COURT FILE NO.: CR-21-40000424-0000
DATE: 20240521
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JATORRI WILIAMS
Defendant
Stephen Byrne, Counsel for the Crown
Gary Grill, Leo Salloum, and Allison Cormie-Bowins, Counsel for the Defence
HEARD: April 12, 13, 17, 19, 24, 25, 26, 27, May 15, 17, 18, August 17, 2023; February 29, March 1, 2024
REASONS FOR JUDGMENT
P. CAMPBELL, J.
I. INTRODUCTION................................................................................................................ 2
II. THE SHOOTINGS ON OCTOBER 1, 2019....................................................................... 5
A. Attempted Murder at Venetian Crescent and Driftwood Avenue (Count 3)....................... 5
B. The Shooting at 2000 Sheppard Avenue West.................................................................... 5
C. Two Murders at 306 Grandravine Drive.............................................................................. 6
III. EVIDENCE LINKING MR. WILLIAMS WITH SIM CARD NUMBER 89302720524848463339 AND PHONE NUMBER 226-972-1651........................................................................................ 7
A. Evidence About Jatorri Williams......................................................................................... 7
B. The Identity of Mr. Williams in Surveillance Photos.......................................................... 8
C. The Cell Phone Usage Records.......................................................................................... 10
D. The Alleged Shrinking Pool of Potential Users of Phone Number 1651........................... 12
IV. EVIDENCE LINKING PHONE NUMBER 1651/SIM CARD 3339 WITH THE SHOOTINGS 19
A. The Centrality of the Cell Site Tracking Evidence............................................................ 19
B. 1651’s Communications with Jeziah Blair-Taylor Before the Crimes.............................. 21
C. The Alleged Convergence of the Devices.......................................................................... 22
D. The Gaps in Cell Site Activity........................................................................................... 22
E. Dispersal After the Shootings............................................................................................ 24
V. THE LEGAL FRAMEWORK........................................................................................... 24
VI. ANALYSIS........................................................................................................................ 25
A. Was the User of 1651 a Party to the Shootings?................................................................ 26
B. Was Jatorri Williams the User of 1651 on October 1, 2019?............................................ 30
(i) The Premises of the “Pool” Analysis.............................................................................. 30
(ii) Evaluation of the Pool Analysis...................................................................................... 33
(iii) Challenges to the Pool Analysis and the Proof of Participation..................................... 35
(a) Was Mr. Williams in Thunder Bay from September 29 to October 2?................... 36
(b) The Theory of Another Traveller to Thunder Bay on October 3............................. 37
(c) The Submission that the 1651 Phone Battery was Discharged at Yorkdale Mall.. 39
(d) The Differing Time Stamps on the Pearl Street Videos and Cell Site Records....... 43
(e) The Argument that the Pool Analysis Cannot Exclude Jeremiah Edwards............ 45
(f) Continuity of Possession and Patterns of Usage.................................................... 46
(iv) Summary of Reasoning and Conclusions....................................................................... 51
(v) Legal Issues Related to Counts 2 and 3.......................................................................... 56
(a) Liability for the First Degree Murder of Eric Rowe............................................... 56
(b) Liability for Attempted Murder in the Shooting of Adrian Seebalack.................... 58
VII. CONCLUSION.................................................................................................................. 59
I. INTRODUCTION
[1] Jatorri Williams, with the consent of the Crown, has elected to be tried by me, sitting without a jury, on an indictment charging him with two counts of first degree murder and one count of attempted murder.
[2] I earlier made two rulings on the admissibility of evidence obtained during and after the arrest of Mr. Williams in Thunder Bay on October 21, 2019.
[3] These are the reasons for my determination that Mr. Williams is guilty of the offences charged. I pronounced this verdict in court on April 26, 2024.
[4] On the evening of October 1, 2019, three shooting incidents took place in a short span of time within a small geographical area in the northwest region of Toronto. In each case, three men arrived at the scene in a white Volkswagen Golf, discharged firearms at apparently random targets, and then were driven away in the Volkswagen.
[5] In the first incident, on Venetian Crescent near Driftwood Avenue, Adrian Seebalack, a teenager walking down the street, received disabling injuries to his hands which he was using to protect his head from gunfire. In respect of that attack, count 3 on the indictment, Mr. Williams is charged with attempted murder. In the second shooting, outdoors at a housing complex at 2000 Sheppard Avenue West, it is alleged that Mr. Williams and two companions, discharged firearms in a residential area, though no one was shot and no charges were laid. At the third shooting, in a courtyard shared by several housing units, three men discharged weapons, killing a 24-year-old man named Delauntae Bryant who was shot in the head and upper body several times. His death is the subject of count 1 of the indictment, a charge of first degree murder based on planning and deliberation.
[6] Also killed in the third shooting was Eric Rowe who the parties agree was one of the three gunmen in the series of shootings. Mr. Rowe was struck in the neck from behind by a single bullet fired by one of his accomplices and fell at the scene. The parties proceeded on the basis that this shooting was unintentional. The two other shooters approached Mr. Rowe’s body, apparently took items from his person, and then left the courtyard and entered the white Volkswagen. The killing of Mr. Rowe is the basis for count 2, also a charge of first degree murder, which rests on a theory of transferred intent under s. 229(b) of the Criminal Code and planning and deliberation.
[7] Significant aspects of the events surrounding each shooting were captured by security video cameras, including virtually all of the third one which led to the two deaths. In addition, video of traffic at stretches of roadway and at intersections in the area suggested the route followed by the shooters from scene to scene, linking each of them to the Volkswagen which, however, could not be better identified either by a license plate or by distinctive features.
[8] The Venetian Crescent shooting took place at about 8:11 PM on October 1. The site was slightly east of Jane Street and slightly south of Finch Avenue West. The 2000 Sheppard Avenue West shooting occurred 35 minutes later, at 8:46 PM, almost directly south of the first one and slightly west of Jane Street. The third shooting, at 306 Grandravine Drive, was roughly between the earlier two sites, south of the first one, north of the second and east of Jane Street. It occurred at 9:27 PM.
[9] The closeness in time and location of these very public shootings strongly suggested they were linked and this was effectively confirmed by the video of the white Volkswagen at or near each site and by ballistics evidence, analyzed by an expert witness, which established that three separate firearms were discharged during the incidents. This finding conforms to the video evidence showing each of the three men armed with a handgun. Cartridge casings show that at least one of the three guns used in the shootings was discharged at all three locations.
[10] It is apparent from the videos that a fourth person drove the Volkswagen. It may also be supposed, though it has not been proven, that a fifth person occupied the car’s front seat and never emerged—the three men who performed the shooting at Grandravine all got out of the rear seat of the Volkswagen and the man whose bullet struck Eric Rowe and the man alleged to be Mr. Williams both got into the rear seat when they hurriedly came back to the car. There is no evidence before me offering even a hint as to who the driver and the fifth person, if there was one, might be.
[11] The abundance of video and physical evidence, along with some eyewitness testimony, means that the basic outlines of the shootings are not contested. Three Black males, driven by another person in the white Volkswagen, walked through each of the three scenes discharging handguns, returned to the car, and then went to the next scene. The calculation implied by the coming together of the four persons, with weapons and a vehicle, the joint nature of the shootings, and the lack of any provocation or sudden impetus to fire the weapons, leads to the inference that the killings which occurred were intentional and evinced the state of mind for murder required by s. 229(a) of the Criminal Code. The same analysis points to the planned and deliberate nature of the fatal shootings at 306 Grandravine Drive.
[12] Importantly, there is also no dispute, and in my view no ground for dispute, about the identity of two of the three shooters in the October 1, 2019 incidents. They are Eric Rowe, the victim of the murder in count 2, and Jeziah Blair-Taylor, who has been separately charged.
[13] Mr. Blair-Taylor has been shown to be the user of a car in which the police found secreted behind the dashboard the key to the home of Mr. Rowe’s mother, the key to a vehicle Mr. Rowe drove, and a cell phone belonging to Mr. Rowe with the number 437-217-7224. In the circumstances, the inference that these items were taken from Mr. Rowe in the seconds after he was shot at 306 Grandravine Drive, when the other two shooters can be seen approaching, bending over and touching his person, is inescapable. It is an interesting, though not fully resolved, question whether they also took possession of an Ontario health card in the name of Demitri Green. The Crown says this is likely.
[14] Because there is no dispute that Mr. Rowe was one of the shooters, at 306 Grandravine Drive and earlier, the inference that Blair-Taylor was another is powerful. One of two cell phones associated with Blair-Taylor was shown to be in regular contact with the phone belonging to Mr. Rowe in the month preceding the shootings (and in the hours preceding them). Both video footage and testimony establish that Blair-Taylor’s left arm is markedly dysfunctional, a very distinctive characteristic of one of the men who can be seen in the shooting scene videos and who appears to have fired the bullet which took the life of Mr. Rowe, presumably with no intention of doing so.
[15] With the identity of two of the three shooters at all three locations effectively established, the primary issue in this trial is whether Mr. Williams has been proven beyond a reasonable doubt, on the evidence found to be admissible, to have been the third shooter. If his participation in the crimes is made out, further issues arise as to whether he can properly be convicted of first degree murder in the death of Eric Rowe, whose shooting is presumed to have been unintended and to have been done by Mr. Blair-Taylor, not Mr. Williams, and of attempted murder on count 3 as it has been framed in the indictment.
[16] Most of the evidence was adduced in the form of agreed statements of fact (ASFs) with some police and some civilian testimony, none of it forcefully challenged as to its credibility and none of it essential to the key issues before me.
II. THE SHOOTINGS ON OCTOBER 1, 2019
A. Attempted Murder at Venetian Crescent and Driftwood Avenue (Count 3)
[17] Video footage of traffic at about 8:10 PM on October 1 shows a white Volkswagen Golf, of a kind seen repeatedly in videos near all three events, approaching Venetian Crescent along Yewtree Boulevard. A minute later, Adrian Seebalack, who had been playing a mobile online video game on the street, noticed a small white car, which he thought was a Honda Civic, drive past him, then appear to turn around and come toward him again, from behind. When he looked back, into the car’s lights, he saw “lasers” and “sparks” and realized he was being fired at. He ran away from the gunfire with his hands covering his head. He made it to the lobby of an apartment building at 50 Driftwood Avenue. While he had probably saved his own life by covering his head with his hands, the bullets caused extensive, apparently permanent, damage to both hands. This supports the inference that the shooters were aiming at his head and trying to kill him.
[18] Parts of this episode were captured by security cameras, including beams of light from firearms, likely produced by laser sights, and sparks from the pavement. The video evidence does not allow for the identification of the shooters but it shows the one in front of the threesome in a light or white top, with an outstretched left arm, consistent with his using that arm to fire his gun. The videos confirm the rapid departure from the area in the Volkswagen, by 8:12 PM, along Yewtree Boulevard and Driftwood Avenue.
[19] Mr. Seebalack thought that his attackers were of West Indian origin – their skin was relatively darker than his own, which he described as “caramel.” Civilians from the neighbourhood offered evidence which tended to confirm the firing of the shots, the flight of Mr. Seebalack, the general description of the vehicle and the timing of these events, but did not assist with identifying the shooters. The civilians, including Mr. Seebalack, described the car as small and white though one referred to it as possibly a station wagon and another as possibly a Hyundai. Mr. Seebalack thought it was a Honda. I am satisfied that on Venetian Crescent, as at all the shootings sites, the assailants arrived and departed in the white Volkswagen Golf which was closely tracked by surveillance cameras and analyzed by the police.
B. The Shooting at 2000 Sheppard Avenue West
[20] Security video footage from the apartment complex at 2000 Sheppard Avenue West shows the movement of a vehicle, in the dark and far from the camera, consistent with its moving along Clair Road from Jane Street from 8:42 PM, half-an-hour after the Volkswagen’s departure from Venetian Crescent. The car travels westbound on Clair Road and appears to reverse direction by turning briefly into Mayberry Road and emerging to head back east on Clair Road. Three occupants can be dimly seen emerging from the car.
[21] Shortly afterward, three figures can be seen on the grounds of the 2000 Sheppard Avenue West residential complex, walking quickly on its internal roadways, and later running and facing in different directions. Two of the men wore masks which covered the lower part of their faces – the exception was the man alleged to be Mr. Williams. It is an available inference that all three men were carrying guns, though the man alleged to be Mr. Williams, wearing a white top, seems to conceal what is in his left hand during the period when he can be most clearly viewed. None of the images shows him with sufficient clarity to confirm his identity. The man is, however, dressed identically to the man at the Venetian Crescent scene alleged to be Mr. Williams.
[22] The fact that shots were fired at the Sheppard Avenue West scene is confirmed by both shell casings recovered there and by an audio clip from the surveillance footage which captures gunshots at about 8:46 PM. Passersby seem to have been alarmed by the gunfire and begun running, though they are only faintly visible.
[23] There is no report of injuries or even specific human targets in this incident which appears to have ended with the return of the three men to the waiting vehicle, on Clair Road. The car drove eastbound toward Jane Street and then further east on Spenvalley Drive at 8:49 PM.
C. Two Murders at 306 Grandravine Drive
[24] Security cameras at this housing complex captured a white Volkswagen arriving at a common parking area at about 9:25 PM, 39 minutes after the 2000 Sheppard Avenue West shooting. The car, after some maneuvering, backed into a parking space and three men emerged, all from the back seat and each with a handgun. The men then moved swiftly, one after the other, from the parking area and through a breezeway into the courtyard of 306 Grandravine Drive. As they entered, Delauntae Bryant happened to be standing near a large window outside unit 185, by himself. The three men opened fire on him. As they did so, the man alleged to be Mr. Williams (in a white top, with no mask, and with a gun in his left hand) moved forward from a position behind Mr. Rowe to ahead of him, and hence closer to Mr. Bryant, their shared target. Mr. Bryant, fatally injured by the gunfire, fell to the ground.
[25] The security footage shows Eric Rowe also fall to the ground while the guns are being discharged. His place in the line of fire, behind the left-handed shooter in the white top, and roughly on a line between Blair-Taylor and Delauntae Bryant, suggests that it was a bullet from Blair-Taylor which struck Mr. Rowe’s neck, from behind, and killed him.
[26] The shooting ended at that point. The video shows that after moving toward the exit from the courtyard, then briefly hesitating, the two men move back toward Mr. Rowe, bend or crouch beside him, and are in a position to remove items from his person for two or three seconds.
[27] Blair-Taylor and the other surviving shooter then sprint from the courtyard, through the breezeway, and to the waiting Volkswagen where they both get in the rear seat. The car departs immediately with the driver appearing to have forgotten to activate its headlights.
[28] The shooting in the 306 Grandravine courtyard was at 9:27 PM. Camera footage seized by the police captures a car appearing to match the Volkswagen for four more minutes, on Grandravine Drive, Jane Street, Eddystone Avenue, Oakdale Road and Sheppard Avenue, between 9:28 and 9:32 PM.
[29] Delauntae Bryant and Eric Rowe were both pronounced dead in hospital later that night.
III. EVIDENCE LINKING MR. WILLIAMS WITH SIM CARD NUMBER 89302720524848463339 AND PHONE NUMBER 226-972-1651
A. Evidence About Jatorri Williams
[30] Very little has been shown in evidence about the background, activities, relationships and movements of Mr. Williams, as teenager at the time of these events. I have heard evidence of the Photographic evidence places him in both Toronto and Thunder Bay during the twenty days between the crime and his arrest.
• Mr. Williams was arrested on October 21, 2019 at around 2:30 PM in Thunder Bay for unspecified offences. At his arrest, he was in the company of a man named Jeremiah Edwards and two women, Jaisha Mesquito and Tenisha Smith. They had been followed for about ten minutes by the police in advance of the arrests.
• When arrested, Mr. Williams had in his pocket an Ontario health card in the name of Demitri Green bearing a date of birth of February 27, 1998. The photo on the card resembled Mr. Williams sufficiently that an officer named Detective Constable Bartol believed while searching Mr. Williams that he was Demitri Green.
• Mr. Williams is left-handed.
[31] In addition, I am invited by the Crown to examine video and still images placed in evidence and to conclude that Mr. Williams was in three different places on two specific dates.
[32] On October 16, 2019, surveillance officers, operating inconspicuously at the funeral ceremony for Eric Rowe, held at the York Funeral Centre at 160 Beecroft Road in Toronto, took a large number of photos of several young Black men, some in groups and some individually. I am asked by the Crown to conclude that Mr. Williams can be seen at the funeral in many of the photos taken that day, with the other young men in attendance. It is alleged that he was at or near a Nissan Sentra vehicle which was later followed as it left the funeral centre around 4:20 PM.
[33] The Sentra was seen by the officers following it to stop at a jewelry store on Eglinton Avenue West at 4:43 PM and then, at 5:18 PM, at Yorkdale Mall in Toronto where five people from the funeral were seen getting out of it – a man alleged to be Mr. Williams; Jeremiah Edwards; Jamaal Barnes (wearing a hoodie with prominent white printing on it) and two other men, one wearing camouflage pants and one wearing all black clothing. These men entered the mall. Recorded images from a large number of mall security cameras were seized to track their movements for over two hours, until their exit, along with several other apparent companions from the funeral, at 7:24 PM. The man alleged to be Mr. Williams was similar in dress and appearance at the mall and the York Funeral Centre save for the fact that in the mall he can be seen with a large metal chain around his neck. He is sometimes pictured in the security footage holding a phone.
[34] On October 20, the day before his arrest in Thunder Bay, Mr. Williams is alleged to have been recorded on video cameras outside an apartment building at 277 Pearl Street, sometimes using a cell phone. One close-up image of this man shows him lifting what appears to be fabric directly up to and over the lens of a security camera, during an apparent attempt at unlawful entry into an apartment. In argument, the defence joined the Crown in inviting me to conclude that this man is Mr. Williams and that video images of a man holding and using a phone (and also not holding or using it) on October 20 at the Pearl Street building can be accepted as images of Mr. Williams.
[35] I am confident, therefore, that Mr. Williams was in Thunder Bay on October 20 and 21, 2019, as alleged.
B. The Identity of Mr. Williams in Surveillance Photos
[36] For the sake of clarity in the analysis which follows, I will set out here my finding about whether Mr. Williams is the man alleged to be captured in images from the York Funeral Centre and the Yorkdale Mall on October 16. I conclude that he was.
[37] In making this determination, I have been alert to the fact that I am, in effect, making a cross-racial identification, which creates significantly greater room for error. I am white and Mr. Williams is Black. I have seen Mr. Williams over many successive days in court but he has been held in a prisoner’s box throughout the trial, and I have never seen him in a natural environment, making spontaneous gestures or exhibiting unguarded mannerisms. Moreover, four years passed between the capturing of the images at issue and my viewing of Mr. Williams in person, and I have no evidence as to how, if at all, his appearance may have changed over those years – though this is a concern relieved to a significant degree by my ability to look at images from 2019 that are acknowledged to be of him.
