R. v. Willan, 2024 ONSC 2493

COURT FILE NO.: CR-24-50000108-0000 DATE: 2024-05-02

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – TYLER WILLAN Defendant

Counsel: Ken Lockhart, for the Crown Kiran Grewal, for the Defendant

HEARD: February 19-22, 26-27, and 29, and March 1, 2024

REASONS FOR JUDGMENT

Spies J.

Overview

[1] Tyler Willan is charged with one count of arson contrary to s. 434 of the Criminal Code. The allegation is that Mr. Willan was a party as an “aider”, pursuant to s. 21(1) of the Criminal Code, to the burning of a silver Honda Accord with licence plate CBSN429 (the “Honda”) on January 22, 2022. He re-elected trial by judge alone before me and pleaded not guilty to the charge.

[2] The Crown alleges that the Honda was used in the shooting death of Malachai Bainbridge who was shot multiple times shortly after midnight on January 22, 2022, while he was seated in the driver’s seat of his vehicle at a McDonald’s parking lot located at 2 Ingram Drive, near Keele Street and Lawrence Avenue in the City of Toronto (the “McDonald’s”). The parties agree that Mr. Willan did not participate in the shooting of Mr. Bainbridge, and that he was not even in the City of Toronto at the time of the shooting.

[3] While the parties agree the Honda was found with extensive fire damage at approximately 3:00 am on January 22, 2022, Mr. Willan denies he participated in the burning of the vehicle in any way. It is admitted that the burned-out Honda was found near Longworth Avenue (Longworth”) and Jackman Road (“Jackman”) in the City of Oshawa as described in the indictment. The location where the vehicle was found was described in the evidence as Bowmanville but since jurisdiction is formally admitted this discrepancy is not an issue. I will refer to this location as the Burn Site.

The Issues

[4] The Crown alleges that the Honda was deliberately set on fire to destroy any evidence in the vehicle related to the shooting of Mr. Bainbridge. It is the Crown’s position that Mr. Willan was driving his Outlander on the night of January 21, 2022, before the shooting and into the early morning hours of January 22, 2022 and that after the shooting, Mr. Willan followed the Honda in his Outlander to the Burn Site and helped the person or persons who drove the Honda to the Burn Site and who set it on fire, by driving them back to the Oshawa Creek Co-Operative Homes building, which is a low rise apartment building at 233 Albert Street in the city of Oshawa (“233 Albert”), where he dropped them off.

[5] It is the position of the Defence that although Mr. Willan was in Oshawa and can be seen driving his Outlander to and from 233 Albert, the video surveillance last shows his Outlander in Oshawa and that there is no direct or circumstantial evidence for this court to find that Mr. Willan followed the Honda or drove his Outlander to the Burn Site.

[6] Since the Crown’s case is largely based on circumstantial evidence, I must determine whether or not the Crown has proven beyond a reasonable doubt that the only reasonable inference from all of the evidence or lack of evidence is that Mr. Willan was a party to the offence of arson in the burning of the Honda by aiding those who set the vehicle on fire to flee the Burn Site.

The Evidence and Preliminary Findings of Fact

[7] The Crown called various officers involved in the investigation of this matter in addition to one civilian witness, Anthony Mathieu. In addition, the parties agreed on a substantial number of facts pursuant to s. 655 of the Criminal Code, which considerably shortened the trial. The Defence elected not to call any evidence.

The Video Chronology

[8] The Crown introduced a lengthy video chronology that was prepared by Detective Constable (“DC”) Maria Abdoullaeva from numerous surveillance videos seized from various locations during the investigation into the death of Mr. Bainbridge and the burned-out Honda (“Video Chronology”). DC Abdoullaeva testified that she personally determined the accuracy of the time stamps on some of those videos and in other cases she relied on information received from other officers to determine the accuracy. The parties agreed the times recorded by the various surveillance videos on the Video Chronology as testified to by DC Abdoullaeva are accurate, notwithstanding that some of her evidence on this issue is hearsay [1].

The Description of the Honda

[9] As already stated, the Honda was a silver Honda Accord. From the photographs of the Honda found at the Burn Site, I find that the Honda was a four-door sedan with no front licence plate. The grill at the front of the vehicle had the “H” Honda logo in the middle. The Honda had a small sunroof that appears to have been tinted and, in any event, appears dark against the light-coloured Honda. There were silver hubcaps on each of the wheels and as I will come to, a dent in the driver side rear of the vehicle. On some occasions on the Video Chronology there is no doubt that the vehicle seen is the Honda because the licence plate, CBSN 419I, is visible. When that was not the case, I used some or all of these features of the Honda, along with direction and distance travelled, time elapsed and the fact that at certain times it was travelling in a residential area and because of the time of night, there were very few if any other vehicles on the road, in drawing inferences and making my findings concerning the movement of the Honda as set out in this Judgment.

The Ownership of the Honda

[10] A Ministry of Transportation of Ontario (“MTO”) search on February 1, 2024, states the owner of the licence plate found on the rear of the Honda as Brandon Paul McIlmoyle.

[11] An Agreed Statement of Facts (“ASF”) was filed which states that Brandon McIlmoyle spoke to police on January 27th, 2022. He confirmed he was the registered owner of a silver Honda Accord with licence plate CBSN 429. He also told police: (a) He owned the silver Honda Accord for eight months, (b) He sold it at the beginning of January 2022, (c) He did not know the person to whom he sold the vehicle; he only knew him by the nickname 'Fat Boy', (d) Mr. McIlmoyle signed the ownership papers and left a blank line for the other person to sign; he did not see 'Fat Boy' sign the papers, (e) Mr. McIlmoyle left the licence plates on the vehicle when he sold it, (f) 'Fat Boy' refused to provide a real name, (g) 'Fat Boy' paid $300 - $500 cash and some crack-cocaine for the car, (h) The sale was done in early January in Peterborough, Ontario. This was the only time Mr. McIlmoyle ever met 'Fat Boy', (i) Mr. McIlmoyle described 'Fat Boy' as: a white male, chunky, 'probably about 5'10", give or take', long brown hair to his shoulders that might have been braided, probably 260 pounds, (j) He did not follow up with 'Fat Boy' about changing the licence plates.

[12] During the execution of a search warrant at Unit 606 at 233 Albert (“Unit 606”), police located a Honda key in a bedroom of the Unit. DC Abdoullaeva identified a video that shows her using this key on the trunk of the Honda and it easily opened the trunk. I find that this must have been a key to operate the Honda.

[13] None of the males that I observed going into and out of Unit 606 at the time in question could be described as looking anything like the description of Fat Boy. There is no evidence of anyone with that description being associated with the Honda on the night in question.

The Black Mitsubishi Outlander

[14] On the night in question the Crown alleges that Mr. Willan was driving a black Mitsubishi Outlander with licence plate CVFV 235 (“Outlander”). On February 8, 2022, Mr. Willan was stopped for speeding by Ontario Provincial Police (“OPP”) officer Kevin McAllister, while driving the Outlander. After asking for the driver’s licence, Officer McAllister saw that the photo on Mr. Willan’s licence was a true likeness of the driver. The CPIC check caused the officer to call the Officer in Charge in this case and because of information received, Mr. Willan was arrested. Another officer sealed the four doors and the back hatch of the Outlander, and it was towed to the OPP detachment in Trenton. The Outlander was then towed to Forensic Identification Services (“FIS”) in Toronto.

[15] A MTO search conducted on January 1, 2024, on licence plate CVFV 235 states the owner of the Outlander as Tyler James Willan with an address of 115-1040 Cedar Street in Oshawa. The vehicle is described as a black utility MITS which I find stands for Mitsubishi. The model is stated as “Out” which I find stands for Outlander. I find on this evidence that Mr. Willan was the owner of the Outlander at the material time.

[16] Officer Xu Wu from FIS described his search of the Outlander once it was at FIS, and he identified photographs that he took of the outside and inside of the vehicle. Police found a red plastic fuel container in the trunk. As I will come to, the use of a red plastic fuel container found at Unit 606 when that unit was searched is relevant, but there is no doubt that it was not the one seized from the Outlander. Nothing of note was found during the search save for an Ontario vehicle permit which states Mr. Willan as the owner of the vehicle.

[17] In terms of identifying the Outlander on the Video Chronology, of note is that the vehicle is four door black SUV of a certain shape. It had the type of black wheel rims on it that are usually used for snow tires and black and silver roof racks. The rear driver and passenger windows on the Outlander were tinted. There is a small light on the side of the rear bumper behind the passenger door on both sides of the vehicle and the rear brake light is at the top of the rear window which is also a somewhat distinguishing feature but only of course when the brakes are applied. On the rear window, in the lower driver’s side, is a white sticker that has a small image in the shape of a person and states: “CANCER”. On the lower passenger side of the Outlander rear window is a white cancer ribbon. These stickers were not visible when the Outlander was travelling. The rear licence plate is located above the rear bumper which is also a somewhat distinguishing feature.

[18] Given that there was a clear image of the Outlander at a gas station, which I will come to, in the early morning hours of January 22, 2022, I have also been able to use the dirt pattern on the Outlander at that time in two ways to help identify it on the Video Chronology. First there is a clear portion on the rear windshield where it was cleaned by the wiper blade that is quite visible, although I appreciate that itself is not unusual. Although less visible, at the gas station one can see that for some reason the rear passenger door on the passenger side of the SUV looked lighter than the rest of the vehicle as if it had been cleaned.

