Court File and Parties

COURT FILE NO.: CR-22-91108293, CR-23-09 DATE: 20240503 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DANIEL LOPEZ-CARTER Defendant

Counsel: Rob Scott, for the Crown Richard Fedorowicz, for the Defendant

HEARD: April 8, 9, 10, and 15, 2024

REASONS FOR JUDGMENT

DI LUCA J. :

Overview

[1] Mr. Lopez-Carter is charged with being an accessory after the fact to murder. The indictment specifically alleges that Mr. Lopez:

…on or about the 3rd day of August in the year 2020 at the City of Vaughan in the Regional Municipality of York did, knowing that Marwan AWDI had been murdered, assisted the person who committed the murder to escape, contrary to s. 240 of the Criminal Code. [1]

[2] With the Crown’s consent, Mr. Lopez-Carter’s trial proceeded judge alone and lasted approximately four days.

[3] In brief summary, the Crown alleges that Mr. Lopez-Carter was present at the scene of Mr. Awdi’s murder which occurred outside a convenience store at a plaza on Islington Avenue in Vaughan on August 2, 2020. The Crown further alleges that a stolen black Ford F150 pickup truck was used as a getaway vehicle for the person who shot and murdered Mr. Awdi. Lastly, the Crown alleges that the day after the murder, Mr. Lopez-Carter was involved in the disposal of the black pickup truck, which was eventually located on a dead-end street near the Town of Bradford, Ontario.

[4] The Crown relies primarily on cellphone location evidence and GPS data obtained from the black pickup truck. The Crown also relies on a post-arrest statement made by Mr. Lopez-Carter, as well as the viva voce evidence of several witnesses. Taken together, the Crown argues that the only reasonable inference is that Mr. Lopez-Carter is one of the persons who disposed of the pickup truck, that he did so with the knowledge that the vehicle was used as the getaway vehicle in Mr. Awdi’s murder and that in doing so, he acted with the purpose of helping the person or persons responsible escape.

[5] The defence position is that the Crown has fallen far short of establishing that Mr. Lopez-Carter’s guilt is the only reasonable inference based on the totality of the evidence. The defence argues that this case amounts to, at best, a suspicious degree of involvement on the part of Mr. Lopez-Carter, but not proof beyond a reasonable doubt. The defence also raises an argument suggesting that the Crown failed to prove the specific theory alleged in its opening address to the court and that as a result, an acquittal is warranted.

[6] The central issues in this trial are as follows:

a. Has the Crown proven beyond a reasonable doubt that Mr. Lopez-Carter knew that Mr. Awdi was murdered?

b. If so, has the Crown further proven beyond a reasonable doubt that Mr. Lopez-Carter participated in the disposal of the vehicle used in the murder, thereby assisting the escape of those responsible for the murder?

c. If so, has the Crown further proven beyond a reasonable doubt that Mr. Lopez-Carter participated in the disposal of the vehicle for the purpose of assisting the escape of those responsible?

Legal Principles

[7] I turn next to reviewing the legal principles that guide my assessment of the evidence in this case.

[8] First and foremost, Mr. Lopez-Carter is presumed innocent of the charge set out in the indictment. He has no obligation to prove anything or call evidence. The onus rests entirely on the Crown to prove the charge against him beyond a reasonable doubt.

[9] Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.

[10] Proof of likely or even probable guilt is not enough to sustain a criminal conviction. Conversely, proof to a level of absolute certainty is also not required as that standard is impossibly high. Ultimately, in order to convict Mr. Lopez-Carter of an offence, I must be sure that he committed the offence. If I am not sure, I must acquit him of the offence.

[11] Where, as here, the evidence is circumstantial, the Crown must prove that the accused’s guilt is the only reasonable inference available on the evidence, see R. v. Villaroman, 2016 SCC 33. The consideration of circumstantial evidence requires the drawing of reasonable inferences based on logic, experience and common sense. Speculation and conjecture are impermissible. The line between speculation and reasonable inference may be at times difficult to draw. However, the ease of drawing the inference is not the standard. The standard is whether the inference is based in logic and reason.

[12] If, after all the evidence is considered, a reasonable inference inconsistent with guilt on any essential element of the offence exists, the defendant is entitled to an acquittal. This analysis must be based on the totality of the evidence before the court, see R. v. Aslami, 2021 ONCA 249 and R. v. Smith, 2016 ONCA 25, at para. 81.

[13] An inference inconsistent with guilt must be reasonable, not simply possible. The Crown is not required to negative every possible inference conceivable. However, an inference inconsistent with guilt does not need to arise from “proven facts”, see Villaroman, supra, at para. 35, R. v. Robert (2000), 143 C.C.C. (3d) 330 (Ont.C.A.) at para. 17 and R. v. Bui, 2014 ONCA 614, at paras. 24-30. It can arise as a matter of logic and experience based on a consideration of all the evidence and the absence of evidence.