[38] I am conscious of the other frailties of identification evidence and the risk that different persons may appear similar and be mistaken for each other: R. v. Hibbert, 2002 SCC 39, [2002] 2 SCR 445 at paras. 50-53. I view the process authorized by R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197 at paras. 19-23, 28-32, to be one that a judge or jury should approach with caution.
[39] Among the things not included in the evidence in this case is testimony from a person who knows Mr. Williams personally and can say whether he is the person in the October 16 videos and photos: R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 SCR 393. Such evidence would have made the fact-finding process in this case more straightforward.
[40] Despite these grounds for caution, and after taking them carefully into account, I am satisfied beyond a reasonable doubt that Mr. Williams is the man captured in images taken at the York Funeral Centre and Yorkdale Mall. With my view of him in court, made with an awareness of the importance of the issue, and with the chance to see the images of him in motion on October 20 and compare them to images from October 16, I have no doubt that all the videos and photos claimed to be of Mr. Williams are indeed images of him.
[41] The man in the photos and videos looks exactly like Mr. Williams, both in general appearance and in the details. I recognize in the images the symmetry of his face, the relative length and wide spacing of his eyes, his defined cheekbones, and his even but watchful expression, visible to me in court and across the various images from the funeral home to the mall to Pearl Street. There is also a compactness and economy of motion apparent in the videos of Mr. Williams at the mall and at Pearl Street.
[42] The appearance of a jacket on Mr. Williams at Pearl Street and at the funeral home and mall supports the identification – it is the same jacket or a very similar one. So, too, does the presence of Jeremiah Edwards at the two locations in Toronto. Edwards can be seen alongside Mr. Williams on the Pearl Street videos, with careful viewing, and he was with Mr. Williams at the arrest scene on October 21.
[43] To some degree, the grounds for recognition of an individual in a photographic image will be ineffable, and that is true here. Over time, especially as I became aware of the potential significance of the question, I became confident to the point of certainty that Mr. Williams was the man in the puffy jacket on October 16 at the funeral centre and at Yorkdale, just as he was the man in a very similar jacket on October 20 at Pearl Street. The identification is, of course, aided by the close-up image of Mr. Williams as his face draws near to a security camera at Pearl Street which he then appears to cover with fabric.
[44] In summary, what I conclude with confidence about Mr. Williams from the evidence before me are the following points:
• In October 2019, he appeared to be in his late teens or early 20s.
• He was of medium height or less and of average build. He was clean-shaven in the latter part of the month.
• He was Black with a dark complexion—darker than the “caramel” colouring Adrian Seebalack attributed to himself by way of comparison to his attackers.
• He was left-handed.
• He wore a fall-winter jacket with stitched padding creating a "puffy" effect.
• He had a close enough relationship, directly or indirectly, with Eric Rowe, one of the October 1 shooters, that he elected to spend several hours at his funeral on October 16.
• He had social connections with a group of young men at the funeral of a nature that led him to associate with them at the event and to accompany a group of them to a jewelry store and then a mall after the funeral, though he separated himself from all or most of them for much of the two-and-a-half hours he spent at the mall.
• His circle included Jeremiah Edwards, with whom Mr. Williams was observed on October 20 and 21 in Thunder Bay and with whom he was arrested on the 21st. Edwards was also at the funeral and at the mall.
• Mr. Williams was in possession of a significant amount of cash, visible during a purchase at the Foot Action Shop in Yorkdale Mall on October 16.
• He used a smart phone and can be seen with such a device on October 16 in Toronto and October 20 in Thunder Bay.
[45] It is also useful, in order to highlight the centrality of evidence about the use and possession of a cell phone SIM card in this case, to enumerate the subjects on which I have no evidence, many or most of which are addressed by some means in typical prosecutions for murder.
[46] I do not know where Mr. Williams resided in October 2019. I do not know with whom he lived. I know nothing about the nature of his social relationships, beyond inferences from images taken on October 16 and 20-21 and brief references in the ASF to his companions when he was arrested. I do not know if he had a spouse or any romantic attachment or whether he had children. I do not know if he had a job. I have no insight into how he typically spent his days – October 16 was dominated by a funeral and was obviously not typical; I have only snippets of information about his behaviour over two days in Thunder Bay on October 20-21. I know nothing of what he did on an average day.
[47] I know nothing as well about facts that might in other cases shed light on the extraordinary events of October 1, captured so vividly on security cameras. Joining with two people in a high-risk, public shooting spree might presuppose a high level of mutual trust and confidence among them; how that trust might have arisen among Mr. Williams, Mr. Blair-Taylor and Mr. Rowe cannot even be usefully guessed at on this record. I know nothing about the Volkswagen the shooters travelled in besides it colour and model.
[48] It may be inferred from viewing the videos that the crimes took place without regard to the identity of the potential victims, but the locations appear to have been selected by some criteria – the group discharges guns at three locations near Jane Street, beginning with the most northerly, moving to the most southerly and ending in the middle (with the unintended shooting of Mr. Rowe during the intended murder of Mr. Bryant). Evidence about the connections of the three suspects to this area, or persons in it, criminal or otherwise, might provide a framework for assessing the circumstantial evidence of complicity in the crimes but there is nothing of that nature before me.
[49] To a striking degree, on the record at trial, Jatorri Williams as a person, with motivations, associations, interests, habits, values, attitudes and a biography, remains a mystery – a stick figure charged with extremely grave crimes.
C. The Cell Phone Usage Records
[50] The prosecution of Mr. Williams relies heavily on records of communications alleged to have been between him and Jeziah Blair-Taylor in the hours preceding the three shootings along with the apparent cessation of any contact, communication or use of the device associated with Mr. Williams in the periods surrounding the shootings, and the geographic pattern of the Blair-Taylor, Rowe and Williams phones coming together just before, and separating immediately after, the hour and a quarter during which the shootings took place. At the heart of the prosecution case is its effort to establish beyond a reasonable doubt the connection between a particular phone number, with its unique Subscriber Identity Module (“SIM”) card number, and the offences, and then the connection of that SIM card and its phone number with Jatorri Williams.
[51] The evidence is found mainly in the records of four SIM cards associated with four phone numbers. In this case, it appears that the SIM card the Crown attempts to connect Mr. Williams to was, at points in time, lodged in two different devices but the SIM card itself (which generates the records tracked) and the phone number associated with it remain uniform throughout the records. The SIM card’s unique identification number (ICCID) was 89302720524848463339 (sometimes abbreviated at trial as “3339”) and the associated phone number, appearing in the records, is 226-972-1651. Generally, I will refer to the SIM card, the device it is in, its user and related records simply as “1651”. I will refer in a similar manner to other phone numbers, devices and their users.
[52] Two phones said to be associated with Jeziah Blair-Taylor were found on October 28, 2019, in a Sudbury residence to which it may be inferred he repaired after the October 1 offences. The defence does not contest the Crown position that Blair-Taylor controlled and used the two devices. The records for the devices show one with a phone number ending in 9382 and the other with a number ending in 2870.
[53] The SIM card of the phone found hidden behind the dashboard of the car associated with Blair-Taylor could be connected through usage records with Eric Rowe by the numerous contacts it had with Mr. Rowe’s mother and by the contacts it made with a third party shown to have rented a vehicle to Mr. Rowe. The number associated with this phone during the time frame with which we are concerned ended with 7224.
[54] The defence does not dispute the association of Mr. Blair-Taylor with the numbers 9382 and 2870 nor that of Mr. Rowe with 7224. The existence and extent of any connection between Mr. Williams and 1651 is a major issue between the parties.
[55] The records, which I will refer to as “cell site tracking records” or simply “cell phone (or tower) records”, were obtained through production orders issued during the police investigation.[^1] These records are created when a cellular device with a SIM card connects to a cellular site – often loosely called a “tower” – for the purpose of either a phone call or an SMS (“text”) message. In the case of a phone call, the records capture the time the call connected and its duration, the towers through which the call was transmitted, and whether it was answered or redirected to a voicemail. In the case of an SMS communication, it records when and from what site the message was sent or received by the phone whose records are being examined. In the case of a phone call, the records capture the geographic location of the cell site to which the phone was connected at the inception of the call and at the termination of the call. In the case of a text message, which is simply a momentary “burst” of data, it records the site to which the phone was connected when it either sent or received the message.
[56] The information conveyed by the records about a device’s location may be more or less precise depending on certain variables. In densely populated areas, such as downtown Toronto, a single cell site might connect with devices no more than half a kilometre from its location, placing the connecting device within a relatively narrow and well-defined area. In rural or less densely populated areas, the distance between sites may be much greater and the precision of a particular “ping” or connection in placing a device much less. Other factors may limit precision as well – the device may not connect to the closest site if the site is temporarily handling very heavy usage, for instance, or if there is a physical barrier between the device and the cell site, whether permanent (such as a building or a hill) or temporary (like a passing transport truck on the highway).
[57] In spite of these limitations, the value of a cell site tracking record in placing a device with a SIM card, and potentially its user, in a particular area at a particular time can be significant.
D. The Alleged Shrinking Pool of Potential Users of Phone Number 1651
[58] The cellular tracking records related to SIM card 3339 show that it was associated with phone number 1651 and was obtained by its subscriber on September 23, 2019, just eight days before the offences in this case. This means there is a relatively narrow window into activity on the device before the October 1 shootings.
[59] In order to fix Mr. Williams as the person who possessed and used 1651 on the date of the offence, the Crown has relied on surveillance camera footage at three locations over two different days (October 16 and 20) and on tracking records placing the phone in general areas on those days. It combines these records with photographs and video images said to place Mr. Williams in specific locations, sometimes in possession of a phone, at the same time as the tracking records capture the general location of the phone’s SIM card.
[60] The prosecution evidence supports the following chain of reasoning, beginning with the day of the funeral:
• During Mr. Rowe’s funeral, on October 16, Mr. Williams was at the York Funeral Centre, located at 160 Beecroft Road, northwest of the intersection of Yonge Street and Sheppard Avenue. The funeral and related events were set to run from 10:00 AM to 2:00 PM, though attendees remained on the grounds past 4:00 PM. Phone number 1651 connected to towers close to the funeral centre on three occasions during the hours of the funeral. This evidence, of course, can define only a very large pool – many people were likely at the funeral centre but countless more certainly connected with towers near it that day, from other locations.
• During his time at the funeral home, Mr. Williams spoke with a group of several Black males, mostly standing together and apparently socializing.
• None of the surveillance photos was taken at the precise time of the cellular communications, so they do not serve to confirm or refute the contention that Mr. Williams (or any individual in his company) was using the 1651 device during the funeral proceedings.
• At 12:05 PM, a black Nissan Sentra arrived at the funeral centre where its presence and the passengers in it were observed and photographed by surveillance officers.
• The Sentra left the funeral centre at about 4:20 PM. Officers followed it first to a jewelry store on Eglinton Avenue West, then to Yorkdale Mall where it was observed to park. Five men can be seen on video and in the photographs getting out of the Sentra, including Mr. Williams, Jeremiah Edwards, Jamaal Barnes (wearing the hoodie with the white lettering), the man in camouflage pants, and the man wearing all black. The Sentra parked and the men emerged from it at 5:18 PM.
• A Mazda was also at the funeral home and contact between its occupants and the occupants of the Sentra was noted by surveillance officers. The Mazda left the funeral home in tandem with the Sentra and two of its occupants went into the jewelry store on Eglinton Avenue along with the five men from the Sentra. The Mazda was not tailed all the way to Yorkdale Mall, but security video shows it also parked at the mall with people coming out of it and walking through the parking lot.
• A group of nine Black men, in different subgroups, can be seen walking through the mall over a period from 5:19 PM, when Mr. Williams entered the mall with Jeremiah Edwards, Jamaal Barnes, the man in camouflage pants and the man wearing all black. The occupants of the Mazda appear to have joined and merged with the occupants of the Sentra in the mall.
• The first cell site connection by 1651 after the group left the funeral centre for Yorkdale Mall (via the jewelry store) was at 5:23 PM and it pinged at a tower designated “Yorkdale Mall”. In other words, 1651 moved from the general area of the funeral centre to the area of Yorkdale Mall in a time frame consistent with the observed movements of the group of men, including Mr. Williams.
• Among the Sentra passengers, Mr. Williams alone was captured carrying a phone in his hand upon entry.
• At this point, two observations of importance to the Crown theory are made. First, 1651 connected to the Yorkdale Mall cell site from 5:25 PM for almost six minutes. Mr. Williams is seen on a camera inside the mall actively speaking on a phone for several seconds in this period, at 5:26 PM. The same video captures Jeremiah Edwards, in the same visual frame as Mr. Williams, not using a phone. This is cited as proof that while Mr. Williams could be the possessor and user of 1651, Edwards is effectively eliminated as the possessor– there is video of him when the 1651 device was connected to the Rogers wireless network, and he was not holding or using any device.
• The logic of the Crown’s analysis is said to remain intact throughout the time in Yorkdale Mall. The phone was not active between the six-minute phone call at 5:25 PM and its receipt of an SMS on the cellular network at 7:33 PM. The Crown acknowledges evidence of Mr. Williams in the mall with a device whose screen is illuminated but notes the expert evidence that this can be a result of internet browsing or some form of internet-based, non-cellular communication, which would not create a cell site record.
• Mr. Williams, on the basis of the mall security videos, was separated from the main group of men he entered with for most of his time at the mall, from about 5:50 PM until 7:19 PM, just five minutes before they appear to leave as a group.
• The group of men, nine in all, left the mall at about 7:24 PM. Some went to the Mazda and some to the Sentra. The police saw Jamaal Barnes with the distinctive lettered hoodie and three other men get into the Sentra. Officers followed that car but did not track the movements of the Mazda beyond the Yorkdale Mall parking lot.
• The Sentra left the parking lot at 7:25 PM and went north on Dufferin Street for a short distance, then westbound on Wilson Avenue as far as Jane Street. It then went north to 2265 Jane Street where it entered an underground parking garage at 7:44 PM, when one occupant got out. The car continued further west to 1901 Sheppard Avenue West, a townhouse complex where surveillance ended at 8:10 PM. There is no firm account of all the occupants of the two cars, including confirmation of which vehicle Mr. Williams was in upon departure.
• In the period after the mall visit, 1651 received an SMS message at 7:33 PM and another at 7:56 PM. The first of these connected to the cell site “Yorkdale (Holiday Inn)”, very close to the mall. The second connected much further west at 2388 Jane Street, an address north of Wilson Avenue and south of Sheppard Avenue.
[61] The Crown argues that this evidence creates a small and defined “pool” of potential possessors and users of 1651. The phone pinged at a location near the funeral home, where there was a ceremony attended by people connected to Eric Rowe, the deceased. Nine of the attendees went in two cars from the funeral centre to Yorkdale Mall, via the jewellery store and 1651 then pinged near the mall, over approximately the time the nine men were at it. Those nine men left at about the same time, in cars, and 1651 moved west, as did the Sentra with some of the men in it, and perhaps the Mazda. 1651 is connected with Eric Rowe through its connection with Blair-Taylor’s devices and through the close proximity of 1651 to the scenes where Rowe was shooting on October 1 and eventually died. The tracking of the movements of the men, and 1651, from the funeral centre to the mall to the west end of the city, looked at cumulatively, limit the plausible possessor-users of 1651 to those men. It does not belong to some entirely separate person, unconnected to Mr. Rowe, the funeral, and the mall. The coinciding locations and times narrows the plausible possessors of 1651 to this group, of which Mr. Williams is shown to be a member.
[62] The next test of the alignment between the whereabouts of Mr. Williams and the location of 1651 involves examining the days between October 19 and 21.
• 1651 connected to a tower near Parry Sound, close to Highway 400, in the late evening of October 19 and in Thunder Bay on the afternoon of October 20, consistent with a long overnight drive from Toronto to Thunder Bay.
• On October 20, there is unchallenged evidence of the presence in Thunder Bay of Mr. Williams while 1651 is in use near his location. The Crown says this marks a significant shrinkage of the “pool” of potential users created by 1651 connecting near the funeral home, at Yorkdale Mall and west of the mall on October 16.
• Though no evidence suggests the presence of most of the other men who formed the pool of potential users at the end of October 16 in Thunder Bay on October 20, it does, by that date, continue to include one of their number – Jeremiah Edwards. Mr. Edwards is pictured in videos in company with Mr. Williams on October 20 in Thunder Bay and was arrested with him on October 21.
• On the evening of October 20, video evidence shows Mr. Williams outside 277 Pearl Street, for part of the time from 6:08 to 8:29 PM, according to time stamps on the footage. Of the nineteen video clips in Exhibit 46 A-S, two show Mr. Williams apparently handling a cell phone. The clips, according to their time stamps, show handling of the illuminated phone at 7:29-30 PM and 7:34 PM. These instances of handling a phone by Mr. Williams do not correspond to cell site tracking records which show no activity by 1651 at these specific times.
• The cell tracking records do, however, show activity by 1651 in the early evening of October 20 during the time frame in which the video clips were taken. There is a burst of messaging between 7:23:32 and 7:24:08. There is a second burst between 7:27:54 and 7:28:57. These communications are connected to a tower which would be expected to process cellular activity at 277 Pearl Street.
• The Crown argues that while these times from Rogers differ from the time stamps on the videos in which Mr. Williams can be seen using a phone, they differ by a uniform amount. If it is posited that the security camera time stamps are out of alignment with actual time (as captured in the Rogers records) by approximately 5 minutes and 55 seconds, then both bursts of activity in the cell tower tracking records are consistent with the actual usage of the phone by Mr. Williams in the video clips from 277 Pearl Street. This is illustrated by the fact that the end points of the two bursts of texting activity on the cell tracking record are 4 minutes and 49 seconds apart and the end points of the two instances of phone-handling by Mr. Williams in the video record are 4 minutes and 55 seconds apart. The Crown argues that the closeness of these two end points is much more significant than the slight difference between them which can be explained by the time taken to read the last received message or by a brief delay between receiving the following message in the burst and the screen of the phone going back to its darkened resting state.
• The Crown argues as well that if the video clip time stamps are uniformly adjusted so that they are assumed to have captured events 5 minutes and 55 seconds earlier than on the face of the clips, the segments of time in which a phone is not being used by Mr. Williams conform to the periods in which 1651 was not active in the cell tracking records.
[63] The Crown also relies on the history of flights to and from Toronto booked in the name of Demitri Green whose health card was seized from Mr. Williams at his October 21 arrest in Thunder Bay. The evidence shows that a Porter Airlines flight booked in the name of Demitri Green, and paid for by the credit card of Eric Rowe, departed from Toronto to Thunder Bay on September 29.
