introduction of Mr. Zaban to Trini occurred a couple of years before he booked the hotel for Mr. Zaban (the day after the shooting). The introduction was not made on Whatsapp. It was made in person, when both Mr. Zaban and Trini were at the U-Save garage where Mr. Wharwood worked at the time and prior to him working at Divine Motors.
[88] Mr. Wharwood was consistent in his evidence about when and where he introduced Mr. Zaban to Trini. During a rigorous cross-examination, Mr. Wharwood maintained his position about where (U-Save) and when (years before the shooting) Mr. Zaban was introduced to Trini:
Question by Counsel for Mr. Zaban: You understand that you could get in trouble if you admit that you put Fazal [Mr. Zaban] together with Trini knowing that Fazal was looking to buy drugs from him just a few days before someone ends up dead in a deal that involves those two guys?
Answer by Mr. Wharwood: That didn’t happen. I put [sic] introduce Fazal before all this, couple years ago. It wasn’t at that time or that place.
[89] I believe that the introduction of Trini to Mr. Zaban occurred years before the deals in question and that the introduction was made in person. Mr. Zaban had more familiarity with Trini and likely his minion, Fat Boy, than he admitted at trial. The contradiction of Mr. Zaban’s evidence by Mr. Wharwood affects Mr. Zaban’s credibility and the reliability of his evidence in general. There are other examples in the evidence of Mr. Zaban that affect both his credibility and the reliability of his evidence.
Not Taking the Full Amount of Money with him to the Deal
[90] There is no question that Mr. Zaban was an experienced drug dealer. He admitted to his involvement in the drug trade commencing when he dropped out of grade nine, over 20 years prior to the shooting. He has a conviction for narcotics offences (trafficking and possession) in 1996 which resulted in a penitentiary sentence. He admitted that he had been dealing in drugs since his release. He testified that he was “pretty good” at it and that he had made a lot of money engaged in the trade. Mr. Zaban also agreed that he had bought firearms before, although he had not sold them before this introduction to Trini.
[91] Mr. Zaban’s drug and firearm trafficking skills were evident based on his involvement in the deal two days before the shooting incident. Trini provided, through Fat Boy, 20 pounds of weed for a good price ($500 per pound) and a TEC-9 (a small machine gun). Mr. Zaban paid $20,000 for both. Mr. Zaban described the conduct of the transaction, “the merchandise came to my car, and I gave him [Fat Boy] the money”. Mr. Zaban saw the goods and then he handed over the money. That makes sense. That is why the deal went as Mr. Zaban described, “without a hitch”. Curiously, Mr. Zaban did not use the same strategy two days later.
[92] While it is understandable that Mr. Zaban may have become uncomfortable because he waited for hours at the Goodyear before the location of the deal changed from the Goodyear to Armel Court and then to the Tim Horton’s plaza, it defies logic that Mr. Zaban would believe that the deal would go off without a “hitch” if he failed to go to the Tim Horton’s plaza with the $18,000 required to buy the marijuana and Glock with the drum clip. But that is what he did. The reason? He wanted to confirm the quality of the marijuana before purchasing it (just as he had done two days prior). During the first deal, Mr. Zaban brought all of the money, confirmed the quality of the marijuana and then gave Fat Boy the money. Why do so differently this time? The explanation he provided is not logical.
[93] When at Armel Court, Mr. Zaban testified that the “vibe was off”. He had a “spidey sense that something might not be quite right”. Acknowledging that drug and firearm trafficking can be dangerous and despite those feelings, Mr. Zaban got into a minivan with a stranger who was driving it and Fat Boy, whom he says he had met only briefly twice. He said that he trusted Fat Boy because of the smooth transaction two days prior. He took $8,000 with him in the Gucci satchel to the Tim Horton’s Plaza leaving $13,000 in the Mercedes ($10,000 to be used in the deal and $3,000 from his sale of three pounds of marijuana at the Goodyear). Again, this makes no sense. He needed $18,000 to close the deal but did not bring $18,000 to do it.
Handing Over $18,000 Without Seeing the Product
[94] Mr. Zaban’s unusual conduct continued during the drug and firearm deal at the Tim Horton’s plaza. Mr. Zaban described himself as an experienced drug dealer and a sensible businessman who, typically, wants to check the merchandise before he hands over the money. He agreed that during drug deals, he gives the money once he sees the “stuff”– like he did two days before with Fat Boy. But that is not what happened during the second deal.
[95] Mr. Zaban testified that he got into Mr. Le’s car with $8,000 in his Gucci satchel. While there, he says that Mr. Le gifted him a loaded magazine. He testified that he got excited. Without seeing the Glock and/or the specialized drum clip and/or the marijuana, Mr. Zaban handed over $8,000 to Mr. Le – a man who Mr. Zaban said he had only seen once; who had “grilled him”; and who was introduced to him, for the first time, only moments before.
[96] It defies logic that with his experience, Mr. Zaban would do such a thing. This conduct seems particularly surreal in light of the fact that he had been waiting to conduct the deal for hours, was told to attend two further locations and had his suspicions aroused when he saw that Fat Boy was not traveling in his Mercedes but in a white minivan with an unknown female.
[97] When confronted with his illogical conduct of handing over the money before he saw the merchandise, Mr. Zaban initially suggested that his judgment was impaired by the Remy-Martin he had previously consumed. However, that excuse changed, and he said that he was not so intoxicated that he did not know what he was doing. He then explained that he was “blinded by the capital” he was going to make from the deal. Mr. Zaban finally agreed that handing over $8,000 to Mr. Le before seeing the fully automatic Glock and drum clip was both stupid and did not make sense. I agree.
[98] I do not believe that Mr. Le simply gifted Mr. Zaban a loaded magazine. There was no reason for him to do so. The inference to be drawn from Mr. Le’s conduct was that he was in the business of earning money from trafficking drugs, firearms and magazines. That is what he was there to do that night. Like Mr. Zaban, he was a businessman involved in the criminal underworld (discussed further below). I have difficulty believing that he simply handed over a $500 product to Mr. Zaban expecting nothing in return.
[99] Further, while I accept that Mr. Zaban was going to make a substantial amount of money from this deal, I do not believe that he deviated from his practice and gave $8,000 to a virtual stranger (Mr. Le) who had previously been “grilling” him (staring at him hard) in advance of even seeing the product he was paying for. His conduct during the deal does not make sense, which affects the credibility and the reliability of his testimony about the shooting.
Transition to a Robbery
[100] Mr. Zaban testified that after he handed the money to Mr. Le from the Gucci satchel, the fourth man approached the driver’s side window and asked if “you guys have the money”. Mr. Le gave the $8,000 to the fourth man, somebody that Mr. Zaban had never seen before. The fourth man disappeared out of Mr. Zaban’s sight. Mr. Zaban does not appear to have objected to that, despite not knowing the fourth man and not seeing the merchandise he was to purchase. Again, Mr. Zaban’s evidence about this part of the incident is not credible.
[101] According to Mr. Zaban, the fact that the $8,000 and the male carrying it disappeared from Mr. Zaban’s sight did not alarm him because he believed that he was going to get the Glock firearm and drum clip. What alarmed him and caused him to “freak out” was that he was told, by Fat Boy, that they were going to a “next spot”. That is when he said, “hell, no, I’m not going to the next fucking spot. Run my money back, I want my money back”. He agreed that the change to the fourth location, “is the straw the broke the camel’s back”.
[102] It defies logic that Mr. Zaban did not object to the fourth man taking his money and going out of sight but the fact that they would go to a fourth site to get the merchandise he so wanted caused him to “freak out”. Again, Mr. Zaban’s evidence is simply not credible. But his unusual conduct continues.
[103] Shortly after being told that they were going to the “next spot”, Mr. Zaban testified that the fourth man said, at the driver’s side door, “run the fucking keys, pussy” meaning that he wanted Mr. Zaban’s car keys. Mr. Zaban believed he was being robbed. This is the point at which Mr. Zaban thought that “this shit is going bad” and yet Mr. Zaban made no attempt to flee. When asked why he did not get out of the car, Mr. Zaban explained, “because they had my money, I want my money back”. When pressed further about his reason for not getting out of the car, he explained that he did not know “why”. Mr. Zaban does not know “why” he did not attempt to flee because his story makes no sense.