[14] In this case, the Crown relies on a post-arrest statement made by Mr. Lopez-Carter. While the statement contains some explicit and implicit admissions, the overall thrust of the statement is exculpatory. In short, Mr. Lopez-Carter denies playing any role in the homicide and specifically denies participating in the disposal of the black pickup truck used in the homicide.

[15] Even though the statement was tendered by the Crown, I must consider all of the statement, including the exculpatory portions. In accordance with the W.D. methodology, if I accept Mr. Lopez-Carter’s denial of any involvement in the offence, I must find him not guilty. If I do not accept his denial, I must nonetheless consider whether his denial leaves me with a reasonable doubt about his involvement in the offence. Lastly, even if I entirely reject his exculpatory evidence, I must assess the evidence that I do accept to determine whether the Crown has proven the offence beyond a reasonable doubt.

[16] In applying the W.D. methodology, I am mindful of the following additional guidance that has been provided by the caselaw. In considering the first two steps of the W.D. analysis, the evidence of the defendant must be considered in the context of the evidence as a whole. In other words, the assessment is not simply whether the defendant’s evidence standing alone and without context is believed or leaves a reasonable doubt; see R. v. Carriere (2001), 159 C.C.C. (3d) 51 (Ont.C.A.) at para. 51, R. v. Hull, and R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont.C.A.).

[17] As well, the second step of the W.D. analysis is important. It emphasizes the point that there is a third alternative between complete acceptance and complete rejection of a defendant’s evidence; see R. v. J.E., 2012 ONSC 3373 at para. 20 and R. v. J.M., 2018 ONSC 344 at paras. 9-20.

[18] In terms of the offence charged, the Crown must prove beyond a reasonable doubt that the person assisted by Mr. Lopez-Carter committed murder and that Mr. Lopez-Carter knew about the murder, see R. v. Duong, at para. 15. Further, the Crown must prove beyond a reasonable doubt that Mr. Lopez-Carter did something for the purpose of assisting the perpetrator of the murder to escape. That said, it matters not that the perpetrator of the offence has not been arrested, charged and/or convicted of murder, see Criminal Code, s. 592.

[19] The term “escape” is not restricted to escaping arrest or apprehension. It broadly includes “escaping justice” or avoiding prosecution or punishment: R. v. Paradis, [1978] 1 S.C.R. 264, at p. 273; R. v. Hubley, 2017 NSSC 44, at para. 103 and R. v. Hadi, 2022 ONSC 2903, at para. 99.

[20] Lastly, it is not necessary that the defendant’s actions actually assist in the perpetrator’s escape. It is sufficient if the acts have the “tendency” to assist escape, see D. Watt, “Accessoryship after the Fact: Substantive, Procedural and Evidentiary Considerations”, (1981) 21 C.R. (3d) 307 at p. 312 and R. v. Bedi, 2016 BCSC 1930, para. 145.

The Stealth Particulars Motion

[21] At the outset of trial, counsel for Mr. Lopez-Carter indicated that he was contemplating bringing a particulars motion. [2] He then indicated that he would first listen to the Crown’s opening address and then advise as to his final position on the matter.

[22] The Crown provided a brief opening address in keeping with the usual practice in judge alone trials in the Superior Court of Justice. In this opening address, Mr. Scott explained:

The accused on the day after the murder drove the black pickup truck and abandoned it in ... beside this farmer’s field near Bradford, knowing that it had been used in the commission of the murder the day before.

[23] At the completion of the Crown’s opening, defence counsel advised that he would not be bringing a particulars motion as he now was clear on the “means” by which the Crown was alleging that Mr. Lopez-Carter acted as an accessory after the fact.

[24] At the end of trial, during the Crown’s submissions, I asked the Crown whether it mattered, from a liability perspective, whether Mr. Lopez-Carter actually drove the black pickup truck or whether he drove a separate vehicle alongside the black pickup truck. The Crown, quite properly in my view, advised that it did not matter so long as the Crown had proven the requisite mental elements of the offence.

[25] I asked this question as there seemed to be no issue that a support vehicle would have been required in order to complete the task of abandoning the black pickup truck at the location where it was found. In other words, given the location and the timing of the drop off of the pickup truck, it made sense that whoever abandoned the truck did not simply walk home. As such, it appears that at least two vehicles would have been involved; the black pickup truck and a support vehicle which left the scene with whoever drove the pickup truck to the remote location where it was abandoned.

[26] At the outset of defence counsel’s submissions, counsel expressed the view that the Crown’s response to my question had effectively altered the “means” by which the Crown was alleging Mr. Lopez-Carter committed the offence. He further explained that this was the reason why he initially contemplated bringing a motion for particulars. He then explained that once the Crown stated in his opening that the specific allegation against Mr. Lopez-Carter was that he drove the black pickup truck, he viewed the particulars motion as no longer necessary and therefore did not pursue it.

