Court File and Parties

COURT FILE NO.: CR-22-0134 DATE: 2024/04/05 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Crown S. Hickingbottom, R. Morrow and R. Durward, on behalf of the Crown Attorney

- and -

MALIK MBUYI Accused M. MacGregor, on behalf of the accused

HEARD: January 15, 16, 17, 18, 22, 23, 24, 29, February 2, 6, 7 and 12, 2024 A.J. Goodman J.:

REASONS FOR JUDGMENT

INTRODUCTION:

[1] The accused, Malik Mbuyi (“Mbuyi”) is charged with first degree murder in relation to the deaths of Larry Reynolds (“Larry”) and Lynn Van Every (“Lynn”), and conspiracy to commit murder, pursuant to their respective provisions in the Criminal Code, R.S.C. 1985 c. C-46.

[2] The charges relate to a shooting incident that was alleged to have occurred on July 18, 2019 in the City of Brantford. The accused has pleaded not guilty.

[3] At the conclusion of the Crown’s case, the accused brought a ss. 7, 8 and 24 Charter application with respect to the police obtaining a warrant for his DNA. During the voir dire, I heard from several witnesses along with the extensive submissions from counsel. Following a brief adjournment, I provided my oral ruling and held that the applicant had not met his onus to establish a s. 8 Charter breach. Moreover, I dismissed the s. 7 Charter application, with the further endorsement that, if I were in error, I would still admit the DNA evidence pursuant to s. 24(2), and by implication, s. 24(1) of the Charter. My full written reasons would be provided to the parties in due course and in conjunction with this judgment.

[4] The fundamental issue in this case is the identity of the shooter and the degree of the offender’s culpability, if any.

POSITIONS OF THE PARTIES:

[5] The Crown submits that the accused is guilty of first degree murder. The primary evidence against Mbuyi comes from a variety of sources, including from his accomplice, Kareem Zedan (“Zedan”).

[6] The Crown’s position is the shooting arose out of animus between Larry and Lynn’s son, Roger Van Every (“Roger”) and the Jassem family. Roger, a self-admitted drug dealer, began working exclusively for the Brantford-based Jassem family in their drug enterprise. However, a police raid at one of the Jassem residences while Roger was there, resulting in his arrest. Roger was released on bail and was approached shortly afterwards and asked to “take the fall” for the seized drugs. He was offered a large amount of money to do so. He declined and ultimately his relationship with the Jassem family broke down and he eventually had no further contact with them.

[7] Zedan, another drug dealer, was involved in street crime and gang activity in Toronto. He had a loose association with the Jassem family as they would occasionally provide him with drugs that he would sell in Toronto.

[8] Zedan testified that months prior to the shooting, he was asked to fulfill a contract on an individual who he had never met and was not known to him. The contract was to kill “Sago” (a.k.a Roger) in exchange for a $50,000 payment. A vague description of the target was provided. Zedan eventually accepted and proceeded to enlist a crew of individuals to carry out the killing. Mbuyi was approached to assist with the job, as he was allegedly indebted to Zedan for approximately $18,000.

[9] At the relevant time, Larry and Lynn were acting as sureties for their son, Roger. They were providing a residence for him at 10 Park Road South, Brantford, (‘the residence”) following his arrest in the drug raid.

[10] While Roger was living with his parents at the residence, he installed surveillance cameras. The cameras captured the events before and after the murders.

[11] The Crown contends that on July 18, 2019, Zedan, Mbuyi and his crew travelled to Brantford from Toronto in two cars: a black Hyundai and a black Chrysler 300. At one point the Chrysler 300 backed into the driveway at the residence. The surveillance video shows Zedan exiting the vehicle and looking at the security camera. His identity and unique clothing are captured before he retreats to the Chrysler 300, re-enters, and the car departs. Zedan admitted his attendance in the driveway and warned Mbuyi of the security cameras. Apparently, there was some idea to wait and shoot Roger outside of the home.

[12] The Crown says that the next individual captured on the CCTV video is dressed completely different to Zedan, is much heavier in physical stature and is wearing a mask on his face. This second individual is seen exiting the Chrysler 300 from the driver’s seat, after it had departed and then when it returned to the residence. This individual prowled around the house looking at the doors and windows. His clothing is all black but with some distinct markings, such as a NIKE logo on the chest and some light markings on the left hip and thigh of the trousers. His stature is quite distinctive.

[13] Zedan testified that he thought they might be at the wrong target location since it looked too nice and normal. Zedan and his crew then travelled to a residence in northern Brantford to get more information. However, they were unsuccessful in obtaining more details about the alleged target. Overall, they drive past the residence 17 times and go to Echo Place School, which is near the residence. On a latter occasion, they pass by the residence and see a person watering the lawn.

[14] After returning to Echo Place School, the Crown says that Mbuyi went over to the Chrysler 300 and drove to the residence once again. At that point, he saw Larry still outside the front of his house, mistaking him for Roger. He stopped the car, immediately exited the driver's door and sprinted toward the house. He began shooting without any hesitation with his Glock .40 calibre handgun towards the front door. Larry and Lynn both retreated into the house from the attack. They were fatally shot. They both collapsed in the front foyer of the house while Mbuyi continued shooting at them through or at the shattered window panes of the front door.

[15] Roger testified that he was standing inside the house and saw the events unfold before him. He described himself as going into shock as he witnessed his own parents shot and killed before his eyes. He testified that the shooter reached through the broken windowpane of the door, presumably to gain entry, while continuing to shoot.

[16] Zedan testified that it was the accused who shot Larry and Lynn.

[17] The Crown says that Mbuyi then fled the scene in the Chrysler 300 and abandoned it a few streets away. In his flight, the Crown alleges that Mbuyi was bleeding from his hand, and left his blood on several areas of the driver's side of the Chrysler 300.

[18] The Crown concedes that Zedan is an unreliable witness. However, his testimony has been corroborated by other independent evidence, including the DNA analysis of the blood left in the Chrysler 300, other forensic evidence, and CCTV and video captures. The cellphone records also corroborate Zedan’s version of events on the important issues in this case. All the other Crown witnesses provided truthful testimony.

[19] The defence rejects the Crown’s theory that Mbuyi is responsible for the murders. The defence submits that the identity of the shooter has not been established. Clearly, Zedan is the principal witness for the Crown; he is a Vetrovec witness, a proven liar and perjurer. Moreover, his evidence is externally and internally inconsistent. This unreliable witness could not possibly be a foundation for a determination of guilt.

[20] Accordingly, Zedan’s evidence ought to leave this court with a reasonable doubt. As a self-proclaimed career criminal and witness of the worst sort, he repeatedly and unapologetically lied under oath in these proceedings. Zedan’s version at this trial is illogical and unsupported by any reliable corroborative evidence. There are other available and reasonable inferences related to the circumstantial evidence advanced by the prosecution that belie the defendant’s culpability.

[21] The defence submits that identity of the shooter has not been established and that the court ought to be left in a state of reasonable doubt and an acquittal should follow.

LEGAL PRINCIPLES:

[22] All the evidence must be considered in determining whether the Crown has made out the charge beyond a reasonable doubt. An accused is entitled to the benefit of the presumption of innocence and is not required to give any evidence. The defence was neither required to disprove that the offence occurred as alleged by the Crown and in the manner proposed by the prosecution, nor is the defence required to substantiate their theory of the case. Before an accused can be found guilty, a court must be satisfied beyond a reasonable doubt that the evidence establishes all the essential elements of the offence charged against him.

Reasonable Doubt:

[23] The standard of proof in a criminal matter is the higher standard of proof; namely, beyond a reasonable doubt.

[24] The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 14, the Supreme Court explains that the meaning of proof beyond a reasonable doubt is "[a] standard of proof [that] is higher than… a balance of probabilities, yet less than proof to an absolute certainty."