[19] On some occasions on the Video Chronology there is no doubt that the vehicle seen is the Outlander because the licence plate, CVFV 235, is visible. When that was not the case, I used some or all of these features of the Outlander, along with direction and distance travelled, time elapsed and the fact that at certain times it was travelling in a residential area at a time of night when there were very few if any other vehicles on the road, in drawing inferences and making my findings concerning the movement of the Outlander as set out in this Judgment.

The Murder of Malachai Bainbridge

The Admitted Facts

[20] The parties agreed on certain facts related to the shooting of Mr. Bainbridge which include the following: (a) Mr. Bainbridge was killed at approximately 12:47 am on January 22nd, 2022. (b) He was shot approximately 42 times while he sat in the driver’s seat of a 2010 blue Ford Fusion (“Fusion”). (c) At approximately 12:48 am on January 22nd, 2022, the Toronto Police Service (TPS) received a 911 call to attend the McDonald’s. (d) When the first officers arrived at the McDonald’s at approximately 12:52 am, they found Mr. Bainbridge in the driver’s seat of the Fusion. The engine was running, and the driver’s side window was down. No one else was in the vehicle. (e) Officers observed Mr. Bainbridge had suffered numerous gunshot wounds. While paramedics were enroute pursuant to the 911 call, the officers did not attempt lifesaving efforts. When the paramedics arrived at approximately 1:02 am, they removed Mr. Bainbridge from the driver’s seat and lay him on the ground next to the Fusion. They intended to attempt lifesaving efforts, but once Mr. Bainbridge was removed from the driver’s seat it became obvious lifesaving efforts would be futile.

The Evidence of Witnesses to the Shooting

[21] The ASF includes statements made by people who were interviewed by police who were present at the McDonald’s parking lot at the time of the shooting. While none of them could identify who shot Mr. Bainbridge, the parties agree that the observations of three witnesses who were in a vehicle that was parked while they were eating food ordered from the drive-through are as follows.

[22] The driver of one vehicle told police that she had stepped out of her car moments before the shooting as she had dropped something and was looking under the driver’s seat when she heard a bunch of gunshots. She looked up and saw a blue car and silver car parked approximately 10-15 metres away. Two male persons were standing in between them, and at least one of them was shooting into one of the car windows. Once she registered what was going on, she jumped back into the driver’s seat and pulled her car to the other side of the McDonald’s.

[23] The front passenger in that vehicle told police that when she heard gunshots, she looked over and saw two cars ‘a couple of spots away’ from where they were. She was ‘pretty sure’ one was blue, and one was silver. She told police that there were two male persons standing in between the cars and at least one of them was shooting. They were close to the driver’s side window of the car they were shooting at, although she could not remember whether that was the blue car or the silver car.

[24] The passenger in the back passenger-side seat of the vehicle, saw two cars parked next to each other about four to five spaces away. One was silver and the other may have been light blue, although he was not sure about the latter. He was also not sure if the two cars were right next to each other or if there was a space in between them. He saw two men in between the two cars, and it looked like one of them was shooting.

[25] Based on the evidence of these witnesses, I find that there were two male persons involved in the shooting of Mr. Bainbridge and that they were from a silver car that was parked next to the Fusion that Mr. Bainbridge was seated in. That, however, alone is not enough evidence to establish that the silver car was the Honda. To establish that the Crown relies on the Video Chronology showing the movement of the Honda immediately before and after the shooting of Mr. Bainbridge.

The Movement of the Honda and the Individuals in the Honda Before the Shooting of Bainbridge

[26] As I have said, the theory of the Crown is that the Honda was used in the shooting of Mr. Bainbridge and that it was set on fire shortly afterwards to destroy any evidence that might be found in the vehicle. If I am satisfied that this is the case, then Mr. Willan’s association with the Honda is important, as there would clearly be a reason for those involved in the murder of Mr. Bainbridge to want to destroy any evidence in the Honda. I have summarized below what I accept as a fact, based on my careful review of the Video Chronology.

[27] Although the names of the two males that the Crown suspects were in the Honda when Mr. Bainbridge was shot were referred to in evidence, there is no admission as to who these males were. I do not need to make a finding as to who they were, but their movements are important. To make it easier to follow their movements on the Video Chronology, I will refer to them as Male 1 and Male 2. If I can find, as the Crown alleges, that Male 1 and/or Male 2 were in fact in the Honda at the material time and that the Honda was used as the vehicle to get to the McDonald’s to shoot Mr. Bainbridge, and that one or both of them drove the Honda to the Burn Site to set it on fire to destroy evidence and thus commit the offence of arson, then whether or not Mr. Willan was associated with these two males on the night in question will obviously be important to my determination of whether or not he assisted them in the burning of the Honda in the manner alleged by the Crown.

[28] The search of Unit 606 is important to the identification of Male 1. When the police conducted a search of Unit 606, in one of the bedrooms they found a shiny black puffy hooded winter bomber jacket with horizontal stitching (“puffy jacket”), a royal blue hooded Nike jacket (“blue jacket”), a red hooded Nike jacket (“red jacket”), light grey Timberland sweatpants with a black Timberland circular logo at the top of the left leg (“Timberland sweatpants”), orange and white Nike running shoes, all black Nike Air running shoes, all black running shoes that have shiny black material on the toes and sides, a black hoody with NBA2019 Champions and a stylized gold coloured basketball on the front (“Puma hoody”) and black sweatpants that have the Puma logo on the top left leg of the pants and the word PUMA in the outline of letters along the side of the left leg (“Puma sweatpants”). In addition, a grey hooded jacket was found in the Unit (“grey jacket”) as well as the Honda key that was found hanging on the mirror of the dresser in this bedroom. A red plastic fuel can for gas was found in a closet in Unit 606.

[29] Male 1 is first seen on the Video Chronology exiting Unit 606 at 233 Albert at about 5:13 pm on January 21, 2022. Male 1 exited the main entrance of 233 Albert and down the steps that lead to the north parking lot. As Male 1 is seen exiting Unit 606, he was wearing what appears to be some of the clothing seized from Unit 606, namely the puffy jacket with a blue hoody underneath, and the Timberland sweatpants. The blue hoody is the same colour as the blue jacket found in Unit 606. A person dressed like Male 1 is seen entering 885 Oxford Street, Oshawa (“Oxford”), at about 5:15 pm and entering the elevator. I find this is Male 1 and that he exited the elevator and the building on Oxford at 8:05 pm, almost three hours later. At that time the blue jacket was not visible because the hood to the puffy jacket was up over his head.

[30] There is no evidence that the Oxford address has any relevance to the issues in this case save that it is the Crown’s position that when Male 1 left Oxford he got into the Honda and drove it to the Italian Social Club (“Social Club”) located at 245 Simcoe Street South (“Simcoe”). The Social Club fronts on Simcoe but has a parking lot at the rear of the building that is located just north of the intersection of Celina Street (Celina) and Elm Street (“Elm”). The Crown alleges that this is where Male 1 parked the Honda and that he then walked to 233 Albert.

[31] The Crown relies on the Video Chronology that shows a car that looks like the Honda at 8:23 pm travelling north on Albert (Albert is one-way north, north of Olive Avenue), going past the intersection with Olive Avenue (“Olive”) and past 233 Albert, then turning left on Emma Street (“Emma”) and going south on Celina which is one-way south and turning into what appears to be a driveway just north of Elm. Although the Video Chronology does not show that it is the Honda that entered the parking lot of the Social Club, given the movement of what appears to be the Honda to that point, the Crown also relies on the fact the Video Chronology shows the back door of the rear of the Social Club building where at a time consistent with the Crown’s theory, lights from a vehicle can be seen illuminating the snowbank next to the rear door of the building for a few seconds. The Crown submits that this is consistent with the Honda coming into the parking lot from Celina at about 8:25 pm. Although I am not able to make out the rear licence plate or the dent, the other features of the Honda can be seen as it travelled on the streets I have just referred to. Furthermore, given the layout of the streets based on the Google Maps filed and given the other times that I will come to when a vehicle that looks similar to the Honda was seen turning into what appears to be the driveway of the Social Club, I accept the submission of the Crown, that that driveway leads to the parking lot of the Social Club and that is where the Honda was likely parked at different times during the night of January 21 and into the early morning hours of January 22, 2022.

[32] A person in a puffy jacket and grey pants can be seen crossing Celina from the east to the west side, less than a minute after the Honda was parked, and then northbound on Albert from the direction of Elm and walking into the north parking lot at 233 Albert and then to the main entrance and entering the lobby at about 8:27 pm. I find that this person was Male 1 because as this male was on the phone waiting to get buzzed in, he was wearing the identical clothing that Male 1 was wearing when he left Unit 606. Male 1 went up the elevator to Unit 606 which he entered at about 8:29 pm. For these reasons I find that this was Male 1 as previously identified and that he exited Oxford at 8:05 pm and walked to 233 Albert. I also find that when the Honda was parked minutes before, it was being driven by Male 1. I rely on the time elapsed since the Honda was parked of two minutes, the direction Male 1 waked in the minutes after the Honda was parked and the fact that a key to the Honda was found in a bedroom in Unit 606 where the clothing Male 1 was wearing at the material times was found.