[27] When asked directly whether an acquittal should follow if the Crown had proven all the requisite mental elements of the offence, but instead of proving that Mr. Lopez-Carter drove the black pickup truck, proved that he drove the support vehicle, counsel replied in the affirmative. In other words, counsel took the position that the Crown’s opening amounted to particulars that required proof beyond a reasonable doubt that Mr. Lopez-Carter’s specific role was driving the black pickup truck.

[28] In my view, the defence position amounts to a stealth motion for particulars. I reject the defence position as meritless for the following reasons:

a. No motion for particulars was brought. More importantly, no order for particulars was made. In fact, defence counsel did not suggest at the time of the Crown’s brief opening address, that he viewed the position advanced as a form of particulars. Had he done so, the issue could have been addressed at the outset.

b. In any event, this is not an instance where particulars would have been ordered, even if a motion for particulars had been brought. The indictment was already particularized. Section 23 of the Code provides that a person can be an accessory after the fact by receiving, comforting or assisting a person for the purpose of enabling that person to escape. The specific means alleged was “assisting.” Given the nature of the case, nothing further would have been required.

c. Except in cases where fairness issues arise, the Crown’s opening address does not bind the prosecution to the specifics alleged therein, see R. v. Kelly, 2017 ONCA 920 at paras. 30-38, R. v. Khawaja, 2010 ONCA 862, R. v. Bengert (No. 5), (1980), 53 C.C.C. (2d) 481 (B.C.C.A.) and R. v. Govedarov (1974), 16 C.C.C. (2d) 238 (Ont. C.A.), at p. 270 C.C.C., affd, [1976] 2 S.C.R. 308, 25 C.C.C. (2d) 161. [3] The Crown’s theory can change in accordance with the evidence, see R. v. Pickton, 2010 SCC 32. As well, a trial judge must consider all available routes of liability even if they are not pursued by the Crown.

d. The Crown’s opening address suggested that Mr. Lopez-Carter drove the black pickup truck. The alternate position that he drove the support vehicle is not an allegation of a different “means” of committing the offence. Both the driver of the black pickup truck and the driver of the support vehicle would be “assisting” the escape of the person or persons responsible for the murder. More particularly, in the context of this case, both the driver of the pickup truck and driver of the support vehicle, assuming they each had the requisite mens rea, would be co-principals in the act of disposing of the pickup truck. As such, this is not even an instance where the Crown alleges that the defendant is a principal or in the alternative an aider or abettor, which in any event would also be permissible, see R. v. Thatcher (1987), 32 C.C.C. (3d) 481 (S.C.C.) at 508-511.

e. Lastly, when pressed in submissions to articulate any unfairness caused by the consideration of the alternate theory, defence counsel articulated none. Indeed, the defence counsel conceded that not a single thing would have been done differently in defending the case. As such, there is not even a hint of unfairness in how this process unfolded.

[29] In the result, I will consider whether the Crown has proven beyond a reasonable that Mr. Lopez-Carter, armed with the requisite intent and purpose, participated in the disposal of the black pickup truck by either driving it himself or by accompanying the black pickup truck in a support vehicle.

The Evidence at Trial

[30] I turn next to a brief review of the evidence. At the outset of trial, counsel tendered a collection of agreed facts. The agreed facts establish, inter alia, the following;

a. On August 2, 2020 at approximately 5:35 p.m., Marwan Awdi was murdered outside of Frank’s Convenience store located in a plaza at 8074 Islington Avenue in Vaughan, Ontario. The cause of death was nine gunshot wounds to the head.

b. The businesses operating at the plaza where the shooting took place included Memphis BBQ and a barbershop called Line Up. A number of customers were present in and around the plaza at the time of the shooting.

c. A witness, Theago De Freitas, lived in an apartment with a window that overlooked the scene of the shooting. While working at his computer, he heard the sound of two gunshots. He then went to his window and observed a lone shooter fire three more gunshot at the victim who was on the ground outside the convenience store next to Memphis BBQ.

d. Mr. DeFreitas then saw the shooter leave the scene in a black pickup truck which appeared to be either a Ford F150 or a Chevrolet Silverado. He reported that the truck stopped northbound on Islington Avenue. The shooter ran onto the road and got into the passenger side of the truck. Mr. DeFreitas took two cellphone photos of the truck as it was leaving the scene.

e. A black Ford F150 pickup truck was stolen in Cobourg, Ontario, on July 17, 2020. Mr. Lopez-Carter was not involved in this theft.

f. The pickup truck had an onboard infotainment system which stored GPS data showing the location of the pickup truck at specific times and dates. The data was downloaded using Berla iVe software. The time on the infotainment system was one hour behind the correct time.