[25] The law provides for no burden of proof on the defendant at any stage in the proceedings. Absolute certainty is not required, for that would be an impossibly high standard for the prosecution to achieve. However, it does demand considerably more than probable guilt. A conclusion of probable or likely guilt requires that an acquittal be entered: R. v. Starr, [2000] 2 S.C.R. 144, at para. 231.

[26] Further, reasonable doubt cannot be based on sympathy or prejudice, but must be founded in reason and common sense and be logically connected to the evidence or the absence of evidence.

Assessing Credibility:

[27] Both the Crown and the defence focused on this as a case concerned principally with credibility and the internal and external consistency, reliability, and rationality of the evidence advanced by the witnesses.

[28] The assessment of credibility is often the primary and the most daunting task that the trier of fact faces in a criminal trial. It involves determinations of the truthfulness of witnesses and an assessment of their reliability. It requires a determination of whether their recollections are accurate regardless of the sincerity or insincerity of their beliefs.

[29] It is trite law that a trier of fact may believe all, none, or some of a witness’ evidence. A judge is entitled to accept parts of a witness’ evidence and reject other parts. Similarly, the trier can accord different weight to different segments of the evidence that is accepted.

[30] There are no fixed rules to which a judge can look to guide his or her assessment of the credibility of witnesses, but a number of elements may be considered. These include the perceptions of the witnesses, their memory, how reliably and accurately they recall the events, the manner in which the witnesses’ observations have been communicated to the court, and whether the information has been presented in a sincere, complete and truthful manner. A judge will look to the witnesses and assess whether they are being sincere and frank, biased, dishonest or careless with the truth, or perhaps reticent or evasive in the evidence that they have provided.

[31] Inconsistencies in the evidence of witnesses on relatively minor matters or matters of specific detail are, of course, normal. I must assess whether there is a pattern or rehearsed version of events advanced by the witness. Indeed, this may be of even greater concern, for it may suggest collusion, fabrication, or excessive rehearsal and regurgitation of a set story.

[32] However, where an inconsistency of a witness involves a material matter central to the elements of the alleged offences and about which common sense dictates that an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth that may undermine the whole of a witness’ evidence.

[33] A significant amount of evidence adduced during this trial is circumstantial. In R. v. Villaroman, [2016] 1 S.C.R. 1000, at paras. 35-38, the Supreme Court explained circumstantial evidence as that which gives rise to inferences other than guilt. Circumstantial evidence does not need to be based on proven facts and is not rendered speculative just because it arises from a lack of evidence. Rather, the inferences must be reasonable given the evidence and the lack of absence of evidence, when assessed logically and in light of common sense and human experience.

[34] When assessing circumstantial evidence, the trier of fact considers other plausible theories and other reasonable possibilities that are inconsistent with guilt. If the circumstantial evidence is reasonably capable of supporting an inference other than the accused is guilty then the Crown may need to negative those reasonable inferences arising from the circumstantial evidence. See Villaroman, at paras. 35-38. See also the discussion in R. v. B. (S.), 2018 ONCA 807, 143 O.R. (3d) 81, at paras. 122-124.

[35] The cumulative effect of the circumstantial evidence must be considered. It would be a legal error to assess each item of circumstantial evidence in isolation, considering only the inferences that it can support alone. In R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, the Court of Appeal explained, at para. 82, the proper approach is to consider each piece of evidence in relation to the others and to the evidence as a whole. It is all the evidence, taken together, that is considered and must satisfy the criminal standard of proof.

[36] The Crown is required to establish primary facts before they can be utilized as circumstantial evidence of guilt. The defence is not required to establish a fact before making an argument that an inference is available that is consistent with innocence.

[37] While a compelling innocent explanation may exist for any individual item of evidence, the plausibility of innocent coincidence often diminishes with each additional item of evidence. This is often seen in cases where identity is proven through circumstantial evidence.

[38] The trier must consider reasonable inferences and cannot speculate. To make a finding of guilt, I must conclude that guilt is the only reasonable inference available on the evidence. There is no onus on the defence to marshal evidentiary support for inferences consistent with innocence. A reasonable doubt exists if a gap in the evidence leaves such an inference. While I must consider all plausible theories that may be inconsistent with guilt, this exercise does not permit speculation.

[39] Thus, I must consider the following principles from Villaroman, at paras. 36-38:

A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense ...

The Crown thus may need to negative these reasonable possibilities, but certainly does not need to 'negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused' ...

The basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

Vetrovec Warning:

[40] Another important consideration in this case is the legal principle that is often referred to as a Vetrovec warning: R. v. Vetrovec, [1982] 1 S.C.R. 811.

[41] Even in a judge-alone trial, a jurist ought to direct themselves respecting unreliable evidence much in the same way as a jury. In other words, a judge must obviously treat the evidence with equal caution. However, the court’s self-instruction need not reflect the same detail as a jury charge: See R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at paras. 23-24; R. v. Ramta, 2017 ONCA 580, at para. 12; R. v. Moore, 2017 ONCA 217, at paras. 4-5; R. v. Devitt, 2016 ONCA 871, at para. 10; R. v. Quesnelle, 2015 ONCA 554, at paras. 2-3; R. v. Fuller, 2021 ONCA 888, at para. 19.

[42] In R. v. Brooks, [2000] 1 S.C.R. 237, at paras. 1-4, the Supreme Court held that there is no fixed and invariable rule requiring a clear and a sharp warning regarding the testimony of certain categories of witnesses. It is a matter within the trial judge's discretion. The witness' credibility and the importance of the evidence to the Crown's case are relevant factors. The greater the concern over the credibility of the witness and the more important the evidence, the more likely the caution would be mandatory. The trier of fact ought to consider the evidence and thoroughly examine all the factors which might impair the worth of a particular witness.

[43] Another instructive case is R. v. Yummu, 2010 ONCA 637, 260 C.C.C. (3d) 421, at paras. 157-165, aff’d 2012 SCC 73. While Watt J.A. was addressing the crafting of a jury charge, he offered four elements that guide trial judges about the testimony of potentially untrustworthy witnesses: i. identification of the witness whose evidence requires special scrutiny; ii. explanation of the reasons why the evidence is subject to special scrutiny; iii. a caution that it is dangerous to convict on unconfirmed evidence of this kind, though jurors are entitled to do so if they are satisfied that the evidence is true; and iv. advice to the jury that in determining the veracity of the suspect evidence, they should look for evidence from another source tending to show that the untrustworthy witness is telling the truth.

ANALYSIS:

[44] Many of the relevant details related to the event in question have been agreed-to by counsel. An Agreed Statement of Fact (“ASF”) was filed and is appended to this judgment. [i]

[45] Section 229 (a) of the Criminal Code provides that culpable homicide is murder and has three essential elements, all of which Crown counsel must prove beyond a reasonable doubt. In this case they are: (1) that Mbuyi caused Larry and Lynn’s deaths; (2) that their deaths were caused unlawfully; and (3) that Mbuyi had the state of mind required for murder. This means that Mbuyi either intended to kill Larry and/or Lynn, or intended to cause them bodily harm that he knew was likely to cause their death and was reckless whether Larry and/or Lynn died. The additional element for first degree murder is whether the homicide was planned and deliberate.

[46] The planned and deliberate killing of an unintended target represents first degree murder. A first degree murder is proven where death resulted from the accused executing their deliberate plan to kill. This requirement is met even where someone other than the intended target is mistakenly killed: See R. v. Collins, 2023 ONCA 394, 168 O.R. (3d) 127, at paras. 34-37.

[47] As mentioned, the principal issue is identity of the shooter. Extensive details about the principal parties and the related events surrounding the murders were presented. There are many facts that have been established or are not in dispute - the parties, their relationships - have all been provided in evidence. While the parties made numerous admissions by the filing of the various ASF, this was a hard-fought trial. [1]

Zedan’s Overall Presentation at Trial:

[48] While the Crown argues otherwise, in my opinion, the Crown’s case rests principally on my acceptance of Zedan’s testimony at this trial with the evidence adduced in support or corroborating his latest version of events.