[33] At 9:03 pm, a young male who I find was Mr. Mathieu arrived at 233 Albert, and he went up to and entered Unit 606. As I will come to, he is the person who filled a red plastic fuel container (“Jerry Can”) with some gas when Mr. Willan drove to the Pioneer Gas Station located at 258 Park Road South, Oshawa, (“Pioneer Station”). Mr. Mathieu gave evidence at the trial, but he was clearly a reluctant witness. He was only 14 at the time of these events and 16 at the time he gave evidence. His answers made it clear that he was prepared to say virtually anything that he thought would distance him from the events of that night. Both counsel agreed that his evidence was totally unreliable save for one exception I will come to that Mr. Lockhart relies on. What I can take from Mr. Mathieu’s evidence at trial is that I had a chance to see him in the witness box and I am able to confirm that he is the one identified by the Crown as Mr. Mathieu on the Video Chronology. This was not contested by the Defence. As I will come to, Mr. Willan was already in Unit 606 when Mr. Mathieu arrived and so I assume that he would have known about his arrival.

[34] At 10:18 pm, a male wearing the same clothing as Male 1 was wearing before, save that he now had a red hoody underneath the puffy jacket, with the hood up, left Unit 606 with a black backpack. The red hoody is the same colour as the red jacket and given the other clothing this male was wearing, I find that this was Male 1 and that he had changed his blue jacket to a red jacket while he was inside Unit 606. Male 1 exited 233 Albert through the main door, and he can be seen walking away from the building through the north parking lot and walking southbound on Albert.

[35] Based on the Video Chronology, and the evidence of DC Abdoullaeva, I find, as alleged by the Crown, that after leaving 233 Albert, Male 1 walked south on Albert, then west on Elm and that he crossed to the east side and walked northbound on Celina. As Male 1 walked by 218 Celina, northbound towards John Street West (“John”), at about 10:11 pm, he pulled a white ski mask from his pocket and put it on. Male 1 can then be seen walking westbound on John toward Simcoe. At the intersection of 5 John, and 134 ½ Simcoe there is a building that has a number of residential units. Some have a John address and others have a Simcoe address. Male 1 entered the parking lot just west of City Patties located at 5 John and walked up stairs to the second level of the building behind City Patties. It was now 10:27 pm. Because it was dark it is impossible to say if Male 1 entered one of the units, but I presume that he did as he is not seen again until 10:56 pm.

[36] At about 10:56 pm two males came down the stairs from the second level of the building behind City Patties. It is hard to see them on the Video Chronology at this point but seconds later a person who looks like Male 1 is with a male wearing a white hoody, with the hood up, dark pants and dark shoes. They both had black backpacks and walked east on John, crossed Simcoe, and started walking south toward Ash Street. (“Ash”). I will call this second male, Male 2. Male 1 and Male 2 made their way to 233 Albert and Unit 606. When Male 1 buzzed the intercom to get into the building, he was no longer wearing a white mask. Once they were both inside the building Male 2 can be seen very clearly. He was wearing a black mask over his mouth and nose and black gloves.

[37] Male 1 and Male 2 entered Unit 606 at about 11:04 pm and they exited it about seven minutes later at about 11:11 pm. They were wearing the same clothes as when they entered Unit 606 minutes earlier. At this point only Male 2 had a backpack. They left 233 Albert through the southwest entrance at about 11:12 pm. They can then be seen walking to Albert and walking south and then west on Elm Street. Although Male 1 and Male 2 cannot be seen walking onto the driveway and into the parking lot of the Social Club, the Crown’s theory is that is where they walked to given the direction they were walking and the fact that Male 1 had parked the Honda at the Social Club. I am satisfied that that is the case for those reasons and from what can be seen on the Video Chronology that followed.

[38] The Crown also submits that Male 1 and Male 2 started up the Honda at about 11:16 pm, relying on the lights of a car illuminating the snowbanks by the rear door of the Social Club at this time. There is no evidence that the Honda left the parking lot at that time and in fact at about 11:20 pm, Male 2 can be seen running from the area of the parking lot behind the Social Club eastbound on Elm and north on Albert. He no longer had a backpack. At the same time Mr. Mathieu exited Unit 606, and then 233 Albert through the southwest entrance with a black backpack that he gave to Male 2. Mr. Mathieu then ran outside to the main entrance of Albert and returned to Unit 606 at about 11:22 pm. I do not know what was in these backpacks, but I do note that at the time Mr. Mathieu left Unit 606 to meet Male 2 and give him a backpack, Mr. Willan was still in Unit 606.

[39] After Male 2 was given the backpack by Mr. Mathieu, he can be seen running with the backpack on his back toward Elm and crossing Celina. The Crown alleges that Male 2 went back to the Honda in the parking lot of the Social Club and that the Honda was started again, relying on the light that illuminated the snowbanks by the rear door to the Social Club at about 11:25 pm. I am satisfied from the evidence that this is what occurred although it does not appear that the Honda left the parking lot right away. The Video Chronology shows the light on the snowbanks moving at about 11:30 pm and given my observations two minutes later I find that is when the Honda left the parking lot of the Social Club. The Video Chronology shows the Honda at about 11:31 pm going westbound on Elm through the intersection of Simcoe and then westbound on Gibb St. (“Gibb”), past 136 Gibb towards Park, then north on Park and turning into the Pioneer Station at about 11:32 pm where I can conclusively say it was the Honda as all the features including the rear licence plate and the dent in the driver side rear of the vehicle are visible.

[40] At the Pioneer Station, the Honda first pulled in facing one direction but when the driver got out of the car and walked towards the pump, he must have realized that the gas tank was on the other side of the vehicle – the driver side. The driver got back into the Honda and moved the vehicle to another pump but the gas tank was still not on the side of the pump and so he moved the Honda a second time. When the driver got out of the Honda to pump gas, he can be seen wearing a white ski mask, a black hoodie with the hood up, some words and a yellow or gold logo on the front of the hoody, black track pants, black gloves, and all black shoes. By zooming in I can see that the hoody has a yellow basketball on the front with the word “Champions” and the word Puma with the Puma logo at the top left side of the sweatpants and an outline of letters running down the side of the left leg of the pants. When the driver went into the store to pay for the gas at about 11:36 pm, I observed that the hoody and the sweatpants the driver was wearing are identical to the Puma hoody and Puma sweatpants found in Unit 606 and seized by police. As for the driver’s shoes, the toe of the shoes looked shiny and could be the black shoes that were seized at the same time.

[41] It is the Crown’s position that the driver was Male 1 and that he had changed the clothes and the shoes he was wearing after he left 233 Albert. Given my observations of the movement of Male 1 and his earlier association with the Honda, the fact a key to the Honda was found in a bedroom in Unit 606 where much of the clothing I have found he was wearing was found, the fact he had a backpack that could have contained a change of clothes and the unlikely coincidence of the Puma hoody and Puma sweatpants belonging to someone else associated with Unit 606, I am satisfied that this is the case.

[42] The Crown also alleges that by zooming in on the Honda at the Pioneer Station when the driver door was open one can see that there was a front seat passenger wearing a light-coloured hoody and that this was Male 2. I looked at the Video Chronology several times in court and while deliberating and I am not able to see this, but I do see movement in the passenger seat and given that Male 1 was with Male 2 walking to the Honda and there is no evidence of Male 2 walking elsewhere at this time, I find that there was a passenger in the Honda and that that passenger was Male 2.

[43] The Honda exited the Pioneer Station at about 11:37 pm and can be seen turning onto Gibb and travelling westbound towards Stevenson Road South, (“Stevenson”). This is next to an exit to the 401 Highway (“401”). There is no further video surveillance of the Honda until the Crown alleges that it arrived in Toronto but as I will come to, I find that it was in Toronto at about 12:21 am. The approximate time to travel from the Pioneer Station to the McDonald’s, taking the 401 is about 35 minutes, based on a Google Map [2] introduced into evidence by the Crown. I appreciate that I do not know what route the Honda took, but this evidence suggests that it was possible for the Honda to travel that distance in the time between when I have found it can be seen in Oshawa and then in Toronto on the Video Chronology.

[44] Based on the Video Chronology, I find that the Honda can be observed going eastbound on Colville Road (“Colville”) in Toronto at 12:21 am. Although the front of the vehicle is not visible, the colour, sunroof, hubcaps and dent in the rear driver side panel are, and at this time there were very few vehicles on the road. Given all of these features, I am satisfied that the Honda was in Toronto at this time. A silver sedan with a sunroof and no front plate is seen again going westbound on Colville approximately seven minutes later. I find based on the number of times the Video Chronology picks up a view of this sedan from various angles in this time frame that it is the Honda.

[45] The Crown alleges that the Honda was circling the areas of Colville. Although we do not have continuous video of this, based on what the Video Chronology does show, I agree. According to DC Abdoullaeva, Colville is four blocks north of the McDonald’s. After going back and forth on Colville, the Honda was parked at a lot behind 45 Colville for about six minutes, from about 12:26 am to when it left the lot at about 12:32 am. When the Honda pulled into the lot the Crown alleges that the Video Chronology shows that the driver was wearing a white mask which is consistent with what the driver who I have found was Male 1 was wearing at the Pioneer Station. Although it is not clear, this does appear to be the case if one zooms in on this part of the Video Chronology.

Movement of Mr. Bainbridge

[46] The Video Chronology shows a male that the parties admit is Mr. Bainbridge at a club at 60 Colville Road (“Colville Club”) at about 10:28 pm on the night of January 21, 2022. He drove his vehicle there and parked in the lot to the east of the front door. Mr. Bainbridge is easy to identify based on his clothing and in particular the fact that he was wearing a light-coloured baseball cap and carrying a dark bag with a light-coloured strap that can be seen crossing his chest.