g. The pickup truck was recovered on August 4, 2020. It was located on a dead-end gravel road between cornfields in the area of Line 5 and Sideroad 10 near the Town of Bradford. The pickup truck had a set of stolen licence plates on it. The vehicle was seized and forensically examined. No forensic evidence connecting Mr. Lopez-Carter to the vehicle was found.

h. Cellphone records for various phone numbers were admitted as accurate and reliable. The records include a prepaid cellphone in the name of “Ric Franklin” with a phone number ending in “6266” which the Crown alleges was used by Mr. Lopez-Carter; a cellphone in the name of Mr. Lopez-Carter’s girlfriend, Jahnell McLean; a cellphone in the name of Kameron DeAmicis, a witness at trial; and lastly a prepaid cellphone in the name “Carlos Hernandez.” Unlike regular cellphone accounts, prepaid cellphones do not require accurate subscriber information. The subscriber’s name and address can be real or fictitious.

i. Cellphone records assist in providing the general location of the cellphone when in use. The general rule is that a cellphone will connect to the cell tower with the strongest signal, which is usually though not invariably the closet cell tower. The general rule is subject to certain exceptions, including that a cellphone will not register at the closest tower if: (1) the closest tower is at capacity; (2) there is a body of water between the cellphone and the closest tower; and, (3) there is a large obstruction between the cellphone and the nearest tower and an unobstructed line of sight or flat area between the cellphone and a more distant tower.

j. On June 23, 2020, police were investigating a property damage collision involving a Toyota motor vehicle. The investigating officer was tasked with finding the driver of the vehicle, the defendant Daniel Lopez-Carter. On July 9, 2020 and July 14, 2020, the investigating officer contacted Mr. Lopez-Carter on the “6266” cellphone, registered to “Ric Franklin.” Arrangements were made for Mr. Lopez-Carter to attend the police station for an interview. The interview occurred on July 15, 2020.

[31] Hemesh Kapadia and Amardeep Sidhu were both present at the time of shooting and they described their brief observations. Mr. Kapadia observed the shooter firing a gun at the deceased just outside the convenience store. While he could not recall where the shooter went after the shooting, he recalled seeing a black pickup truck with white markings on the driver’s side door that “speeded off” after the shooting.

[32] Mr. Sidhu was working inside Memphis BBQ, which he co-owns. He heard gunshots and looked out the front window. He saw someone run past and heard further gunshots. He then saw two guys get into a pickup truck. The pickup truck stopped briefly, the passenger exited the vehicle and retrieved something from the ground and then re-entered the vehicle, which drove off northbound on Islington Avenue. He described the pickup truck as a work truck which appeared to have a partially removed decal on the driver’s side door.

[33] Jahnell McLean was the defendant’s girlfriend at the time of the alleged offence. While she was an anticipated witness at trial, police could not locate her in order to serve a subpoena. The Crown called evidence on this issue, including Ms. McLean’s mother who testified that Ms. McLean has essentially been “missing” for several months. The Crown next sought to admit Ms. McLean’s preliminary inquiry evidence either under s. 715 of the Code or, in the alternative, under the principled exception to the hearsay rule. After considering the matter, defence counsel advised that he did not oppose admissibility of the sworn preliminary inquiry evidence, though he was not prepared to concede that the requirements of s. 715 of the Code had been met. The defence concession that the evidence was nonetheless admissible obviated the need for any further determination of the issue.

[34] In her brief preliminary inquiry evidence, Ms. McLean testified that she had known the defendant since high school and that they had been together for a long time. She also knew one of the defendant’s acquaintances, Kameron DeAmicis.

[35] Ms. McLean confirmed that she was present with the defendant at the plaza where the murder took place. That said, she could not remember who drove, what vehicle was used or who, if anyone, arrived with them. She did, however, confirm that the defendant’s brother Kristian was also present.

[36] According to Ms. McLean, the defendant got a haircut at the barbershop located in the plaza. Ms. McLean explained that she waited in the car while the defendant was getting a haircut. The defendant’s brother Kristian also had a haircut after the defendant. Ms. McLean recalled that they waited for the haircuts as there were many people there that day. She also recalled getting food from Memphis BBQ while waiting.

[37] Ms. McLean did not recognize the “6843” cellphone number, which at trial is admitted to have been registered in her name and at her address. That said, she agreed that she would have used her cellphone to call and text the defendant. She also agreed that the only adults that reside at her address are her mom and sister, and each of them had their own cellphone registered in their names.

[38] Ms. McLean explained that shortly prior to the shooting, the defendant exited the vehicle they were in and said he was going to get some drinks at the convenience store. She then heard a number of gunshots. The defendant returned to the vehicle and they left the area. She could not recall anyone else being present in the vehicle. She did not ask the defendant much about what happened other than asking him if he was “ok”. He said he was okay and that there had been gunshots.