[64] The Demitri Green identity (but with a different date of birth) was used on October 3 to fly from Toronto to Thunder Bay. Mr. Rowe, of course, could not have been the person on this flight. The Crown alleges that this flight was booked by Mr. Williams late on October 2 to depart early on October 3 and reflected an attempt on his part to distance himself from the October 1 murder. It is apparent from cell tracking records that 1651 left Toronto and went to Thunder Bay on October 3 at times fitting with this flight itinerary. Moreover, the phone came back to Toronto from Thunder Bay on October 10, a date when the Demitri Green identity was also used by someone to travel between those cities on an Air Canada flight. The Crown suggests that Mr. Williams took the second flight as well, using the Demitri Green identification found in his possession at his arrest eleven days later. The Crown suggests he was returning on October 10 for the funeral of Eric Rowe, which he attended on October 16.
[65] Rounding out its argument that Mr. Williams possessed and used 1651, the Crown points to the last communications made by the device in Thunder Bay before the arrest of Mr. Williams and Mr. Edwards on October 21. The device connected at the Court/Court PCS cell site at 2:15 PM, near Pearl Street and distinctly north of the Lake Street arrest site. But at 2:26 and 2:27 PM, it connected at a different, more southerly tower, closer to Lake Street. This was just minutes before the arrest of Mr. Williams, Mr. Edwards and the two women who had all been in the car immediately before their apprehension. This is cited as evidence suggesting 1651 moved in lockstep with Mr. Williams.
[66] The Crown argues that it is not reasonable to suppose that members of the “pool” created by the October 16 movements from the York Funeral Centre to Yorkdale Mall, and probably to the Jane and Sheppard area, somehow found themselves in Thunder Bay, with one of them using 1651, in the same area of the city as Mr. Williams, but were never observed in his company. There is not a trace of the men who were at the funeral and at the Yorkdale Mall on October 16 in Thunder Bay on October 20 and 21 and the hypothetical possibility of their presence cannot be advanced to answer the claimed correspondence on these dates between the known movements and behaviour of Mr. Williams and the confirmed usage of 1651.
[67] The Crown does acknowledge, however, that Jeremiah Edwards stands apart from that analysis. Though we do not know when or how he came to Thunder Bay after October 16, we do know that he was in Mr. Williams’ company at the funeral, at Yorkdale, at Pearl Street and at the arrest. The Crown argues that Edwards, like everyone in the funeral centre/Yorkdale “pool”, is eliminated from possession and use of 1651 by Exhibit 45E, the video clip at Yorkdale on October 16 at 5:26 PM. When that video was taken, 1651 is known to have been making a phone call according to the records in Exhibit 25A. Mr. Williams was captured on video making a phone call at the same time. Mr. Edwards was in the same video frame and was not using 1651, or any phone. The Crown argues that Exhibit 45E and Exhibit 25A, examined together, connect Mr. Williams to 1651 and eliminate Edwards as its possessor and user.
[68] The Crown’s argument can be digested, in its essentials, to the following outline, starting with October 16 at the funeral and the mall:
1651 revealed its general location, and the specific time it was at that location, each time it connected with a cell tower to send or receive a call or SMS over the Rogers system. It showed itself to possibly be with the group of young men who spent the afternoon of October 16 at the York Funeral Centre, near Yonge Street and Sheppard Avenue, by connecting to towers around that location at the time of their attendance. Then, just as the group of men, including Mr. Williams, were seen moving from the funeral home to the Yorkdale Mall, many city blocks and many cell tower sites to the west, the phone moved along with them, connecting to the Yorkdale cell site at the mall where the men spent over two hours. Then, as at least some of the men were watched leaving Yorkdale and driving many more blocks west, to the area of Jane and Sheppard, 1651 was again moving in that direction. Granting that countless people must have connected to the cell site near Yonge and Sheppard that day, some of them several times, from a very wide range of homes, shops and public spaces, how many of them headed toward Yorkdale Mall? How many of these people stayed for about the same length of time as 1651 stayed (and as Mr. Williams and his companions stayed)? And how many of those left in the period after 7:24 PM and headed west?
[69] These questions, considered in sequence, highlight for the Crown the relative unlikelihood that the movements of 1651 on October 16 were not connected to the movements on that date of Mr. Williams and his apparent associates.
[70] Mr. Williams was then videotaped on October 20 using a phone in the very area and in the very time frame when 1651 was connecting with the Court/Court PCS cell site in Thunder Bay, hundreds of kilometres from its earlier connections in and around Toronto. And on October 21, the user of 1651 connected with a more southerly cell site just before Mr. Williams was arrested near an address south of the one 1651 had largely pinged off earlier in the October 20-21 visit. The chance that Mr. Williams was a member of the group at a Toronto funeral on October 16 near a cell site a phone connected to, and then at a Toronto mall on the same date, near a cell site that phone connected to, and then at a Thunder Bay apartment building four days and 1400 kilometres away, at times of day compatible with that same phone’s connections, without being the user of that phone at those places and times, is extraordinarily remote.
[71] There are, the Crown argues, enough parallels between the digitally documented movements of 1651 between cell towers and the photographically documented movements of Mr. Williams to identify him as possessing and using 1651 on October 16, 20 and 21 and to eliminate his frequent companion, Mr. Edwards, from having possessed and used the device.
[72] Central to the Crown’s analysis is a necessary corollary of its “pool” approach – despite ample documentation of Mr. Williams’ activities on those dates, there is no instance where it is known that 1651 is in contact with a cell site but Mr. Williams is shown not to be using the phone. In taking this position, the Crown rejects the rejoinder of the defence that the October 20 videos at 277 Pearl Street falsify its premise – for the Crown, these video images of phone use without a connection and of connections without phone use are explained by erroneous time stamps on the security camera footage which, when subjected to a consistent adjustment, bring the records and the videos into alignment.
[73] On top of this, the Crown adds the fact that 1651 moved to Thunder Bay on October 3, and back to Toronto on October 10, at times consistent with the movements of a person travelling as Demitri Green – a person whose health card was found in Mr. Williams’ possession at his October 21 arrest and whose appearance was similar to his own. This evidence, taken together, cements the inference that it was Mr. Williams who had 1651 in his possession on October 3, October 10, and the many occasions in between when it connected to cell sites in Thunder Bay.
[74] This reasoning is fortified by the fact that 1651 was not just any phone, indistinct from the thousands of other phones in circulation on October 3, 10, 16, 20 and 21. It was a phone that was close to the area where Eric Rowe, a man known to Mr. Williams, died on October 1. It was a phone that had been in communication with the phone of the man who shot Mr. Rowe, Mr. Blair-Taylor, in the immediate lead-up to the shooting. Practically speaking, the pool of potential possessors and users of 1651 is the group who knew Eric Rowe well enough to attend his funeral and followed the path of the phone after it. Mr. Williams qualifies by that criterion as well.
[75] The defence does not, however, accept the premises of the Crown’s argument that “pools” of hypothetical users could be gradually shrunk to isolate Mr. Williams as the sole possessor and user of 1651 on October 16 at the funeral centre and Yorkdale Mall, and on October 20 and 21 in Thunder Bay at Pearl Street and just before the arrest on Lake Street. Nor does it accept that the phone was with him on October 3 and 10 as it went to Thunder Bay and back to Toronto.
[76] Respecting the important Yorkdale Mall videos on October 16, the defence submits it was most unlikely that Mr. Williams, a teenager in a mall with friends for two hours, did not make any use of a cell phone for texting or calling – even though he was separated from the group he had arrived and departed with for much of that time, about 5:49 to 7:18 PM. 1651, the defence argues, was not with Mr. Williams and was not the device which he was seen holding and on which he was apparently speaking in the 5:26 PM video clip which conforms to the tracking record and which also is said to eliminate Edwards as the device’s possessor and user.
[77] Defence counsel points specifically to the Rogers records of a text message shown to have been received by 1651 at 7:33:36 PM, nine minutes after the group of men that included Mr. Williams left the mall and eight minutes after the Sentra began its westward route by travelling north on Dufferin, west along Wilson Avenue, and north on Jane Street. The defence notes that although the Sentra, alleged to be carrying Mr. Williams and 1651, was well west of the mall by 7:33 PM, and much closer to cell sites at Keele Street and Wilson Avenue than at Yorkdale, this 7:33 text message connected at a tower beside Yorkdale. Counsel argues that this record suggests that 1651 had run out of battery charge earlier and the 7:33 message, which was sent 22 minutes earlier, was received only after the battery had been recharged. That recharging probably occurred not in the Sentra, which had left the mall with Mr. Williams by 7:25, headed west, but in the Mazda, which left later. Hence, 1651 connected with the tower at 3450 Dufferin Street, very close to the mall, because Mr. Williams was in the Sentra and 1651 was in the Mazda, receiving the delayed text message only after it had become recharged in that car, still close to the mall and the nearby Yorkdale (Holiday Inn) tower. This, it is argued, shows that Mr. Williams must have been handling another device, not 1651 (whose battery was dead) when he is seen on mall videos with an apparently functioning phone at, for example, 7:20, 7:21, 7:23 and 7:24 PM in exhibits 45 O-S.
[78] The defence also rejects the prosecution claim that Mr. Williams must have been speaking on 1651 at 5:26 PM when the device was, according to records, being used in a call. There would be a large number of phones connecting to the Yorkdale Mall cell site that afternoon and he would likely have made many calls on his own phone, which the defence says is not 1651. It cannot advance the Crown case that Mr. Williams is seen on camera making a call when someone else was using 1651 to make a call. Moreover, even if the pictured call was on 1651, people will use the device of another person commonly, either because they have borrowed it or because it was handed to them by its owner to speak to the person on the other end of a call. The inferences the Crown urges me to draw are, the defence says, uncertain and not definitive.
[79] The defence also does not accept that the presence of 1651 and of Mr. Williams in Thunder Bay on October 20 and 21 – after a drive from Toronto overnight on the 19th and 20th– helps fix him as the owner and possessor of 1651.
[80] Counsel for Mr. Williams argues that, on their face, the cell site tracking records, examined alongside the time-stamped October 20 videos at Pearl Street, in Exhibit 46 A-S, meet the challenge posed by the prosecution. They are positive evidence of Mr. Williams not using a device at a time when 1651 is shown to have been connected to the cellular network. It follows, according to this argument, that someone else – perhaps Jeremiah Edwards, known to be in Thunder Bay – was making the tower connections with 1651. The defence rejects as circular, self-serving and unconfirmed the suggestion that the time stamps on the Exhibit 46 videos were asynchronous with actual time by approximately 5 minutes and 55 seconds and thus illustrate that Mr. Williams was the user.
[81] The defence also notes that when the Crown asks the court to find Mr. Williams possessed the Demitri Green health card and flew with it as his identification on October 3 and 10, because he had it on October 21, the same logic would place it in his hands when it was used for a flight to Thunder Bay on September 29 with a return ticket for October 2 – which would make evidence of flights by him on those days effectively an alibi for the October 1 offences.
[82] In the three days of submissions following the evidence, I heard very little from the parties on what inferences about possession of 1651 – and especially about whether it was continuously possessed by a single person – could be drawn from records of the phone’s broader patterns of activity which included several thousand entries spanning the 29 days from acquisition of the SIM card 3339 on September 23 to the arrest of Mr. Williams in Thunder Bay on October 21. After some time spent with my judgment on reserve scrutinizing these records (in some instances alongside records for the Rowe and Blair-Taylor devices) I raised questions with counsel on which I invited further submissions. These questions and the parties’ submissions are addressed later in my reasons, as are my own inferences from the records.
IV. EVIDENCE LINKING PHONE NUMBER 1651/SIM CARD 3339 WITH THE SHOOTINGS
A. The Centrality of the Cell Site Tracking Evidence
[83] The case against Mr. Williams rests almost entirely on the submission that he was the owner and user of 1651, generally and on October 1, and that rigorous reasoning and common sense compel the conclusion that the owner and user of 1651 was a participant in the shootings which led to the charges in the indictment. Apart from inferences based on the cell site tracking, the Crown offers supportive but not decisive arguments in favour of Mr. Williams’ guilt – he is left-handed, like one of the two surviving shooters and broadly similar in other ways; nothing in the appearance of the left-handed shooter on security camera footage is inconsistent with the appearance of Mr. Williams; Mr. Williams had a connection to Mr. Rowe, a known participant, because he attended his funeral.
[84] The Crown also mounts an argument that Mr. Williams left Toronto for Thunder Bay on October 3, and returned on October 10 for the October 16 funeral, in a manner that reflected an awareness of his own guilt and an effort to avoid police detection – steps he had to take once his friend Rowe was identified as an accomplice in the crimes. The Crown suggests, in addition, a parallel between the decision of the left-handed shooter on October 1 to commit his crimes unmasked and the participation of Mr. Williams in a nighttime break and enter on October 20 without a mask.
[85] The cell site records of 1651 are the backbone of the Crown case. As a practical matter, the Crown has to prove beyond a reasonable doubt the connection between Mr. Williams and the phone and the connection between the phone and the October 1 crimes.
[86] Several features of these records are said by the Crown to implicate 1651, and therefore Mr. Williams, in the offences charged:
• Sixteen phone calls were made between 1651 and Jeziah Blair-Taylor’s phone in the 35 minutes from 7:03 to 7:38 PM on October 1, ending just 33 minutes before the first shooting, on Venetian Crescent at 8:11. Ten of the sixteen calls were initiated by 1651.
• Eric Rowe and Blair-Taylor communicated regularly. They were in more frequent contact than usual just before the shootings. They spoke four times between 5:07 and 7:44 PM on October 1. All four calls were initiated by Blair-Taylor. They ranged in length from 14 to 51 seconds.
• Blair-Taylor, Rowe and the user of 1651 were at widely separate locations around Toronto in the morning and afternoon hours of October 1 but converged around the Jane and Sheppard area shortly in advance of the first shooting.
• After the significant contact among the phones before the shootings, there was no communication between any of the devices that evening after 7:44 PM. The Crown suggests that the men did not communicate by phone during the crimes because they were in each other’s physical presence, either in the Volkswagen Golf or briefly outside the car performing the shootings.
• 1651 stopped all communications (which to that point had been almost uninterrupted) shortly before each shooting, suggesting deactivation of the device to avoid creating records of its location while the crimes were committed.
• A comparable pattern is apparent in the records of the Blair-Taylor and Rowe phones, suggesting that the three of them were together and had agreed upon deactivation of their phones as a precaution to avoid detection.
• The next recorded connections of the devices with cell sites suggests that after the third shooting, the two surviving shooters, Blair-Taylor and the user of 1651, departed from the area of the shootings, and connected with the cellular network only after allowing significant time to pass.
[87] This sequence of contact, movement, activity and inactivity by 1651, according to the Crown, stamps its user as inextricably involved with Eric Rowe and Jeziah Blair-Taylor in the shootings captured on video. He is the left-handed gunman at all three locations.
[88] The defence rejects this as insufficient proof of the involvement of 1651’s user in the crimes. It argues that there is not compelling evidence of an organized convergence among the users of the phones before the shootings. The Eric Rowe phone is not shown by cell records to have gotten near the shootings or to have been on his person when he died at 306 Grandravine Drive. The defence points out that the Jane and Finch/Sheppard area includes many people who spend the day there and many other people who attend, remain and leave the area in the course of a day.
[89] The defence also argues that it cannot simply be presumed that Blair-Taylor and the user of 1651 were talking about the planned shootings in advance of their occurrence. The user of 1651 was in very frequent contact with the phone number 2579, and other numbers, after its last call with Blair-Taylor’s 2870, with no evidence that he was communicating about imminent shootings. Similarly, Blair-Taylor communicated with another number, 4247, after his last phone call with 1651. Those communications did not compel an inference of involvement by the other party in the pending crimes. Eric Rowe, too, exchanged calls and messages with different numbers (8509, 6737, 6674, 8074, 8509) in the period during which his four conversations with Blair-Taylor occurred on October 1, with no basis to infer they were about the shootings that took place from 8:11 to 9:27 PM. It cannot be assumed that communication with a phone by Blair-Taylor or Rowe in the pre-shooting hours was about the shootings.
[90] The defence resists the argument that the “gaps” in activity by 1651 during periods surrounding the three shootings, after intense cellular activity before and afterward, is aligned with similar patterns on the Rowe and, especially, the Blair-Taylor devices and proves participation. It suggests that the cessation of activity on 1651 could reflect a choice made by 1651’s very frequent contact, 2579, and that the choice could have been made because the user of 2579, not the user of 1651, was involved in the crimes and was seeking to avoid leaving a digital trail.
[91] I will now set out these positions in more detail.
B. 1651’s Communications with Jeziah Blair-Taylor Before the Crimes
[92] The defence lays emphasis on the fact that between 1651 becoming active, on September 23, and the crimes on October 1, there is not a single instance of the device communicating with either of the two numbers used by Blair-Taylor nor with the one number known to be used by Eric Rowe. The defence suggests that this lack of communication makes it much less likely that an enterprise as complex and consequential as three public shootings, in an urban area, was organized by a group that included the user of 1651. In contrast, it is noted, there is an established pattern of communication between one of the Blair-Taylor phones, 9382, and Eric Rowe’s 7224 number throughout September (when the records begin) and on the day of the crimes. This is consistent with Rowe and Blair-Taylor being trusted accomplices and possible partners in these crimes but also highlights the contrast between their apparent relationship with each other and the relationship of both with 1651’s user.
[93] The evidence on the contact between 1651 and Blair-Taylor’s 2870 phone is not controversial and may be simply summarized:
• At 7:02 PM on October 1, one hour and nine minutes before the first shooting, Blair-Taylor’s 2870 contacted 1651 for a phone call lasting 51 seconds.
• At 7:08, 1651 contacted 2870 for a phone call lasting 61 seconds.
• At 7:09, 1651 called 2870 again and spoke for a further 43 seconds.
• At 7:14, 1651 contacted 2870 a third time on a call lasting one minute and 46 seconds.
• At 7:19, 2870 called 1651 for 42 seconds.
• At 7:23, Blair-Taylor on 2870 called 1651 for 101 seconds.
• Still at 7:27, there was a phone call, placed by 2870, lasting for 24 seconds. That call directly followed two text messages at 7:27 from 1651 to 2870.
• Another call was placed by 2870 two minutes later, at 7:29, and lasted 50 seconds.
• The final call in this series, at 7:38, was placed by 2870 to 1651 but redirected to what appears to be a voicemail number.
• There were also six calls ranging from 1 second to 8 seconds in the pre-shooting period which may be dropped calls or failed attempts at communication by 1651.
[94] The unconsummated call at 7:38 PM represents the final contact between 1651 and Blair-Taylor’s phone. There is also no evidence of post-shooting contact between 1651 and the Blair-Taylor numbers. Blair-Taylor was seen pumping gas into a Chrysler 200 automobile on October 19. He was arrested in Sudbury on October 28. There is no evidence placing him at the funeral of Eric Rowe on October 16.
[95] Eric Rowe’s 7224 phone was in contact with Blair-Taylor’s other phone (9382) four times on the day of the shooting. Two of the contacts were before Blair-Taylor’s first contact with 1651 – for 51 seconds at 5:07 PM and 41 seconds at 6:28 PM. A third lasted for 13 seconds and the final call between the two men, at 7:44 PM, was for 15 seconds. This call followed the first of the calls between Blair-Taylor and 1651 by six minutes.