[47] Mr. Bainbridge can be seen leaving the Colville Club at about 12:42 am on the morning of January 22, 2022. The Video Chronology shows the movement of his car to the McDonald’s where he was killed. There is a good view in the Video Chronology of his vehicle arriving at the McDonald’s at about 12:47 pm. It is admitted that after Mr. Bainbridge arrived at the McDonald’s, he was killed at approximately 12:47 am on January 22nd, 2022, i.e. within seconds of his arrival.

[48] The Crown alleges that the Honda arrived at the McDonald’s at about 12:38 am. There is video evidence of a silver four door sedan with a sunroof, silver hubcaps and no front licence plate that matches the description of the Honda entering the McDonald’s at 12:38 am. What appears to be the same silver sedan is on video leaving the McDonald’s at 12:48 am, which is less than a minute after Mr. Bainbridge arrived in his vehicle.

Finding as to Whether the Honda Was Involved in the Shooting of Bainbridge

[49] Given the evidence of the travel of the Honda before the shooting from Oshawa and in Toronto, including the clear evidence that it was in Toronto and on Colville, the statements of the witnesses about a silver car being used in the shooting, and the Video Chronology which shows the arrival of a silver sedan with many similarities to the Honda at the McDonald’s before the shooting and the fact that what appears to be the same vehicle left the McDonald’s right after the shooting, I find that the silver sedan was in fact the Honda and it was the vehicle carrying the person or persons who shot Mr. Bainbridge. This conclusion is strongly corroborated by the fact that a crumpled Cash Money document in the name of Brandon McIlmoyle was found on the ground next to Mr. Bainbridge’s car. The odds of that document in the name of the registered owner of the Honda being found at the scene at the time of the shooting makes it too much of a coincidence to suggest that it fell out of the Honda on some other occasion. It removes any doubt I might have about my conclusion that the Honda was used in the shooting of Mr. Bainbridge.

Finding of who was in the Honda at the Time of the Shooting of Bainbridge

[50] Given my finding that Male 1 was the driver of the Honda at the Pioneer Station at about 11:37 pm and my finding that Male 2 was with him and given my finding that there were two persons involved in the shooting of Mr. Bainbridge, I am satisfied that those two persons were Male 1 and Male 2.

The Movement of the Honda After the Shooting of Bainbridge

[51] The Crown alleges the Honda proceeded westbound on Ingram Drive towards Keele Street (“Keele”) and then north on Keele towards Colville, then through Lawrence Avenue West and then to the eastbound on ramp at Keele, to get onto the 401 bound for Oshawa at 12:50 am. The Video Chronology does show a silver sedan with silver hubcaps, but I could not find that this is in fact the Honda based only on that video footage.

[52] At about 1:20 am the Crown alleges that the Honda is on the Video Chronology travelling northbound on Albert, past the intersection with Olive and that it turned westbound on Elm and then northbound on Celina, (which was the wrong way as it is a one-way street south) and then turned into the parking lot of the Social Club at 1:21 am. The Crown relies on the snowbank by the back door of the Social Club being illuminated at 1:21 am as the time the Honda was parked. Based on my observations on the Video Chronology a silver sedan that could be the Honda is seen at these times and this vehicle does appear to turn into the driveway to the Social Club. Given these similarities and my finding that the Honda was parked earlier that night at the Social Club, I am satisfied that this was the Honda.

[53] Based on the Google Map entered into evidence, the approximate time to travel from 2637 Keele which is near the on ramp to the 401 and taking the 401 to 33 Olive is about 35 minutes. Although this suggests that it would have taken slightly longer for the Honda to get back to Oshawa, I have no idea what speed the Honda travelled at and so this time does not rule out my observations of the Honda as set out in both Toronto and Oshawa.

[54] At 1:28 am, Male 1 and Male 2 can be seen on the Video Chronology walking northbound on Albert to 233 Albert. Meanwhile, at about 1:29 pm, Mr. Mathieu left 233 Albert and he met Male 1 and Male 2 outside on the steps in front of the main entrance. All three of them can be seen buzzing to get in the building at about 1:30 am. Male 2 can be seen giving Mr. Mathieu a hug to greet him and all three entered the building and went up to the elevator to Unit 606.

[55] At this point Male 1 was wearing the clothing he had on when he left Unit 606 at 10:18 pm. The Crown alleges that he must have changed out of the Black Puma Sweatpants and Puma hoody and black shoes he had on when he went to the Pioneer Station, and I agree. Given that that clothing was found in Unit 606, I find that this clothing and the shoes must have been in one of the black backpacks that Male 1 and Male 2 were carrying. The fact I have found that the Honda was parked at the Social Club and that Male 1 and 2 walked back to 233 Albert from that direction and the timing of these events confirms my conclusion that Male 1 and Male 2 were the persons in the Honda at the time of the shooting. I note that when Male 2 came back to 233 Albert, he was carrying a large white bag with many black handprints on it in a swirl pattern. I will come back to the significance of this.

The Movement of Mr. Willan, the Outlander and the Honda During the Night of January 21, 2022, and the Early Morning Hours of January 22, 2022

[56] It was agreed that when giving evidence, DC Abdoullaeva could point out Mr. Willan on the Video Chronology. There is a formal admission that the defendant, Mr. Willan, was recorded on surveillance video on the Video Chronology at two locations on the night of January 21st-22nd, 2022. Specifically, Mr. Willan was recorded on video at: (i) the Oshawa Creek Co-Operative Homes building at 233 Albert St., and (ii) the Pioneer gas station at 258 Park Rd. south. Both locations are in the City of Oshawa.

[57] On the Video Chronology Mr. Willan can be seen wearing a black hoody with the hood up or down, black track pants and black running shoes with white soles. His track pants had an obvious wide red vertical stripe with two narrower white stripes with small black designs on both sides of the red stripe down the side of both legs. On some occasions Mr. Willan was wearing a blue surgical mask pulled up over his nose.

[58] I used what Mr. Willan was wearing to verify his movements. To determine whether or not I could be satisfied that he was the driver of the Outlander at the relevant times I used the fact that he owned the Outlander at the time and other evidence including his movements. I have summarized below what I accept as the facts, based on my careful review of the Video Chronology.

Before the Murder of Mr. Bainbridge

[59] Mr. Willan is first observed clearly on the Video Chronology entering 233 Albert at 7:58 pm on January 21, 2022. I find that he arrived at 7:55 pm in the Outlander. The Outlander parked in the north parking lot, and the video cuts out before I can see who exited the Outlander but given Mr. Willan entered the building moments after the Outlander was parked, and given he was the owner of the Outlander, I find that Mr. Willan was driving the vehicle. Once Mr. Willan was inside the building you can see that he was with a young female who I will refer to as Female 1 and three males, one in a black hoody with a large logo on the front, one in a royal blue hoody that had a Toronto Raptors logo on the front and one in a black hoody with a grey hood, also with a logo on the front. They went up the elevator and into Unit 606.

[60] Mr. Willan left Unit 606 at 8:18 pm, with the male wearing the Toronto Raptors hoody who had come in with him. They went down the elevator and exited through the main door of the building at about 8:19 pm. Based on what can be observed on the Video Chronology, I find that Mr. Willan walked to the driver’s door of his Outlander, he got in and the Outlander exited the north parking lot and turned north on Albert at 8:21 pm.

[61] At about 8:53 pm, the Outlander can be seen driving back into the north parking lot of 233 Albert and after it was parked, Mr. Willan, the male in the Toronto Raptors hoody and another male exited the vehicle and walked up the front steps of 233 Albert to the main entrance and into the lobby. They went up the elevator and all three entered Unit 606 at about 8:55 pm. As already stated, Male 1 entered Unit 606 at 8:29 pm and Mr. Mathieu arrived at 9:03 pm and so I find that they were both in Unit 606 when Mr. Willan was there.

[62] As already stated, I have found that at 10:18 pm, Male 1 left Unit 606 and I have described how he met up with Male 2 and how they made their way to 233 Albert and entered Unit 606 at about 11:04 pm. Mr. Willan was still in Unit 606 at that time.

[63] Mr. Willan was in Unit 606 until 12:33 am when he left the Unit with three males. They can be seen exiting 233 Albert through the main entrance doors at 12:35 am and going down the front steps towards the north parking lot. They approached the Outlander and the lights on the Outlander went on and Mr. Willan can be seen opening the rear hatch and then going into the driver’s seat. The Outlander left the parking lot and travelled north on Albert and westbound on Emma. There is no video surveillance of where the Outlander travelled to at this time.

After the Murder of Bainbridge at 12:47 am

[64] As already stated, Male 1 and Male 2 arrived back at 233 Albert, Unit 606 at about 1:30 am on January 22, 2022. There is no evidence that Mr. Willan was in Unit 606 at that time or that he had returned after the Outlander was driven away at 12:35 am.

[65] The Crown alleges that the Outlander returned to 233 Albert at about 2:04 am and pulled into the north driveway and stopped near the main entrance. Although I am not able to see the rear of the vehicle, a black SUV that looks like the Outlander entered the north driveway at that time and it drove by the main entrance to the building out of view. The Crown alleges that at this time Mr. Willan had returned to 233 Albert to pick up Female 1, Male 1, Male 2 and Mr. Mathieu and that they all got into the Outlander and left with Mr. Willan driving at 2:13 am. The Video Chronology shows a black SUV exiting the north driveway at about 2:13 am and this time the rear of the vehicle can be seen, and I find that it looks like the Outlander. Given what happened in the time between the arrival of this black SUV and its departure, and what can be clearly seen when the Outlander is at the Pioneer Station very soon afterwards, as I will come to, I find that this vehicle was the Outlander.