[104] It defies logic that Mr. Zaban did not try to get out of the car at the point he believed the drug and firearm deal was transitioning to a robbery. He was sitting in the passenger seat of a parked car in a busy plaza. The door was not locked. Mr. Le was in the driver’s seat. Fat Boy and the fourth man were on the driver’s side of the car. The door handle was immediately adjacent to Mr. Zaban’s right arm and hand. There is no evidence that the passenger door was locked such that Mr. Zaban could not open it. There was no one and no obstacles outside preventing the door from opening. There was an opportunity to escape being robbed by simply exiting the car, but Mr. Zaban did not take it.
The Alleged Shot by the Fourth Man
[105] There are two issues about the fourth man that I will address here: (i) the existence of the fourth man; and (ii) whether the fourth man possessed the firearm, discharged it and dropped it in Mr. Le’s lap.
[106] Mr. Zaban testified that after the fourth man told him to “run the fucking keys”, the fourth man gripped a firearm that was at the waistband of his pants by his “genitals”. Mr. Zaban agrees that his attention was drawn to the firearm and that he was focused on it as the fourth man was pulling it out.
[107] Mr. Zaban testified that the fourth man “was going to pull it out, and it went off”. He believes that it went off accidentally. Mr. Zaban couldn’t say where the firearm was “pointing” when it went off. He does not know if it was pointing inside the car, but it was not pointed at him. What Mr. Zaban can say is that the firearm was “held down” (i.e., directionally downwards) and that “it went off”. He did not see anyone get hit and he did not see where the bullet traveled. Everyone panicked. The fourth man dropped the firearm on Mr. Le’s lap and said, “oh shit, bring him to the spot”.
i. The Existence of the Fourth Man
[108] I accept that there was a fourth man at the scene of the drug and firearm transaction. This seems to make sense in the context of the narrative. It appears the deal was being delayed while Fat Boy, Mr. Le and Mr. Zaban were in the Tim Horton’s plaza. The inference that may be drawn is that they were waiting for the product to arrive and that the timing of that arrival involved a fourth man. Just before the shooting incident started, there is evidence that Mr. Le’s phone was connected to the phone belonging to Mr. Henderson (from 10:23 p.m. to 10:46 p.m.)
[109] Further, there is an eyewitness, Mr. Daniel Tesan, who talked about the existence of a fourth man at the scene. Mr. Tesan was in his parked car, parallel to Mr. Le’s in the same row. There were five empty parking spaces between them. Accordingly, he was in a good position to observe what was going on at Mr. Le’s car although he was not always paying attention.
[110] While Mr. Tesan did not initially tell the police about the fourth man,[^15] he testified about the existence of the fourth man when being asked questions by Crown counsel both at the preliminary hearing and at trial. Mr. Tesan gave a detailed description of what he saw the fourth man do.
[111] For example, Mr. Tesan testified that he observed four men adjacent to Mr. Le’s car on the driver’s side. They were talking. From time to time, the men would go in and out of the car. One of them left and went to the north (presumably the fourth man). Two men got into the car and one man remained outside, beside the driver’s door (presumably Fat Boy). The fourth man returned and “leaned” up against the driver’s door when Mr. Tesan heard a “pop”. He testified that it sounded like a firecracker and that the popping sound “happens almost simultaneously with that fourth man leaning towards the driver’s side window”. After the popping sound, the fourth man “scattered back to the direction he came from”. At no time did Mr. Tesan see anything in the fourth man’s hands. In fact, Mr. Tesan never saw anybody with a firearm in their hands.
[112] I accept Mr. Tesan’s evidence about the existence of a fourth man, although Mr. Le’s daughter-in-law, Ms. Tran, does not describe having seen him. As I have said, Ms. Tran testified that she was Tim Horton’s plaza parking lot before, during and after the shooting.
[113] Ms. Tran testified that she drove Ms. Lu to the Tim Horton’s plaza and they parked. Ms. Lu then told her that Mr. Le needed to do some business and when he finished, they would go home. Ms. Tran testified that she only saw three men involved in the incident: Mr. Le, a “big fat guy” (likely Fat Boy) and a “skinny guy” (likely Mr. Zaban). Her father-in-law and Mr. Zaban were inside the car. The “fat man” was outside.
[114] I do not rely on Ms. Tran’s evidence that only three men were involved in the incident. Firstly, she testified that her eyesight was poor and that on that night, she was not wearing the glasses that she requires to see distances. At the relevant time, her SUV was parked in a parking area behind Mr. Le’s car. She agreed that when making her observations, it was dark and there were cars driving in between the area where she was parked and where Mr. Le was parked, affecting her eyesight. Her view was obstructed by cars that were parked between her SUV and Mr. Le’s car (as opposed to Mr. Tesan’s view that was not). Her attention may have been divided between watching Mr. Le and her son who was having a tantrum in the car (he lives with autism). It is possible that she was distracted. Amongst other frailties in her evidence, she described the man (now identified as Mr. Zaban) as wearing a fedora style hat with yellow and black stripes. He was not. Mr. Zaban was wearing a Tilley style hat that was grey, black and white camouflage. Lastly, although several eyewitnesses heard gunshots in the Tim Horton’s parking lot and thereafter, Ms. Tran testified that she heard none.
ii. The Fourth Man and the Shot
[115] While I accept that the fourth man was at the driver’s side door in and around the time that the first bullet was discharged, as described by Messrs. Tesan and Zaban, I am unable to conclude that he did so. The description of the fourth man discharging the firearm at the driver’s side door, as provided by Mr. Zaban, suggests that the bullet was discharged outside the car. However, there is no evidence that the firearm was discharged in such a manner.
[116] FIS Officers Leslie Wyard and Robert MacKenzie testified that they attended the scene shortly after the shooting. No fired cartridge casing nor any other evidence of a bullet being discharged was found in area of the driver’s side of Mr. Le’s car where Mr. Zaban says the fourth man discharged the firearm. The area was obviously examined by the FIS because they found Pall Mall cigarette butts, the same brand of cigarettes found in Mr. Le’s car and consistent with the evidence of Mr. Tesan and Mr. Zaban who observed Mr. Le smoking cigarettes outside the car.
[117] Counsel for Mr. Zaban suggested that a bullet found inside the car may have been the shot discharged by the fourth man. There was one defect and a discharged bullet found in the B-pillar of the car (the piece that separates the driver’s side door from the back passenger seat on the driver’s side).
[118] Officer MacKenzie testified about the eight defects caused by bullet holes found inside Mr. Le’s car. When asked about the defect and bullet found in the B-pillar, Officer MacKenzie agreed the defect could have been created by a person (i.e., the fourth man) leaning inside the driver’s side door of the window, holding a firearm and discharging it. However, Officer MacKenzie testified that all eight shots are consistent with the firearm being discharged from the direction of the passenger seat. He is unable to say where the firearm was located at the time it was fired (i.e., on the passenger side of the car or perhaps on the driver’s side of the car) but directionally, all came from the passenger side of the car.
[119] While it is possible that the defect in the B-pillar could have been made by the fourth man leaning in the driver’s side window and discharging the bullet as described by Officer MacKenzie, there is no evidence that it was. As I have stated above, Mr. Zaban testified that he was focused on the firearm when the fourth man reached for it in his waistband. He testified that it was discharged when the fourth man was pulling it out of his pants. The picture painted by Mr. Zaban is that the firearm was pointed down when it discharged.
[120] Mr. Zaban did not testify that he saw the fourth man lean in the driver’s side door, holding the firearm and discharging it in the direction of the B-pillar. If the fourth man had discharged the firearm in this manner, Mr. Zaban was in a position to see it. He did not. As such, I am unable to conclude that the defect in the B-pillar and the bullet found inside was caused by the fourth man discharging a firearm.
[121] Lastly, Mr. Zaban testified that the firearm was discharged accidentally by the fourth man. As discussed below, the trigger of the firearm needs to be pulled for the firearm to discharge. It seems highly unlikely that the fourth man would have pulled the trigger as he was accessing the firearm from his waistband and then been surprised that it discharged.
[122] It is for these reasons that, although I accept that there was a fourth man involved in the incident, I cannot conclude that he discharged a bullet as described by Mr. Zaban. I also find that he did not drop the firearm into Mr. Le’s lap after he did so.