[39] Kameron DeAmicis was the Crown’s final witness. Without putting too fine a point on it, Mr. DeAmicis was not a witness seeking to advance the truth-seeking function of this trial. He obviously had no interest in being present and little interest in recounting events he clearly had knowledge of.

[40] While he acknowledged knowing the defendant, he denied ever speaking with him by telephone. When confronted with his preliminary inquiry evidence wherein he explained that he had spoken with the defendant “on the phone”, he explained that what he meant was “social media.” He further explained that he had minimal contact with the defendant apart from reaching out to him once while the defendant was in jail.

[41] The Crown tendered a post-arrest statement made by the defendant on March 22, 2022. [4] In this statement, the defendant denies having anything to do with the murder and specifically denies being involved in the disposal of the black pickup truck on the day following the murder. That said, the defendant does make some relevant admissions and some exculpatory comments including the following:

a. He resides with his mother at 4500 Jane Street and his grandmother resides at 10 San Romano Way.

b. He was present at the scene of the murder when it happened, with his girlfriend Jahnell McLean. He went to the plaza to get a haircut and while waiting also grabbed some food at Memphis BBQ.

c. He arrived in a vehicle he drove but apart from describing the vehicle as a “sedan”, he could not recall what specific vehicle he was driving. He recalled that Jahnell McLean was with him but was not sure whether others came with him.

d. His brother Kristian also “pulled up” in a “sedan” for a haircut as well. His brother was in the company of a mutual friend whom Mr. Lopez-Carter initially did not want to name, but later identified as “Breezy.” Mr. Lopez-Carter could not describe the vehicle his brother was driving.

e. After grabbing food and eating it in the car, Mr. Lopez-Carter exited the car and was walking towards the barbershop when he observed two “black figures” running past him. He turned and ran and then started hearing gunshots. He ran back to the car and entered the passenger seat. His brother’s friend and one of the barbers from the barbershop also entered the rear seat of the vehicle. Mr. Lopez-Carter was in a panic and checked to see whether he had been shot. They left the scene and drove around for a bit before eventually returning to Mr. Lopez-Carter’s grandmother’s house.

f. Mr. Lopez-Carter explained that he did not see who the shooters were shooting at, though he was informed by the persons who entered the back seat of his vehicle that someone had been shot.

g. Mr. Lopez-Carter explained that he learned the identity of the person who had been shot from speaking with his mother and from watching the news a few hours after the incident happened. While he knew the person who had been shot as they had once lived in the same building, he claimed not to have seen him at the scene of the shooting. He explained that if he had seen him, he would have given him a hug and chatted with him. He also explained that at some point the deceased’s mother came by his house and asked why he did not go to the funeral. He apologized and explained that he did not know when it was.

h. When shown a photo of the black F150 pickup truck, Mr. Lopez-Carter denied ever seeing the vehicle or having any knowledge of the vehicle. He specifically denied seeing a black F150 pickup truck at the plaza at the time of the shooting.

i. Mr. Lopez-Carter was presented with phone records for the “6266” cellphone alleged to have been used by him at the time. While he could not recall the specific number for his cellphone, he agreed that the police had contacted him using that cellphone in relation to an unrelated incident. He also agreed that he used his cellphone to regularly contact his girlfriend and his mother. That said, he denied knowledge of other names and numbers he was in contact with as set out in the records.

j. When confronted with the cell tower location evidence which suggested that he was in Vaughan on August 3, 2020, the day after the shooting, Mr. Lopez-Carter explained that he had no recollection of such a trip, but that it was possible he went to visit a friend who lived in the suburbs.

k. He specifically and repeatedly denied travelling north to Bradford on August 3, 2020. When asked why his phone connected to cell towers north of Vaughan, he explained that maybe he left his cellphone in a friend’s car “or some shit like that.” When the interviewing officer pointed out that calls were made to Jahnell McLean using the cellphone once the phone returned to the area of Jane and Finch later that same night, Mr. Lopez-Carter agreed that it did not make sense, though he added that his phone was not password protected at the time.

[42] The Crown also tendered a body of cellphone, GPS and security camera video evidence which purports to show the location and travel of the black pickup truck and the location and travel of the cellphone alleged to have been used by Mr. Lopez-Carter.

[43] Edward Lee, a civilian member of the York Region Police, testified in relation to the GPS data obtained from the black pickup truck that was used in the shooting. The GPS data was retrieved from the vehicle using a software program named Berla iVe. Mr. Lee explained that he prepared two reports which collated the downloaded data. The second report was prepared using a newer version of the Berla program which was able to read more data.