[49] Zedan’s criminal and youth record includes: August 18, 2015, Toronto, Youth Justice Court, guilty of Robbery and Obstruct Peace Officer. He received probation for 15 Months (174 Days Pre-sentence Custody) and a mandatory weapons prohibition. On May 11, 2018, in Sudbury, found guilty of possession of a Schedule I Substance and received four months jail.

[50] On April 23, 2021, Zedan plead guilty to two counts of manslaughter for his direct involvement in this case. He was sentenced to 15 years in jail with credit of pre-sentence custody of two years, plus a mandatory weapons prohibition. On April 30, 2021, Zedan was convicted of carrying concealed weapons and received 30 days concurrent with sentence being served.

[51] Zedan is the quintessential Vetrovec witness.

[52] He is an unsavory and disreputable witness who admitted past involvement in illegal activity. There is no doubt that Zedan has, in his dealings with the authorities, been deceitful and untruthful where it was to his benefit. He openly misled the police and fabricated scenarios to meet this end. He was an admitted leader in these murders and he both implicated and distanced himself in the crime. He admitted lying to the police repeatedly. He admitted lying under oath on prior occasions related to this case, at the preliminary inquiry, when he plead to manslaughter and at another trial.

[53] The defence has urged extreme caution in relying on any evidence given by Zedan. I agree. Anything short of a critical self-caution concerning Zedan’s testimony and its reliability would give rise to a miscarriage of justice.

[54] Indeed, given the importance of his evidence to the prosecution’s case, Zedan’s evidence must be looked at with the greatest care and caution. It must be corroborated by independent confirmatory evidence which lends support to his testimony so as to satisfy me that his untrustworthy evidence can be relied on as truthful. Such independent confirmatory evidence does not have to implicate the accused directly in the commission of the offence charged, but it must be capable of restoring my faith in the relevant aspects of his account. It is enough that the corroborating evidence of facts in the narrative lend credence to the witness’ story. See R. v. Kehler, [2004] 1 S.C.R. 328, at paras. 17-19.

[55] Indeed, there were internal and external inconsistencies and contradictions in his testimony. While I consider the peripheral inconsistencies as less significant, I have some concerns about certain details alleged by Zedan, in view of his motive to lie and his differing versions of events provided to the police and to the court. Therefore, I am unable to accept a large segment of Zedan’s testimony as credible or trustworthy without cogent, corroborative evidence.

Zedan’s Alleged Testimonial Inconsistencies:

[56] The focus of the defence challenge to Zedan’s testimonial inconsistencies was based on his prior sworn statements as well as various utterances provided to the police. On cross-examination, Zedan admitted to lying on numerous occasions, both to police, and in statements during various legal proceedings. Zedan agreed with the suggestions that he lied on a regular basis to subvert the truth.

[57] One example of Zedan lying for personal gain was when he was arrested in Thunder Bay. Zedan attested that he lied to the police so convincingly in that instance by pretending to be someone else that the guards and the administration released him from jail on this false information.

[58] Another example was Zedan’s statement to police. On cross-examination, Zedan agreed that he lied numerous times throughout the three hour statement. Zedan then backtracked by attesting the reason he lied to the police was because he was not under oath at the time. He then backtracked further by saying he wasn’t lying during the statement, rather he failed to be forthcoming.

[59] Defence counsel confronted Zedan with inconsistencies in his statements and testimony about the intended planning of the murder of Roger. Zedan attested that he put together a crew the night before the murder, but that he didn’t know the names of the people in the crew, just some of their street names. Zedan also attested that he told the police it was a crew of two people, then eventually he admitted it was three, then eventually four people, and ultimately he told police it was a five person crew. Not only that, but Zedan also attested he lied to the police about who was driving what vehicle on the day in question. And, when confronted by defence counsel with transcripts from the preliminary inquiry showing that Zedan did not know the intended target’s name, Zedan admitted that he gave vague answers at the preliminary inquiry.

[60] In addressing the scope of the plan and information provided by Zedan to the crew, Zedan stated that the crew was aware why they were traveling from Toronto to Brantford: to kill the target. Later, however, Zedan stated that Malik had no idea why they were traveling to Brantford, and at best Malik may have thought they were going to commit a robbery.

[61] In identifying the shooter, Zedan testified that he could see the shooter running to the residence and see him run back to the car. However, defence counsel produced transcripts wherein Zedan testified that at the time of the shooting he was fleeing from the scene. When confronted with the numerous inconsistencies by defence counsel and asked if he was lying to justify and modify what was previously said, Zedan vehemently rejected the suggestion.

[62] In identifying the shooter, Zedan confirmed on cross-examination:

Q. Yeah, I guess. In regards to you observing the actually shooting. You said, yesterday, in front of His Honour that you could see the shooter running to the house and seeing him run back to the car. Maybe it sounded like you had you know decent seats at the Rogers Centre to watch the game, like, clear vantage point ‘cause what it sounded like, but that’s not what you testified to before, sir, was it? Sir? A. Yeah. Q. On that day one, again the big volume again, Your Honour, page 46. You said, at the bottom of 46: Q. Did you see where – did you see what part of the residence malik approached, where exactly he went? A. It looks to the front. Q. That’s from your recollection of watching the video, isn’t it, sir? A. From watching it in real life. Q. Real life. Let’s go on then. Q. Could you see what was happening when he went to the front? A. Yeah, I heard gunshots. I heard gunshots. Q. All right. So, when you heard the gunshots where were you looking? Mr. Zedan, there was, the only thing you were interested in that day, in Brantford, was doing the job at the house, it that fair? A. Yeah. Q. So, when you heard the gunshots what were you doing? A. Trying to get away from the gunshots. Q. That’s what you testified to in court, right? A. Yeah. Q. So, you’re telling this court that you had a strong view of what was going on, right? A. Yeah. Q. And there’s supposed to be a shooting, that’s the whole plan and the whole reason you’re there? A. Yeah. Q. And you were trying to get away from the gunshots from the person that’s supposed to be the participant on your team, not shooting at you. A. Yeah. Q. Yeah, that doesn’t make any sense at all, does.. A. I don’t understand. I’m trying to get away from the scene after shots were fired. Why would, I supposed to be hanging out there or something? I’m confused. Q. Right. And that you did not see him, with your own eyes, running back towards the Chrysler 300, right, sir? A. I guess. Q. Yeah, you guess. That’s the degree of concern that you have for being here and for testifying, I guess. Isn’t that the threshold for you, sir? A. No. Q. No. Okay. ‘Cause you got to secure your deal, right, sir? A. Pardon me? Q. No. Conversation in the Elantra afterwards. I’m going to look at page 58, Your Honour, say one. Remember, we were mad yesterday. We were mad, that’s what you said. I was mad because we be caught because of the DNA, that’s what you said. You haven’t said that before here, but what you did say and when you testified at the pre-lim, on page 58, line 17, Your Honour. Q. Did Malik tell you anything about what had just happened, do you have any answer to that, Mr. Zedan? A. Oh, I – I never heard your question. Q. When Malik got into the Hyundai Elantra, in the moment shortly what happened? Did he say anything to you or anyone else in the vehicle aloud about what had just happened back at the – the residence? A. I can’t remember exactly. Q. Can you remember whether you asked him? A. I – I asked him if the job was done. Q. All right. Was that his reply? A. Yes. Q. Sure. So, during the roughly 40-minute drive back to Toronto was there any discussion, did anyone mention, did Malik volunteer any information about what had happened at the residence, or did you or anyone else in the vehicle ask him questions, and he provided responses regarding what had happened? A. No. Q. Q. Yeah, you’d agree with me, you don’t see the other participants in any regard in those videos, do you? A. No. Q. No. And you’ve relied on those videos to help build your version of events. A. No. Q. Right. We’re to rely on the honesty and integrity of you, and what you say to determine where people were at the times that mattered in this case, right? Right? A. I’m sure there’s other shit, other stuff that – that – that supports what I say… Q. What supports… A. …but I guess not, right? KAREEM ZEDAN: As in, like, I guess he wanted a guy named, I think his name was Ron, the son of the people. He said he owed him money or something, and he asked me if I knew anybody that wanted to make, like, make some cash and after I led him to Malik. And then, yeah, he gave us the address and then he wanted the son, I guess, shot, but he didn’t have the proper, like, identification to make sure who the Ron guy was. So, when we went there I went and scoped out the house, took a look around, and there was a camera, so I went into, like, the gateway car and after Malik pretty much seen the dad on the porch and thought it was the Ron guy, and shot him.