C. The Alleged Convergence of the Devices
[96] The Crown produced a graphic “animated map” of the Greater Toronto Area intended to illustrate where each of the four phones for which we have records was connecting with cell sites throughout October 1. The map shows 1651 and the two Blair-Taylor phones in the eastern part of the city with Blair-Taylor’s phones in motion and 1651 static through much of the early afternoon. After 5:30 PM, 1651 began connecting with two more westerly towers, ending between 7:00 and 7:30 PM near the shooting scene.
[97] Blair-Taylor’s phones followed a broadly similar east-west trajectory and timeline (with much more activity on his 9382 device).
[98] Eric Rowe’s 7224 phone registered near Danforth Avenue and the Don Valley Parkway shortly before 2:30 PM and then moved north in the central part of the city, with relatively little activity, until after 6:00 PM when it was downtown. It remained there until heading westward on or near Highway 401 (well north of downtown) after 7:15. The phone last pinged near a site significantly northeast of the shootings at 7:44 PM and never connected any closer to the locations of the shootings near Jane and Sheppard (though Rowe himself obviously continued westward and there is no reason to think he did so without 7224, which was likely seized by Blair-Taylor from Rowe’s person after the third shooting and secreted in the dashboard of the car he drove).
[99] 1651 moved west between 5:45 and 6:00 PM and by 7:02 PM, the time of its first contact with Blair-Taylor, was obviously near the area of the shooting, coming even closer in the minutes that followed. By 7:19 PM, 1651 was on a call with Blair-Taylor in which both of them were connected to the same tower near Grandravine and Driftwood, the epicenter of the shootings. The phone calls between Blair-Taylor and 1651 cannot reasonably be cited as the impetus for 1651’s initial movement westward since almost all the movement preceded the first of the calls.
D. The Gaps in Cell Site Activity
[100] The Crown rests much of its argument that the user of 1651 was a party to the shooting on the evidence of pauses in the activity of the various cellular devices that paralleled the known times of the shootings.
[101] The first shooting, at Venetian Crescent and Driftwood Avenue, took place at 8:11 PM. The white Volkswagen can be seen just a minute before that on Yewtree Boulevard and right afterward departing from Venetian Crescent back onto Yewtree. After a virtually uninterrupted stretch of texting activity, with only short interactions and sometimes several messages a minute, 1651 was wholly inactive from 7:55 to 8:13 PM – an 18-minute period from 16 minutes before until 2 minutes after the first shooting.
[102] Blair-Taylor’s 9382 phone had an overlapping period of inactivity – from 7:54 to 8:49 PM. This, it may be noted, was from 17 minutes before the first shooting until three minutes after the second shooting; the phone was not active between the Venetian Crescent and 2000 Sheppard Avenue West shootings. Blair-Taylor’s other phone, 2870, recorded a longer gap in activity, from 7:38 to 9:48 PM.
[103] Eric Rowe’s phone, 7224, showed complete inactivity from 7:44 PM until 9:00 PM, a period beginning 27 minutes before the first shooting and ending with a phone call 14 minutes after the second.
[104] 1651, unlike the Rowe and Blair-Taylor phones, was active between the first and second shootings. After connecting at 8:13 PM, it received the typically steady stream of messages from 2579 (and one attempted phone call from that number), responding to none of them. There was no contact with any other number from 8:40 to 8:56 PM – six minutes before the second shooting (at 8:46 PM) until ten minutes after it. In the period between the second and third shootings, 1651 was again active with 2579, and sent its own messages to that number. It also texted a separate number, 3229, at 9:09 PM.
[105] Once the phone of Eric Rowe became active at 9:00 PM, after the second shooting, it received but did not respond to three calls, made at 9:00, 9:05 and 9:21 PM. It then showed no activity through the period of the third shooting, which Mr. Rowe did not survive. There was no activity from 9:21 PM, six minutes before the third shooting, until 9:50 PM, when Mr. Rowe was already fatally injured and his phone was likely in Blair-Taylor’s possession.
[106] Blair-Taylor’s 9382 phone was active between the second and third shootings, sending and receiving messages, but there was no activity on the device between 9:16 and 9:28 PM, from 11 minutes before until one minute after the fatal shootings at Grandravine. His other phone, 2870, was inactive from 7:38 to 9:48 PM, a period beginning well before, and ending well after, all three shootings.
[107] 1651 ceased sending or receiving communications for a third time at 9:26 PM, just a minute before the Grandravine shootings, and it resumed at 10:50 PM, an hour and 24 minutes after that disastrous episode.
[108] The Crown argues that this pattern of devices becoming inactive and active around the known times of all three shootings, and roughly in sync with each other, powerfully connects the devices to those events. The inference is strengthened, the Crown argues, by the pattern of heavy activity on 1651 before and between the shootings. The periods of inactivity obviously reflect the conscious choices of a user, who did not want his highly illegal activity to be traceable by cell tower connections. The evidence also tends to place the user of 1651 in company with, and following the same plan and practices as, the other two shooters, Rowe and Blair-Taylor, who were also conscious of the risks associated with a cellular device connected to cell towers and adopted similar means of preventing it.
[109] The defence argues that the 1651 records are open to a different interpretation. During the hours surrounding the shooting, 1651’s dominant contact was 2579 which sent 1651 an endless stream of SMS messages. The defence argues that if the user of 2579 was a member of the shooting team and was avoiding cell tower connections, he or she would have shut off their device and the record of calls on 1651 could look much as it does now. The defence notes that 2579 was sending one message after another, sometimes several every minute. If the interruptions in connecting were at the instance of 1651, without informing 2579, it would be expected that this would manifest itself in a deluge of backed up messages from 2579 once 1651 came back online. That did not happen, according to the records. On that view, the evidence of the cessation and resumption of contact serves, if anything, to exculpate the user of 1651 – and by extension Mr. Williams, if he is the user. The reason is that 2579’s user would not be sending text messages to 1651 if he was in the white Volkswagen with the user of 1651.
E. Dispersal After the Shootings
[110] The parties assume that Blair-Taylor accidentally shot Eric Rowe, bringing the violence of the night to an end, and creating a crisis for the two survivors because their connections with Rowe might lead the police to them. Blair-Taylor and the third shooter left hurriedly in the Volkswagen and presumably returned to the vehicles by which they had come to the Jane Street area.
[111] The next potential record of the locations of the participants is a series of cell site connections by Blair-Taylor’s phones from 9:48 PM, which would suggest he was moving eastward, on or near Highway 401. In the period after 10:00 PM, the Blair-Taylor phones were in Pickering, far from the scene of the shootings.
[112] The first post-shooting cell site connection by 1651 was at 10:50 PM, and the phone was also well into the east end of Toronto, at Highway 401 and Morningside Drive. The device later moved southward from that location, after 11:00 PM, to Kingston Road and Markham Road.
V. THE LEGAL FRAMEWORK
[113] I must test the evidence in this case against the legal standard of proof beyond a reasonable doubt, elaborated upon in R. v. Lifchus, [1997] 3 S.C.R. 320, 1997 CanLII 319 at paras. 36-39. While the Crown need not make out its case to an absolute certainty, it must establish each element of the offences charged beyond a reasonable doubt. This is a standard that requires me, as the finder fact, to be sure of the guilt of Mr. Williams on each count. It is a standard much closer to absolute certainty than to proof on a balance of probabilities.
[114] While the defence called no evidence in answer to the case, which was presented almost wholly through agreed or uncontested circumstantial evidence, I have subjected any submissions citing evidence said to have exculpatory effect, to the mode of analysis demanded by the Supreme Court of Canada in R. v. D.W., [1991] 1 SCR 742, 1991 CanLII 93 (SCC). If evidence tending to exculpate Mr. Williams is either believed or raises a reasonable doubt, by itself or in light of other evidence, it compels his acquittal. Moreover, even if evidence said to be exculpatory does not raise a reasonable doubt (considered separately and cumulatively), if the entire body of evidence leaves me with a reasonable doubt as to guilt, acquittal would also be the only correct result. This approach is, of course, applicable to each count on the indictment, considered separately.
[115] To take one clear example of the application of D.W., the defence raises the possibility that it was the user of the 2579 phone, not Mr. Williams, who joined Mr. Rowe and Mr. Blair-Taylor in the October 1 shootings. If the evidence related to that submission and the arguments in favour of it either persuaded me that Mr. Williams was not a party to the crimes or raised a reasonable doubt about the allegations against him, I would enter a verdict of not guilty. Even if I were to be satisfied beyond a reasonable doubt that 2579’s user played no role in the shootings, however, I would be required to determine whether, on all the evidence, I am satisfied to the Lifchus standard of Mr. Williams’ guilt before entering a conviction on any count.
[116] I take the same analytical approach to the defence claim that airline flight records and the evidence of travel to Thunder Bay in the name of Demitri Green on September 29 support an alibi for Mr. Williams on October 1, and to the claim that other persons, including Jeremiah Edwards, may have possessed the 1651 phone and committed the murders.
[117] The parties agree that the evidence in this case is circumstantial. No witness purports to identify Mr. Williams directly as the shooter who accompanied Mr. Rowe and Mr. Blair-Taylor and the shooter’s identity cannot be determined from the video evidence. The critical core of the circumstantial evidence is the records of cell tower connections of the 1651 phone, paired with evidence of Mr. Williams’ movements and activities, some of which is also circumstantial.
[118] My task is to assess the inferences the circumstantial evidence supports through the approach mandated by R. v. Villaroman, 2016 SCC 33. The judgment requires that a trier of fact not make a finding of guilt based on circumstantial evidence unless satisfied that guilt is the only reasonable inference available from the evidence, while cautioning judges not to sink into speculation or conjecture about possibilities alternative to guilt. With this noted, a trier must still give full exculpatory effect, consistent with logic and experience, to reasonable possibilities other than guilt—a mode of analysis to be applied to the evidence or the absence of evidence: see Villaroman at paras. 30-38, 40-56.
[119] It is also important, in my view, to make explicit what the parties may have assumed—though there is evidence in this case about criminal conduct by Mr. Williams other than that charged on the indictment, I have not used that evidence to support either an inference that he has a general propensity to commit crimes, or a propensity to commit firearms offences, in assessing the case against him on the unrelated charges he faces. Inferences based on character and propensity play no part in my assessment of the case and my conclusion that the Crown has met its burden of proof.
VI. ANALYSIS
[120] These are the principles which shape my determination as to whether the guilt of Mr. Williams has been proven. To answer that question, I will address the two main factual questions which reflect the manner in which the case has been prosecuted and defended by the parties.
[121] The first issue is whether the user of 1651 has been shown to have been a party to the shootings which give rise to the three counts on the indictment. If there is a reasonable doubt as to that matter, there is no basis on which to make a finding of guilt against Mr. Williams and he would be acquitted. The second question, if the first is answered affirmatively, is whether Mr. Williams has been proven beyond a reasonable doubt to be the person who possessed and used 1651 on the evening of October 1.
A. Was the User of 1651 a Party to the Shootings?
[122] The Crown contends that Mr. Williams is the left-handed man in the white top, without a mask, seen on video at the shooting sites with a gun, alongside Eric Rowe and Jeziah Blair-Taylor whose faces were concealed. No one has testified to him being that man. While there are apparent physical similarities between him and the shooter on video, there is nothing that comes close to definitively identifying him. The prosecution case pivots around the assertion that the 1651 device was used by the left-handed shooter. The context for that determination is the reality that Rowe and Blair-Taylor were undoubtedly principals in the shooting and that 1651 was in contact with Blair-Taylor’s phone before the shootings; Blair-Taylor’s phone was in contact with Rowe’s phone; and all these phones were close to the shooting site when the crimes were committed.
[123] I have concluded that the user of 1651 was a party to the shootings.
[124] Repeated contact with Blair-Taylor in the lead-up to the shootings is an important fact, though both 1651 and Blair-Taylor’s phones were in contact with other people who, if they had a part in the shootings, have not been proven to have done so.
[125] It is clear, however, that this was a planned, orchestrated series of crimes, requiring a good deal of weaponry and ammunition, a vehicle, masks for two shooters, and a choice of targets. It was virtually certain, given the number of bullets fired at people, to result in murders or at least attempted murders, which would be closely investigated by the police.
[126] This was an enterprise that the participants must have talked about in advance. It is certain, in my view, that when Blair-Taylor and Rowe were communicating on the day of the shootings, they were speaking about what was going to happen – when to meet; what to bring; how to dress; where to shoot; how to get away; and other critical matters.
[127] It is also very likely, and a sound factual finding in view of the total record, that when Blair-Taylor spoke or tried to speak 16 times by phone to 1651 in the period from one hour and 9 minutes to 33 minutes before the first shooting, the conversation was related to the pending crimes. Of the 16 contacts, the first was initiated by Blair-Taylor but several others were at the instance of the 1651 user. A few lasted just a matter of seconds and may have been essentially failed efforts at communication but eight calls were 20 seconds or longer. This lends support to the inference that the user of 1651 was involved in the offences, though it falls well short of proof on its own.
[128] In the hour before the first shooting,1651 and the phones of Rowe and Blair-Taylor can be tracked moving quickly toward the area of the crimes – Jane Street and Sheppard Avenue West – from quite distant positions in the east end of Toronto (in the case of 1651 and the Blair-Taylor devices) and in central Toronto (in the case of Rowe’s device). I do not infer, particularly in respect of 1651, that this movement was an immediate result of the communications with the Blair-Taylor phone since those calls took place after the westward movement of 1651 was underway but the evidence makes some prior coordination among them likely, whenever and however it occurred.
[129] The user of 1651 was near Jane and Sheppard, pinging off towers in that vicinity from minutes after 7:00 PM, almost at the time Blair-Taylor’s phone placed him in the same area, though the phones of both men had been much further east an hour and a half earlier.
[130] Rowe’s phone had been less active than the others, but it was coming closer to the area by 7:14 PM and Rowe was obviously at Jane and Sheppard, armed and ready to begin shooting, before the 8:11 PM attack on Adrian Seebalack at Venetian Crescent. There is no denying a convergence of phones and users. It could be by chance on the part of 1651, since this is a busy, densely populated part of the city, but an inference of chance convergence becomes difficult to sustain when the physical alignment is considered against the backdrop of numerous communications between Blair-Taylor and 1651 and both of the persons in communication arriving in the same area near the same time. The pattern of movement and the pattern of communication should not be considered in isolation from each other – one pattern tends to elevate the significance of the other.
[131] This body of evidence should also be considered in light of the fact that 1651’s user is linked in a powerful, if not quite conclusive, manner, by their very likely attendance at the funeral of Eric Rowe. When a device such as the 1651 phone is one step away from a particular person on October 1 (both being in contact with the same third party, Blair-Taylor) and the same device is near an event focused on that same person – his funeral, followed by attendees’ travel to a mall – on October 16, the inference of a linkage is again strengthened.
[132] This evidence must then be examined along with the pattern of concurrent cessation of cell phone activity by 1651 and the devices of Blair-Taylor and Rowe. For context, between 7:54 PM and 9:48 PM, times surrounding the three shootings, 1651 was inactive for 86 minutes in stretches of 55, 12 and 19 minutes. These are much longer periods of mid-evening inactivity than can be seen on the preceding days—they are indicative in themselves of exceptional events taking place.
[133] Much more striking is the manner in which the three gaps parallel the times just before and after the three shootings. The first gap began at 7:55 PM, 16 minutes before the shooting of Adrian Seebalack on Venetian Crescent, and it ended at 8:13 PM, two minutes after that shooting as the gunmen were leaving in the Volkswagen.
[134] The second period of inactivity began at 8:40 PM, about six minutes before the gunfire on the grounds of 2000 Sheppard Avenue West., and ended at 8:59 PM, about 13 minutes after the shooting. The final stretch of inactivity began at 9:26 PM and ended at 10:50 PM. The murders at 306 Grandravine Drive took place at 9:27 PM. That shooting, of course, went dreadfully wrong and there was no activity on 1651 until an hour and 23 minutes afterward, when it pinged on a cell tower at Highway 401 and Morningside Drive, in the eastern part of Scarborough, very far from Grandravine Drive.
[135] The two persons known to have been involved in the October 1 shootings appear also to have deactivated their phones at times that correspond to the crimes and to the deactivation of 1651. One of Blair-Taylor’s phones (2870) was inactive from 7:38 to 9:48 PM, which is from 37 minutes before the first shooting until 21 minutes after the third, at Grandravine. His other phone, 9382, was inactive from 17 minutes before the first shooting to three minutes after the second one. It stayed on and active (with one another device) between the second and third shootings and went silent again at 9:16 PM, 13 minutes before the events at Grandravine. The phone was back on by 9:28 PM, right after the two fatal shootings.
[136] Eric Rowe’s 7224 phone was turned off sometime after 7:44 PM, when he spoke to Blair-Taylor while he was still well away from the area of the shootings. It seems to have remained off through the first two shootings, becoming active again at 9:00 PM and showing no activity from 9:21 to 9:50, the segment of time in which Mr. Rowe was fatally shot, at 9:27, at Grandravine. Assuming that Rowe had deactivated his phone in advance of the third shooting, like the user of 1651 and like Blair-Taylor, someone, probably Blair-Taylor, must have reactivated it. It pinged at 9:50 PM, far away from the shooting sites.
[137] There is, then, in my view, an undeniable pattern of phone deactivation and reactivation by 1651 that corresponds very closely with the three shootings and that stands out against the phone’s usual patterns of activity. It corresponds closely, as well, to suspensions of activity by the phones of the two known shooters.
[138] These are highly probative circumstances. The advance communications, geographical convergence and concurrent suspension of communication, corresponding to the times of the shootings, would be very significant evidence on their own. When they are joined to other evidence connecting 1651 to movements surrounding the funeral of Eric Rowe and connecting Rowe to the Demitri Green identity apparently used in a flight by Rowe, and in flights by a user of 1651, the conclusion becomes, in my assessment, unavoidable. The user of 1651 was a party to the three shootings on October 1.
[139] Counsel for Mr. Williams suggested that the cessation of activity on 1651 may not have been the result of a choice by 1651’s user to block communications – likely by turning off the device – but instead reflected a suspension of communication by the user of 2579. That phone was by a large measure the most frequent contact of 1651 during the period from September 23, when 1651 was activated, to October 10 when 2579 ended cellular activity. The next day, the subscriber of 2579, a person with the obviously fictitious name Yella Foreign, seems to have replaced 2579 with another number, 3724. and continued contact with 1651, at a steady though somewhat reduced pace, until October 16. Perhaps, the defence suggests, 2579 was the left-handed man in the white top, and the suspension of cell tower activity between 2579 and 1651 reflected a choice by the user of 2579 to deactivate that device while the crimes were underway. The defence suggests that if 2579 was continuing its almost constant stream of messages during the period with no records, those messages would have shown up in a surge of previously undelivered messages once 1651 rejoined the Rogers network, between and after the shootings.