Mr. Zaban Fails to Leave Immediately After the Shot
[123] Mr. Zaban agrees that he was really freaking out after the shot was fired by the fourth man. He was yelling and said something to Fat Boy like, “you set me up, little bitch”. At this point, Mr. Zaban knew he was getting robbed and was in close proximity when a firearm discharged. Notwithstanding that, he did not think, “I gotta get out of here”. The reason? He testified that he froze. He was in shock and needed to register what was going on.
[124] Again, it defies logic that Mr. Zaban did not have the insight to leave this dangerous situation. He had the wherewithal to believe he was being set up by Fat Boy and accused him of such but did not think to leave the scene?
[125] Similar to the analysis above dealing with the robbery, it makes no sense that Mr. Zaban did not try to get out of the car at the point he believed the drug and firearm deal was morphing from a robbery to a kidnapping. He was in a parked car in a busy plaza. The door was not locked. Mr. Le was in the driver’s seat. Fat Boy was on the driver’s side of the car. The fourth man had left. The passenger door did not appear to be locked and there were no obstacles outside the door that prevented it from opening. There was an opportunity to escape being robbed and kidnapped by simply exiting the car, but Mr. Zaban did not take it.
The Key Plan
[126] After the gunshot, Mr. Zaban testified that Mr. Le said something like, “key, key, key”. It is then that he says he had the wherewithal to think of the “switcheroo trick” (that he has used on his son), despite his state.
[127] It is not believable that Mr. Zaban thought of and implemented the “switcheroo trick” at this particular time yet, he did not get out of the car in a busy parking lot/intersection to avoid any further victimization. The car was moving slowly (about 10 kms per hour according to one civilian witness).
[128] Further, the Mercedes key Mr. Zaban dangled was found by the FIS officers in Mr. Le’s car. It was in between the passenger’s seat and the passenger door which, as Officer MacKenzie testified, is a “common place a person might drop their keys either while they’re seated in the passenger seat [like Mr. Zaban] or while getting out of the car [like Mr. Zaban]”. I do not believe that Mr. Zaban used his Mercedes key to distract Mr. Le, allowing him to grab the firearm. The key was found in a location consistent with falling out of Mr. Zaban’s pocket when he was in the passenger seat. It is not surprising that Mr. Le’s DNA was on the Mercedes key — after all, it was found in his car.
Shots in the Tim Horton’s Plaza
[129] Mr. Zaban testified that there was only one shot fired in the Tim Horton’s plaza and that shot was fired by the fourth man. No shots were fired by Mr. Le after he came into possession of the firearm. Mr. Zaban only disarmed Mr. Le as they approached the stop sign at the intersection of the road that travels east from Weston Road and north into the Tim Horton’s plaza. Mr. Zaban testified that he began discharging the firearm after that time.
[130] When asked, specifically, if two shots were fired in the Tim Horton’s Plaza, Mr. Zaban said, “no”. This evidence was contradicted by several eyewitnesses who were in the parking lot of the Tim Horton’s plaza at the time.
[131] While there are frailties in the evidence of the eyewitnesses (i.e., their evidence was not always consistent with each other and/or sometimes inconsistent with some of the forensic evidence regarding the number of bullets discharged from the firearm)[^16] all who heard the sound of a gunshot[^17] testified that they heard the sound of more than one gunshot while Mr. Le’s car was still in the Tim Horton’s parking lot. That evidence is as follows.
Mr. Daniel Tesan
[132] As I have said above, Mr. Tesan was in the best location of all eyewitnesses to describe what happened in the Tim Horton’s plaza. He gave a detailed description of what occurred at the time he heard the first gunshot. He heard the first “pop” when the fourth man was at the driver’s side door of the car.
[133] After the first “pop”, Mr. Tesan heard arguing between the two men in the car that got “really bad”. About 30 to 45 seconds later, Mr. Tesan heard a second pop. These two “pops” occurred before Mr. Le’s car was in motion. In cross-examination, Mr. Tesan testified that the car was “still in the same position” after the first pop but it was possible that it started moving forward a little bit but did not pull out of the spot.
[134] It was after the second “pop” that Mr. Tesan observed the grey SUV come from the north and stop parallel to Mr. Le’s car. It then “edged forward to cut him off so he couldn’t go out”. He heard someone say, “get the fuck out of the way” and the SUV quickly backed up. It was after that, that Mr. Tesan observed Mr. Le’s car make a left turn, pass in front of Mr. Tesan, and then turn right. He heard “pop, pop, pop” after Mr. Le’s car was at the median that divides the Tim Horton’s and McDonald’s plazas and then heard “bang, bang, bang, bang” when Mr. Le’s car came to a stop in the McDonald’s parking lot.
Parking Enforcement Officer Filippo Morello
[135] PEO Filippo Morello was also in a good position to make observations. He was standing outside the Tim Horton’s facing east (towards the location where Mr. Le’s car was parked) when he heard “a couple of bangs, two, three bangs” coming from an area in front of him. PEO Morello testified that although he was not counting the initial shots, “it was pretty easy to distinguish two to three bangs”. “Shortly” after (also described as “soon” after), he saw Mr. Le’s car travelling southwest across the parking lot.
Ms. Wendy Powrie
[136] Ms. Powrie was sitting in her van in the parking lot of the Tim Horton’s. She was parked facing south in a space in front of where Mr. Le’s car was parked. While there, she heard “pop, pop, pop” at least six times to her left and behind her (i.e., in the Tim Horton’s parking lot and in the area where Mr. Le’s car was parked). Thereafter, she saw Mr. Le’s car moving towards the stop sign that led from the Tim Horton’s plaza into the road that leads to Weston Road. Despite a rigorous cross-examination, Ms. Powrie testified that she was “absolutely positive” that she heard five or six shots “in the beginning” and before Mr. Le’s car left the parking lot.
Ms. Azeel Al-Zuhairi
[137] Ms. Al-Zuhairi was in the Tim Horton’s plaza outside the Beer Store and Tim Horton’s. She testified that she heard men arguing and then she heard multiple shots. She could not say how many, “maybe” two shots. She testified that there were “maybe two minutes” between the first and second shots and perhaps two or three minutes between the arguing and the first shot.
[138] Based on the evidence of the eyewitnesses, I am satisfied that the shooting began before the car was set in motion which is inconsistent with Mr. Zaban’s version of events. Mr. Zaban’s evidence does not fit with the narrative provided by the eyewitnesses regarding the number of shots fired in the Tim Horton’s parking lot.
Mr. Zaban’s Conduct after the Incident
[139] Mr. Zaban agrees that the incident was “incredibly traumatic”. The shooting was unexpected because he was there to do a drug and firearm deal. Suddenly, he was being robbed and kidnapped. He was able to get a firearm from his captor and shoot his way out to safety. Mr. Le was bleeding on him and at one point, Mr. Zaban thought that he was bleeding as well. Eventually, the car came to a stop and he was able to get out.
[140] When Mr. Zaban got out of the car, he put the loaded firearm in his Gucci satchel. The reason he did not leave the firearm at the scene was because Mr. Le was still moving and still aggressive. Other witnesses confirmed that Mr. Le got out of the car, walked some distance and then collapsed. Dr. Bellis agreed that you could still walk after having been shot in the arm as Mr. Le had been. The shot person could also continue to struggle.
[141] Mr. Zaban testified that he calmly walked away from the car because he did not want to draw attention to himself. He testified, “I just wanted to get away from the scene as incognito as possible”. Mr. Zaban succeeded. There is video of him crossing the path of a tow truck. The Gucci satchel is strapped across his body. His sunglasses are perfectly perched on his nose. He agrees that he looked calm (and he did), like nothing has happened. Mr. Zaban denies that he communicated with anybody during this time period.
[142] Mr. Zaban agreed that he did not know where Fat Boy and the fourth man were when the shooting incident ended. What he did know was that they wanted to “get him”. He thought they wanted his Mercedes, the $10,000 that he had told them was in the car and “even more”. He described them as scary people. Despite being afraid of Fat Boy and the fourth man, Mr. Zaban walked and sometimes ran back to the area where he had parked his car, the place where Fat Boy had told him to leave it (Armel Court). This makes no sense.