[66] At 2:11 am, Female 1 who was carrying a white bag, Male 1, Male 2 and Mr. Mathieu can be seen leaving Unit 606 and exiting the building through the main entrance and walking down the steps to the north parking lot. Male 1 was wearing what looks like the grey jacket with what looks like the blue hoody underneath and the Timberland sweatpants and what looks like the white and orange Nike running shoes that were seized from Unit 606 and a black mask covering his mouth and nose. Given the clothing I find that this was Male 1. Male 2 was wearing the same clothes as before in addition to a black mask covering his mouth and nose.

[67] By zooming in on the Video Chronology it appears that the white bag that Female 1 was carrying had many black handprints on it in a swirl pattern and it was likely the same bag that Male 2 was carrying when he returned to Unit 606 at 1:30 am. I find that this bag was large enough to carry the Jerry Can used by Mr. Mathieu at the Pioneer Station although that is not a finding that is necessary to my analysis.

[68] Although I cannot see these individuals getting into the Outlander, given the timing of the Outlander arriving at 233 Albert, no evidence of the driver exiting the vehicle, the four individuals walking out of the main entrance of 233 Albert to the area where the Outlander likely stopped at about 2:12 am, the timing of what I find was the Outlander leaving a minute later at about 2:13 am and more importantly what can be seen when the Outlander goes to the Pioneer Station for gas a few minutes later, I find that the Crown is correct that Female 1, Male 1, Male 2 and Mr. Mathieu got into the Outlander. I find given Mr. Willan was driving the Outlander as he was at the Pioneer Station and because it does not appear that he got out of the Outlander, I find that he was there to pick these people up, not there for a visit.

[69] At about 2:20 am the Video Chronology clearly shows the Outlander arriving at the Pioneer Station, where the Honda had gone for gas. Mr. Mathieu can be seen exiting the rear passenger seat carrying the Jerry Can. At that point Mr. Willan exited the driver’s seat of the Outlander on the other side and started pumping gas into the vehicle. This corroborates my finding that Mr. Willan was the driver when the Outlander returned to 233 Albert and that he picked up Mr. Mathieu and the others.

[70] When Mr. Mathieu exited the Outlander, he was carrying the Jerry Can and there is no sign of the Jerry Can coming from a white bag. He went to a pump in the next bay from where Mr. Willan was. Mr. Mathieu presumably realized that he had to prepay for the gas. He left the Jerry Can next to the pump and went into the store. As he walked by Mr. Willan, Mr. Mathieu turned toward him and appears to have exchanged a few words with him. Mr. Willan must have known then that Mr. Mathieu was out of the Outlander. Mr. Mathieu went into the store, spoke to the cashier, and pointed in the direction of the pumps and then he exited the store. I do not believe there is any video of where he went but I presume he went to Mr. Willan or someone in the Outlander and asked for cash. When he came back into the store, he had two $10 bills in his hand which he handed over to the cashier at about 2:21 am.

[71] After Mr. Mathieu paid for gas, and as he walked back to the pump, Mr. Willan finished pumping gas into the Outlander. Mr. Mathieu went back to the pump and filled the Jerry Can with $20 worth of gas. Mr. Willan finished pumping gas and went inside the store and paid for his gas at about 2:22 am while Mr. Mathieu was still filling the Jerry Can. When Mr. Willan returned to the driver’s seat of the Outlander, Mr. Mathieu was still outside the vehicle and so Mr. Willan must have been aware of this as he did not start up the Outlander and drive away right away. Before Mr. Mathieu finished, the rear passenger door of the Outlander opened and the sleeve of a sweatshirt, the colour of the hoody being worn by Male 2 can be seen. Mr. Mathieu finished, closed the lid to the Jerry Can and brought the Jerry Can back into the backseat of the car, entering from the passenger side at 2:23 am. It is not clear, but he may have put the Jerry Can on the floor of the back seat in front of him. The Outlander drove out of the Pioneer Station right after at about 2:23 am.

[72] The pictures taken before and after a search warrant was executed at Unit 606 show a red plastic fuel container that was on the floor outside a closet being used for storage. It has a slightly angled top with a black cap at the top of one end of the handle and a small black and yellow cap that I presume is for air on the other end of the handle. On the side there is an idented shape of four angled lines coming off each corner of a rectangle. It looks identical to the Jerry Can Mr. Mathieu filled with gas at the Pioneer. I have no doubt that they are one and the same. Although there is no video of anyone carrying the Jerry Can out of Unit 606, as I have already stated it could have been in the white bag Male 2 brought into Unit 606 at 1:30 am and in the white bag Female 1 was carrying when she and the others left at 2:11 am. There is no doubt it was in the Outlander when Mr. Mathieu used the Jerry Can to get gas and as I will come to, it was carried by Male 2 when he and the others returned to Unit 606 at 3:26 am.

[73] The issue is whether Mr. Willan knew about the Jerry Can and whether he knew Mr. Mathieu put gas in it when he put gas in the Outlander. I cannot find that Mr. Willan must have seen Mr. Mathieu putting gas in the Jerry Can as they were on opposite sides of the Outlander. The Crown marked the Jerry Can seized during the search of Unit 606 to make the point that given its size, when Mr. Mathieu went back into the back seat of the Outlander Mr. Willan must have seen it – it could not have been missed. That may be although as I have said, Mr. Mathieu may have put it on the floor and he may not have seen it. However, given that Mr. Willan spoke to Mr. Mathieu before he went into the store and more importantly must have known why he was waiting for him after he finished putting gas in the Outlander, I find that Mr. Willan must have known about the Jerry Can.

[74] I debated with counsel whether I could take judicial notice of the fact that there would have been a smell of gas associated with the Jerry Can after it was filled with some gas that would also have drawn Mr. Willan’s attention to it but given the evidence I have referred to I do not need to, nor do I make such a finding.

[75] When the Outlander left the Pioneer Station, it went westbound on Gibb which is not the way it would have gone if it was going straight back to 233 Albert. Mr. Lockhart submitted that Mr. Mathieu’s adoption of his earlier evidence in his statement to police on February 9, 2022, that he was dropped off after he was seen at the Pioneer Station is true. That is certainly possible, but I do not need to make a finding on this.

[76] The Crown alleges that the Outlander can be seen on the Video Chronology going southbound on Celina at about 2:32 am. Given the timing of when the Outlander left the Pioneer Station, I find that the black SUV that is seen on the Video Chronology at that time is likely the Outlander. The Crown alleges that the Outlander then drove into the parking lot of the Social Club where the Honda was parked. The Video Chronology does show the Outlander turning right into a driveway and a dark vehicle with the headlights on can be seen entering the parking lot of the Social Club at about 2:32 am, seconds after the Outlander turned off Celina. The Crown also relies on lights illuminating the snowbanks by the back door of the Social Club at about 2:32 am. I find that the Outlander did drive into the parking lot of the Social Club at that time. I cannot tell what happened in the parking lot however.

[77] There is no doubt that at 2:34 am, the Outlander drove back into the north parking lot of 233 Albert. It appears to have stopped in front of the steps to the entrance and although they cannot be seen exiting the Outlander, within seconds of it arriving, Female 1 and Male 1 dressed in the same clothing as when they left the building, walked up the steps, waited to get buzzed in and they went up to Unit 606. The only difference is that Female 1 was no longer wearing a mask. This corroborates my finding that they were both in the Outlander at the time it went to the Pioneer Station. Three minutes later, at 2:39 am, they exited Unit 606 and as they did so Female 1 pulled her mask back up and they left the building walking down the steps outside to the area where the Outlander appears to have stopped. Although they can’t be seen getting into the Outlander, I am satisfied that they did so because the Video Chronology shows the Outlander leaving the north parking lot at 233 Albert seconds later and there is no other evidence of them walking outside the building.

[78] The Video Chronology shows the Outlander going northbound on Albert, and turning left which must have been onto Emma. A black SUV that looks like the Outlander is then seen travelling southbound on Celina within seconds of the Outlander leaving 233 Albert. I find, given the time elapsed, the time of night and the appearance of that vehicle that it must have been the Outlander. The Outlander turned into the driveway of the Social Club and seconds later at 2:39:40 am a vehicle can be seen entering the parking lot at the top of the screen of the Video Chronology which must have been the Outlander. The Outlander does not come all the way into the parking lot and appears to stop at the end of the driveway. It starts to move a minute or so later, but the Video Chronology does not show it leaving the parking lot.

[79] The Crown alleges that the Outlander can be seen following the Honda as both vehicles leave the Social Club at 2:41 am, relying on the Video Chronology. Based on my review of the Video Chronology, I find that the silver sedan that can be seen southbound on Celina approaching the intersection with Olive and turning eastbound on Olive was likely the Honda, given the features of the Honda that are all visible save for the rear dent and the rear licence plate. The vehicle the Crown alleges is the Outlander is more difficult to make out as the rear of the vehicle cannot be seen at first, but that vehicle has many features of the Outlander, and it did turn and travel eastbound on Olive as well. As these vehicles travelled east on Olive, another camera picked up the rear of the black SUV and with the additional identifying features I am satisfied that the black SUV was in fact the Outlander. This camera shows the Honda turning southbound on Albert with the Outlander still eastbound on Olive approaching the intersection with Albert. The Outlander also turned southbound on Albert (Albert is two way sought of Olive). The Crown alleges that both vehicles were headed in the direction of the 401, but there is no further video of these vehicles until the Honda is seen close to the Burn Site.