Q…. At the conclusion of the cross-examination at trial, this was the exchange: Q. Sir, Mr. Mbuyi was not the shooter, sir, was he? He was not the shooter, sir. A. Are you asking me or are you – or are you just… Q. I’m asking you. Mr. Mbuyi wasn’t the shooter, was he? A. He was. Q. The only reason you said that is because from the outset on the day that you were arrested you were told about the DNA, right, of Mr. Mbuyi, sir… A. Yeah, I think so. Q. …I asked you this earlier today. A. Yeah, they told me. Q. Yeah. And told about the blood that was in the car, right, sir? A. It wasn’t the first time I knew. Q. You were told and that you were told it was Mr. Mbuyi’s, effectively you’ve relied on that to support your version of events every time you’ve spoken to the police, right? A. No. Q. And I’m telling you your observations were wrong, it wasn’t Mr. Mbuyi. I’ll give you one last chance. A. I don’t understand what you’re asking me. Q. It wasn’t Mr. Mbuyi who was the shooter. A. It was.

Is there Corroboration to Zedan’s evidence?

[63] In examination in chief, Zedan testified that he and his crew had travelled to Brantford from Toronto in two cars: a black Hyundai and a black Chrysler 300. This fact is also corroborated by surveillance video footage as well as the GPS data from the Chrysler 300. Zedan’s account of obtaining the Chrysler 300 in North York on the day of the shootings is also confirmed by the GPS data.

[64] Zedan testified that he was carrying a 9mm handgun and Mbuyi was in possession of a .40 caliber handgun. He testified that he saw the accused run to the door from the car and shoot the victims. It is confirmed in this case that the murder weapon was in fact a .40 caliber handgun and that multiple shots were fired during the attack that killed Larry and Lynn.

[65] The Crown presented scene evidence, photos, CCTV captures, the front doors, GPS data, and relevant cell phone records.

The Chrysler 300:

[66] I accept that Mbuyi had no contact with the Chrysler 300 prior to the day of the murders. No evidence has been presented to suggest otherwise. The Chrysler 300 was stolen in May 2019. It did not generate any GPS data between May 29 and July 17, 2019. Special Constable Michael Ryder (“Ryder”) provided clear evidence on the ability to affect the generation of GPS data and that it required specific technical skill to remove the antenna of the navigation module.

[67] Even so, turning off the navigation system does not halt the generation of GPS data. Ryder testified that to stop the generation of GPS data, the antenna would need to be disconnected from the module located inside the console. There was no evidence to suggest at any time prior to the seizure of the car that this had occurred. In fact, Ryder indicated that the navigation antenna of the vehicle was not tampered with.

[68] Mbuyi's cellphone had him situated in the North York area, but it never connected to the cell sites closest to the parked Chrysler 300.

[69] On the evening of July 17, 2019, the Chrysler 300 was moved from the rear of the commercial building to the front, hours before Zedan and the crew picked it up for the murder. The vehicle was then driven directly from Toronto to the residence. It circled the neighbourhood 17 times, including the two occasions when Zedan and associates scouted the property. The final passage culminated in the killings.

[70] There is no evidence to suggest that Mbuyi had any contact with the vehicle, let alone an opportunity to deposit his blood around the driver's area prior to the day of the murders. As I will discuss momentarily, blood was found in the driver's area of the Chrysler 300 in numerous key locations. Clearly this was not deposited by merely incidental contact.

Contact between Zedan and Mbuyi:

[71] Mbuyi and Zedan were not only associates but they were evidently together both just before and after the murders. This is supported by their respective cellphone records on the 17th and 18th of July. Terrell Philbert (“Philbert”) was co-located with Mbuyi and Zedan on the morning of July 18, 2019. Specifically, the phones of the three individuals connected to the cell site at 150 John Street, Brantford. There was some cellphone contact post-event.

CCTV Captures:

[72] Mbuyi shares the same general distinctive body features as the shooter. Mbuyi's body can be compared from the many depictions from around Toronto and a rap video he is featured in. The shooter's body can be compared from the surveillance video from the residence. The person prowling around the residence on the second visit was wearing a black hoodie with a Nike logo on the chest, dark sweatpants with white marks on the left leg and has a white glove on his hand.

[73] The shooter is wearing the same dark clothing with the light coloured logo on the chest. The shooter has white markings on the left hip of his pants as well as a dark-skinned hand. The shooter was also wearing the light-coloured garment under their dark hooded sweater. All of which is consistent with the prowler's clothing. Moreover, the body type and proportions of the shooter is consistent with the prowler.

[74] Specifically, the man seen prowling around the house is clearly a heavier set, disguised, black male. The individual is wearing a dark hooded sweater, with a Nike logo on the chest, and dark sweatpants, with two white areas on the left hip. The individual has his hood pulled up over the head and is wearing what is effectively a balaclava or ski mask. The prowler also seems to be wearing a light-coloured garment under his dark hooded sweater. The prowler can be clearly seen walking up to and around the house and turning several times. He is also observed walking back from the house and returning to the Chrysler 300, entering the vehicle and then leaving.

[75] Within a minute, the Chrysler 300 is parked by Echo Place School. The Hyundai gets there first and again, the surveillance video shows three individuals: Zedan, an unknown individual, and the prowler, identifiable by his white glove and the logo on the chest of his dark sweater. They all leave the parked Chrysler 300 and walk over to and enter the Hyundai. The Hyundai then left the area with the Chrysler 300 unattended. Minutes later, the Hyundai stopped by Echo Place School for the prowler to run back into the Chrysler 300. This is also confirmed by the evidence provided by Graham Miller wherein he observed a huskier, black male run over to the Chrysler 300, enter the driver’s seat and leave the area.

[76] Constable Paul Walker, (“Walker”) of the Toronto Police Service, trained in surveillance and familiar with the accused, testified about Mbuyi’s distinctive body features and identifiers. This includes a broad build, thicker thighs and a prominent backside. Walker opined that he saw similar distinctive body features in the prowler and shooter, but, quite fairly, the shooter’s identity was not conclusively established in his testimony. While not conclusive, he confirms that the individual depicted in the video surveillance has the same distinctive physical characteristics as Mbuyi.

[77] It is obvious to me that the shooter and the second prowler are one and the same. The shooter is wearing the same dark clothing with the light coloured logo on the chest. The shooter has white markings on the left hip of his pants as well as a dark-skinned hand. The shooter is also wearing the light-coloured garment under his dark hooded sweater, all of which is consistent with the prowler’s clothing. Moreover, the body type and proportions of the shooter is consistent with the prowler.

[78] Evidence was presented during the trial of several other individuals who were in fact co-accused or accomplices in this matter, namely: Dylan Alridge, Thomy Baez-Eusabio, Philbert, and Zedan. It is clear from the photographic images presented of these accomplices that Mbuyi is considerably huskier than those individuals and taller than Philbert. The same comparison can be made when it applies to the shooter.