[140] I am not able to credit this as an explanation for why activity ceased on the 1651 phone as the shootings unfolded. I do not believe that is what happened, nor does the purported possibility raise or contribute to a reasonable doubt as to the role of 1651 at the shootings.
[141] First, no evidence exists to lay the groundwork for the technical aspect of that submission. The scenario was not put to the Rogers technical expert, Amy Weller, nor to any other witness, nor was testimony called on the point. The ASF filed during submissions suggests that a stream of messages sent while a receiving phone is off could result in a surge of messages afterward, but this is certainly not an established premise or one on which a finding could rest. An interpretation of this data as suggesting that 1651 was still connected to the network during the shootings, but 2579 was not, would be no more than speculation.
[142] In addition, the theory makes no sense against the larger backdrop of activity on 1651. In the prelude to the first shooting, 1651 was in contact not just with 2579 but with other familiar numbers. There were three contacts with 5012, three with 3229 and three with 6429, all in the hours before the 8:11 PM shooting at Venetian Crescent. If 2579 was deactivated for the shootings but 1651 remained in use as normal, there would be no explanation for the complete cessation of activity on 1651. The user of 1651 communicated prolifically, quite apart from the contact with 2579.
[143] Moreover, the larger theory attached to the suggestion that 2579 was in the presence of Eric Rowe and Mr. Blair-Taylor, and that 1651 was uninvolved and innocently in the area, is not reasonable. 2579 shows absolutely no contact with Rowe’s 7224 number or Blair-Taylor’s 2870 and 9382 numbers before or after the shootings. Yet 2579 appears to be a person of prominence for 1651’s user. Apart from the hundreds of contacts they had in the records from September 23 to October 10, 2579 was the second number that 1651 made a connection with on September 23, 2019, when it was first activated. The theory that the 2579 user was in league with Rowe and Blair-Taylor, and in their company during the shootings, and that 1651 was uninvolved, defies logic.
[144] Additionally, 1651 made contact with 2579 minutes before going silent in advance of the first shooting and shortly after the second shooting. A theory that 1651 was keeping 2579 abreast of developments related to the shootings is plausible, though not proven. A theory that 2579’s user was in the Volkswagen with Rowe and Blair-Taylor, when no evidence suggests that they had ever met or spoken, is not plausible.
[145] As a bookend to the evidence of convergence at the Jane and Sheppard area in advance of the three shootings, the Crown points to the departures from the area in the aftermath of the Grandravine shootings. As I have noted, after the fatal shootings of Delauntae Bryant and Eric Rowe, at 9:27 PM, the 1651 phone did not come back onto the Rogers network until 10:50 PM, when it connected with a tower on the opposite side of Toronto. It had, before that, consistently pinged at towers near the three shooting locations, from shortly after 7:00 PM until 9:26 PM, a minute before the Grandravine murders.
[146] In view of all the other evidence linking 1651 to the known shooters, the possibility that this pattern of prolonged presence at the Jane-Sheppard area, followed by an absence from the area, was unrelated to the shootings cannot be credited. The inference that 1651 departed because of the fatal shootings is strengthened by the departure from the area of Blair-Taylor and his phones after the shooting, also in the direction of Toronto’s east end.
[147] The 1651 phone was in touch with Blair-Taylor in the immediate prelude to the shootings. It moved physically to the area of the shootings from a considerable distance away. It remained in the area for the duration of the shootings. It ceased operations during the shootings, in a manner comparable to the phones of Rowe and Blair-Taylor. It left soon after the shootings. It was near the site of Eric Rowe’s October 16 funeral and the Yorkdale Mall expedition that followed it.
[148] This combination of circumstances cannot reasonably be the product of chance or coincidence. I am certain that the user of 1651 was a party to the shootings of Adrian Seebalack, Delauntae Bryant and Eric Rowe.
B. Was Jatorri Williams the User of 1651 on October 1, 2019?
[149] The question of whether 1651 was Mr. Williams’ phone and was used by him on October 1 became a critical focus of the argument. The question has two dimensions – did he possess and use the phone generally and was it proven that, if he had a general connection to the phone, that he used it specifically on October 1, in the commission of these crimes?
[150] I called the parties back for supplementary written and oral argument focused on the latter question and especially on what light might be shed on it by examination of the patterns of contact of 1651 with other numbers, at particular times and places, over the days it was active.
[151] I will address first the question of Mr. Williams’ general possession and use of 1651 and then the question of whether he was its user on October 1 when, as I have found, the user was a party to the three shootings.
(i) The Premises of the “Pool” Analysis
[152] I have earlier set out the factual building blocks of what the Crown describes as its “pool” analysis. It rests on examining occasions when 1651 can be proven to have been active on the Rogers cellular network, by its connections to cellular sites at particular times, and Mr. Williams can be demonstrated to be in the area of the connection and, in some instances, using a phone at or near the time of a connection.
[153] On the night of October 2, a little more than 24 hours after the last shooting, a ticket was purchased for a flight to Thunder Bay on Porter Airlines, departing the next morning. The flight left Billy Bishop Airport on Toronto Island, adjacent to downtown Toronto, at 9:55 AM; the original booking had been for an 8:30 AM flight. The traveller was using the name Demitri Green.
[154] Both parties emphasize that 1651 was pinging at the “Malton” cell tower site on the morning of October 3, up to 8:37 AM. Its next ping was very near Thunder Bay Airport at noon, one minute after the Porter flight’s 11:59 AM arrival time. The phone had subsequent pings near the airport and then settled in Thunder Bay itself, connecting to towers in that city many times on October 3 and the six days that followed before returning to Toronto on October 10, in parallel to an Air Canada flight with a passenger using the name Demitri Green.
[155] Because Mr. Williams had the health card of Demitri Green in his possession at his October 21 arrest in Thunder Bay, and looks like the photo of Green on that card, it is argued he likely used it on the October 3 and 10 flights. The inference that Mr. Williams was on those flights is, the Crown argues, a powerful one, as is the inference that 1651 was in his possession as he flew. There is no doubt that 1651 was actively calling and texting in Thunder Bay, and that it made contact with many numbers which appear at other points in the 1651 records when the device was in Toronto and Kitchener-Waterloo.
[156] The defence suggests that the Malton pings on the morning of October 3 place 1651 near Pearson Airport, Toronto’s largest airport, and that it was from there that a different traveller, carrying 1651, left for Thunder Bay by a different airline. The defence suggests that traveller could well have been Jeremiah Edwards, Mr. Williams’ frequent companion, though it need not be for the analysis to fit the available facts. The important point for the defence is that this person leaving from Pearson could have had 1651 and taken a flight that landed in Thunder Bay around the same time as the Porter flight taken from Billy Bishop by Mr. Williams, travelling as Demitri Green. The possession and usage of 1651 over the days that followed was by this other person. Mr. Williams took his flight as Demitri Green, using the identification card that had come into his possession. But, on this analysis, he never possessed or used 1651.
[157] It is apparent that 1651 came back to Toronto on October 10, and remained there until October 19, in contact with many phones it had connected with before the days spent in Thunder Bay. A notable feature of the activity from October 10 to 19 is that the phone seems to have had no consistent resting place overnight in Toronto. Its final late-evening contacts, made during a period when 1651 was not initiating contact, or responding to it, were at several different towers, from the eastern to western areas of Toronto. The reasonable inference is that the user was asleep during some of these hours. There continued to be a very large number of contacts each day, around the clock.
[158] When 1651 was going for hours overnight without responding to communications from other devices (likely because its possessor was asleep), text communications continued to come into it. This pattern, along with the sheer volume of activity, raises questions about whether 1651 had more than one regular or occasional user, at least while in Toronto, and whether it was handled by different people throughout the day or on different days, for some shared purpose. In the circumstances disclosed by the record, if it was a phone of that nature, the purpose could well be an unlawful one – perhaps it was a “drug phone”, used to coordinate narcotics sales– but the more important question would be whether it had more than one user.
[159] Crown counsel submits that people employ a phone in a highly personal and exclusive way and do not share it indiscriminately – it is “more like a toothbrush than a hammer”. The defence argues that whatever the broad accuracy of that characterization, there are certainly exceptions to it and 1651 was one of them.
[160] The Crown argues that the movements of Mr. Williams and his companions, at and after Eric Rowe’s funeral on October 16, go far toward shrinking the pool of people who might have possessed and used 1651. The phone was at the York Funeral Centre, where it pinged at a nearby tower around midday and where Mr. Williams and about eight companions were seen until shortly after 4:00 PM. They were then followed to an Eglinton Avenue jewelry store and minutes after that to Yorkdale Mall, where 1651 connected to the tower at the mall at 5:23 and 5:25 PM, shortly after the group’s arrival. The men were seen to leave the mall at 7:24 PM and they got into two cars, one of which (the Sentra) left a minute later and was followed to the area of Jane Street. 1651 pinged near the mall at 7:33 PM and near Jane Street at 7:56 PM. The Mazda was not followed from the mall and it is not confirmed whether it went west, like the Sentra, or elsewhere. Nor is it known who exactly its occupants were and whether they included Mr. Williams.
[161] The Crown highlights in this evidence a video clip of Mr. Williams holding a phone and speaking into it for several seconds at 5:26 PM when Rogers records show that 1651 was in the midst of a 5-minute and 45 second call which began at 5:25 and ended at 5:31 PM. The Crown argues that this is a straightforward instance of Mr. Williams using 1651, the phone employed by one of the killers on October 1. Moreover, the same video clip happens to capture Jeremiah Edwards not using a phone, with both of his hands in view and empty as he adjusts a baseball cap on his head.
[162] The defence argues that Mr. Williams could have been using another phone, not 1651. It adds that the notably infrequent use of 1651 that day suggests that Mr. Williams must have had a different phone, because he was “a teenager at a mall”, and likely to be using a phone frequently, while 1651, according to tower records, was idle for over an hour and a half.
[163] The defence attributes the idleness of 1651 for such a long time not to a lack of interest in communicating by Mr. Williams but to a loss of the charge in the device’s battery, a point illustrated by the delay between the sending of a text message to it at 7:11 PM and the receipt of the message by the phone 22 minutes later, at 7:33.
[164] The parties divide as well on what to make of the undoubted presence of 1651 in Thunder Bay on October 20 and 21, after a likely overnight road trip on October 19 from Toronto, during which 1651 connected once to the cellular network, near Georgian Bay and close to Highway 400, a major south to north route. This tower was very far from Toronto and shows the phone had departed the city and gone north.
[165] Mr. Williams and 1651 were both in Thunder Bay on October 20 and 21, as was Jeremiah Edwards. The two men were seen on outdoor security video, including around a time when they appear to have committed a crime with a handgun at 277 Pearl Street, on the evening of October 20. Some video clips show Mr. Williams using a phone at Pearl Street and Rogers records make clear that at the times stamped on those videos, calls were not being made by 1651. Conversely, at other times when the videos’ time stamps show Mr. Williams was not using his phone, 1651 was connected to the network. The defence argues that this comparison of cell tower data and time-stamped video evidence excludes Mr. Williams as the user of 1651.
[166] The Crown responds that the tower data and video data align exactly if the times recorded on the videos’ time stamps are assumed to deviate from actual time, as recorded in the cell phone records, by a uniform amount. It says the important fact is not the time stamps on the video, but the presence of Mr. Williams in Thunder Bay, far away from his usual territory and from his October 16 companions, at a site close to the confirmed usage of 1651. It is not a coincidence that Mr. Williams is proven to have been adjacent to such distant and disparate usages of 1651. He is close to the phone’s connections because he is making its connections. The security video time stamps at Pearl Street are in error.
[167] For the Crown, this shrinkage of the pool of people potentially using 1651 culminates on the afternoon of October 21 with the arrest of Mr. Williams, in company with Mr. Edwards, on Lake Street in Thunder Bay. The arrest occurred after a trip by car south from the area of the Court/Court PCS tower, to which most of 1651’s October 20 and 21 calls and messages from 277 Pearl Street had connected, to a connection at a more southerly tower located near the route to the arrest site, where Mr. Williams was found in possession of the Demitri Green health card. These insights into the usage patterns of 1651 and into the movements of Mr. Williams (sometimes under the false identity of Demitri Green) effectively eliminate a reasonable possibility of anybody other than him being the user of 1651.
[168] The defence disputes the factual premises on which the Crown purports to shrink the pool of potential 1651 users but also insists, in any event, that the pool could never be smaller than Mr. Williams and Mr. Edwards, both of whom were at the funeral, at Yorkdale Mall, and together in Thunder Bay. This means there is reasonable doubt as to Mr. Williams’ guilt, in a case based on the claim that the third shooter was the user of 1651, and very little else.
(ii) Evaluation of the Pool Analysis
[169] I begin my weighing of the evidence with an observation about the pool analysis. It is, in my view, a very cogent approach to the elimination of possibilities other than the guilt of Mr. Williams. Its inherent logical power, even in its most rudimentary form, not only advances the prosecution case to a great degree but provides context for considering the merit of challenges by the defence to the Crown’s proof in particular aspects of the analysis. The pool analysis commences and has significance only after the antecedent finding that the user of 1651 participated in the three shootings on October 1.
[170] First, the broad import of the pool analysis. Reliable evidence places Mr. Williams in the general area of 1651 on October 16, through photographs of him at the York Funeral Centre and proof of 1651 connecting three times between 11:18 AM and 12:32 PM with two nearby cell towers, both of them close to the typically busy Yonge Street. This has, on its own, very little discriminative power in isolating one person from the vast population of potential users of 1651. All that can be said is that tens of thousands of people would likely have been near the towers close to the funeral centre that Wednesday around noon and Mr. Williams is one of them.
[171] The cohort of people who were near the tower close to the funeral centre and then, in the late afternoon, were also in or near Yorkdale Mall, connecting to towers near the mall, will inevitably be many times smaller. Those phone users who were near the towers close to the funeral centre around noon would have gone in many different directions at many different times after their connections with those towers. Some appreciable number of them would have gone southwest, toward the Yorkdale Mall area, and a much smaller proportion of those people would have stayed to shop or eat or just visit. Some likely lived in the area of the cell towers at Yorkdale Mall and the Yorkdale (Holiday Inn).
[172] But of that group, not many would have been around the mall over the time period it can be concluded from videos that Mr. Williams was there, and over which time 1651 pinged off the two nearby towers. This is now a relatively small group, though it is not quantifiable, and it is certainly not just Mr. Williams. For one thing, the eight other men at the funeral remain in the pool. But so do other wholly unknown people who happen to have connected to the towers near the funeral home earlier in the day and to the towers near Yorkdale Mall in the late afternoon and early evening.
[173] The phone then moved west from the mall area, which the group in the Sentra, one of the two cars that came from the funeral centre to the mall, also did, and which those in the Mazda may well have done. Mr. Williams had arrived in the Sentra and it is possible, though not certain, that he left in it. The 1651 phone pinged at towers near Jane Street and Sheppard Avenue three times between 7:56 and 9:16 PM.
[174] Four days after the funeral and the mall visit, on October 20, 1651 was in Thunder Bay, pinging off towers in that city repeatedly – most often the Court/Court PCS tower. Most of this activity took place from 6:15 to 9:40 PM that day, according to Rogers records. For parts of that period, Jatorri Williams was clearly outdoors, at 277 Pearl Street, and was periodically captured by security cameras, sometimes using a smart phone. Phone users at 277 Pearl Street would routinely connect with the towers that 1651 connected with in those late afternoon and early evening hours of October 20.
[175] Before consideration of any challenge based on the details of 1651’s usage and the non-alignment between the security video time stamps and the Rogers time records, it is important to consider the sheer probative force of the 1651 device and Mr. Williams both being in Thunder Bay at the same time and close enough to each other that if he was using a cell phone, it would have pinged off the very tower that 1651 pinged off on October 20. It is difficult to describe precisely, without formal statistical analysis, the powerful discriminative effect of these paired bodies of data – video of Mr. Williams and records of 1651 connecting with towers serving that Pearl Street address, days after the shrinkage of the pool by the October 16 movement of 1651 from the area near the funeral centre to the area of Yorkdale Mall to the Jane Street area, all at documented times that parallel the proven or plausible movements of Mr. Williams. That someone else should have been in the areas of 1651’s usage at the times of 1651’s usage, on those temporally and geographically separate occasions is, I am confident, not a reasonable possibility unless it is explained by the presence of some user other than Mr. Williams who is connected to Mr. Williams. Otherwise, the improbability of random coincidence is too great to regard it as a reasonable possibility.
[176] Further circumstances shrink the plausible pool, though such shrinkage does not seem to me necessary to identify Mr. Williams as possessing and using 1651. Two of them are related to the events of October 21.
[177] First, on that day, after several pings on the tower nearest Pearl Street, and just minutes before Mr. Williams’ arrest on Lake Street, south of Pearl Street, 1651 pinged on a tower called Cornwall. This sequence is consistent with its use by Mr. Williams on the way south toward the scene of his arrest—though not firm proof of it. Again, the odds against some person other than Mr. Williams, using a SIM card whose movements have so precisely tracked his movements in time and space, on unrelated occasions, tracking them again, in the final connections of the card, approaches overwhelming. A pinging of 1651 with Mr. Williams nearby would be a random and unremarkable coinciding of events if it occurred once, on an afternoon in Thunder Bay, but when its occurrence is examined against the ever-mounting improbability of successive chance alignments of phone and person, it reinforces the linkage between Mr. Williams and 1651.
[178] When arrested, Mr. Williams was carrying the health card of Demitri Green, in whose name the October 3 and 10 plane trips from Toronto to Thunder Bay and back were booked in the aftermath of the October 1 shootings. Mr. Rowe, who used the Demitri Green identity himself on September 29, died in those shootings. The timing of the booking, the use of 1651 in Toronto before the flight and in Thunder Bay after it, and the possession of the Demitri Green identification by Mr. Williams (who physically resembles Green) in Thunder Bay on October 21, all add to the inference that no one but Mr. Williams could plausibly have had 1651 in his possession on October 1.
[179] It strains logic beyond the breaking point to suppose that another person had 1651 in his or her possession, parallel to Mr. Williams’ proven or probable movements near the funeral home through much of the afternoon of October 16; around Yorkdale Mall later that day; near Jane Street after that; at an apartment complex in Thunder Bay in the late afternoon and early evening of October 20; south of there on October 21, just before the arrest of Mr. Williams—and also had it on October 3 and 10 when 1651 travelled between Toronto and Thunder Bay at times matching flights taken by a person using the name Demitri Green, whose identification was possessed by Mr. Williams. Such a proposition defies common sense, logic, and experience.
(iii) Challenges to the Pool Analysis and the Proof of Participation
[180] The defence does not strongly resist the underlying logic of the shrinking pool analysis relied on by the Crown. Rather, it argues that however much the cumulative effect of these successive intersections between 1651 and Mr. Williams would defy the odds, the intersections themselves are not reliably made out by the evidence and have defects that I have touched on above:
• The Demitri Green identity was used by someone to travel to Thunder Bay on September 29. The Crown has not disproven that the traveller on that date was Mr. Williams and that his return to Toronto was not on October 2. If Mr. Williams was in Thunder Bay from September 29 to October 2, he would have an alibi for the crimes which took place in Toronto on October 1.