[80] There is no further sighting of the Outlander travelling to or from the Burn Site until it is seen again on Albert at 3:23 am on January 22, 2022, as I will come to. The Crown alleges that the 42 minutes, while there is no video surveillance of the Outlander, was enough time for Mr. Willan to follow the Honda to the Burn Site and bring the person or persons driving the Honda back to 233 Albert. I accept that there was enough time for this to have happened based on the Google Map entered into evidence, but the primary issue for me to determine is whether or not that in fact happened given there is no evidence of the Outlander being driven outside of Oshawa at all and the Outlander does not appear at all on the Video Chronology between 2:41 and 3:23 am on January 22, 2022.

The Burn Site

[81] At 3:01 am the Crown alleges that the Honda can be seen on the Video Chronology close to the Burn Site, travelling westbound on Longworth from northbound on Scugog Street. Mr. Lockhart conceded that it is not possible to say for certain that this was the Honda but given this is very close to the Burn Site where the Honda was found burning minutes afterwards and the appearance of the vehicle and the time of night, I am satisfied that this vehicle must have been the Honda. Given that it was going westbound on Longworth I find it likely that it had travelled northbound on Scugog.

[82] The time that elapsed from when the Honda was seen southbound on Albert to the Burn Site was 19 minutes. A Google Map introduced into evidence by the Crown shows that the approximate time to travel from the Social Club in Oshawa to the Burn Site is about 20 minutes, taking the 401 Highway for most of the drive. I appreciate that I do not know what route the Honda took but this evidence suggests that it was possible for the Honda to travel that distance in the 19 minutes between the times it is seen on the Video Chronology.

[83] In closing submissions Ms. Grewal submitted that it was not possible for the Outlander to have gone to the Burn Site, as it is not seen on the Video Chronology near the Burn Site and if it had gone there, it would have been seen going westbound on Longworth. In response, Mr. Lockhart submitted that in fact the Burn Site can be accessed by taking an exit from the 401 at Bowmanville Avenue, travelling north and then east on Longworth. Appendix B to the ASF is a Google Map of the Burn Site and it shows an interchange on the 401 with Highway 57/Bowmanville Avenue. I appreciate that there is no video surveillance of the Outlander taking this route either and I will consider that when I come to consider the charge against Mr. Willan, but I accept that there were at least two ways to access the Burn Site. I also find that since Bowmanville Avenue has an interchange with the 401 that it was the more likely exit off the 401.

The Burning of the Honda

[84] The Crown alleges that the Honda was burning by 3:09 am on January 22, 2022. I find that must be the case as Officer Jacob Kiddle from the Durham Regional Police Service received a radio call at 3:09 am to attend an abandoned vehicle that was on fire. Accordingly, the fire had already started by 3:09 am and given there were no residences around the Burn Site it must have been visible for some distance by that time.

[85] Officer Kiddle arrived at the scene at 3:22 am. He described the exact location of where the Honda was found near Longworth and Jackman. He testified that the Honda was at the start of Jackman, I assume because he testified that the road was not ploughed. According to Officer Kiddle the Burn Site is three to four kilometres north of the 401.

[86] When Officer Kiddle arrived the fire department was already there, putting out the fire. He did not see flames but there was steam coming off the Honda due to the water being used to put out the fire. Officer Kiddle testified that there were no residences around. He searched the area on foot to ensure no one was hurt. He did not see anyone.

The Movement of the Outlander and Mr. Willan after 3:00 am

[87] As already stated, there is no video footage of the Outlander after 2:41 am, when it was seen driving behind the Honda in Oshawa until after the Honda was burned.

[88] The Crown alleges that at 3:23 am the Outlander can be seen northbound on Albert, travelling through the intersection of Olive and Albert. Mr. Lockhart relies on the fact that this is 22 minutes after the Honda is seen on the Video Chronology close to the Burn Site, travelling westbound on Longworth from northbound on Scugog Street. Having reviewed the Video Chronology carefully although I am not able to find that the vehicle at this point in the Video Chronology was the Outlander, given that it has many similarities to the Outlander and the fact that given the time of night there were very few cars on these streets and given what I will come to, I find that this vehicle was in fact the Outlander.

[89] I find that for the reasons that follow that the Outlander arrived at the north parking lot of 233 Albert and dropped off three people before leaving the parking lot again at 3:24 am. The Outlander is then seen travelling northbound on Albert at 3:25 am. The Video Chronology shows a black SUV from the side entering the north parking lot of 233 Albert at this time and the features match the Outlander. When the Outlander left the north parking lot the rear of the vehicle can be seen clearly save for the stickers on the rear window and all the features match the Outlander.

[90] The Video Chronology is clear that at about 3:26 am, Female 1 and Male 1 wearing the same clothing they were wearing when they were last seen at 233 Albert at 2:34 am and Male 2 wearing the same clothing he had been wearing all night returned to Unit 606. All three were wearing black masks. Male 2 was carrying a red plastic fuel container. Given the timing between the appearance of the Outlander at 233 Albert and the presence of these three people, who had been in the Outlander earlier and given the time of night, I agree with the Crown that these three people were dropped off by the person driving the Outlander. I am not able to see who the driver of the Outlander was, but there is no evidence to suggest that it was anyone other than Mr. Willan. I will come back to this question.

[91] At about 4:44 am a cab arrived outside the main entrance of 233 Albert and at about the same time Male 2 left Unit 606. This time he was not in possession of the red plastic fuel container. He appears to have taken the taxi and left 233 Albert.

[92] Given that a red plastic fuel container seized from Unit 606 looks identical to the Jerry Can Mr. Mathieu was filling at the Pioneer Station and the one Male 2 carried into Unit 606, I find that the red plastic fuel container seized by police from Unit 606 is the Jerry Can Mr. Mathieu put $20 of gas into and brought into the Outlander and that it was later brought into Unit 606 by Male 2 after the Honda was burned when he and the others returned to 233 Albert.

[93] I accept that there is no evidence as to whether there was any gas in the Jerry Can when it was seized and even if it was empty, that would not assist me as it was seized almost two weeks after it was last seen in the early morning hours of January 22nd. Ms. Grewal argued that Male 2 was holding the Jerry Can with two hands when they were waiting to get into 233 Albert and suggested that that could mean it was heavy and still had gas in it. I do not accept that submission. When Mr. Mathieu carried the Jerry Can back to the Outlander, he did not appear to have any difficulty in holding it. Ms. Grewal pointed out that he did not have to carry it very far, but he was very young at the time and quite small in stature, so if it was heavy I would expect to see that in the way he carried it. As for Male 2, even if he held the container with two hands while he was in the vestibule of 266 Albert, as he was walking into the building and up to Unit 606, he was swinging his arms, and he did not appear to have any difficulty carrying the container for that period of time.

The Relevant Legal Principles

[94] There is no issue between counsel as to the relevant law. In coming to my decisions in this matter I must carefully apply the governing law with respect to circumstantial evidence as Mr. Lockhart concedes that the Crown’s case against Mr. Willan depends largely on circumstantial evidence.

[95] I begin with the decision from the Supreme Court of Canada in R v. Villaroman, [2016] 1 S.C.R. 1000, 2016 SCC 33, where, at paras. 35-42, and 50, the court set out the governing law about drawing inferences from circumstantial evidence:

[35] ... The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

[36] … a reasonable doubt, or theory alternative to guilt, is not rendered “speculative’ by the mere fact that it arises from a lack of evidence. … 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.

[37] When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: [citations omitted]. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

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

[39] I have found two particularly useful statements of this principle.

[40] The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added in original]

[41] While this language is not appropriate for a jury instruction, I find the idea expressed in this passage -- that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative -- a helpful way of describing the line between plausible theories and speculation.

[42] The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that "[c]ircumstantial evidence does not have to totally exclude other conceivable inferences"; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.

[50] When dealing with the defence position, the judge correctly stated the law, in my opinion. The judge properly noted that "the accused cannot ask this Court to rely on supposition or conjecture, that flows from a purely hypothetical narrative to conclude that the Crown has not proven he is guilty of the offences with which the Crown has charged him": para. 47. … The judge's citation of McIver was intended to make the same point, i.e. that a reasonable doubt cannot arise from speculation or conjecture. This is perfectly correct. As the Court said in Lifchus, "a reasonable doubt must not be imaginary or frivolous"; need not be proof to an absolute certainty; and must be based on "reason and common sense": paras. 31 and 36. The burden on the Crown does not extend to "negativing every conjecture": R. v. Paul, [1977] 1 S.C.R. 181, at p. 191.

[96] As Mr. Lockhart submitted, Villaroman did not change the law. It is largely a restatement of the traditional test from Hodge’s Case, see R. v. S.B. 2018 ONCA 807, [2018] O.J. No. 5186 at para. 122.

[97] Mr. Lockhart provided a number of authorities in support of his position that the rule in Hodge’s Case only applies to the actus reus of an offence and that it does not apply to the mens rea or the intent of an offence. I accept that submission; see for example R. v. Robinson, 2017 BCCA 6 at para. 24, and the cases referred to therein, which was affirmed by the Supreme Court of Canada in R. v. Robinson 2017 SCC 52 at para. 1, and Strasser v. Roberge, [1979] 2 S.C.R. 953 at 974.