[79] There is no evidence of anyone other than these individuals being present at the scene during the actual shooting. I agree with the Crown that to conclude otherwise would be speculative.

[80] Having reviewed the photographs, the CCTV captures at the residence, and descriptions of the other involved associated parties, I can determine that they were not, in fact, the shooter.

The Glass Cut Hypothesis:

[81] There is a strong likelihood that the shooter would have injured his hand during the attack.

[82] Sergeant Pete Reintjes (“Reintjes”) was qualified as an expert in firearms and ammunition. He testified that the caliber of firearm was .40 Smith and Wesson caliber. He reached this conclusion based on recovered ammunition cartridges and projectiles recovered at the scene, from the door and from the victims' bodies. The ammunition cartridge causing the effects illustrated in the photographs was either Federal, Winchester, Speer or Blazer brand.

[83] Reintjes testified that the closer a muzzle of a discharging firearm is to a surface, the more condensed soot deposits will accumulate and the more blast effect from the expanding gasses may affect surrounding surfaces aside from the projectile itself. This is known as blast or blast effect. The shorter a barrel is, the less efficient the propellant burn will be, the more unburnt propellent will exit the barrel, and the slower the velocity of the projectile. The blast effect may be greater at the muzzle of shorter barreled firearms.

[84] Glock brand firearms, including Glock type slides and barrels, are designed to extract and eject spent ammunition cartridge casings to the right of the firearm, slightly forward and upward, away from a right­handed shooter upon normal cycling of the firearm. This can be interrupted by positioning of the firearm when firing (turned on its side) or from obstructions to the right, above or right forward of the firearm such as walls, structures, body parts, brush, or other objects. The rigidity of the shooters grip may also affect the ejection cycle of a handgun.

[85] A Glock 23 model .40 Smith and Wesson Caliber semi-automatic handgun with a barrel length of 103 mm was used as the test firearm for all test shots. Each brand of tested ammunition was relatively clean burning and left little soot evidence on either medium. The amount of soot increased the closer to the medium the muzzle was placed.

[86] One shot was at or near 90 degrees to the door, The other two projectile markings appear to have been shot at an angle nearly parallel to the outer door surface.

[87] In Reintjes’ opinion, the muzzle direct shot left some soot and visible powder burns, particulate and unburned powder on the outer door.

[88] Of significance is that this expert’s opinion is that the soot and damage illustrated in the photographs and in court (Exhibit 6b) was caused by a firearm at or very near muzzle contact with the white window frame material, at approximately half diameter to the left edge of the white frame material, with either a Blazer or Federal brand ammunition cartridge.

[89] Reintjes opined that the assailant must have been in close proximity to the front door while shooting into the residence. While shooting, there was broken and shattered glass. This is based on the distinctive muzzle burn pattern on the windowpane and the spent cartridges located in the front foyer.

[90] I accept this expert’s opinion as to close contact distance of the firearm to the door, leaving the soot deposit, without reservation or qualification.

[91] I accept that the distinctive pattern of muzzle burn that could only be deposited if the barrel of the gun was in direct contact or a few millimeters from the surface of the damaged area. This leads me to conclude that the shooter’s hand was dangerously close to the door while the gun was being discharged.

[92] Roger testified to seeing the shooter reach through the door to try and open it. Although while clearly under extreme stress, he recalled that the shooter's hands were in and amongst the broken shards of glass.

[93] I find that the assailant must have been in close proximity to the front door while shooting at and into the home. So close, in fact, that there would be a high probability that the shooter would have suffered minor cuts to his hand when the glass shattered or while interacting with the door.

[94] Another factor is the location of the spent cartridges on the floor in the foyer. Reintjes opined that with the ejection of spent casings from this type of firearm, that if the shooter fired at Larry while standing between the open storm door and closed main door, the gun would have to be beyond the threshold for the casings to be deposited into the foyer.

[95] Reintjes further opined that it would be highly unlikely that the cartridges would be kicked up the step into the foyer, but rather it would be more likely to kick the cartridges out of the foyer onto the porch.

[96] From the CCTV captures, the shooter had approximately 17 seconds off- frame to locate targets, discharge a handgun at least 13 times and return to the suspect vehicle. The subject was moving quickly for any level of shooter experience. Accuracy could not be readily achieved.

[97] I reject the defence argument that the shooter could not have injured his hand because no blood was detected on the porch, the glass, or the front of the residence. This argument must fail because it would be speculative to say that if the shooter had been cut, he necessarily would have bled immediately and deposited it at the scene. Moreover, he fled immediately running away on the lawn. This contention would at the very least require some evidence, but none was presented to support such a conjecture.

[98] I accept that the Chrysler 300 was left in mint condition while owned by Bruce Matthias and was cleaned with Lysol wipes before being given to the Jassem’s and parked at 355 Champagne Drive. There is no chance for blood to be deposited there before its use in the murder.

[99] The CCTV video shows the shooter leaving, running to the Chrysler 300 on the grass and then immediately entering the driver’s side of the Chrysler 300 and fleeing the scene. There were minimal blood droplets found in the driver's area of the Chrysler 300, where the shooter enters to flee the scene.

[100] I draw the only rational and reasonable inference and find that the shooter was injured with their hand in and around the broken glass, that clearly suggests that the blood in the vehicle belonged to the shooter.

Mbuyi’s Hand Injury:

[101] Mbuyi sustained an injury to the back of his right hand around the time of the shooting. A photograph of Mbuyi was taken on July 11, 2019, at 11:51 pm, clearly depicting his hands with no apparent injuries. On August 20, 2019, Mbuyi was filmed in a rap video and shows his hands with a fresh scar on the back of his right hand, which was posted on August 29, 2019. A scar is clearly visible on the back of his right hand. Walker knows the Regent Park area and testified that, based on the construction around the locations depicted in the video, that it must have been filmed shortly before it was posted. This is supported by the Google images of the Bleecker street area. Further, Mbuyi’s cellphone connected with the Bleecker street cell site on August 20, 2019. This site is on the same city block as the basketball court. A trailer of the rap video was downloaded and saved onto Mbuyi’s cellphone on August 21, 2019.

[102] Subsequently, on October 27, 2020, police photographed Mbuyi’s hand and showed a much more healed scar on the back of his right hand. The import of Mbuyi having no scars or markings on his hands on July 11, 2019 and then having such an injury on August 20, 2019, can hardly be overstated. In the 39 days between July 11, 2019, and August 20, 2019, Mbuyi injured his hands and was developing a scar. This is entirely consistent with the shooter injuring his hand on the broken glass at the residence.

The Blood in the Chrysler 300 and DNA:

[103] Of significance is the evidence that Mbuyi's blood and DNA was in the Chrysler 300, specifically the blood around the driver's seat and front console. I find that this is the blood from the injured shooter. Therefore, Mbuyi's blood in that area supports the notion that he is the injured shooter. CFS biologist, Joanne Cox, determined that it was greater than 1 trillion times more likely that the blood originated from Mbuyi than another unrelated person. There is nothing that would support any other reason that Mbuyi's blood would be in the Chrysler 300 and was not deposited by merely incidental contact. There is no evidence that would support any opportunity for Mbuyi to deposit his blood in the driver's seat beyond the only reasonable inference that it was from the shooting and that his hand made contact with or was in proximity to the front door with the glass shatters to allow for some small lacerations or lesions.

[104] In my view, this is clear and convincing support for the Crown’s theory. There is no evidence before the court that would suggest any opportunity for Mbuyi to deposit his blood in the driver’s seat beyond the only reasonable inference that it was from his direct involvement in the shooting.

Summary:

[105] With respect, I tend to agree with the Crown attorney that some of the defence submissions requires a degree of speculation as to the treatment of the circumstantial evidence advanced at trial.

[106] As stated at the outset, this segment of my analysis is a most crucial aspect for this trial. The Crown says that Zedan’s evidence is corroborated through cell phone records, video and CCTV footage and the DNA evidence.