• On October 3, Mr. Williams may have travelled to Thunder Bay and back using the Demitri Green identification found on him at his arrest, but it cannot be concluded that 1651 travelled with him. The phone could reasonably have travelled to Thunder Bay from Pearson airport, in the possession of a friend or acquaintance of Mr. Williams, while Mr. Williams travelled from Billy Bishop airport, on a separate flight. Mr. Williams could have followed a similar route back to Toronto on October 10, all without 1651 in his possession.
• On October 16, if Mr. Williams was at Yorkdale Mall, so were several other people of a similar general appearance – young Black men – with personal connections to Eric Rowe. That group drove to Yorkdale Mall after attending Mr. Rowe’s funeral together and the evidence does not show Mr. Williams to have been in possession of 1651 at the mall – on the contrary, the very small number of connections made by 1651 suggest he had a different phone and that 1651 had exhausted its battery’s power, obtaining a recharge only in the second vehicle to leave the mall which explains an SMS sent at 7:11 PM to 1651 being received by it at 7:33 PM.
• The purported shrinkage of the pool in Thunder Bay is an illusion. It has always been a necessary premise of the pool theory that there be no occasion on which 1651 is known to have been active while Mr. Williams was not its user. The video footage at 277 Pearl St. on October 20 refutes that premise—1651 is on the Rogers network at times when Mr. Williams is not using a phone, according to time-stamped videos.
• Patterns of contacts and usage of 1651 call into question whether it had any individual possessor and user; it may have served the purposes of a business or enterprise and fallen into the hands of different users at different times during its 29 days of cellular network connections.
• The pool analysis assumes that each successive shrinkage of the pool excludes large cohorts of people who are independent of Mr. Williams. But at least one person, Mr. Edwards, was not independent of Mr. Williams. He was his frequent companion and moved with him from place to place, often in parallel to movements of 1651. He could still be the user of this device after all the winnowing of other potential pool members.
I will address these issues separately.
(a) Was Mr. Williams in Thunder Bay from September 29 to October 2?
[181] I do not accept the possibility that Mr. Williams was the man who travelled to Thunder Bay using the identification of Demitri Green on September 29. The only fact in support of that claim was the finding of the Green health card on Mr. Williams on October 21 and his similarity in appearance to the photo on the card. The balance of the evidence refutes the inference urged by the defence.
[182] The Porter Airlines travel to Thunder Bay in the name of Demitri Green was booked on Eric Rowe’s credit card. Mr. Rowe’s phone, 7224, made a series of cellular connections, by calls and texts, with towers in Thunder Bay from shortly after midnight on September 30 until 6:02 PM that day. A review of Mr. Rowe’s cell tower records on 7224 shows that he had many Thunder Bay contacts whom he called frequently, suggesting he had reasons of his own for visiting the city. His phone, while in Thunder Bay, made contact with numbers it had contacted in the past, from Toronto.
[183] In addition, 7224 was inactive on September 29 from 6:17 PM to 8:39 PM. This was a distinctly lengthy period of inactivity for the usually busy number and parallels generally the hours that the Porter flight was scheduled to have been in the air, which would inhibit or preclude cell phone connections.
[184] The booking in the name of Demitri Green on September 29 uses both a different date of birth for the passenger and a different credit card for payment as compared to the October 3 and 10 bookings closely associated with 1651 and Mr. Williams.
[185] The usage of the Rowe cell phone in Thunder Bay after the arrival of the Porter flight, combined with the other evidence in the case, persuades me beyond a reasonable doubt that it was Mr. Rowe, not Mr. Williams, who made the trip to Thunder Bay on September 30 and that 1651 remained in the Toronto area, with Mr. Williams, while Mr. Rowe was gone.
[186] I add that this evidence gives rise to the possibility – I put it in no higher – of a series of events that fits with the largely mysterious facts about the background of the three shootings at issue. Clearly Eric Rowe and Jatorri Williams knew each other, as demonstrated by Mr. Williams’ attendance at Mr. Rowe’s funeral. They had overlapping cell phone contacts, including people in Thunder Bay (and also including Mr. Blair-Taylor). The events of October 1, when Mr. Rowe was engaged in very serious criminality, and October 20, when Mr. Williams was seen on camera engaged in criminal conduct with a firearm at an apartment, suggests that their relationship may have included joint criminal activity. Through September 30, the user of 1651, whom I believe to be Mr. Williams, was spending days and nights in Kitchener-Waterloo. Something may have happened on September 30 or October 1 to disrupt this theretofore stable pattern.
[187] On September 30, Eric Rowe was in Thunder Bay, where he had flown just the night before. He was there through most of September 30, but some information or event likely prompted him to return later that day to Toronto. He spent October 1 in Toronto, until his death at 306 Grandravine Drive at 9:27 PM that night as he committed three planned public shootings with Mr. Williams and Mr. Blair-Taylor as accomplices.
[188] I consider it possible that the same impetus that led the user of 1651, Mr. Williams, to move from Kitchener-Waterloo to Toronto, impelled Mr. Rowe to travel from Thunder Bay to Toronto after a very brief time in that distant city. The impetus would likely have been an unexpected, disruptive event that demanded a quick and violent response. This, I stress, is not a factual finding; far too much is unknown. It is rather a possible way of making sense of a largely inexplicable crime and of data about the movements of two cell phones in a narrow time frame.
[189] Whatever led to their gathering for the shootings, we can see the man I believe to have been Mr. Williams bending over the fallen body of Mr. Rowe and reaching toward his person at 306 Grandravine Drive around 9:27 PM on October 1. If Mr. Rowe had travelled to Thunder Bay the day before with the Demitri Green identification, it is plausible that Mr. Williams would retrieve it after the shooting, because he feared it could link him to Mr. Rowe, or because he thought it could be useful, or for both reasons, or for other reasons. When he used the Green identity two days later, to fly to Thunder Bay himself on Porter Airlines, it would make sense for him to use a different date of birth to thwart any computerized linkage between his travel on October 3 and Rowe’s travel on September 29 under the same name.
[190] I emphasize again that I do not set out this scenario as a factual finding. I do not know exactly what happened with the Green identification and its use by Mr. Rowe and Mr. Williams. I refer to these possibilities here only by way of illustrating that there is nothing inherently implausible in the use of the Green identification by both men and nothing inexplicable about the possession of the card by both of them, within three days of each other, if that is what occurred. It is, of course, possible that the card was duplicated and did not have to be transferred at all. It is also possible that Mr. Williams left Kitchener-Waterloo and Mr. Rowe left Thunder Bay for reasons unrelated to each other and to the crimes of October 1.
[191] Ultimately, I am satisfied beyond a reasonable doubt that the use of the Demitri Green identity for a flight on September 29 does not provide an alibi for Mr. Williams for the crimes of October 1. I conclude that he was not in Thunder Bay on either day. Eric Rowe took the flight.
(b) The Theory of Another Traveller to Thunder Bay on October 3
[192] The submission that a separate, unspecified flight to Thunder Bay left from Pearson airport on October 3 at about the same time as Porter flight 454 left Billy Bishop airport; that it landed at about the same time; and that an unknown passenger took 1651 on the flight and used it in Thunder Bay upon landing, is not tenable and cannot raise or contribute to a reasonable doubt about the guilt of Mr. Williams.
[193] The parallel flight itself, if it took off and landed at times capable of explaining the timing of 1651’s cell site connections, is a matter of pure conjecture on this record, though it is the kind of fact that would be amenable to proof and to further probing if it were grounded in reality. The trier of fact is not required, or permitted, to speculate about a matter of this nature claimed to refute a factual theory otherwise supported by evidence or logic.
[194] The only fact advanced in support of the defence theory is that 1651 connected at Rogers’ Malton tower, near Pearson airport, four times between 8:33 and 8:37 AM on October 3. In so far as this is offered as evidence of the user boarding an unnamed flight to Thunder Bay in that time frame, it is highly speculative. Its potential significance, in my estimation, is erased by the fact that 1651 spent the entire night of October 2-3 very near the Malton tower site, close to Pearson airport, where it pinged off the Goreway and Brandon Gate tower, 302720PC6348B7 through the evening and early morning hours. The two towers are near each other and both are near Pearson airport. On the evidence I have heard, a communication by a person between or near the two towers could easily connect with either of them. It is also a plausible, though not proven, construction of the facts that 1651’s user spent the night near the towers to be close to Highway 427 in order to reach the Gardiner Expressway or Lakeshore Boulevard, and thus Billy Bishop airport, on the morning of October 3.
[195] Much of this depends on unprovable hypotheticals. What the available evidence shows, however, is that there is no basis to infer from 1651’s pinging at the Malton site at 8:33 AM on October 3 that the phone boarded some flight from Pearson to Thunder Bay that morning and that Mr. Williams, as Demitri Green, got on the Porter flight from Billy Bishop to Thunder Bay and did so without the phone in his possession.
[196] I note two further points on this matter.
[197] First, I am not impressed with the suggestion by the prosecution that after the October 1 shooting, Mr. Williams can be seen acting with extreme caution to avoid being connected with Eric Rowe and the three shootings. The evidence on this is fuzzy and does not provide a basis for clear conclusions—he may have been cautious at some points and incautious at others but there is no ground for drawing specific inferences based on his presumed state of mind and level of wariness. The 1651 phone spent October 3-10 in Thunder Bay, but it came back six days before the funeral, by air, through check-in points and with the need to show identification for inspection. The 1651 shooter did not wear a mask to hide his appearance, which Eric Rowe and Jeziah Blair-Taylor both did. On October 16, Mr. Williams spent hours at the funeral in honour of Eric Rowe and extended his time with Mr. Rowe’s friends by travelling with them, going to a jewellery store and mall with them, and, I infer, driving away with them, likely to the Jane and Sheppard area. He was not disguised. In Thunder Bay, without a mask, he made only a feeble effort to block a security camera which captured a very clear image of him in the commission of an apparent crime. There is no way to paint a consistent portrait of a cagey criminal taking careful measures to avoid discovery, or police attention, in the aftermath of a major offence.
[198] This finding means I place little or no reliance on submissions that Mr. Williams was driven mainly by a fear of discovery after October 1. The same is true of the user of 1651 in the aftermath of the shootings, in so far as the evidence paints a portrait of that person. This weakens a small corner of the prosecution case but also means that I attach no significance to whatever may have caused a change of flight and a short delay by Mr. Williams, carrying 1651, on October 3. I do not think he was impelled by a sense of urgency to leave Toronto so acute that it would have prevented him from oversleeping or from being so disorganized that he missed his originally scheduled flight, at 8:30 AM. Either of those things or something else could reasonably account for his boarding the 9:55 AM Porter flight 454 rather than the originally booked flight 202, which would have left earlier. I do not consider it credible, in the broader picture painted by the evidence, that Mr. Williams left Billy Bishop airport without 1651 on the Porter flight while another person carrying that device left by another unidentified carrier from Pearson.
[199] Second, on these matters as others, the strength of the pool analysis tells powerfully in favour of the inference that if anyone left Toronto for Thunder Bay by air on October 3 and landed at Thunder Bay Airport where he used 1651, it was Mr. Williams. He is shown by sound logic to have been the man with 1651 at the funeral and at Yorkdale on October 16, at Pearl Street on October 20, and just before the October 21 arrest. He is the man found at his arrest with the Demitri Green identification used to fly on October 3. When a flight is known to have landed at Thunder Bay airport on October 3, where it is known that a passenger using the Demitri Green identification also landed, and where 1651 was used soon after landing, near that airport, the inference that the person flying and phoning was Mr. Williams, is obvious and practically irresistible. This is especially so since little more than half an hour after landing, 1651 was reaching out to numbers it had contacted with great frequency since its September 23 initiation—5012 and 6429.
[200] The question of whether the caller from Thunder Bay airport was Mr. Williams or someone else who arrived on a different flight, does not begin as a toss-up—the larger context of the case already favours the conclusion that it was Mr. Williams and close analysis compels it.
[201] Accordingly, I conclude that the evidence surrounding the October 3 flight and the movement of 1651 does not create or contribute to a doubt about the guilt of Mr. Williams. I am satisfied that it was he who travelled to Thunder Bay that day with 1651.
(c) The Submission that the 1651 Phone Battery was Discharged at Yorkdale Mall
[202] Considering the connections of 1651 to Blair-Taylor and to the shootings of October 1, and to the movement from the funeral to the mall, it is a reasonable inference that when 1651 connected twice at the Yorkdale cell site soon after the arrival of the funeral attendees at the mall, it was being used by one of those attendees. There is a video clip of Mr. Williams at 5:26 PM which shows him speaking into a phone while it is known that 1651 was making a call. Jeremiah Edwards and two of Mr. Williams’ other companions in the Nissan Sentra which left the funeral centre are pictured as well, and they are not using phones. On its face, this video could be taken to show Mr. Williams using 1651 while 1651 is known to be connected to the cellular network – a key part of the Crown case which at the same time eliminates other potential users of 1651 from the pool, especially Edwards.
[203] The defence argues that it cannot be inferred that the device seen in Mr. Williams’ hand is 1651. It submits that he must be using a different phone. To support this construction of the evidence, it is suggested that 1651 had lost the charge in its battery that afternoon and that this explains why there was so little cellular traffic recorded for the device at or near the mall—it pinged at 5:23 PM (a brief call); at 5:25 PM (a longer call) and at 7:33 PM when it received an SMS message sent to it at 7:11 PM.
[204] Mr. Williams is seen on video at the mall with a phone that appears to have battery life at 5:25 PM (as described above) and again at 5:49 and 5:50 PM and also at 7:20-21 PM and 7:23-24 PM. The defence position is that he was likely using a different phone – not 1651 – on these occasions and that he probably used it regularly during his hours at the mall, while he was off with other companions. There would, of course, be no records of these connections in the evidence before me.
[205] The Crown points out that it is routine to use a phone without connecting to a cellular network. That will happen if the phone is employed to check a website – as a shopper in a mall might do – or to communicate through an app, which will not register as a cellular network connection and which is extremely common among young people, or simply to look at content wholly stored on the device. On this view, the evidence of a call by Mr. Williams at the same time (5:25 PM) as 1651 was making a call, is very probative of his possession. Other images of him with a phone in his hand, that did not produce cell records, are explicable as uses that did not employ a tower connection.
[206] But, the defence argues, the lengthy gap in cell phone communication of any kind over a given device is very improbable in a mall, where separated friends need to be in communication to reunite, and it is especially improbable for a young person. The defence submits that Mr. Williams almost certainly was on a phone at the mall, through a cellular network, but that it was not through 1651 which he did not have and which was not operable because of the discharge of its battery.
[207] The affirmative evidence for the discharging of the battery is said to be an SMS message that was sent to 1651 at 7:11 PM but not delivered via a Rogers tower until 7:33 PM, a 22-minute delay. The defence submits that the best explanation for the delay is that 1651’s battery was dead for much of the afternoon – and that despite that, Mr. Williams had a charged phone, as seen on video. The defence argument is that the 7:11 PM text to 1651 was not transmitted until 7:33 because the battery had been dead for a considerable time and became recharged over the 22 minutes that followed 7:11. It is suggested that this recharging occurred after the group left the mall and entered the parked vehicles where they were able to perform the recharge. Until the battery had been brought back to life, the argument goes, the 7:11 PM message was being held “on the switch” by the network, without a functioning device to receive it. The defence says that Mr. Williams likely departed in the first vehicle to leave the mall parking lot, the Sentra, which he had arrived in, though surveillance evidence does not confirm or refute this.
[208] By 7:33 PM, the Sentra would be well west of Yorkdale and if 1651 was in it, with Mr. Williams, it would be expected to have received the 7:11 PM text from a tower west of Yorkdale – probably the tower at 1201 Wilson Avenue or the one at 2830 Keele Street. Instead, the message received at 7:33 pinged at the Yorkdale (Holiday Inn) tower, very close to the mall. If Mr. Williams was in the Sentra, the first car to depart, this would tend to separate him from 1651. And overall, the evidence of a dead battery tends to suggest that when Mr. Williams had an active, operable phone, which he apparently did between the 5:25 PM call and the text received at 7:33 PM, it was not 1651 but a different device, one with a functioning battery.
[209] The defence position based on the premise of a dead battery in 1651 was not put to the Crown’s expert witness from Rogers in cross-examination. An agreed statement of facts was introduced later in the trial, on consent, after I asked for further submissions on issues related to this and other arguments. The ASF said:
The Crown and the defence agree that had Amy Weller been asked about certain matters in her trial evidence, she would have testified as follows:
i. It is possible that the October 16 SMSs at 19:11:24 and 19:33:36 are the “front and back” of the same SMS. It is also possible that they are not. She simply cannot say for sure.
ii. If they are the “front and back” of the same SMS, the gap in time between them could be the result of a number of possibilities. One of these possibilities is that the phone was off for 22 minutes, whether because someone turned it off or it powered itself down due to a dead battery.
iii. Another possible explanation for the gap in time is that despite the phone remaining on throughout, something outside of the phone interfered with the reception between it and a tower, such as, for example, features of the physical surroundings.
[210] This evidence and argument does not, I conclude, represent a meaningful challenge to the inference that Mr. Williams was the user and possessor of 1651, both generally and on October 16, at the funeral and at the mall.
[211] On its face, in combination with the other evidence collected over considerable time and distance that links Mr. Williams with 1651, the video of his using a phone at the mall while 1651 was connected to a cell tower is cogent evidence linking him and the device. That inference draws strength from the other evidence of a connection, through Mr. Williams’ links to Mr. Rowe, who was part of the planned shootings; through the links on October 3 and 10 and 21 via the phone and the travel with the Demitri Green identification; and by the Pearl Street observations putting Mr. Williams near the site of 1651’s usage very far from its usage in Toronto. Put shortly, if 1651 is being used in Toronto on a specific occasion, and Mr. Williams is near the location of the usage, and is actually using a phone, there is a strong inference from the whole body of evidence that he is the person using 1651 on the occasion in question. That inference can be put into doubt, or dislodged, but not by a mere abstract possibility or supposition. In this case, the inference of a discharged battery falls within that description.
[212] The technical evidence agreed upon by the parties obviously leaves open a number of possibilities. These possibilities are much more plausible than a discharged battery, even in isolation, but against the larger backdrop of links between 1651 and Mr. Williams, the dead battery theory must be wholly rejected. I take this view for several reasons.
[213] The 1651 phone had been kept meticulously charged, and apparently withstood very high levels of usage, through virtually all of the 29 days that it was active. The hundreds of uninterrupted daily communications make an inadvertent discharge on October 16 relatively unlikely.