[98] Mr. Lockhart also provided some authorities that discuss the principle from Villaroman that the Crown does not need to negative every other possible inference in order to meet its burden; see R. v. Ramroop, 2021 ONCA 642 at para. 6. As Justice Kasirer said in R. v. Vernelus, 2022 SCC 5 at para. 5: “the ‘only reasonable inference’ criterion does not mean that guilt had to be the only possible or conceivable inference”.

[99] A very helpful statement of this principle was set out by Justice Watt in R. v. Stennet, 2021 ONCA 258 at para. 75 as follows:

In order to conclude that the only reason that the appellant lost control of the vehicle was because of the grossly excessive speed at which he was driving, the trial judge was required to consider whether all other plausible theories or reasonable possibilities inconsistent with culpability could account for the accident. These non-culpable inferences could arise from the evidence or the absence of evidence. However, to be availing, those inferences must be reasonable, given the evidence and the absence of evidence, assessed logically and in light of human experience and common sense. Circumstantial evidence does not have to exclude merely conceivable or possible inferences, only those that are reasonable and not speculative. [Emphasis added]

[100] As Mr. Lockhart argued, if there are multiple exculpatory inferences arising from the evidence or absence of evidence, they must explain the evidence as a whole. In other words, a single exculpatory inference that does not explain the evidence as a whole cannot ground an acquittal. This principle was stated by the Court of Appeal in R. v. Wu, 2017 ONCA 620, where at para. 15 the court stated:

It is also important to note that where evidence is circumstantial, the standard of proof beyond a reasonable doubt applies only to the final evaluation of innocence or guilt by the trier of fact. It does not apply piecemeal to individual items of evidence. Here, having regard to the manner in which the case was put to us by the appellant, the words of this Court in R. v. Uhrig, 2012 ONCA 470, at para. 13 are particularly apt:

When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 77 C.C.C. 75. [Emphasis added]

[101] Ms. Grewal also provided a number of authorities that I have considered in addition to Villaroman. She referred specifically to R. v. Mitchell, [2014] O.J. No. 3713 at paras. 55-56 where Justice Ellies of this court stated:

55 Inference drawing is a two-step process. First, it is necessary to find the primary fact or facts from which the inference is alleged to flow. … Where primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation: R. v. Alexander, [2006] O.J. No. 3173 (S.C.), at para. 24. …

56 The second step in drawing an inference requires a determination as to whether the primary fact or facts make the existence of the inferred fact more likely. As Ducharme J. pointed out in Alexander, at para. 21, this second step involves the application of inductive, rather than deductive, logic. In other words, the inference to be drawn from the primary facts may, but not necessarily must, follow. Deciding whether it does usually involves the application of common sense and human experience. Because we all have different life experiences, the fact that inference drawing is an inductive process means that there may be room for disagreement among reasonable people as to whether an inference should be drawn from an established primary fact. …

[102] Mitchel and Alexander were decided before Villaroman, but I do not see this two-step process any different than what the court in Villaroman said at para. 40, especially when quoting from the Australian case of Martin v. Osborne. In other words, to use the language from that case, if according to the common course of human affairs, the degree of probability that the occurrence of the facts proved [i.e. the primary facts] would be accompanied by the occurrence of the fact to be proved [i.e. the inference to be drawn from the primary facts] is so high that the contrary cannot reasonably be supposed.

[103] Those cases did not add anything to the principles of law that I have already set out save for a reference to para. 30 of Villaroman where the court cautioned the trier of fact in a case where proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences. I have taken that caution into account in making my findings.

Analysis and Conclusions

[104] Section 434 of the Criminal Code provides that every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years. The Crown does not allege that Mr. Willan was directly involved in setting the fire but rather that he was a party to the offence as an “aider” as defined in s. 21(1)(b) of the Criminal Code which provides that everyone is a party to an offence who “does or omits to do anything for the purpose of aiding any person to commit it”.

[105] Mr. Lockhart referred to R. v. Brisco, [2010] 1 S.C.R. 411, 2010 SCC 13 where the Supreme Court considered s. 21(1)(b) of the Criminal Code. In order to prove that Mr. Willan was an “aider” the Crown must prove that 1) Mr. Willan did something to assist Male 1 and/or Male 2 in committing the offence of arson, namely by driving them back to Oshawa from the Burn Site, and 2) that he rendered this assistance for the purpose of aiding Male 1 and/or Male 2 in the commission of the offence of arson. Mr. Willan only needed to know the general details of the crime - he did not need to know exactly how they intended to commit the offence, see Brisco at paras. 13-17.

[106] As already stated, there is no issue with respect to the identity of Mr. Willan as the defendant before this court and jurisdiction with respect to the time and place where the Honda was burned as set out in the Indictment.

[107] The first issue I must consider then is whether or not Male 1 and/or Male 2 committed the offence of arson. To prove that the Crown must prove that Male 1 and/or Male 2 intentionally or recklessly caused damage to the Honda by fire and that the Honda was not wholly owned by Male 1 or Male 2.

[108] Ms. Grewal argued that the Crown has not proven the cause of the fire because there was no investigation of the cause of the fire that damaged the Honda. She submitted that the fire could have started in any number of ways; for example, by an electrical fault and thus could have been an accident. I agree that there is no direct evidence about what caused the fire, but I do have evidence that the Honda was being driven normally over a period of time in the hours before it was found on fire. In particular, on the evidence the Honda was driven from Oshawa to the McDonald’s in Toronto and then back to Oshawa and of course it must have been driven to the Burn Site. There is no evidence of the Honda breaking down or being involved in an accident. In addition, having found that the Honda was travelling normally westbound on Longworth shortly before it was found burning strengthens the inference that it was set on fire deliberately.

[109] Furthermore, given my finding that the Honda was the vehicle used in the shooting of Mr. Bainbridge, and having found that Male 1 and Male 2 were the persons who were in the Honda at the time of the shooting of Mr. Bainbridge, they had a strong motive to destroy any incriminating evidence that there might be in the Honda. Ms. Grewal argued that if Male 1 was involved in the shooting of Mr. Bainbridge it makes no sense that the clothing he used in the shooting was still in Unit 606. I agree it would have been smarter for Male 1 to have destroyed that clothing but the fact that he did not, does not take away from my conclusion that the Honda and Male 1 and Male 2 were involved in the shooting of Mr. Bainbridge. In addition, Ms. Grewal submitted that no firearm was found in Unit 606 at the time of the search, but in my view that is more likely something that Male 1 would have disposed of if he was the shooter. Again, its absence does not mean he was not one of the males in the Honda at the time of the shooting.

[110] In addition, there is the fact that Mr. Mathieu put gas in the Jerry Can before the burning of the Honda and that Jerry Can was brought to Unit 606 by Male 2 after the Honda was burned. The fact that a 14-year-old child was used to fill the Jerry Can in and of itself suggests that gas was not for a legitimate purpose. He clearly had not come with money to pay for the gas. I also find it significant that when Officer Kiddle arrived at the Burn Site, whoever had driven the Honda to this location was no longer present. The Burn Site is a rural area and given this location, the only reasonable inference is that the person or persons who drove the Honda to this location left the scene with someone in another vehicle. For these reasons I am satisfied that the gas from the Jerry Can was used by Male 1 and/or Male 2 to set fire to the Honda. There is no doubt that that act was intentional.

[111] Ms. Grewal submitted that the Crown has not proven that the Honda was not wholly owned by Male 1 or Male 2. Mr. Lockhart submitted that if the Honda was sold by Mr. McIlmoyle to someone known as Fat Boy, the sale was never completed and as such Mr. McIlmoyle was still the lawful owner of the Honda at the time it was burned because he was still the registered owner, relying on s. 11(1) of the Highway Traffic Act which provides:

11(1) Upon the holder of a permit ceasing to be the owner or lessee of the motor vehicle or trailer referred to in the permit, he, she or it shall,

(a) remove his, her or its number plates from the vehicle;

(b) retain the plate portion of the permit; and

(c) on delivery of the vehicle,

(i) to the new owner, complete and sign the transfer application of the vehicle portion of the permit including the date of the delivery and give that portion of the permit to the new owner, or

(ii) to a lessor, give the vehicle portion of the permit to the lessor. R.S.O. 1990, c. H.8, s. 11 (1).

(2) Every person shall, within six days after becoming the owner of a motor vehicle or trailer for which a permit has been issued, apply to the Ministry, on the form provided therefor, for a new permit for the vehicle. [Emphasis added.]

[112] Ms. Grewal argued that on the evidence of Mr. McIlmoyle, he agreed to sell the Honda to Fat Boy, and he received consideration for the sale, and that as a matter of contract law Fat Boy was the lawful owner of the Honda and Mr. McIlmoyle no longer owned the Honda. Mr. Lockhart submitted in the alternative that even using this analysis given the sale was not complete it cannot be said that Fat Boy “wholly owned” the Honda. I agree.

[113] If Ms. Grewal is correct and Fat Boy in fact wholly owned the Honda, Ms. Grewal submitted that there is no evidence that he did not consent to it being burned. There is no evidence before me as to who Fat Boy is save for the description provided by Mr. McIlmoyle. Ms. Grewal conceded that neither Male 1, Male 2 or Mr. Willan fit the description of Fat Boy and I find that none of them or anyone else I saw who entered Unit 606 on the night in question could be Fat Boy. There is therefore no evidence that whoever Fat Boy was that he was involved in the burning of the Honda or knew it was taken to the Burn Site to be burned. In my view, to suggest Fat Boy consented to the burning of the Honda if he was in fact the owner is a fanciful and implausible suggestion. Such an inference, in my view, would not be reasonable or logical as the Honda clearly had monetary value as an operating vehicle. Even if Fat Boy loaned the Honda to Male 1, it would make no sense that he agreed in advance to it being destroyed.