[143] While I accept that Mr. Zaban, as a veteran drug dealer and firearms possessor, was capable of leaving the area of the shooting in a calm manner so as to not draw attention to himself, it is illogical that he would return to the place where Fat Boy knew the car was parked and would have presumed contained at least $10,000 – the very reason the fourth man and Mr. Le likely asked him for his keys.
[144] Further, Mr. Zaban returned to the Mercedes, despite knowing that Mr. Le had grabbed his key when they were inside Mr. Le’s car. When confronted with the fact that he went to the Mercedes without his key, he testified, “I realized that when I reached the car and then it clicked into me oh, shit, this guy has the key” despite the fact that he had the wherewithal to leave the scene in a calm manner.
[145] It seems unlikely that Mr. Zaban forgot about the key until he returned to his car. The key was the decoy that he used to disarm Mr. Le of a deadly weapon. Despite that, Mr. Zaban maintains that it didn’t “dawn upon” him that he did not have the key to his car until he got to it. I do not believe this evidence. The FIS evidence shows that the key was found between the passenger seat and the door. According to Officer MacKenzie, its location is consistent with the key having fallen from a pocket of a person sitting in the passenger seat, the seat that Mr. Zaban occupied for the entirety of the incident. That seems logical.
[146] Mr. Zaban testified that when he did eventually get home, he got out of his blood-soaked clothes and put them into his wife’s car. He then drove the car to the Goodyear and disposed of them. Again, it defies logic that Mr. Zaban would return to the scene where Fat Boy knew the deal was scheduled to occur to dispose of blood-soaked clothing that implicated him in the death of Mr. Le.
[147] Mr. Zaban testified that after returning home and packing his bags, he and a friend “Rasta” spent the night outside of a travel agent’s office. On the morning of August 20, 2019, he bought an airplane ticket to Jamaica for the following day. He then attended at Divine Motors and asked Mr. Wharwood to rent a hotel room for him. Mr. Wharwood did so.
[148] Again, it defies logic that Mr. Zaban would return to Divine Motors and meet with the mutual friend of Trini, Mr. Wharwood. This was the very place that he had met Fat Boy for the first time. This would have put Mr. Zaban at risk of being located by Trini and his minions who might have been looking to seek revenge for the killing of one of their team (Mr. Le). I find it incredible that Mr. Zaban would take such a risk in the circumstances. He is not a credible witness.
Conclusion Regarding Mr. Zaban’s Evidence
[149] The contradictions in the evidence and credibility concerns regarding Mr. Zaban significantly undermine his version of events. He is not telling the truth about what happened after he entered Mr. Le’s car in the Tim Horton’s plaza parking lot. Importantly, the evidence undermines his evidence that the fourth man produced the firearm, discharged it, and then left it in the possession of Mr. Le during the initial part of the incident.
[150] I specifically reject Mr. Zaban’s evidence that Mr. Le gifted him a loaded magazine and that the loaded firearm was dropped into the lap of Mr. Le. I further disbelieve Mr. Zaban’s evidence that he disarmed Mr. Le. I find that he attended at the drug and firearm deal with a loaded firearm and loaded magazine. That said, I do find that there was a struggle with Mr. Le. Despite that, I find that Crown counsel has proven beyond a reasonable doubt that it was not reasonable for Mr. Zaban to have discharged the firearm eight times and in the manner that he did. As such, the defence of self-defence fails, as discussed immediately below.
Self-Defence
[151] While I do not intend to repeat the above analysis, I will address the statutory factors set out in s. 34 of the Criminal Code dealing with self-defence. In doing so, I have assessed the defence of self-defence based on the totality of the circumstances.[^18]
[152] When considering the elements of self-defence as defined by s. 34 of the Criminal Code in the context of this case, I am required to answer the following three questions:
a. The trigger: Did Mr. Zaban believe, on reasonable grounds, that force was being used or threatened against him by Mr. Le?
b. The motive: Did Mr. Zaban discharge the firearm for the purpose of defending himself from that use or threat of force by Mr. Le?
c. The response: Was it reasonable in the circumstances for Mr. Zaban to discharge the firearm as he did?
[153] Having disbelieved some of Mr. Zaban’s evidence, I have assessed the questions as follows.
i. The Trigger, s. 34(1)(a)
[154] The question at this stage of the analysis is: Did Mr. Zaban believe, on reasonable grounds, that force was being used or threatened against him? The answer is: Yes.
[155] In light of my findings of significant credibility and reliability problems with Mr. Zaban’s evidence, I am unable to make some definitive findings of exactly what happened inside of Mr. Le’s car. Specifically, I am unable to define what triggered Mr. Zaban’s response to the force that was being used or threatened against him.
[156] What I am able to find is that Mr. Zaban was inside Mr. Le’s car for the purpose of completing a drug and firearm transaction. While I must not speculate, an inference arises from the evidence that Mr. Le was in the car for, at the very least, a drug transaction involving marijuana. This inference arises from the evidence that I have summarized above.
[157] Further, I accept that something went drastically wrong in the context of the transaction that resulted in a struggle over the firearm. As I have stated above, there is no evidence to support Mr. Zaban’s account that the fourth man discharged a firearm while at the driver’s side door of the car and then left it in Mr. Le’s possession. However, there is no doubt that there was a firearm inside the car and that it was discharged.
[158] It is also obvious that there was a struggle inside the car. The forensic evidence shows that Mr. Le was shot three times. He was bleeding. Most of the blood found inside the car was splattered on the passenger side of the car in the area of the front passenger seat. Further, Mr. Le got out of the passenger side of the car when it stopped moving in the McDonald’s parking lot. As such, Mr. Le must have moved from the driver’s side of the car to the passenger side of the car.
[159] Further, witnesses (i.e., Mr. Carl Stephenson)[^19] testified that the car appeared as though the car was not being steered as it crossed the median, curb, sidewalk and entered the McDonald’s parking lot. The inference to be drawn is that Mr. Le was engaged in a struggle with Mr. Zaban as opposed to driving the car when this occurred.
[160] For these reasons, I am prepared to find that Mr. Zaban believed, on reasonable grounds, that force was being used or threatened against him by Mr. Le. It is reasonably possible that Mr. Zaban responded to a robbery/kidnapping situation wherein he produced the firearm, a struggle ensued, and he believed, on reasonable grounds that force was being used against him or that a threat of force was being made against him. While I am not satisfied that this is the case, I am merely concluding that there is a reasonable possibility that this is the case.
[161] I am not satisfied that Crown counsel has proven beyond a reasonable doubt that Mr. Zaban did not believe, on reasonable grounds, that force was being used or threatened against him.
i. Motive: s. 34(1)(b)
[162] The question for consideration at this stage of the analysis is: Did Mr. Zaban discharge the firearm for the purpose of defending himself? The answer is: Yes.
[163] I am prepared to find that, in this context of the struggle, Mr. Zaban discharged the firearm for the purpose of defending himself from the use or threat of force by Mr. Le. Again, it is reasonably possible that Mr. Zaban’s motive in discharging the firearm in the car was for a defensive purpose. The firearm was as deadly in the hands of Mr. Le as it was in the hands of Mr. Zaban. Again, while I am not satisfied that this is the case, I am merely concluding that there is a reasonable possibility that this is the case.
[164] I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Zaban did not discharge the firearm to protect himself. I have not come to the same conclusion regarding the third element of self-defence.
iii. The Response, s. 34(1)(c)
[165] The question at this state of the analysis is: Was it reasonable in the circumstances for Mr. Zaban to discharge the firearm as he did? The answer is: No.
[166] The third factor for consideration examines the response of the accused to the perceived or actual use or threat of force, pursuant to s. 34(1) (c) of the Criminal Code. The act, which would otherwise be criminal, is deemed not to be if it was “reasonable in the circumstances”.[^20] This factor is concerned with the reasonableness of the accused’s actions, not their mental state.[^21]
[167] The reasonableness factor blends objective and subjective considerations.[^22] The relevant circumstances of the accused can include mistaken beliefs held by the accused.[^23]
[168] The issue to be considered at this stage of the analysis is: “what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time”.[^24] The objective assessment reflects “the perspective of a reasonable person with some of the accused’s qualities and experiences”.[^25]
[169] In considering whether the actions of the accused were reasonable in the circumstances, s. 34(2) of the Criminal Code provides a list of non-exhaustive factors for consideration. The section provides as follows:
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person's role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person's response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
[170] No single factor is determinative of the outcome. This analysis is a global exercise blending objective and subjective considerations to determine the reasonableness of the accused’s act.[^26]
Section 34(2)
[171] Section 34(2) requires the court to consider the relevant circumstances of the person. Mr. Zaban’s circumstances were described above a paras. 38 to 44. There is no question that Mr. Zaban was a veteran drug dealer who had been immersed in the criminal underworld for decades. Although he denies having sold firearms in the past, he did so two days before. He bought and sold a TEC-9 machine gun. On this occasion, he was intending to buy a Glock firearm with a drum clip that could hold 50 bullets. Thereafter he would sell it.