[214] Second, the total usage of the phone, at least with cellular connections, was exceptionally light on October 16, the day of Eric Rowe’s funeral. When I examine activity on the phone over four ordinary days chosen at random, one before October 1, one in Thunder Bay during October 4-9, one back in Toronto during October 10-18, and the fourth in Thunder Bay again, on October 20, the usage figures are:
• September 28: 483 connections
• October 6: 406 connections
• October 13: 279 connections
• October 20: 57 connections
[215] Overall, there were 8081 lines of data in the Rogers records over 29 days from September 23 to October 21, for an average of 278 lines day (numbers whose significance is inflated by the “front and back” entries for many SMS messages).
[216] By contrast, on October 16, there were only 31 lines in total —and only 21 of them were after a long overnight cessation of activity, from 1:51 AM to 10:10 AM. These numbers are far below the overall average and far below the average in the period following the October 10 return of 1651 from Thunder Bay.
[217] This is significant in a few ways. First, it suggests that the user of 1651 may have regarded the funeral of Mr. Rowe as an atypical day and sharply reduced the rate of his cellular connections. Because the great majority of the device’s regular cellular traffic was initiated by other parties, not 1651, the likeliest way this was done was by a positive step to disable the phone, such as turning it off or perhaps (as counsel for Mr. Williams noted) placing it in “airplane mode”.
[218] Second, the pattern is significant because it is replicated on two other days when cellular usage was also far below normal – October 2 and 3, the two days after the shootings. On October 2, there were only 56 connections on 1651. On October 3, there were only 60. On October 4, the usage spiked back up to more typical levels – 421 connections. This suggests that the user of 1651 could and did regulate the level of usage on the device as he considered desirable. October 2 and 3 were obviously atypical days, following directly on the murder of Eric Rowe and the extraordinary series of shootings related to it. The user of 1651 could naturally deem October 16, the funeral of Mr. Rowe, to be another exceptional day, meriting a limitation on phone usage similar to the days after the murders. It makes sense that on all of these days, the phone was intentionally set not to receive many incoming communications and used only sparingly to initiate communication. Such light usage was not likely to drain the battery by late afternoon, but it was likely to result from the device’s cell phone capacity, or the phone itself, being turned off for significant periods.
[219] Moreover, I observe that after Mr. Williams was seen using a phone at 5:25 PM, there was no further cellular activity on 1651 until 7:33 PM. During virtually all of this time, Mr. Williams was off with what appears to have been a separate group of people from those he entered the mall with following the funeral. He was walking around the mall distinctly apart from the group he had arrived with and later departed with. He spent most of his time at the mall with these other people. If Mr. Williams wished to spend time with the second group uninterrupted by contact from the first group, he could well have elected to turn off his phone.
[220] It is also clear that periods with no cellular connections can result from the chance proximity of buildings, barriers or topographical features and from overloads of cellular traffic. I do not advance any of these as a probable explanation for what happened here – the likeliest thing is that Mr. Williams had 1651 turned off for much of the time, and then turned it back on after rejoining his first group of friends and leaving the mall. Maybe the turning off was intentional throughout his time after 5:25 PM or maybe he shut down the phone and forgot about it while in the company of the other people. Considering that the day was unusual, and that the phone was used very little on other significant days as well, and that there is no technical or expert evidence in support of the battery-draining theory over other possibilities, I do not find that it refutes or casts doubt on the inferences otherwise available from the video and cell phone records related to the time spent at the mall.
[221] I note as well that there is no foundation for a firm finding that Mr. Williams left the mall in the Sentra rather than the Mazda, though he likely did, since he had come in that car. He was clearly friendly with the people in both vehicles and could have left, and headed toward Jane and Sheppard, in either car, as it suited him and his companions. It seems probable, though it is not certain, that the Mazda group also followed a westbound route, like the Sentra group.
[222] I am also not, on the evidence before me, prepared to assume where 1651 was when the 7:33 PM message was received by it, whatever car its user had left the mall in. The evidence about the men’s departure from the mall and about the variables which govern cell tower connections, preclude such a finding on any basis other than surmise.
[223] The best inference from the evidence, and the one I draw, is that Mr. Williams had 1651 at the mall throughout his time there, and afterward.
(d) The Differing Time Stamps on the Pearl Street Videos and Cell Site Records
[224] I have earlier set out the defence argument that the non-alignment between times recorded for 1651 text messages on October 20 and the time stamps on videos of Mr. Williams using (and not using) a cell phone, refutes a necessary premise of the “pool” analysis – that there must be no occasion when 1651 connects with a cell tower and its user is not Mr. Williams. The defence says that the time stamps on the video clips do refute the Crown’s critical premise and compel the conclusion that there was another user of 1651.
[225] I do not accept this submission. The phone, which Mr. Williams has demonstrably been very near when it was in use at different places on October 16, and which travelled by plane in parallel to his plane travel on October 3 and 10, was extremely close to him again, on October 20 (and seemingly the next day, October 21). That creates a compelling inference of possession and use of the phone by him which I set out in discussing the pool analysis. By the time the phone was connected to a tower in Thunder Bay, very near where Mr. Williams was proven to be, the strength of the inference can be undermined only by a cogent reason to reject it. The connection is, I repeat, by this stage of the analysis, already decisively persuasive.
[226] The argument mounted on Mr. Williams’ behalf has a superficial appeal but it is no deeper than that. There is no presumption in favour of the accuracy of security video time stamps. Experience in many cases, this one included, shows that would be an absurd presumption. A notably high proportion of the October 1 surveillance videos, tracking the white Volkswagen, required an adjustment to bring their time stamps into line with real time. It is apparent that some Yorkdale Mall store videos also were not set to actual time.
[227] The Crown case could have been strengthened by evidence supporting an adjustment of the time stamps as between the videos and the cell records, or by affirmative evidence accounting for the non-alignment. In this case, however, the Crown offers an analysis of sufficient clarity and cogency to maintain the probative force of the Pearl Street evidence. If time stamps are out of alignment due to inaccurately set clocks, the discrepancy is likely to be the same as between each event with a time stamp. An inability to identify any adjustment that could account for a discrepancy would be proof that the discrepancy reflects reality – there would be no possible alignment of times because, in reality, 1651 was in use by somebody else, and because Mr. Williams was using a different phone when he can be seen on video communicating with a device. The ability to identify an adjustment which successfully accounts for all instances of usage recorded on the video, and all instances of non-usage, and potentially brings the two bodies of data (timed cell phone activity and timed videos) into alignment, could be extremely persuasive evidence, despite the facial conflict in times, that the videos do capture cell phone usage by Mr. Williams with the 1651 device. This would depend, I believe, on how many discrete non-aligned events were brought into alignment by a proposed adjustment to the time stamps.
[228] The Crown has presented no expert evidence, nor a formal statistical analysis, to establish that the ability to align the video data with the cell phone data by making an adjustment of approximately five minutes and 55 seconds is firm proof of actual alignment, though I note the defence did not challenge the Crown’s claim that the adjustment proposed does bring all the video and Rogers records into conformity.
[229] If there were a large number of random timed events brought into alignment with a clock not set to the correct time, by hypothesizing a uniform adjustment to the clock times, I am confident that it could allow for practical certainty that the time measurement was off by that uniform amount and justify a conclusion that the phone usage captured on the cell records was also captured on the videos, despite the facial discrepancy between the video time stamps and the cell record times. In effect, while the video clock would be wrongly identifying the time of day of each questioned event, it would be accurately measuring the time that passed between each event. This, if it happened enough times could compel the inference that the video corresponds completely to the cell tower records and shows the very cell phone activity documented in those records.
[230] That is not the case here—there are not enough instances of alignment achieved by the proposed adjustment to allow for certainty, viewing the October 20 data in isolation (and recognizing that the precise beginning and ending of the connections cannot be determined to the second on the videos). But what the Crown has is a good deal more than nothing. The proposed adjustment aligns the beginnings and the endings of two video-recorded phone usages (with some reasonable assumptions about off-camera activity and the uncertain end point of a communication). The proposed adjustment to bring the video time data and the cell tower time data into agreement has to fit at the beginning of one series of messages in the cell records and at the end of that same series. It then has to work for the periods of non-use between the entries on the cell records.[^2] It then has to work again from the beginning to the end of a second series of messages. The hypothesis has to avoid being falsified by instances where the video camera demonstrates there is no calling or messaging but tower records show 1651 to have been actively using the cellular network. Those tests of the validity of the Crown’s hypothesis are met on the record before me.
[231] I am satisfied that with the pervasive unreliability of time stamps on video recordings, and with the other evidence that marks Mr. Williams as the user of 1651, the difference in the time stamps is not a reason to reject or doubt the larger and more critical inference that Mr. Williams was the user and possessor of 1651 at every juncture when that inference can be meaningfully examined. The powerful probative force of the video of Mr. Williams at 277 Pearl Street in Thunder Bay, using a cell phone, in the same time frame as 1651 was active and connecting with towers close to him, remains intact.
(e) The Argument that the Pool Analysis Cannot Exclude Jeremiah Edwards
[232] Jeremiah Edwards was present at the October 16 funeral of Eric Rowe and in the group that went to Yorkdale Mall afterward. He is not known to have been in Thunder Bay while the traveller using the Demitri Green health card was there from October 3 to 10 but his apparent closeness to Mr. Williams leaves that as a possibility. More importantly for the defence argument, Mr. Edwards was present for the final purported shrinkage of the pool – he was in Thunder Bay on October 20, joining with Mr. Williams in criminal conduct where he wielded a gun, and on October 21 when they were both arrested, minutes after 1651’s final ping which appears likely to have been en route to the arrest scene on Lake Street.
[233] I am not prepared to speculate that members of the group who went from the funeral centre to the mall on October 16 had also migrated to Thunder Bay and were near the Court/Court PCS cell tower by October 20. Logic is against that far-fetched supposition. No video or other evidence supports it, and the relative prominence of Edwards in the evidence about October 20-21 highlights the improbability that one or more of the other young men had also travelled the 1400 km to Thunder Bay, used 1651 separately from Mr. Williams, and left no video record or any other recoverable trace of himself.
[234] Mr. Edwards cannot be eliminated as the possessor and user of 1651 by the logic of the pool analysis, but he can be eliminated in two equally convincing ways.
[235] First, I am satisfied that the user of 1651 was the left-handed shooter at Venetian Crescent, 2000 Sheppard Avenue West and 306 Grandravine Drive. Mr. Edwards is visible at 277 Pearl Street on October 20 with a gun in his right hand in the course of apparent criminal activity. I infer that he is right-handed, unlike the third October 1 shooter.
[236] Second, the totality of the evidence points to the conclusion that when Mr. Williams was captured on video using a cell phone at 5:26 PM on October 16 at the Yorkdale Mall, he was using 1651 while the number was connected to the Rogers network. This video is also conclusive of the fact that Mr. Edwards was not using 1651, but rather was adjusting his hat, while 1651 was shown to have been in use.
[237] For these reasons, I draw a definitive inference that Mr. Edwards was not the possessor and user of 1651 and not a participant in the crimes of October 1, to which no other evidence connects him.
(f) Continuity of Possession and Patterns of Usage
[238] The relevance of 1651 to this case depends on a finding that the device was used by the third shooter on October 1 and was in his possession in the hours before and during those events. The prosecution seeks to link Mr. Williams to the shootings by linking him to a phone used by one of the shooters. In closing argument, I asked Crown counsel “to what extent does your position depend on an assumption that the general user of a device with a SIM card in it is the user on a particular occasion?” Crown counsel answered:
I think it does. I mean I think it - it operates - the basis of the inference I’m asking Your Honour to draw is that we know as a matter of common human experience in 2023, and it was no different in 2019 that cell phones are very personal objects. You know, we may hand our phone to a friend to watch a funny Instagram video from time to time, but generally, I mean we no more give somebody our phone - we don’t let - I don’t let my - my neighbour comes to me and borrows tools from my garage in the summer time. He doesn’t come and borrow my phone. He doesn’t say yeah, Steve, can I borrow your phone, I’ll bring it back to you next week, it doesn’t happen. A phone is much closer to a toothbrush than a hammer in terms of, you know, sole use by its owner. So, I agree, Your Honour, there is an essential assumption at the core of my submissions that the user of the phone is consistent from October 1st to October 21st. But there’s more to it, and I think that’s a perfectly sound assumption and I think that is the natural assumption, as we stand here in 2023.
But in addition to that in this case, we do have other things aiding us. We have, on October 1st, the striking, what I say is a striking physical similarity between Mr. Williams, the man in the courtroom, and the shooter that I say is Mr. Williams, the man in the white shirt, the left-handed person in the white shirt. So, we have that. We have on two days later on October 3rd when the phone moves in essentially in lock step with Dmitri Green flying to Thunder Bay, we can say that, well, okay, the phone and Dmitri Green fly in tandem and what do you know, Jatorri Williams has Dmitri Green ID on him when he’s arrested three weeks later. So, I think we do have these other things at various steps along the way that fortify the natural assumption that we know more, hand our phone to people than we do our toothbrush, that sort of thing. But like I said, but at each time fortifying it on October 1st is the physical similarity. Fortifying it on October 3rd is the fact that Dmitry Green is a name directly attributable to Mr. Williams, you know, and I mean the big one, like I said, well, in October - so, if that - by the time the analysis comes to that question, we already know he’s using the phone on October 16th and October 20th. So, then it’s a question is given that on October 3rd, we know that Dmitry Green and the thing are flying out, and given that on October 1st we know what shooter number three looks like, where is the reasonable doubt that the general supposition that a phone stays with one person over time, where is the reasonable doubt that that’s not applicable here, and I say there isn’t one.
[239] The defence challenges this assumption of continuity of possession of a cell phone, arguing:
But the most important part of any theory you hear from me today will be this. The 339 SIM card is the only piece of evidence that is capable of proving that Jatorri Williams was in the City of Toronto on October 1st. Now, we all know that it’s not necessary for the Crown to prove all of the facts he relies on beyond a reasonable doubt, but some facts are sufficiently crucial to the Crown’s case that they must be proven beyond a reasonable doubt. And in the case before you, there is one such fact which is that no one else ever used any phone with the 339 SIM card in it other than Jatorri Williams. My friend wants to rely on this SIM card as if it and Mr. Williams are clearly inseparable and as such you can treat the location of the SIM card as being fully and universally consistent with the location of Mr. Williams. He has not proven that. Instead, he relies on common human experience, which could lead you into error. He talks about lending toothbrushes to people and lending hammers to people. And while it’s true that if you look at my SIM card, the motions of my SIM card match my motions exactly. That’s because I always have my one phone that I have, I always have it on me. I might sometimes forget it somewhere, but you’ll never see a text message going out from my SIM card unless I’m within range of that tower. And you’ll never see a phone call go out from my SIM card unless I personally, Leo Salloum, am within range of that tower. Text message might come in while my phone is in between a couple of couch cushions at my friend’s place where I forgot it, but it will never got out and a call will never go out except when I’m holding that phone, that’s true about my phone, but it’s not true about all phones. I only have one phone. I have a job where I need to be reachable at all times, but I’ve had other periods in my life. There have been times where I didn’t have a phone on me where I couldn’t afford a phone. And in those times, sometimes I would borrow a friend’s phone. In this job, I’ve also learned that there’s the phenomenon of drug phones, phones that are passed around through a group of people who use the phone exclusively for illicit business. Usually, those people will have their own phone and the drug phone will be circulating through a group of people. And when I say that the Crown has certain facts that it needs to prove beyond a reasonable doubt, the Crown needs to disprove any suggestion that the 339 SIM card was in a drug phone or was in a phone that led to people periodically or was in a phone that changed hands even once in the month of October. He has not succeeded in that. And by his own admission, that would mean his case fails.
[240] I studied the cell phone records of Mr. Williams, looking for patterns of usage starting and stopping, and contacts beginning and ending. The goal was to get insight into whether 1651, which I was certain had been generally used by Mr. Williams, and had been used by the third shooter on October 1, had just one possessor and user or might plausibly have been turned over by Mr. Williams to another person from time to time for particular purposes. If that was plausible, and not far-fetched or conjectural, it might affect the reliability of the otherwise extremely strong evidence pointing to Mr. Williams as the third shooter. It was from the outset a remote concern about a facially very unlikely proposition—that a person who appears to possess a device at every stage when there exists evidence about him and the device, on the day with which we are concerned, October 1, 2019, turned over its possession to a person who was, from a number of camera images, visually indistinguishable from him. Nonetheless, having regard to the emphasis laid by the defence on the notional possibility of a transfer of possession, I devoted considerable attention to the possibility.
[241] To this end, I looked more closely at the pattern of contacts and usage by 1651 than the parties had in their original submissions to me. I examined where 1651 appeared to have spent nights and the pattern of messages transmitted to it at night, as a way to infer whether the phone was used by one person, as a typical personal cell phone would be, or might have been handed from person to person as what I called a “utility phone”, one example of which might be a “drug phone”, which could be handled by several persons, not just one owner. One fact I noted was that 1651 appeared to have spent each night in a different location between its October 10 return to Toronto from Thunder Bay and its second trip to Thunder Bay on October 19.
[242] Extensive further submissions were made, at my invitation, at the end of which I found it hard to draw helpful inferences. There were patterns of long-term connection and then a sudden cessation of the connection, in several instances around October 8 to 10. However, other contacts developed and had some durability across the entire time 1651 was active. Many changes in the patterns might be explained just by a change of SIM card by 1651’s contacts, perhaps to elude police investigation or suspicion. Changing locations at night could reflect a change of possession but could also reflect caution by the user. In many respects, the patterns were, to use a description of defence counsel, “messy”.
[243] The switching of the SIM card, from the device it was first placed in, to a different one, then back briefly to the original device and again to the second one, supports no reliable inference—it could easily be a choice based on the replacement of an older device with a newer one and a brief return of the card to the older one because it had some feature the user wanted to employ that was lacked by the newer one. Or the newer one could have become discharged or inoperable for a time. The two rapid switches happened over about a half-day period in Thunder Bay on October 7-8, and in an area near where Mr. Williams was staying before his arrest. The most logical inference is that he had control of both devices and made the decision about both switches for his own reasons, unrelated to a change of possession of the SIM card. Nothing about the sequence, when closely examined, bespeaks a change of user and a change of control. It is also true that the phone used pre-paid SIM cards with, as counsel put it, “retained value”, but that fact, and the clearly false identities of the subscribers 1651 contacted, are typical of phones that operate in a criminal milieu. Those characteristics do little to suggest multiple or alternative users of 1651.
[244] There is, however, a modest, fairly simple, way of examining the cell tower data on the question of continuity of possession and usage. This approach tends to reinforce the other determinations I have made. It involves looking not at the entire record of calls, which could be affected over time by changed SIM cards, changed relationships, travel, and disruption in patterns of usage and contact caused by the shootings themselves. I have focused instead on the short but clear period of stability before the shootings and the shootings themselves. This analysis involves treating indications of early continuity in the contacts and usage as more meaningful and helpful than later discontinuity, which may have many causes and be impossible to interpret, even tentatively.