[107] While I am mindful of R. v. Nikolovski, [1996] 3 S.C.R. 1197, I cannot conclusively opine that Mbuyi is the shooter by virtue of the CCTV captures on their own.

[108] What I can conclude is: in comparing the other suspects’ photographs, and their size and body compositions, they do not appear to match the larger, heftier person seen in the video captures at the time of the shooting. Moreover, I accept that Walker accurately described Mbuyi’s physical features and was familiar with him. Still, the video, on its own cannot establish the identity of the shooter. At best, I conclude that the shooter shares similar body features as Mbuyi, but is not conclusive.

[109] That being said, I find that Zedan’s evidence as to the relevant events of July 18, 2019, is fundamentally corroborated with reliable and cogent circumstantial evidence on the essential elements required to establish Mbuyi as the principal shooter for both Larry and Lynn’s murder.

[110] I accept the other circumstantial evidence adduced by the Crown that gives rise to the only rational and reasonable inference that Mbuyi was the shooter. I accept that he was present in Brantford with Zedan and associates on the morning in question. I accept that he had prowled about the residence, and later ran to the door, discharging his weapon. His clothing is distinctive. His hand with the firearm made contact with the frame of the door, either shattering the glass pane or having contact with the glass resulting in minor lacerations. I accept Roger’s observation of the shooter’s hand through the door or the window of the door. The accused was seen running back to the Chrysler 300, getting into the drivers seat and speeding away. Blood was found in the driver seat area, matching the accused’s DNA. He was in contact with Zedan by cellphone post-event.

[111] On the whole of the evidence, I am satisfied beyond a reasonable doubt that the accused is the shooter. Zedan’s testimony is corroborated by reliable, cogent evidence. By virtue of his involvement pre-incident, his actions, with the rapid and wanton discharge of his firearm, I find that Mbuyi had the requisite intent and meant to cause death or meant to cause bodily harm that he knew was likely to cause death, and was reckless whether death ensues or not. This resulted in the transferred intent of the murder onto Larry and the gratuitous murder of Lynn on July 18, 2019. The question remains whether the homicide is first degree murder as charged in the indictment?

First Degree Murder:

[112] In this case, culpable homicide is classified as first degree murder where the Crown has established planning and deliberation beyond a reasonable doubt.

[113] In response to my specific query during final submissions, Mr. MacGregor did not elaborate in detail as to his client’s potential level of culpability. With respect, his response was truncated. However, this is not at all surprising, in that counsel strenuously argued for an acquittal of the charge. Indeed, there is no obligation on defence counsel to provide alternate theories or positions in a criminal trial. Thus, I do not draw any adverse inferences or conclusions on this basis.

[114] Nonetheless, it is incumbent on me to determine whether first degree murder has been established beyond a reasonable doubt.

Planning and Deliberation:

[115] Section 231(2) of the Criminal Code provides that murder is first degree murder when it is planned and deliberate.

[116] The meaning of planned and deliberate is well established. As Doherty J.A. stated in R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503 at para. 34:

A murder is planned if it is the product of "a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed". A murder is "deliberate" if it is "'considered,' 'not impulsive' . . . implying that the accused must take time to weigh the advantages and disadvantages of his intended action": (citations omitted).

[117] The plan does not have to be complicated, nor sensible. It may be a very simple plan, one that is quite easy to set up. An important factor is the time it took to develop the plan, not how much or little time it took between developing it and carrying it out. One person may prepare a plan and carry it out immediately. Another person may prepare a plan and wait a while, even quite a while, to carry it out. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill is not a planned murder. A plan may also be a conditional one.

[118] The Crown must also prove beyond a reasonable doubt that the murder in question was deliberate. “Deliberate” means “considered, not impulsive”, “carefully thought out, not hasty or rash”, “slow in deciding”, “cautious”: Robinson, at para. 34. A deliberate act is one that the person has taken time to weigh the advantages and disadvantages of. The deliberation must take place before the act of murder starts. The consequences of it must have been thought over and sized up. The time for careful thought need not be long, and not on a sudden impulse under the influence of emotion or passion.

[119] Planning and deliberation relates to the intention to take human life, and does not relate to the identity of the victim. It is not necessary that all the details be worked out in advance, so long as there was a plan to take human life. Nor is it necessary that the accused be aware of all of the details, so long as he was aware that the plan was to take human life.

[120] As I understand it, the Crown is saying one of two things on the s. 231(2) route to liability. Either Mbuyi had formed a plan with Zedan to kill Roger, or Mbuyi settled on a plan to kill Roger at some point prior to the shooting.

[121] Indeed, on its own, Zedan’s testimony does provide the basis for first degree murder based on planning and deliberation. It would be a simple and easy task to conclude that there was planning and deliberation to murder Roger, and that Mbuyi was implicated in the scheme, and hence, he is guilty as a principal, or even as a party.

[122] The dilemma is that the only evidence we have on what Mbuyi said or did comes from Zedan himself. As an inveterate, pathological liar, Zedan’s testimony about planning can only really be trusted insofar as it is corroborated.

[123] On Zedan’s version, the plan is ill-conceived. They do not have a clear description of their intended target. They approach the house prior to the shooting. There is some “plan” about luring Roger out of the home, but what that plan was is unclear.

[124] Upon closer examination, Zedan’s evidence on is all over the map. In examination in chief, he testified that Mbuyi and the others knew of the plan to kill Roger, that they were in Brantford for that purpose, albeit they had no idea what Roger looked like. Zedan also testified that the accused owed him money and his engagement in the murder would satisfy the outstanding debt.

[125] Zedan recognized on cross-examination that the residence was used as a base to sell drugs from. He also confirmed that he was a drug dealer at the time of the shooting. And he confirmed people steal drugs from drug dealers. When confronted with the suggestion that Zedan was going to Brantford to carry out a robbery from the person that sold drugs from the residence, Zedan denied that was the plan and attested he had never robbed a drug dealer before. When asked why he would carry a gun on a regular basis, Zedan answered it was because of the nature of drug dealing involves violence and the use of weapons.

[126] There were also inconsistencies from Zedan about what plan, if any, there was when the crew arrived in Brantford. Zedan said he was going to Brantford to carry out the shooting. However, video surveillance showed Zedan unmasked and approaching the residence.

[127] Furthermore, video surveillance shows a male going up to the residence and knocking on a door. Zedan agreed that the crew stopped at the residence to do some reconnaissance. However, Zedan also agreed that the plan was to wait for the target to come outside. The stated “plan” and the actions that were carried out on the morning of the shooting by Zedan and his crew are entirely contradictory and illogical.

[128] At one point, on cross-examination, Zedan conceded that he did not express the plan to his associates. As far as he was concerned, his associates knew of a drug rip, but not the details of the specific plan, as he expressed to others, albeit false. Of significance is the following evidence:

Okay. Well, let’s just talk about the logical nature of what you’re suggesting. You’re orchestrating a planned assassination here. A. Yeah. Q. And you put together a crew, right? A. Yeah. Q. The night before. A. Yeah. Q. And you don’t know all of the participants that are coming with you. A. Not their legal names, yeah. Q. No, you’ve indicated that you didn’t know the identity of at least one of the individuals. A. Yeah, at least one of them, yeah, I didn’t know. Q. Right. A. Yeah. Q. So, you’re bringing along somebody that you don’t know, if we’re to believe you that this is what the intention was? A. Yeah. Q. Right. And the others, you didn’t even know their full names, right? A. Not — not — not legal names... Q. No. A. ...but their street names, yeah. Q. Just street names and you’d only known Mr. Mbuyi for a couple of months even... A. Yeah. Q. ...right? A. Yeah. Q. That’s the extent and depth of your knowledge of these people that you’re bringing along to engage in this act... A. Yeah. Q. ...from what you’re telling us, right? A. Yeah. Q. And you’re the boss, you’re currently in charge, and that you don’t tell everybody in the group what you’re going to do, right? A. Mm-hmm. Q. Right? A. Yeah. Q. Yeah. So, even members of the groups don’t know that you’re going to do this assassination, as you call it, right? A. How — how wouldn’t they know? Q. How would they know? You’re right... A. Wouldn’t they... Q. ...this is the plausibility... A. ...I said, how wouldn’t they know? Relax... Q. ...this is.... A. ...slow down, buddy. I said, how wouldn’t they know. Relax, you need to chill out. Q. You didn’t them. A. I didn’t tell them? Q. Yeah, that’s what you’ve — you’ve given multiple statements about not informing them, correct? A. Yeah, that’s what I said before, yeah. (emphasis added).