[44] In cross-examination, Mr. Lee agreed that he did not have detailed knowledge as to how the Berla software interpreted the data obtained from the Ford F150, which would have used a proprietary computer system. He agreed that the best he could do was relay what he learned from the providers of the Berla software. In terms of the data provided in this case, Mr. Lee could not explain why certain sequential “tracks” of data were unavailable or missing. He could not explain why the phrase “Weak GPS” was used in certain areas of the report. He agreed that the second report contained more data than had been presented in the initial report.

[45] Jenna Ruscoe is also a civilian member of the York Region Police. She was involved in plotting Berla GPS data on a map, which ostensibly shows the movements of the black pickup truck. She agreed that the maps she produced show the various locations corresponding to GPS signals recorded on the black pickup truck, though the data does not reveal the direction of travel.

[46] The final item of evidence is a video timeline that collates the GPS data, the cell tower evidence and videos obtained from various security cameras.

[47] Taken together, this evidence reveals the following:

a. On July 17, 2020, a black F150 pickup truck was stolen from a parking lot in Cobourg, Ontario. Between July 23, 2020 and August 2, 2020 (which is the day of the murder), the stolen black pickup truck was parked on a street across from 43 Bamford Crescent which is the home of Kameron DeAmicis. As well, on July 23, 2020, the stolen black pickup truck was driven from Bamford Crescent to a gas station located at 4650 Jane Street where it appears to have been fueled up. It then returned to the location on Bamford Crescent. This location is also fairly close to Mr. Lopez-Carter’s residence located at 4500 Jane Street. Mr. DeAmicis was in frequent contact with the cellphone alleged to have been used by Mr. Lopez-Carter both before and after the time of the murder.

b. On the day of the murder, the black pickup truck leaves from the area of Bamford Crescent and travels to the area of the plaza where the shooting takes place. After the shooting, the black pickup truck departs the scene of the shooting and travels to various nearby locations and eventually stops at a location on Beatrice Way where it remains until the following night.

c. On August 3, 2020 at approximately 11:13 p.m., the pickup truck is retrieved from Beatrice Way and driven to the remote location where it is abandoned.

d. The stolen black pickup truck was at the scene of the shooting on August 2, 2020, and is the same black pickup truck later found abandoned near Bradford. The GPS data as reflected in Exhibits 8(a) and 8(b) and the video timeline tracks the pickup truck’s location from the scene to the location where it was abandoned. A visual comparison of the photos taken of the vehicle at the scene of the murder and later upon recovery also supports this conclusion.

e. Cell tower data for the cellphone believed to be used by Mr. Lopez-Carter, places the cellphone in the vicinity of the plaza where the murder took place at a time proximate to the murder on August 2, 2020. Before and after the shooting, the cellphone connects to towers in the vicinity of Jane Street and Finch Avenue, which is where Mr. Lopez-Carter resides.

f. On August 3, 2020, the cell tower data places the cellphone in the general vicinity of Beatrice Way in Vaughan minutes before the pickup truck, which had been parked there overnight, was retrieved. The cellphone then travels north of Vaughan, likely along Highway #400. It connects to two towers located at 15725 Weston Road and 17150 Jane Street on the way up to the disposal site before returning to the area of Jane Street and Finch Avenue. These movements are depicted in Exhibits 9(a)-(c). The movements of the cellphone alleged to be connected to Mr. Lopez-Carter track the movements of the pickup truck as it was being disposed of.

g. Upon return to the area of Jane Street and Finch Avenue, the cellphone alleged to be used by Mr. Lopez-Carter is in communication with Jahnell McLean.

ANALYSIS AND FINDINGS

[48] I turn next to my analysis of the key issues in this case. I note at the outset that counsel essentially agree that the following findings are readily available on the evidence:

a. Mr. Awdi was murdered on August 2, 2020;

b. The stolen black F150 pickup truck that was located on August 4, 2020 on the dead end gravel road near Bradford, Ontario, is the vehicle that was used as a getaway vehicle following the shooting of Mr. Awdi;

c. The shooter entered the passenger side of the pickup truck and departed the scene moments after the shooting;

d. There is no issue that the timing, circumstances and location of the pickup truck’s disposal support a singular finding that the pickup truck was disposed of because it had been used in the murder. In other words, it was disposed of in order to assist in the escape of the perpetrator or perpetrators.

e. There is also no issue that Mr. Lopez-Carter, by his own admission knew of Mr. Awdi’s murder, at the very latest, by the end of the evening on August 2, 2020. Apart from his admission, I am in any event satisfied that he knew of the murder when it happened because he was present at the scene and would have known what had happened. Indeed, he explains in his statement that he saw two guys run past him right before the shooting started and immediately upon entering his vehicle after the shooting, he checked himself to see if he had been shot.