[172] Section 34(2) also requires the court to consider the other parties. Not much is known about Mr. Le. However, the evidence shows that he was married and has a son, a daughter-in-law and grandchildren. He was 61 years of age at the time of his death. Ms. Tran described Mr. Le as “strong” and she was aware that he practiced martial arts. She did not know much about what he did for a living but that he came and went from his home at odd hours. Ms. Tran recalls that Mr. Le had worked as a welder but did not have a full-time job in the last five to 10 years before his death.
[173] Ms. Tran was not aware that Mr. Le was growing marijuana. However, Mr. Le had many pictures of marijuana plants on his phone and had a license to grow marijuana. Inside Mr. Le’s car, the FIS officers found a notebook that appears to contain a debt list. There was a message left on Mr. Le’s phone at 3:09 p.m. on August 19, 2019, that read “2337 Keele St. North York” (the location of the Goodyear where the deal was to occur). A reasonable inference to be drawn from the evidence, his attendance at the scene of the first drug and firearm deal and his attendance at this scene, is that Mr. Le was also a participant in the criminal underworld, buying and selling narcotics, marijuana in particular.
[174] Lastly, s. 34(2) requires a consideration of the act. The act, of course, was Mr. Zaban discharging a firearm eight times in the context of a drug and firearm deal gone bad in two busy plazas located near the intersection at Weston Road and Highway 401.
Section 34(2)(a)-(h)
[175] I will now consider those factors set out in s. 34(2)(a) to (h) that assist in my conclusion that Mr. Zaban’s act of shooting was not reasonable in the circumstances. Again, I rely on my analysis of Mr. Zaban’s evidence in considering these statutory factors. I will not repeat that evidence here, but I will summarize the relevant factors that I have considered.
The Nature of the Force or Threat: s. 34(2)(a)
[176] In considering the nature of the force or threat, I accept that Mr. Zaban believed that he was in peril when the struggle with Mr. Le for the firearm, which he had brought into the car, began. I have no doubt that Mr. Zaban was afraid, as he described, during the struggle for the firearm. It was a lethal weapon in the hands of either Mr. Zaban or Mr. Le.
The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force: 34(2)(b)
[177] This factor considers Mr. Zaban’s conduct in discharging the firearm. Was the use of force imminent and were there any other means available to respond to the use of force?
[178] The issue is not whether Mr. Zaban believed on reasonable grounds that he had no other course of action, but whether what he did was a reasonable thing to do in the circumstances as he knew or believed them to be. What would a reasonable person have done in comparable circumstances? What options did Mr. Zaban have?
i. Imminence of the Force
[179] The assessment of the imminence of the force is difficult to assess because I have rejected Mr. Zaban’s exculpatory evidence as to how the firearm got into the car. At its highest, the evidence suggests that Messrs. Zaban and Le were parties to a drug and firearm transaction that was not going smoothly. I find that Mr. Zaban possessed the firearm but did feel threatened when Mr. Le began struggling with him to gain control of it.
[180] I also accept that Mr. Le was a strong man, having been trained in martial arts as described by Ms. Tran. Further, there were items in the car that could have been used by Mr. Le as weapons although there is no evidence that they were used as such. The following were located by the FIS officers during their investigation: a pair of scissors located in the wheel well beneath the driver’s seat; two large knives underneath a padding placed on top of the driver’s seat; and a screwdriver inserted in a hole in the console. All were within reach of Mr. Le inside the car.
[181] While Mr. Zaban believed that Mr. Le was initially reaching for something under his leg (where the two knives were located) and while he believed that Mr. Le took a swing at him with an unidentifiable object, that threat quickly disappeared after Mr. Zaban discharged the firearm. Mr. Zaban agreed that at the time the majority of the shots were fired, Mr. Le was only using his hands. I find that the imminence of a threat with a weapon diminished when Mr. Le was unarmed at the time that Mr. Zaban discharged several of the eight bullets.
ii. Other means to Respond
[182] I find that there were other means available to respond to the potential use of force which included the following: getting out of the car (as I have described above); firing additional warning shots in an area that might not injure Mr. Le (such as through the roof); not discharging so many rounds (eight in this case); and not discharging so many rounds in Mr. Le’s direction (as Officer MacKenzie testified, the defects in the car suggest that the firearm was discharged eight times from the passenger side of the car, where Mr. Zaban was seated, four of which exited the driver’s side door).
[183] While I accept that Mr. Zaban believed the use of force was imminent when Mr. Le began struggling with him, the threat was diminished when he chose to discharge the firearm after Mr. Le was disarmed, although the struggle continued. While I am alive to the fact that people in stressful situations do not have time for subtle reflection, I find that there were reasonable alternatives available to Mr. Zaban rather than discharging the firearm eight times.
The person’s role in the incident: s. 34(2)(c)
[184] In considering Mr. Zaban’s role in the incident, I am required to consider all of Mr. Zaban’s conduct, from beginning to end, that is relevant to determine if the act (the shooting in this case) was reasonable in the circumstances. What role did the accused play in bringing about the conflict or seeking to avoid it?[^27]
[185] Mr. Zaban’s role in the incident has been described at length in paras. 45 to 85 above. I do not intend to repeat it here, but I will summarize some of it.
Before the Incident
[186] As I have found, I am satisfied that Mr. Zaban attended the Tim Horton’s plaza to participate in a drug and firearm deal as he had done two days before. He was in possession of the loaded firearm and additional loaded magazine when he did so. Mr. Zaban came prepared for violence and engaged in violent acts when he deemed it was necessary.
[187] The firearm was a handgun manufactured by Glock. When found by the FIS in the discarded Gucci satchel, the Glock was loaded with a magazine designed to hold 13 bullets, although Officer Hoffman testified that he was able to insert 15 bullets into the magazine as the spring had weakened over time. Five bullets were found in the magazine by the FIS, consistent with it having held 13 bullets, eight of which were discharged as supported by the FIS evidence. The second magazine had a capacity to hold 10 bullets but was loaded with five. The magazine could be inserted in the Glock and used if necessary.
[188] The Glock firearm was equipped with a selector switch that is an “add on” and not normally found on such a firearm. The selector switch is on the back of the firearm. It could be moved from left to right and back (quite easily) so that the firearm would convert from automatic to semi-automatic mode. In semi-automatic mode, the user must pull the trigger each time they wish to discharge a bullet. In automatic mode, all bullets are discharged rapidly with a single pull of the trigger, unless it jams or otherwise misfunctions.[^28]
[189] I am satisfied that the firearm was in semi-automatic mode when seized and examined by the TPS. Mr. Zaban agreed that it was in such a mode when he used it.
During the Incident
[190] As I have stated, I am satisfied that Mr. Zaban used the firearm in the context of a struggle. I accept that during the struggle for control of the firearm, Mr. Le’s body was over the passenger side of the car and that Mr. Le was trying to grab the firearm with his hands and that he may have bent Mr. Zaban’s wrist such that the firearm was pointed towards him. I also accept that Mr. Le may have grabbed Mr. Zaban by the neck during the struggle.
[191] I am also satisfied that Mr. Zaban discharged the firearm eight times in Mr. Le’s direction. That would have required Mr. Zaban to pull the trigger eight times (seven times, on the basis of his own evidence, which I have rejected). Mr. Zaban hit Mr. Le three times: twice in the left thigh and once in the arm. The shot to the arm is the shot that killed Mr. Le.
[192] Two of the bullets were fired in the Tim Horton’s parking lot (as described by the eyewitnesses). Six more were discharged as the car travelled across a busy street and came to a stop in the McDonald’s parking lot as supported by the FIS investigation. There were eight spent cartridge casings located by FIS during the investigation. One was located at the median, five were located inside the car and two were in the parking lot of McDonald’s adjacent to the place where Mr. Le’s car stopped.