[114] On this basis I find that the Crown has proven that the Honda was not wholly owned by Male 1 or Male 2 or Mr. Willan. As such I find that the Crown has proven beyond a reasonable doubt that Male 1 and/or Male 2 committed the offence of arson by deliberately setting fire to the Honda.

[115] Having found that the Crown has proven the offence of arson against Male 1 and/or Male 2, I turn to the question of whether or not the Crown has proven beyond a reasonable doubt that Mr. Willan aided Male 1 and/or Male 2 in committing the offence by driving them back from the Burn Site to Oshawa.

[116] To determine this issue, I come back to the findings of fact that I have made based on the admissions and the Video Chronology as follows: a) the Honda was used in the shooting of Mr. Bainbridge, b) Male 1 and Male 2 were in the Honda at the time of the shooting of Mr. Bainbridge, c) Mr. Willan owns the Outlander and was driving the Outlander to and from 233 Albert on the night in question, d) Mr. Willan was in Unit 606 for a period of time when Male 1, Male 2, Female 1 and Mr. Mathieu were there, e) Mr. Willan drove Male 1, Male 2, Female 1 and Mr. Mathieu to the Pioneer Station where Mr. Mathieu put gas in the Jerry Can, f) Mr. Willan must have known about the Jerry Can at least after Mr. Mathieu brought it back into the back seat of the Outlander, g) Mr. Willan did not drop everyone off when he drove in the Outlander back to 233 Albert at 2:34 am. Only Male 1 and Female 1 exited the Outlander and went up to Unit 606 for a few minutes and I have found that they re-entered the Outlander at 2:37 am, h) the Outlander went to the Social Club at 2:39 am and at 2:42 am it can be seen driving behind the Honda going southbound on Albert which is the direction to drive if one wants to get to the 401.

[117] Ms. Grewal’s strongest argument is that there is no direct evidence of Mr. Willan or the Outlander ever following the Honda after it was last seen on Albert or ever being in Bowmanville or at the Burn Site. She argued that there are no primary facts confirming that the Outlander was at the Burn site and that any inferences to find that it was are too speculative.

[118] There is no dispute that Mr. Willan’s Outlander was only seen in Oshawa as I have set out. However, I must consider all of the evidence in addition to the lack of evidence on this point. The primary facts do not need to only come from the evidence at the Burn Site. I have already set out some of my findings as to the involvement of Mr. Willan and the Outlander before the Honda was burned. In addition, the evidence of where the Outlander was after the time of the burning of the Honda and my findings as follows are important: a) the Outlander was seen again in Oshawa at 3:23 am driving northbound towards 233 Albert which is the direction it would have to drive if it had been on the 401, and b) more significantly, the Outlander arrived at 233 Albert at 3:24 am and dropped off Male 1, Male 2 and Female 1. Male 2 was carrying the Jerry Can.

[119] Based on the evidence, the fact that the Outlander was not picked up on video near the Burn Site does not mean it did not drive there as it could have taken a different route, coming off the 401 at Bowmanville Avenue. In fact, this could mean that instead of following the Honda the driver of the Outlander knew what the location of the Burn Site was going to be. Given Bowmanville Avenue is an exit off the 401, it would have been the most direct route to the Burn Site.

[120] In my view, given all of the evidence and the findings of fact I have made, the only reasonable inference is that the Outlander went to the Burn Site and brought whoever was driving the Honda, be it Male 1 and/or Male 2 back to 233 Albert. The fact the Outlander was used to go to the Pioneer Station to get gas in the Jerry Can and given that there is some evidence that it was following the Honda out of Oshawa, and more significantly that the Outlander arrived back at 233 Albert dropping off Male 1, Female 1 and Male 2 carrying the Jerry Can after the burning of the Honda, and given the time elapsed making it possible for the Outlander to have gone to and from the Burn Site, I can think of no reasonable exculpatory explanation save that the Outlander was the vehicle the parties to the arson used to get back to Oshawa.

[121] I appreciate that there is no direct evidence that Mr. Willan was driving the Outlander when it returned to Oshawa at 3:23 am. However, it is clear that in addition to the driver, Male 1, Male 2 and Female 1 were in the car as passengers. They were not driving the Outlander before and in particular when it arrived at the Pioneer Station. I have considered the fact that Mr. Mathieu is not seen after he filled the Jerry Can. The Crown’s theory is that he was dropped off somewhere before the Outlander drove to Bowmanville. There is no evidence of that save that Mr. Mathieu did adopt that evidence. In any event even if it is possible he was still in the Outlander when it returned to 233 Albert at 3:24 am, I do find that given he was only 14 at the time, that I could not reasonably infer he was the driver or that Mr. Willan would have permitted him to drive his Outlander.

[122] Ms. Grewal argued that the fact that police failed to get video evidence showing what was occurring at the time in question in the east parking lot of 233 Albert was a big oversight and this resulted in too many holes in the evidence. DC Abdoullaeva conceded that she failed to appreciate the significance of that video in time. Relevant to this argument is Ms. Grewal’s submission that when a woman identified as Stacey Welsh left 233 Albert through the southeast entrance at 1:52 am that it looks like a black SUV, possibly the Outlander, was parked outside and so it is possible that she was also the driver of the Outlander. Ms. Welsh was seen again coming into the southeast exit of 233 Albert at about 2:08 am. There is no evidence of any connection between Ms. Welsh and Mr. Willan and given she is older it is likely she lived at Unit 606. She clearly was not one of the young people visiting the apartment.

[123] Mr. Lockhart submitted that a black SUV or the Outlander cannot in fact be seen outside the east entrance when Ms. Welsh left, and I agree. Mr. Lockhart also submitted that Mr. Willan had left 233 Albert in the Outlander at about 12:35 am, and he did not return until 2:04 am. I have considered whether given the gap in evidence it is possible the Outlander was in the east parking lot at the time Ms. Welsh left the building through the southeast door, but in my view that would be speculation. At all times I have found that the Outlander was seen at 233 Albert, it was entering or exiting the north parking lot. In addition, there is no evidence of anyone other than Mr. Willan driving his Outlander.

[124] Given all the evidence and considering the lack of evidence, in my view the only rational inference is that Mr. Willan was the driver of the Outlander throughout the night of January 21-22, 2022. The Outlander is his vehicle and every time there is clear evidence of who the driver is the driver was Mr. Willan. He was driving the Outlander when he first arrived at 233 Albert at 6:54 pm, when he left 233 Albert at 8:18 pm, when he returned to 233 Albert at 8:53 pm, when he left 233 Albert at 12:32 am, and when he returned to 233 Albert at 2:04 am and he picked up Male 1, Male 2, Female 1 and Mr. Mathieu and went to the Pioneer Station for gas. It was only a few minutes after leaving the Pioneer Station that the Outlander was seen driving behind the Honda. In my view in light of all of the evidence it would be speculation to suggest that Mr. Willan got out of the Outlander after he gassed it up and loaned his vehicle to someone else. If that was the plan, it makes more sense that he would have remained at 233 Albert, and that he would not have driven Mr. Mathieu and the others to the Pioneer Station to get gas. Certainly, there was no attempt to hide the fact that a Jerry Can was filled with some gas from Mr. Willan. If Male 1 and Male 2 wanted to do that without Mr. Willan’s knowledge, they could have filled a Jerry Can when they drove the Honda to the Pioneer Station for gas earlier in the night.

[125] For these reasons I find that the Crown has proven that Mr. Willan was the driver of his Outlander and that he drove to the Burn Site, and that he did assist and must have intended to assist Male 1 and/or Male 2 in burning the Honda by being there to drive them back to 233 Albert. Even if he was unaware of the Jerry Can with gas, which in my view is unlikely, I find Mr. Willan must have known Male 1 and/or Male 2 set fire to the Honda as the fire was visible to whoever reported it to police and given the description of the area by Officer Kiddle that person would not have been very close to the Burn Site. At the very least Mr. Willan knowingly brought Male 1 and Male 2 with the Jerry Can back to 233 Albert and in this way, he assisted them in the commission of the offence. I should make it clear however that I do not make a finding that Mr. Willan knew why Male 1 and Male 2 wanted to burn the Honda or that they had shot Mr. Bainbridge.

Disposition

[126] Mr. Willan for the reasons I have given I find you guilty of Count #1, as an aider to the offence of arson.

Spies J.

Released: May 2, 2024

COURT FILE NO.: 24-50000108-0000 DATE: 20240502 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – TYLER WILLAN Defendant Ken Lockhart, for the Crown

REASONS FOR JUDGMENT SPIES J. Kiron Grewal, for the Defendant

Released: May 2, 2024

Footnotes

[1] As I review the Video Chronology, I will round up or down to hours and minutes and not include the seconds unless it is material, so all my time references should be read as approximate times. I will not always refer to the year as all the times set out in the Video Chronology are after noon on January 21st or after midnight on January 22, 2022.

[2] Ms. Grewal did not object to the introduction into evidence of various Google Maps. Some show different streets in Oshawa and Toronto which assisted me in following the alleged movement of the Honda and the Outlander. Others were relied upon by the Crown to show the time to travel from one location to another. Mr. Lockhart provided some cases that confirm that this court can take judicial notice of Google Maps to assist in determining the distance between two locations because “maps are a readily accessible source of indisputable accuracy”, R. v. Calvert, 2011 ONCA 379 at para, 8.