[49] I accept that the Berla iVe data accurately, albeit generally, shows the location of travel for the black F150 pickup truck. While I accept that there are gaps in the GPS data revealed through the Berla analysis, the multitude of plotted locations permit me to clearly discern where the truck was and where it travelled to. As well, while I accept that the GPS location tracks appear at times to show the truck travelling “off road”, I find that this is a result of the nature of the GPS data and not reflective of the fact that the truck was travelling through trees, across yards and into buildings. When the location data is viewed as a whole, it is easy to generally discern the roads used by the truck as it travelled from location to location. This evidence is also corroborated by the video and photographic evidence that shows the location of the truck at certain times, including the location where the truck was eventually found.

[50] In terms of the cellphone alleged to be possessed by Mr. Lopez-Carter, I accept that the cell tower data provides a solid indicator of the general location of the cellphone at various times. While the data cannot be used to pinpoint a precise location, it shows that the cellphone was in the general vicinity of Mr. Lopez-Carter’s residence at certain relevant times. It also shows that this cellphone was near the location of the shooting at the relevant times, near the location where the black pickup truck was parked on Beatrice Way on August 3, 2020, and then near the location where the truck was abandoned on August 3, 2020, before returning to the general location of Mr. Lopez-Carter’s residence at Jane and Finch. Based on this evidence, I am satisfied that the person who possessed the cellphone was present at the scene of the murder when the murder occurred and then returned to the general area near Beatrice Way where the pickup truck was retrieved the following night. The possessor of the cellphone then travelled in the same general direction and to the same general location as the pickup truck. In short, I am satisfied that the cellphone travelled in tandem with the pickup truck when the pickup truck was retrieved from Beatrice Way and dumped off in the farmer’s field near Bradford.

[51] I next turn to the crucial issue, which is whether the Crown has proven that Mr. Lopez-Carter possessed the “6266” cellphone at the relevant times. For the following reasons, I am satisfied that Mr. Lopez-Carter possessed the “6266” cellphone on August 2-4, 2020:

a. Mr. Lopez-Carter in substance admits that the 6266 cellphone is his during the police interview. While he claims not to remember the specific number, he does not dispute the call patterns put to him by the interviewing officer which include references to many communications with his girlfriend and mother;

b. It is an admitted fact that Mr. Lopez-Carter was using this cellphone in communications with police less than a month prior on July 9, and 14, 2020;

c. The cellphone records provided cover a period of five months between April 1 and August 27, 2020. [5] During this time, the cellphone is in frequent and regular contact with Mr. Lopez-Carter’s girlfriend and his mother. On this note, I add that I am satisfied that the cellphone alleged to be used by Jahnell McLean was in fact used by her. The agreed statement of fact states that her phone, a non-prepaid account, was registered in her name and at her home address. While Ms. McLean did not recall her phone number, she confirmed that she lived at the address listed for the account and that no one else at her home shared her name;

d. The phone records also show contact with a “8373” cell number registered to a prepaid cellphone account in the name of “Carlos Hernandez” with an address of 10 San Romano Way in Toronto. In his statement, Mr. Lopez-Carter denies knowing who Mr. Hernandez is but admits that his grandmother lives at 10 San Romano Way.

[52] This evidence taken together overwhelmingly supports the conclusion that Mr. Lopez-Carter possessed the “6266” cellphone during the relevant events.

[53] I turn next to addressing Mr. Lopez-Carter’s evidence. Again, I note that he advances a general denial of any involvement in the murder and more particularly, any involvement in the disposal of the black F150 pickup truck. In short, he suggests the possibility that someone other than him must have possessed his phone on August 3, 2020 when the phone tracks north in tandem with the black pickup truck.

[54] I entirely reject his evidence on this issue. Viewed in context with the whole of the evidence that I do accept, it does not leave me with any reasonable doubt about his involvement in the disposal of the pickup truck. I reach this conclusion for the following reasons:

a. In his statement, Mr. Lopez-Carter opines that perhaps someone took his phone for a period of time and that this would explain why his phone travelled in tandem with the black pickup truck to the farmer’s field near Bradford. I reject this possibility as fanciful. The pickup truck is abandoned around midnight near Bradford, Ontario. At 1:05 a.m., the cellphone connected to Mr. Lopez-Carter is in communication with Jahnell McLean. At this time, both the cellphone connected to Mr. Lopez-Carter and the cellphone connected to Ms. McLean are in the area of Jane Street and Finch Avenue. The obvious and singular inference is that Mr. Lopez-Carter called his girlfriend immediately on his return from disposing of the pickup truck. It is fanciful to suggest that whomever had possession of his phone either managed to return it to him in time for this call, or perhaps decided to call Mr. Lopez-Carter’s girlfriend on their own.

b. Viewed more broadly, the call patterns set out in the cellphone records suggest that the cellphone remained in contact with the same people both before and after the murder. This undermines any suggestion that he simply lost or did not possess his phone at the critical time. On this issue, I note the frequent communications with the “8574” phone number which occur an hour before the pickup truck is abandoned and continue the next day.