[129] What I can glean from this and other testimony from Zedan, in addressing the scope of the plan and information provided by him to the crew, he initially stated that the crew was aware why they were traveling from Toronto to Brantford. Later, however, Zedan stated that “Malik had no idea why they were traveling to Brantford”, and at best Mbuyi may have thought they were going to commit a robbery. In addition, Zedan recognized that there were contradictions between what he said at the preliminary inquiry, in the various trials he has testified in and what he pled guilty to at his own trial.

[130] There is contradictory and inconsistent evidence from Zedan about what his associates knew. It is unclear from Zedan’s evidence whether Mbuyi actually agreed to the plan or whether he expressed a plan by word or deed to or from Zedan, to murder Roger.

[131] For the sake of completeness, I briefly turn to the issue of post-offence conduct. It can, in certain limited circumstances provide the basis for a level of culpability. The probative value of post-offence conduct depends on the nature of the evidence, the issues in the case and positions of the parties. As a matter of common sense and human experience, it is capable of supporting an inference that the accused had a particular state of mind at the time of the offence: R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.). at para. 14.

[132] However, in most cases, such as here, post-offence conduct cannot help to determine the state of mind of an accused: R. v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285, at para. 103; R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 147. For example, the fact that Mbuyi fled the scene, disposed of the weapon, the cellular phone calls, and cuts on hand, cannot assist in addressing his level of culpability. As such, this after-the-fact conduct is equally consistent with the mens rea for either first or second degree murder.

[133] Any of Mbuyi’s statements to Zedan or others lend support to the commission of the unlawful act but cannot assist me as some post-offence utterance that can give rise to establish a degree of culpability or the accused’s state of mind: : See R. v. White, [1998] 2 S.C.R. 72, at paras. 27-28; Arcangioli, at p. 147. See also R. v. White, [2011] 1 S.C.R. 433, at paras. 37, 41-42; R. v. Calnen, [2019] 1 S.C.R. 301, at paras. 121-123.

[134] While the motivation behind the murder proffered by the Crown is to address Roger’s disloyalty to the Jassem family, there was no evidence of animus from anyone towards Roger leading up to the time of the murders. Even so, where they may be strong evidence of motive and intention, those principles are not synonymous with the legal principles of planning and deliberation for first degree murder. See, for example, R. v. McKenzie, 2018 ONSC 2006, at paras. 33-34, citing with approval the decision of the Nunavut Court of Appeal, R. v. Evaloakjuk, 2001 NUCA 1.

[135] I recognize that it is improper to consider evidence on a piecemeal basis and that it is the cumulative effect of the evidence that matters. However, an opportunity to plan and deliberate does not, in my view in this case, equate to any evidence of planning and deliberation. Indeed, if the existence of motive and an opportunity to plan was sufficient, virtually every culpable homicide would potentially be first degree murder.

[136] Moreover, willfulness has to do with the intention to commit murder and does not equate with deliberation. A murder committed on sudden impulse and without prior consideration, even with a motive and intention to kill, is not a deliberate murder.

[137] I am not prepared to draw the inference of planning and deliberation on the basis of Zedan bringing Mbuyi along and that a firearm was present, with the Chrysler 300 repeatedly circling the Van Every residence, the pre-homicide contact or communication, the rapid unfolding of the shooting event, all combined with an alleged animus to come up with such a plan. In fact, it does not seem logical that such a plan would be hatched without clear, specific information from which the target could be identified. Nor am I satisfied that the Crown has established first degree murder by virtue of s. 231(3) of the Criminal Code.

[138] The implementation of a murder committed on a sudden impulse will not constitute a planned murder even though the intent to kill is clearly established.

CONCLUSION:

[139] As mentioned at the outset, this is a case where the principal Crown witness suffered from various degrees of mendacity, obfuscation and inconsistencies. A case where the evidence of the sole eyewitness to the incident must be analyzed with strict scrutiny and caution.

[140] I have rejected a considerable segment of Zedan’s testimony as being unreliable. However, I accept some of his evidence where there is corroboration of the facts giving rise to the essential elements of the homicide. In my opinion, the circumstantial evidence, viewed logically and in light of human experience, is not reasonably capable of supporting a rationale inference other than that the accused is guilty.

[141] Based on the whole of the evidence, I am satisfied beyond a reasonable doubt that Mbuyi had the requisite state of mind and had the specific intent to kill Roger, but instead shot and killed Larry and Lynn on July 18, 2019, resulting in culpable homicide.

[142] On these facts, it is very tempting to reach a conclusion that there was some planning and that Mbuyi was a direct participant to it. Indeed, there are elements of design, intention, as well as a probable motive engaged in this case.

[143] However, Zedan’s numerous external and internal inconsistent versions, his motivation to lie, coupled with the lack of cogent, corroborative evidence, provides a deficit of reliable evidence about if or when Mbuyi planned and deliberated the murder, either as a principal or a party. On this point. Zedan’s testimony ascribing Mbuyi’s actions or state of mind gives rise to the perils as outlined in Vetrovec and its progeny.

[144] In other words, it would be dangerous to rely on Zedan’s testimony to convict Mbuyi on the aggravated form of the indicted offence.

[145] Therefore, with respect to count one, I find Malik Mbuyi not guilty of first degree murder, but guilty of second degree murder. With respect to count two, I find Malik Mbuyi not guilty of first degree murder, but guilty of second degree murder. Convictions shall be registered on the indictment.

[146] With respect to count three, conspiracy to commit murder, I find Malik Mbuyi not guilty.

A.J. Goodman J. Date: April 5, 2024

COURT FILE NO.: CR-22-0134 DATE: 2024/04/05 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING - and - MALIK MBUYI

REASONS FOR JUDGMENT

A. J. GOODMAN, J. Released: April 5, 2024

[1] I am mindful that my job is not that of a court reporter. Nonetheless, as my analysis involves an assessment of key credibility and reliability findings, such an exercise is required in this case. I have also taken the liberty to reference some of the Crown and defence arguments related to portions of the evidence.

[i] The continuity of all evidence seized by the police, including items sent to the Centre of Forensic Sciences for examination.

The crime scene photographs and videos.

The manner of death of Lynn and Larry.

CCTV surveillance video captures at the VanEvery residence at 10 Park Road S. Brantford.

Cellphone Records: 437-229-2163 ('Ahanelle Louiss'). This number was regularly used by Zedan during this period and, in particular, he was using it on July 17 and 18, 2019.

Cellphone Records: 437-219-8881 (‘Balfour’). This number was used regularly by Mbuyi during this period, and in particular, he was using it on July 17 and 18, 2019.