[193] Of course, Mr. Zaban’s role in the incident took the life of Mr. Le. However, it could have had devastating consequences on members of our community. Mr. Zaban agreed (and other witnesses testified) that the area where the firearm was discharged was busy. The plazas contained a Tim Horton’s and a McDonald’s, which are well-attended franchises during the worst of times. The night of August 19, 2019 was no different. Mr. Zaban agrees that he could have hit any one of the persons in the plazas with a bullet discharged from the firearm. The presence of others in the area of the shooting is a relevant consideration in determining whether Mr. Zaban acted reasonably.[^29]
After the Incident
[194] After the incident, Mr Zaban left the scene calmly. He placed the loaded firearm in the Gucci satchel with the partially loaded magazine. He disposed of both at a busy location: an on ramp to the 401 from Weston Road. He returned to his car at Armel Court and then to his home. He eventually disposed of his clothes, stayed in a hotel and then traveled to Jamaica. Two months later he returned to Canada.
Whether any party to the incident used or threatened to use a weapon: s. 34(2)(d)
[195] I recognize that self-defence can be invoked on the basis of reasonable mistakes of fact. Finding that the other party was not armed is not fatal to a self-defence claim.[^30]
[196] Mr. Zaban used a firearm in the context of a drug and firearm deal gone bad. He believed that he was being robbed and kidnapped. There was a struggle over a firearm that if he lost, would have put him in significant peril. Mr. Zaban’s belief is a relevant consideration in assessing the reasonableness of his act.
[197] I do find that there were items inside of Mr. Le’s car that could have been used by Mr. Le as a weapon as I have described above (scissors, two knives, and a screwdriver). All items were accessible to Mr. Le. However, none of them appear to have been used in the struggle.
[198] None of the items that could have been used by Mr. Le as a weapon had blood on them. The location in which these items were found during the investigation by the FIS officers would also suggest that they were not the items in the possession of Mr. Le when the firearm was discharged upwards by Mr. Zaban (i.e. the two knives that would have been under Mr. Le’s thigh were found underneath the padding placed on top of the driver’s seat). That said, Officer MacKenzie testified that he is unable to say whether the screwdriver was inserted in a manufactured hole in the console of it if was pressed through the surface.
[199] What Mr. Le did use during the struggle were his hands. I accept Mr. Zaban’s evidence that Mr. Le grabbed Mr. Zaban’s wrist that was holding the firearm. Mr. Le’s other hand was bending the firearm towards Mr. Zaban, but he did not grab the firearm itself. I also accept that Mr. Le’s upper body was over on the passenger side of the car and Mr. Le was trying to strangle Mr. Zaban with one hand. The reasonable inference to draw from the blood in the passenger side of the vehicle is that after Mr. Le was shot, he continued to struggle with Mr. Zaban on the passenger side of the car.
The size, age, gender and physical capabilities of the parties to the incident: s. 34(2)(e)
[200] Mr. Zaban was 43 years of age, 5’7” and 130 pounds at the time of the incident. Mr. Le was 61 years of age, 5’4” and 200 pounds at the time of the incident. Despite the age and size differentials between the parties, the personal characteristics of the parties are not particularly relevant as the weapon in issue was a firearm.
The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat: s. 34(2)(f)
[201] Mr. Zaban testified that that he had only met Trini (through Whatsapp) and Fat Boy (in person) a couple of days before. He met Fat Boy at Divine Motors and then at the plaza in Scarborough to complete the first drug and firearm transaction. That is when he saw Mr. Le for the first time. The incident giving rise to Mr. Le’s death is only the second time that he had seen Mr. Le. However, he did interact with him both inside and outside the car before the shooting.
[202] While I accept that Mr. Zaban had met Trini a couple of years before, I will not speculate on the familiarity of Mr. Zaban with the other participants in this incident, including Mr. Le. However, I am able to conclude that they were all involved in the criminal underworld.
Any history of interaction or communication between the parties to the incident: s. 34(2)(f.1)
[203] As I have just stated, the parties knew each other because of their membership in the criminal underworld. Their business was buying and selling drugs as well as firearms. They had completed a drug and firearm transaction just days before the shooting. They communicated using Whatsapp, on the phone and in person.
The nature and proportionality of the person's response to the use or threat of force: s. 34(2)(g)
[204] When considering the reasonableness of the accused’s use of force in his or her defence, “the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection”.[^31] A reasonable person cannot be expected to know exactly what course of conduct or how much force is necessary in self-defence.
[205] Further, in deciding whether the force used by an accused was more than necessary in self-defence, the trier of fact must consider that a person defending himself or herself against an attack, reasonably apprehended, “cannot be expected to weigh to a nicety the exact measure of necessary defensive action”.[^32]
[206] While I appreciate that Mr. Zaban believed that he was under attack himself during the struggle, there no evidence that Mr. Le injured Mr. Zaban during the incident (but for some soreness on his ribs). He agrees that he discharged the firearm intentionally and agreed that if he shot someone with the firearm, he could kill them or cause them bodily harm.
[207] The evidence regarding the discharge of the firearm is that it was discharged in a direction from the passenger side of the car. Discharging the firearm eight times in the manner that Mr. Zaban did was excessive for the reasons I have described above. On any objective measure, Mr. Zaban’s conduct was an entirely disproportionate response to his dissatisfaction with the way in which the drug and firearm deal was proceeding and the struggle for the firearm. This is particularly so in light of the fact that there were unrelated civilians in the busy plazas at the time.
[208] In my view, Mr. Zaban’s response was out of proportion to the circumstances as they existed and as outlined above. His conduct was not reasonable.[^33]
Whether the act committed was in response to a use of or threat of force that the person knew was lawful: s. 34(2)(h)
[209] This factor does not require consideration in the context of this case.
[210] Mr. Zaban pulled the trigger of the firearm eight times in the context of a struggle with Mr. Le who was using his hands. The shooting occurred in busy plazas and on a public roadway with cars entering and exiting the plazas. Mr. Zaban obviously put Mr. Le at risk but he also put members of our public at risk. In my view, a reasonable person would not have discharged the firearm eight times in comparable circumstances.
[211] The answer to the third question of whether it was reasonable in the circumstances for Mr. Zaban to discharge the firearm as he did is “no”. Accordingly, the Crown has proven beyond a reasonable doubt that Mr. Zaban did not act in lawful self-defence when he discharged the firearm as he did.
After the Fact Conduct Considered in the Self-Defence Analysis
[212] In addressing the after the fact conduct, I must consider whether it sheds any light on Mr. Zaban’s claim of self-defence. In my view, it is relevant for consideration.
[213] I am alive to the fact that after the fact conduct is rife with difficulties as it requires an assessment of the type of conduct one might expect in certain circumstances. However, I am satisfied that the conduct is potentially relevant to assessing Mr. Zaban’s claim of self-defence. Mr. Zaban’s conduct after the fact may be useful in assessing the credibility of his claims regarding the nature of the struggle and his response to it. That said, the after the fact conduct is simply one piece of evidence that is to be considered along with all the evidence.
[214] On Mr. Zaban’s evidence, he had just been the victim of an attempted robbery and kidnapping. He was involved in a significant struggle over a firearm that could have killed him if Mr. Le gained control of it. He says that he was required to discharge the firearm in the context of what he believed was a robbery and kidnapping. Thereafter, he had the wherewithal to leave the scene calmly, dispose of the firearm used in the shooting, return to his car, dispose of his clothing and leave the country.
[215] Mr. Zaban provided explanations as to why he behaved the way he did. He did not wish to be arrested. He admits that he had been at the location of the shooting to engaged in a drug and firearms transaction, both illegal activities. He had possessed and discharged a firearm. He had been incarcerated before and did not wish to return to jail. In the circumstances of this case, his concern of returning to jail was a valid one.
[216] In the circumstances of this case, I find that Mr. Zaban may well have wished to cover up his involvement in this matter even if he believed that he had acted in lawful self-defence. I am not prepared to find that Mr. Zaban’s after the fact conduct makes it less likely that he acted in self-defence.