c. Mr. Lopez-Carter is in very frequent communication with Kameron DeAmicis in the months around the murder including many communications on the day the pickup truck was disposed of. On this issue, I am satisfied that the “1401” cellphone was used by Kameron DeAmicis. He was clearly reticent to admit anything in his evidence, but the agreed facts stipulate that the “1401” phone number was in his name and home address, and was not a pre-paid account.

d. The connection with Mr. DeAmicis is important. The stolen pickup truck used in the murder and later disposed of was parked in front of Mr. DeAmicis’ residence for 10 days prior to the murder. Mr. Lopez-Carter lives a short walk away from Mr. DeAmicis.

e. While Mr. Lopez-Carter claims to have no recollection of what car either he or his brother arrived in, he is certain that he never saw a black F150 pickup truck at the scene. I do not accept his evidence on this point. He is clearly trying to deny knowledge of the F150 pickup truck. If he was being truthful, one might expect a much more neutral answer, especially in view of his stated inability to even recall what vehicles he and his brother arrived in. In any event, I also find that the black pickup truck was clearly visible at the plaza both before and immediately after the shooting as it sped away on Islington Avenue.

f. I also reject Mr. Lopez-Carter’s general denial of any involvement in the murder. On his version of events, he simply happens to be at the scene of a shooting where a victim he knows but claims not to have seen is gunned down. The stolen vehicle used by the shooter to escape is a vehicle that has been parked in front of a frequently contacted friend’s house for 10 days. Mr. Lopez-Carter’s brother also happens to be at the plaza in the company of a friend “Breezy”, though Mr. Lopez-Carter does not know how his brother arrived. When the shooting starts, he is concerned that perhaps he has been shot or that perhaps his brother was the target of the shooting. He leaves the scene along with one of the barbers from the barbershop and Breezy, his brother’s friend who both enter his vehicle unannounced following the shooting. Based on the video from inside the convenience store, Breezy would have witnessed the shooting from the front door. In short, Mr. Lopez-Carter’s denial presents either a string of fairly remarkable coincides or is simply not true. I find that it is not true.

[55] Having considered the whole of the evidence, I am satisfied beyond a reasonable doubt that Mr. Lopez-Carter was present at the scene of Mr. Awdi’s murder and knew of Mr. Awdi’s murder. I am also satisfied beyond a reasonable doubt that he knew that the stolen black F150 pickup truck was used in the commission of the murder. I am further satisfied beyond a reasonable doubt that on August 3, 2020, the day after the murder, Mr. Lopez-Carter was directly involved in moving the pickup truck from Beatrice Way to the farmer’s field near Bradford. He either drove the truck himself or followed along in a support vehicle. Lastly, I am satisfied beyond a reasonable doubt that in doing so, Mr. Lopez-Carter knowingly acted for the purpose of assisting the perpetrator or perpetrators to escape justice.

[56] In reaching this conclusion, I have considered the whole of the evidence including the absence of evidence, in particular the absence of any forensic evidence connecting Mr. Lopez-Carter with the pickup truck. This is not an instance where the absence of evidence leaves any doubt about what Mr. Lopez-Carter did in relation to the pickup truck. I also consider defence counsel’s submission that even if I am satisfied that Mr. Lopez-Carter travelled along with the F150 pickup truck, he could have been an unknowing passenger in either the pickup truck or in the support vehicle. Considering the totality of the evidence, this alternative argument is entirely speculative.

[57] Taking everything into consideration, I am satisfied that Mr. Lopez-Carter’s guilt is the only reasonable inference based on the totality of the evidence. Mr. Lopez-Carter please stand. For the reasons just provided I find you guilty of the offence of being an Accessory After the Fact to the Murder of Marwan Awdi.

The Honourable Justice J. Di Luca

Released: May 3, 2024

NOTE: As noted in court, on the record, this written decision is to be considered the official version of the Reasons for Judgment and takes precedence over the oral Reasons read into the record in the event of any discrepancies between the oral and written versions.

Footnotes

[1] The indictment should perhaps have been drafted as either “did assist” or “assisted” though nothing turns on the awkward wording used.

[2] No formal particulars motion was ever filed and no indication of such a motion was given in the Judicial Pre-trial form and Report to Trial Judge.

[3] For cases where fairness concerns arise, see R. v. Ranger and R. v. Robinson. See also R. v. Cox, [1963] S.C.R. 500, where it was clear that the Crown intended to provide particulars by way of an opening address.

[4] The defence conceded voluntariness of the statement and raised no issue about Charter compliance.

[5] As part of the Crown’s closing submissions, a filtered version of the phone records was filed and marked as Exhibit F. These filtered records show only the calls between the cellphone and Mr. Lopez-Carter’s girlfriend, mom and Kameron DeAmicis.