Forensic Examination of the Chrysler 300: These swabs were examined and revealed that the blood had come from one male. A profile identified as 'STR Profile 4' was generated for comparison. Swab of stain on dashboard beneath CD player (3-8), Blood detected, DNA from one male, Yes: STR Profile 4 (male, from blood) Swab of stain on button on gear shift (3-9), Blood detected, DNA from one male, Yes: STR Profile 4 (male, from blood)Swab from staining on buckle of driver's seatbelt (3-10), Blood detected, DNA from one male, Yes: STR Profile 4 (male, from blood)

Forensic Biology Reports: MBUYI cannot be excluded as the source of a male DNA profile (STR Profile 4; previously reported) determined from swabs of blood (items 3-8, 3-9, 3-10, 3-11a, 3-13a & 3-14a) from a black Chrysler 300 vehicle, ON# BVKJ298. The STR DNA results are estimated to be greater than one trillion times more likely if STR Profile 4 originates from MBUYI than if it originates from an unknown person unrelated to him.

The Leslieville Video: On August 26, 2019, Mbuyi was travelling by foot through the Leslieville neighbourhood of Toronto and was video-recorded by a number of surveillance systems as he did so. Mbuyi is seen wearing a blue track suit and white t-shirt. The video accurately depicts his appearance at that time.

The Arrest Photographs: On August 8, 2018, Mbuyi was arrested in Toronto. In relation to that arrest, police took a photograph of him that accurately depicts his appearance at the time. On September 1, 2019, Mbuyi was arrested in Toronto on charges that are unrelated to the present matter. A photograph of him that accurately depicts his appearance at the time.

The YouTube Video of Mbuyi: On August 30, 2019, a video depicting Mbuyi ('Paperboy - CP24 Remix (Official Video) Dir. by @DonteChung') was uploaded to YouTube. The video accurately depicts Mbuyi. On an unknown date, prior to their arrests on the present charges, Mbuyi and Zedan were together at a house party. The video accurately depicts Mbuyi and Zedan.

The Photograph of Mbuyi & Baez-Eusebio: On an unknown date, prior to their arrest on the present charges, Mbuyi and Thomy Baez­Eusebio were together at an unknown residence. They were photographed while posing together using a cellphone. The photograph accurately depicts Mbuyi and Baez-Eusebio.

Re: Depictions of Alridge, Baez-Eusebio, Howes, and Philbert and Dylan Alridge: On July 6, 2016, a driver's license photograph was taken of Dylan Alridge. On October 27, 2016, a photograph was taken of Alridge following his arrest in Peel. On May 14, 2017, a photograph depicting Alridge was posted to social media. On January 12, 2021, Alridge was arrested in Collingwood on charges unrelated to his involvement in the present matter. On February 19, 2021, a photograph was taken of Alridge in relation to his Collingwood arrest. All of the video and photographs accurately depicts his appearance at the time.

Depictions of Thomy Baez-Eusebio: On May 6, 2016, a driver's license photograph was taken of Thomy Baez-Eusebio. On May 19, 2018, Baez-Eusebio was arrested in Simcoe. In relation to that arrest, police took a photograph of him. On September 9, 2019, Baez-Eusebio was arrested in Toronto on charges unrelated to the present matter. All of the video and photographs accurately represents his appearance at the time.

Depictions of Nathan Howes: On May 30, 2019, Nathan Howes was arrested in Goderich on charged unrelated to his alleged involvement in this present matter. On August 28, 2019, Nathan Howes was arrested in Halton on charges unrelated to his alleged involvement in the present matter. On various dates in the first half of 2019, Howes posted photographs of himself to various social media platforms. The videos and photographs accurately represent Howes' appearance at the time.

Depictions of Terrell Philbert: On March 22, 2018, a driver's licence photograph was taken of Terrell Philbert. On January 22, 2020, Philbert attended a Pioneer Gas Station at 610 King Street West in Hamilton. The gas station had a surveillance system that generated video-recording that accurately represents his appearance at the time.

Surveillance Video from Bishop Tutu Boulevard: On July 29, 2019, Mbuyi and Zedan were together at Bishop Tutu Boulevard in Toronto. They were recorded by a nearby surveillance system. Mbuyi is seen wearing black track pants with white stripes and a black t-shirt with white Nike branding across the chest; Zedan is seen wearing dark track pants with green stripes down the sides and a white t-shirt. The recorded video accurately depicts their appearance at that time. The date and time information reflected in the video is also accurate.

Provenance of the Chrysler 300: It is agreed that Bruce Matthias was the rightful and registered owner of a black 2014 Chrysler 300. The license plate was BCKJ 298 and its vehicle identification number was 2C3CCAAG lEH163124. Nathan Howes and Kevin Jellis robbed the vehicle from Matthias on May 22, 2019. Both Jellis and Howes subsequently admitted to these facts and both have pleaded guilty to robbery in relation to that incident. Howes maintained possession of the vehicle for two clays, during which time the vehicle was routinely parked near 192 Grand River Avenue in Brantford. While he had possession of the Chrysler 300, Howes and Marsh cleaned the vehicle's dashboard, console, and other hard surfaces with Lysol wipes.

Discovery of the Chrysler 300: The Chrysler 300 was used by the assailants who carried out the homicides of Lynn and Larry. It drove past the Van Every residence numerous times and these passes were captured on the home's video surveillance system. After the homicides, the Chrysler 300 was located by police near the junction of Rowanwood Avenue and Steed Court in Brantford at approximately 9:17 AM on July 18, 2019. The assailants had abandoned the vehicle. The Chrysler 300 was photographed by police at the scene and was seized by police. It was securely transported to a police facility for the purpose of conducting forensic and technical examinations. There was no opportunity for any forensically relevant evidence, such as biological or genetic material, to be deposited in the vehicle between its initial seizure and its ultimate examination.

Forensic Examination of the Chrysler 300: The Chrysler 300 was forensically examined by Centre of Forensic Sciences technicians Wendy Lalonde on August 7, 2019 and Kristina Kovarik on October 16, 2019. Examinations were conducted on blood detected on the interior, driver, and front passenger areas of the vehicle. Technicians recovered several samples from the vehicle, including:

• Blood from the dashboard centre control panel below the disc player, which was properly swabbed and identified as 3-8;
• Blood from the gear shift button, which was properly swabbed and identified as 3-9;
• Blood from the driver’s seatbelt buckle, which was swabbed and identified as 3-10;
• Blood from the dashboard centre control panel near the vehicle ignition button, which was properly swabbed and labelled 3-11A;
• Blood from the left side of the centre console storage compartment, which was properly swabbed and identified as 3-13A; and
• Blood from the lower portion of the driver’s seat backrest, which was properly swabbed and identified as 3-14A.

These swabs were examined and revealed that the blood had come from one male. A profile identified as 'STR Profile 4' was generated for comparison following the forensic examination of these samples.

Technical Examination of the Chrysler 300: The Chrysler 300 was outfitted with a properly functioning GPS navigation module. The module was active between May 22, 2019 and July 18, 2019. During this time, the navigation module generated reliable and accurate location data whenever the vehicle was in motion or its engine was running. Investigators were able to extract the location data from the GPS navigation module. The extraction process did not affect the completeness or accuracy of the data in any way.

Graham Miller Statement: It is agreed that Graham Miller gave a statement to Officer Raj Saini on July 18, 2019. He resided at 10 Fairmount Avenue in Brantford. This is across the street from Echo Place School. Miller stated that he saw a black Chrysler 300 parked on the east side of Fairmount Avenue, across from his residence sometime between 7:30 and 8:00 AM on the morning of July 18, 2019. Miller states that another black vehicle arrived on his side of Fairmount Avenue. Miller states he saw a "bigger" and "huskier" black male run over to the Chrysler 300 and another tall slender individual, under six feet tall wearing a hoodie, get out and back into the second vehicle. Graham Miller stated that the Chrysler raced clown Fairmount Avenue toward Glenwood Drive after the "bigger" and "huskier" black male jumped into the driver's seat. Soon after, Mr. Miller recalled hearing popping sounds that he likened to a nail gun. Police took photos, 3D photos and drone videos of Fairmount Avenue and Echo Place School. The area of Fairmount Avenue is accurately depicted in Exhibit 19.