Conclusion Re: Self-Defence
[217] When I consider all the relevant factors, I am satisfied beyond a reasonable doubt that the Crown has proven that Mr. Zaban’s conduct was not reasonable in the circumstances. I do not accept Mr. Zaban’s evidence about how the firearm and magazine got into the car and his evidence about discharging the firearm eight times (i.e. that some of the shots were accidental). I do not believe his explanation, nor do I have a reasonable doubt that Mr. Zaban was acting in lawful self-defence. After having considered Mr. Zaban’s evidence in conjunction with the other evidence, I do not believe nor have a reasonable doubt that Mr. Zaban was acting in lawful self-defence.
[218] Having found that Mr. Zaban did not act in self-defence, the next essential element for consideration is whether Crown counsel has proven that when Mr. Zaban killed Mr. Le, he had the requisite intent for murder. I find that he did not.
Did Mr. Zaban have a State of Mind Required for Murder?
[219] A culpable homicide is murder where the accused causes the death of another person and (i) means or intends to cause their death; or (ii) means or intends to cause them bodily harm that they know is likely to result in death and are reckless as to whether death ensures or not.[^34] The difference in the mental elements set out in s. 229(a)(i) and (ii) is “too slight to warrant distinction”.[^35] The requirement in s. 229(a)(ii) that an accused be “reckless as to whether death ensues” is essentially a redundant requirement because a person who intends to cause bodily harm that they know is likely to result in death is invariably reckless as to whether or not death ensues.[^36]
[220] In deciding whether the Crown has proven the mens rea for murder beyond a reasonable doubt, I must consider whether all of the evidence supports a finding that Mr. Zaban acted with the requisite intent for murder. This includes evidence that also forms part of the assessment for self-defence. As such, evidence that “falls short” of establishing a defence must still be considered in a “rolled up” fashion. This prevents “a compartmentalized approach to the evidence by considering it only in connection with a discrete defence, justification or excuse”.[^37]
[221] The only direct evidence of Mr. Zaban’s state of mind is his evidence which is exculpatory: Mr. Zaban denies that he intended to kill Mr. Le when he discharged the firearm eight times. Crown counsel asks the court to reject Mr. Zaban’s evidence on this issue and consider the circumstantial evidence regarding the issue of intent.
[222] Because the Crown’s case for intent is circumstantial, the subjective intent required under s. 229(a) can be proven beyond a reasonable doubt only if the only rational inference available on the circumstantial evidence as a whole is that Mr. Zaban intended to cause the death of Mr. Le or intended to cause him bodily harm that he knew was likely to cause death.[^38]
[223] I have considered the evidence as a whole. I accept Mr. Zaban’s evidence, that he did not intend to kill Mr. Zaban. Further, I find that the circumstantial evidence permits a reasonable inference that Mr. Zaban did not intend to kill Mr. Le during the incident.
[224] The following is a summary of some of the evidence that assists in determining Mr. Zaban’s state of mind and whether Mr. Zaban had one of the required intents to make Mr. Le’s unlawful killing murder.
Mr. Zaban’s Evidence
[225] Mr. Zaban agreed that he had discharged a firearm at a firing range in the past. He is aware that if you pull the trigger of a firearm, a bullet is discharged at a high velocity. He is also aware that the bullets are made of metal, are pointed and can go through things such as the driver’s side door in this case.
[226] Mr. Zaban agreed that he is aware that a firearm can kill somebody. He was asked the following questions and provided the following answers during cross-examination that support his knowledge:
Q.: If you point a firearm at somebody at close range, aiming at them and pull the trigger, there’s a very good chance you’re going to kill them. Do you agree with that?
A.: Depends where you shoot them, yes.
Q.: Okay. But if you fire, let’s say eight shots at somebody from a foot away, you’re probably going to kill them, unless they’re very lucky?
A.: I guess so.
[227] Despite stating the obvious that a firearm can kill someone, Mr. Zaban also testified that if he wanted to shoot Mr. Le, he had ample time (and opportunity) to do so. Mr. Le was right beside him. He could have shot Mr. Le in his head. He explained, “If I wanted to intentionally shoot him and kill him, I would have shot and killed him. We were fighting. He was on top of me. I was trying to get away. It all happened so fast. I was panicking. I didn’t know what to do.”
[228] Mr. Zaban testified that he did not intend to kill Mr. Le. He discharged the firearm in the context of a struggle. He believed that if Mr. Le got control of the firearm, he would “hurt” Mr. Zaban. He did what he had to do to survive.
[229] I agree that Mr. Zaban had ample opportunity to kill Mr. Le in the car before the struggle began as they had been waiting inside of it while Fat Boy talked on the phone for some time. He did not. Further, Mr. Zaban had ample time to discharge the firearm in the direction of a vital organ of Mr. Le. Again, he did not. Lastly, Mr. Zaban could have killed Mr. Le as he departed the scene. Again, he did not. I accept that the firearm was discharged in the context of a struggle and that Mr. Zaban did not intend to kill Mr. Le. The circumstantial evidence supports such a conclusion.
Shots and Blood in the Car
[230] There is no question that the Glock firearm was a lethal weapon. As I have described above, it had the capacity to transition from semi-automatic to automatic mode. It was loaded. An extra loaded magazine was found with it. Further, as I have found above, Mr. Zaban brought the firearm to the deal and used it when things did not go as planned. The firearm was discharged in the context of a struggle.
[231] The forensic evidence shows, and I find, that eight bullets were discharged inside the car. Several defects created by the discharged bullets were found by the FIS officers in the following locations inside Mr. Le’s car:
a. One bullet hole was found on the left side of the passenger seat. It penetrated the top of the passenger seat close to the centre console. It exited the back of the seat near the rear cup holder.
b. One bullet hole perforated the centre console edge closest to the driver’s seat, underneath and to the left of the gearshift.
c. One bullet hole was found in the front windshield of the car, below the rearview mirror. It perforated the glass.
d. One bullet strike was on the driver’s side of the windshield, closer to the A-pillar which separates the front windshield from the driver’s side window.
e. Two bullet holes were found in the driver’s side door adjacent to the handle that opens the door from the inside. Those bullets penetrated the door as there are exit points on the outside of it.
f. One bullet hole was found in the armrest of the driver’s side door next to the handle that is often used to close the door.
g. One bullet hole was in the B-pillar that separates the driver’s door from the back passenger seat.
[232] When asked whether the evidence of the defects inside the car supported the conclusion that there were a lot of shots “going from a lot of different angles”, Officer Mackenzie answered that he would describe it as a lot of shots emanating generally from the passenger side of the car towards the driver’s side of the car. He cannot say, with certainty, where the firearm was when it was discharged. He testified that there are, however, different specific trajectories taken by those shots. The photographs taken by the FIS support such a conclusion. The various locations of the bullet holes show a haphazard spray of bullets in the car.
[233] It takes some force to pull the trigger to discharge a bullet from the firearm. As such, while I find that the bullets were discharged in different directions, I am not satisfied that it is reasonably possible that the firearm was discharged accidentally (such as when the car mounted the median).
[234] The various location of the shots (i.e., through the windshield, front passenger seat, console, the leg and arm of Mr. Le, etc.) and the amount of blood found on the passenger side of the car would suggest that the firearm was discharged in a random and haphazard manner. The trajectory of the discharged bullets would suggest that the firearm was discharged in the context of a struggle as opposed to execution style.
The Pathology Evidence
[235] As I have stated above, Dr. Bellis is the forensic pathologist who conducted postmortem examination on Mr. Le. Dr. Bellis testified that Mr. Le suffered three bullet strikes: one to his left arm and two to his left thigh.
[236] Dr. Bellis testified that the cause of death was a gunshot wound to Mr. Le’s upper left arm. Dr. Bellis described that the entry wound was from the outside of the bicep towards the rear inside of Mr. Le’s bicep. The bullet travelled in an upward trajectory and caused Mr. Le’s death.
[237] The mechanism of death was bleeding (hemorrhagic shock). The bullet that killed Mr. Le hit a major blood vessel in the arm, although it is not the biggest artery in the body. Dr. Bellis agreed that gunshot wounds to the arm are not normally or necessarily fatal. It is entirely possible to shoot someone in the arm and miss the brachial artery.
[238] There were also two gunshot wounds on Mr. Le’s left thigh. The bullets entered the front of Mr. Le’s thigh and exited at the back. The injuries to Mr. Le’s thighs would have had a minimal impact on Mr. Le’s death. There were no shots to the body cavity, head, etc., that would likely hit a vital organ and cause death.
[239] While I have found that Mr. Zaban’s discharge of the firearm was excessive — he pulled the trigger of the firearm eight times in a small car over a short duration, the location of the shots that hit Mr. Le, described by Dr. Bellis, would suggest that Mr. Le was not sitting traditionally behind the wheel of the car:
a. Two shots entered the front of his thigh and exited the back, suggesting that he was facing the firearm when it was discharged such that his legs were not in the foot well beneath the steering wheel and that he was in a position facing Mr. Zaban.
b. The trajectory of the bullet causing the injury to the arm that killed Mr. Le would suggest that it was suffered during a struggle. It entered the outside portion of Mr. Le’s upper arm and exited the inside. This could not have been incurred if he were seated properly in the driver’s seat of the car. Most of the blood inside the car was on the passenger side.
[240] There were some other areas of blunt force trauma observed on Mr. Le’s body. For example, there were abrasions or scrapes on Mr. Le’s left thigh (perhaps a graze from a gunshot); his right leg; and on his chest wall. Dr. Bellis agreed that those injuries could be consistent with a struggle, although they could also have been caused by medical intervention.
[241] While the number of discharged bullets is significant, and three of the bullets hit Mr. Le, it is entirely possible that Mr. Le could have survived had the bullet not hit the small artery in his arm. It is trite to say that had Mr. Zaban wanted to kill Mr. Le; he could have shot Mr. Le in the head, or in another vital organ. He did not.
[242] When I consider the evidence relating to Mr. Le’s injuries as a whole and in context, I find that the location and number of injuries inflicted on Mr. Le leave open the inference that Mr. Zaban did not intend to kill him. I am not satisfied that these injuries were inflicted with an intention to kill or cause significant bodily harm knowing that it was likely to result in death and being reckless as to whether or not death ensued.
Intoxication
[243] While Mr. Zaban testified that he had consumed some Remy-Martin on the night in question, there is no suggestion that intoxication played a role in his mindset at the time of the shooting. There is also no evidence of any mental disorder or related issues that might have impaired his mental functioning at the time.
After the Fact Conduct
[244] Mr. Zaban has admitted that he killed Mr. Le by shooting him. Does it shed light on his claim in the issue of whether Mr. Zaban had the required intent for murder? I have set out the after the fact conduct in paras. 80 to 85 and 215 to 217 above.
[245] There is no question that Mr. Zaban took several steps after the shooting that demonstrated a calm, cool and collected emotional state following the mayhem inside Mr. Le’s car. There is also no question that Mr. Zaban took extensive steps to hide his involvement in the incident. That said, I am cognizant that there is no set way for a person to act following an incident such as this one. Further, I accept that there are several reasons why Mr. Zaban may have wanted to cover up his involvement in the shooting even though, at the time, he believed he was acting in lawful self-defence.
[246] I am not prepared to find that Mr. Zaban’s after the fact conduct supports an inference that the killing of Mr. Le was more likely a murder than a manslaughter. In my view, it has no value in the analysis regarding intent. This evidence is not relevant to whether, at the time he shot Mr. Le, Mr. Zaban intended to kill him or intended to cause him bodily harm that he knew would kill him.
Conclusion Re: Intent
[247] When considering the issue of intent, I have considered Mr. Zaban’s conduct before and at the time of the shooting that caused Mr. Le’s death. I appreciate as a matter of common sense, that a person knows what the predictable consequences of their conduct are and means to bring them about.
[248] I find that Mr. Zaban brought a loaded firearm and a loaded magazine to a drug and firearm deal. I am unsure as to how and why the struggle for the firearm in the car started. When the evidence is considered in this context, there is a strong case that the inference submitted by the defence, that Mr. Zaban thought that Mr. Le intended to harm him if he got control of the firearm during the struggle, he panicked and discharged the firearm to get Mr. Le off of him, is an available rational inference from the evidence.
[249] In conclusion, I have a reasonable doubt as to whether Mr. Zaban had one of the intents required to make the unlawful killing of Mr. Le murder. As such, I am not satisfied that Crown counsel has proven the requisite mens rea for murder beyond a reasonable doubt.
[250] Mr. Zaban is found not guilty of second degree murder. In light of my findings, it is not necessary to consider the last essential elements regarding constructive first degree murder (forcible confinement). Mr. Zaban is found not guilty of first degree murder.
Conclusion
[251] For the abovementioned reasons, Mr. Zaban is acquitted of murder. He is found guilty of the lesser included offence of manslaughter.
Kelly J.
Released: April 4, 2024
[^1]: I dismissed Crown counsel’s application to have Ms. Lu’s statements admitted for the truth of their contents. [^2]: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742 [^3]: (2003), 2003 CanLII 14779 (ON CA), 65 O.R. (3d) 723 (C.A.) [^4]: 2019 ABCA 36 [^5]: 2020 ONCA 151. Similar language was adopted in R. v. Bengy, 2015 ONCA 397, 335 O.A.C. 268, at para. 28, and by the Supreme Court of Canada in R. v. Khill, 2021 SCC 37, at para. 51 [^6]: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 157; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 29 and 111. [^7]: Calnen, at paras. 116-117. [^8]: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at pp. 143-146. [^9]: R. v. Cunha, 2016 ONCA 491, 351 O.A.C. 123, at para. 10 [^10]: Cunha, at para. 24 [^11]: R. v. Quinn, 2014 ONCA 650, at para. 10, leave to appeal ref’d, [2014] S.C.C.A. No. 456 [^12]: Cunha, at para. 25 [^13]: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) [^14]: Mr. Chughtai was also charged with the first degree murder of Mr. Le. It was alleged that he was present during the shooting and had forcibly confined Mr. Le inside the car, using his belly, at the time of the shooting. The charge was withdrawn against Mr. Chughtai when he provided an alibi. [^15]: Mr. Tesan initially told police about three men involved in the incident. He described a fourth man at both the preliminary hearing and at trial. Crown counsel was able to cross-examine Mr. Tesan pursuant to s. 9(2) of the Canada Evidence Act. He acknowledged that he was trying to tell the truth when speaking to the officer at the scene and that his memory was better then. However, he maintained that there was a fourth man present at trial. [^16]: For example, Ms. Powrie said that Mr. Le got out of the driver’s side of the car when it stopped, but it is clear from the evidence that he exited the passenger side of the car. Further, she testified that she heard up to 15 shots but the forensic evidence proves that eight shots were discharged from the firearm used during the incident. [^17]: Ms. Tran testified that she heard no gunshots. [^18]: Cunha, at paras. 24-25 [^19]: Mr. Stephenson died prior to the trial. As such, I permitted a defence application to admit a portion of Mr. Stephenson’s evidence for the truth of its contents. [^20]: Khill (ONCA), at para. 56 [^21]: Khill (SCC), at para. 66 [^22]: Khill (ONCA), at para. 57 [^23]: Khill (ONCA), at para. 58 [^24]: Khill (SCC), at para. 65 [^25]: Khill (SCC), at para. 67 [^26]: Khill (SCC), at para. 69; Khill (ONCA), at para. 60 [^27]: Khill (SCC), at para. 123 [^28]: During one of the test fires by the TPS, the firearm did jam when in automatic mode. [^29]: R. v. Sparks-MacKinnon, 2022 ONCA 617, 83 C.R. (7th) 56, at para. 22. [^30]: Cunha, at para. 27 [^31]: Cunha, at para. 7 [^32]: R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96, at p. 111 [^33]: I would have come to the same conclusion even had I believed that the fourth man dropped the firearm inside the car. [^34]: Subsections 229(a)(i) and (ii) of the Criminal Code. [^35]: R. v. Moo, 2009 ONCA 645, 253 O.A.C. 106, at para. 47; R. v. Nygaard, [1989] 2 S.C.R. 1047, at pp. 1087-1088. [^36]: Moo, at para. 48; Nygaard, at p. 1088; R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at pp. 154-155. [^37]: R. v. Phillip, 2017 ONCA 752, 355 C.C.C. (3d) 141, at para. 155 [^38]: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30, 35-42; R. v. Roks, 2011 ONCA 526, 281 O.A.C. 235, at para. 142