[245] The shootings took place just nine days after September 23, when 1651 was first activated. The phone, once obtained, spent every night until September 30 in Kitchener-Waterloo, a fairly small city a little more than an hour west of Toronto by highway. The night before the murders was the first night 1651 spent in Toronto. In those first eight days, most of the phone’s very prominent long-term contacts came into existence, many on September 23. The early contacts which would be regularly communicated with in the days that followed included 2579, 3229, 6429, 5012 and 4020.
[246] The continuity and stability implied by the days and nights spent mainly in Kitchener-Waterloo, with a small though expanding number of early contacts, suggests that the data from September 23 to September 30 is for a phone not being handed around from person to person, by a subscriber with an itinerant lifestyle in Toronto.
[247] It is helpful, from the September 23 starting point, to look at the contacts of 1651 on October 1, the day of the shootings. Among the most prominent numbers contacted by 1651 that day were 2579, 3229, 6429 and 5012. If it is accepted, as it logically should be, that the original subscriber to 1651, in Kitchener-Waterloo, retained possession of the phone through those earliest days, then the numbers he spoke to around the time of the shootings are significant. For context, 1651 was in contact for brief and also substantial periods in 16 communications with Jeziah Blair-Taylor from 7:03 to 7:38 PM, a sequence that ended 33 minutes before the first shooting. I infer, as I have said, that these calls related to the shootings which followed, given Blair-Taylor’s proven involvement in the shootings and 1651’s physical movement in his direction and toward the shooting site.
[248] On October 1, 1651 connected via SMS with 2579 approximately 275 times. It last initiated a text message with 2579 twenty minutes before the first shooting, at 7:51 PM, and before that at 7:22 PM. 2579 then remained in touch throughout gaps between the shootings.1651 texted 2579 at 8:56 PM and 9:05 PM, between the second and third shootings. On this evidence, 2579 could have been anything from a friend or interested observer to the supervisor of the whole shooting spree. For present purposes, what is important is that 2579 was in steady communication with 1651 since the day 1651 was acquired, and remained in communication just before, and then during, the shooting spree.
[249] 3229 shows a similar pattern. It too was acquired on September 23 with 1651 stationed in and around Kitchener-Waterloo, and it was in contact many times each day thereafter, including about 80 times on October 1. The contacts that day included one just before the first shooting (at 7:22 PM) and between the Sheppard Avenue and Grandravine shootings (at 9:09 PM), both initiated by 1651. Contact with 3229 continued through the night of October 1 and the next day.
[250] 6429 had a comparable pattern of contact. There was very frequent communication each day following initial contact on September 23. On the day of the shootings, 6429 was in communication with 1651 during the prelude to the shootings, at 7:28, 7:31, 7:32, and 7:52, through text messages sent by 1651. Later on, shortly before midnight, 6429 had very brief phone calls with 1651 which may not have been long enough for actual communication to be achieved.
[251] 5012, first contacted by 1651 on September 27, was also in touch with 1651 several times daily afterward. And on October 1, it was in contact at 7:15, 7:22, 7:44, 7:45 and 7:52 PM, sometimes at the initiative of 1651.
[252] I am driven to conclude that Mr. Williams, after acquiring 1651, established contact with people who were close to him, whether personally, through business, or in both spheres, and drew them into events in which he was involved before and after the shootings. Considering 1651’s consistent use in Kitchener-Waterloo up to October 1, along with the frequency of its contact over late September with all these numbers, I find that this well-established pattern of contact – right up to the time of the shootings – reinforces the conclusion that there was only one user of 1651, before and up to the time of the shootings. The continuity of key contacts between September 23 and October 1 is striking. On October 1, the phone was obviously in the hands of the person who originally acquired it, selected its contacts, and used it to communicate with them.
[253] The pattern of contact and communication with these numbers also helps to satisfy me that from October 4 to 10, 1651 was in Thunder Bay, with Mr. Williams, who travelled there on October 3 as Dmitri Green. 1651 was in communication from Thunder Bay with the people who were among its earliest contacts, very regularly: close to 400 cell site connections from October 4 to 9 with 2579; 42 with 6429; 157 with 5012; and 143 with 3229.
[254] Crown counsel provided a list of numbers that reflected continuity of possession from the earliest time that 1651 was in use, before October 3, through the final period, in Thunder Bay, on October 20-21. The list includes 2579, 3229, 6429, 5012 and 4020.
[255] A likely indicator of continuity of possession of 1651 is the phone’s contact on the first day of its use with 4020, considered alongside Mr. Williams’ arrest in Thunder Bay on October 21 in company with the woman I take to be the subscriber of 4020, Tenisha Smith. This is one of very few instances in the record where a known, identifiable person can be connected with a phone number appearing in the records of 1651. That phone was first contacted on the day when 1651, in effect, came into existence, and its subscriber appears to have been with Jatorri Williams, in person, during the final minutes that 1651 was active.
[256] While I do not regard this analysis of phone usage patterns as essential to my determination that 1651’s user was involved in the October 1 shootings, and that Mr. Williams was its user on that date, the analysis supports that finding and reinforces the inference of continuous use and possession. I conclude that if 1651 ever changed hands temporarily – an inference I do not draw – it certainly did not do so between September 23 and the October 1 shootings. There remain powerful markers of uninterrupted possession by Mr. Williams from the shootings until his arrest, and through the contacts around October 16 and October 20-21.
[257] Crown counsel laid emphasis in closing argument on certain similarities between Mr. Williams and the left-handed shooter on October 1. He noted especially the admitted fact that Mr. Williams is left-handed and stressed that there are no observable differences between the left-handed shooter and Mr. Williams as he is seen in court and on the admitted Pearl Street videos of him, and in the funeral centre and mall images. He noted an apparent recklessness on the part of Mr. Williams in committing the Pearl Street offence without a facial covering, comparable to the conduct of the left-handed shooter on October 1.
[258] As I said above, I attach no significant weight to the alleged similarities of behaviour and do not draw inferences from an uneven portrait of Mr. Williams that paints him as cautious and evasive at one stage, for one purpose, and reckless and indifferent to risk at a different stage, for a different purpose. There is too little to support a helpful portrait of him.
[259] I do, however, accept that obvious physical similarities between the shooter on October 1 and Mr. Williams help confirm the circumstantial evidence and the inference of his guilt. This comparison is in one sense essential to a finding of guilt, because I could not conclude Mr. Williams is the third shooter, despite the force of the circumstantial evidence, if he had physical features that clearly distinguished him from that shooter, which he does not. His carriage and general appearance, in court and on video, are broadly similar to those of the third shooter, with no meaningful differences. With that said, he is not, as Crown counsel once put it, a “doppelgänger” of the shooter and actual recognition of Mr. Williams in the October 1 videos plays no part in my factual findings. The physical similarities make what are already a set of coinciding facts about 1651 and Mr. Williams that cannot be explained as chance even more conclusive proof of his participation in the crimes charged.
(iv) Summary of Reasoning and Conclusions
[260] The case against Mr. Williams was presented in a series of snapshots from different dates, most isolated from the others but having the presence of the 1651 phone, or of Mr. Williams, or both, in common. I lamented throughout the submissions, as I have in these reasons, the subjects on which information is typically available to a court but in this case is lacking. A circumstantial case generally seeks to weave a net around the accused, using a combination of facts in many dimensions, from different directions, that in combination render the initial, and continuing, presumption of innocence finally untenable and make the conclusion of guilt irresistible. This, by contrast, is a one-dimensional case, stripped of details about the accused’s motives, relationship, habits, background, and the routine fabric of his life. It focuses on the linear reasoning that Mr. Williams possessed 1651; that 1651 was used by a party to the crimes; and, thus, that Mr. Williams was a party to the crimes. The only extra dimensions of the case, drawing on evidence personal to Mr. Williams, is that when the connections related to the phone are exhaustively examined, the one person they point to, Mr. Williams, is in no visible way different, and in some significant ways appears very like the third shooter at the crime scenes, and he has personal links to Eric Rowe, an accomplice in the shootings, though the shared Demitri Green identity and his attendance at Mr. Rowe’s funeral. It is, in that sense, an unusual case.
[261] This has prompted me to distill here the path that has taken me to my conclusion of guilt in a different, more compact way, not merely following the compartmentalized approach of looking at the role of the phone in the crime, and the connection of the phone to Mr. Williams. I wish to summarize my reasoning at a higher level, focusing on two themes that may lead to greater clarity than examining the isolated snapshots one after the other. The themes are what I will term here “adjacency” and “specificity”. By adjacency, I mean the repeated closeness of Mr. Williams to the activity of the 1651 phone, and to other surrounding individuals and events related to Mr. Rowe and the crimes. An instance of adjacency does not eliminate the possibility that Mr. Williams was not the person using the phone at a particular time and place, nor prove that he could not have been present near an event innocently, but when they are looked at cumulatively, they shrink the possibility of repeated coincidence. And by specificity, I refer to occasions in the narrative when a detail does sharpen inferences from the broad pattern of adjacency by allowing a closer focus on Mr. Williams. One level of analysis fortifies the other. It is the combination that makes the case against Mr. Williams, narrow as it may be in its scope and subject matter, ultimately conclusive.
[262] The record gives no direct glimpse of Mr. Williams until the October 16 funeral. But it shows 1651 coming into existence on September 23 and acquiring contacts that will help track its user’s movements and actions for 29 more days. It is tied to Kitchener-Waterloo until the night before the October 1 murders, but no evidence ties Mr. Williams to that city. The evidence does, however, show 1651 making repeated contact with many of the same numbers, day after day, sometimes minute after minute.
[263] 1651 comes to Toronto very late on September 30 and spends the night. It stays in touch with the circle of contacts earlier established for a significant time, both on the night of October 1 and well afterward.
[264] In the prelude to the shooting spree near Jane and Sheppard, 1651 makes its first contact we know of with Jeziah Blair-Taylor. He is obviously one of the three shooters and obviously an intimate of Eric Rowe – they not only commit the crimes together, but they were in communication regularly before October 1 and on that day.
[265] In a parallel time frame on October 1, 1651 is in touch with Blair-Taylor, several times. This is significant but, in itself, far from proof of 1651’s role in that night’s shooting. But the unlikelihood of coincidence mounts when evidence shows the phone moving physically close to the area of the shootings and Blair-Taylor’s phones doing the same (and as Rowe obviously does personally, though his last phone connection was somewhat to the east). The convergence of the phones and their users in the area of the shootings is not a unique circumstance, inexplicable by chance, but it forms part of a portrait.
[266] To this point, at the end of October 1, 1651 has been adjacent to three shootings and adjacent to one of the shooters – Blair-Taylor. 1651 is one of many phones certain to have been active in the area when the shootings occurred, at the time they occurred. Some appreciable number of those adjacent phones surely came to the location near Jane and Sheppard from the east end, like 1651, not long before the shootings, though many more did not.
[267] Blair-Taylor was one of the shooters and 1651 was in contact with him as well. So were other phones, but 1651 was one of a few in repeated contact and the only one we know which traversed the GTA as it moved toward the crime scenes shortly before they became crime scenes. I take it as a given that there was planning and communication in advance of these shootings, even if it took place in ways that left no visible or digital record. The movements and communications in the early evening of October 1 are not proof of 1651’s user’s involvement but the two forms of 1651’s adjacency – contact with Blair-Taylor, a known shooter, and movement toward the shooting scene, followed by steady proximity to it – make 1651 stand out to anyone conducting an objective inquiry into the available evidence and the possibilities to which it points.
[268] At this stage, adjacency is coupled with specificity. It is, for me, impossible not to find powerful significance in 1651 going silent before and during each of the shootings in a manner similar to the disconnection of the phones used and possessed by two of the three killers. Perhaps coincidence could explain a similar, typically active, phone, in the area of the shootings, going silent right around the times of the shootings: with a large enough sample of phones and users, in an urban area, almost any pattern or phenomenon will emerge over time, by chance. But when the pattern emerges at the same time as a similar pattern on the phones of two of the three shooters, on a phone that has been in contact with one of those shooters, who has in turn been in contact with the other shooter, and the phone has gravitated to the site of the shootings just before that, the reasonable possibility of chance is effectively eliminated.
[269] More ultimately connects 1651 to the shootings, as a matter of logic, but it emerges alongside evidence showing Mr. Williams to be the user of 1651.
[270] Mr. Williams’ first confirmed physical appearance on the available record is on October 16, when he goes to the funeral of Mr. Rowe, for some hours. This decision connects Mr. Williams to Mr. Rowe as much as 1651’s calls to Blair-Taylor connects the phone to Blair-Taylor and, at a step removed, to Mr. Rowe. Rowe and Blair-Taylor are two of the accomplices of the left-handed man in the white shirt.
[271] 1651 is at first just adjacent to the funeral. Its presence for three pings around midday at Yonge Street cell towers would be of no significance on its own—its user could have been at thousands of different places. The observation is merely “consistent”—in the loosest sense of that slippery word—with a connection to the nearby funeral of Eric Rowe, who was murdered while the same phone was adjacent to the murder scene after being in touch with one of the murderers.
[272] When 1651 moves for a period not long after 5:00 PM to the area of the Yorkdale Mall, however, the possibility of chance stretches much thinner as Mr. Williams and his companions make the same move. They are there when the phone first connects near Yorkdale and are leaving as the phone leaves.
[273] There are only intermittent and random video images of the men who entered the mall, including Mr. Williams, over the hours they were there. There were also only three uses of 1651 that linked to the Rogers network. One of them, however, was at 5:25 PM, through a phone call, and it happens that one of the randomly captured video images of Mr. Williams shows him using a phone in the mall while 1651 was connected. Here, evidence of significant specificity gives a boost of probative power to already telling evidence of adjacency – a very loose adjacency at the first stage but now, with 1651 located again in time and place, a much more significant adjacency. To that, the very specific image of Mr. Williams speaking on a phone while 1651 was connected to the Rogers tower at Yorkdale Mall, can only be viewed as highly probative.
[274] One of the two vehicles the men arrived in headed west from the mall toward Jane Street. It is possible, though not proven, that Mr. Williams was in this car, the Sentra. And if he was in the second car, the Mazda, it is also plausible, but not certain, that it headed west; the group of men had been together for some hours and could well have intended to remain together; or all have come from the same neighbourhood and headed back toward it. At all events, 1651, in its third documented location of the day, remains adjacent to Mr. Williams’ group, and likely adjacent to him.
[275] This represents a significant shrinkage of the “pool” of potential users, as the Crown frames its case, but it does not definitively separate Mr. Williams from his companions – though the video at 5:26 PM at the mall goes some distance toward doing that.
[276] The next snapshot from which helpful inferences can be drawn is the sequence on October 20 in Thunder Bay when Mr. Williams, again, is adjacent to 1651. He and 1651 are both very far from the previous sites of adjacency and very far from where most people who use and operate a cell phone in Toronto are likely to find themselves. The adjacency here takes on much greater discriminative power. It is not improbable that someone who has pinged off the Yonge Street towers close to the funeral home, and off the Yorkdale Mall and Yorkdale (Holiday Inn) towers near the mall, will at some point in their life ping in Thunder Bay – including off the Court/Court PCS tower near 277 Pearl Street. But there is not merely a geographical alignment among the Yonge Street, Yorkdale and Pearl Street tower connections. There is also a temporal alignment. And it is this which negates the reasonable possibility of coincidence. It is not reasonable to credit the possibility that 1651, in the hands of an unrelated person, was relatively near the funeral centre Mr. Williams was at, when he was at it, on October 16; and then was at or near Yorkdale Mall later that day, when he was also at the mall; and then was at or near 277 Pearl Street on October 20, in Thunder Bay, when Mr. Williams was at that address, but Mr. Williams’ adjacency to that particular phone on each particular occasion, was a matter of chance, unrelated to him and his activities.
[277] This sequence so tightly links Mr. Williams and 1651 that little is added to it by the fact that as he moves toward his arrest on October 21, 1651 pings where it would have pinged if it were moving with him, at the time of his movement. Unnecessary to the analysis though it may be, this also is what happened. At the same time, Mr. Williams was found in the company of Tenisha Smith, to whose phone 1651 appears to have linked on the day it went online—a specific link between Mr. Williams and the phone and another marker of ongoing possession.
[278] It is at the arrest that Mr. Williams is found in possession of the Demitri Green identification – an instance of specificity, tying together 1651, Mr. Williams and the crimes in a manner that complements the inferences from instances of adjacency.
[279] There has been no telephone linkage between 1651 and Eric Rowe or between Mr. Williams and Mr. Rowe to this point. On October 21, however, discovery of the Demitri Green identification creates a link to Mr. Rowe, who used that identity himself on his September 29 flight to Thunder Bay, booked with his credit card and confirmed by the presence of his phone in Thunder Bay. As I have observed, I cannot determine exactly how the Demitri Green’s health card moved, or whether there was only one piece of identification in his name extant at the time, or if a single piece of identification was in some way duplicated. It is possible, but, as I have noted, not proven, that the identification was retrieved from Mr. Rowe’s person in the aftermath of his accidental shooting at 306 Grandravine Drive.
[280] But I am certain that Mr. Rowe travelled to Thunder Bay on September 29 using the Demitri Green identity and that Mr. Williams travelled to Thunder Bay on October 3, and back on October 10, using the Demitri Green identity. This adds a specific link to the evidence that the two men were personally connected. Along with this, Mr. Williams is connected to Mr. Blair-Taylor by 1651’s phone calls and is connected to Mr. Rowe by attendance at his funeral.
[281] The Demitri Green identity card in his possession also adds a specific link between Mr. Williams and 1651. A person using that name travelled to Thunder Bay on October 3 and back to Toronto on October 10. 1651 moved at the same times. The Demitri Green identification turned up in the possession of Mr. Williams – in Thunder Bay to where I conclude he and 1651 travelled together by car, given the otherwise unexplained ping of 1651, close to Parry Sound, on the evening of October 19.
[282] The linkage between Mr. Williams and the Green identity is incontrovertible. The linkage between travel by a person using that identity and travel by Mr. Williams and 1651 is extremely strong. 1651 connects to the events surrounding the crimes of October 1 and connects to Mr. Williams in different places at different times, to a degree that is inconsistent with mere chance.
[283] This evidence of adjacency, combined with instances of specificity, eliminates any reasonable claim that a random person unconnected to Mr. Williams was the third shooter. But Jeremiah Edwards is not unconnected to Mr. Williams. He is, however, effectively excluded as the third shooter or the user of 1651 – he is almost surely right-handed, and he was demonstrably not on any call on October 16 when 1651 was being used to make a call.
[284] When Mr. Williams, in court and in photos, is compared to the images of the third shooter on October 1, the noticeable similarities and complete absence of differences dovetail with the other evidence proving that Mr. Williams is the third shooter.
[285] Imagining that other people from the October 16 funeral and Yorkdale visit went to Thunder Bay with 1651, and used it at the areas near 277 Pearl Street that it was used, but were not visible on photos or any other record and left no trace in the trial record would be fanciful and in defiance of logic and human experience. That plainly did not happen—evidence conclusively connecting Mr. Williams to the phone and the crimes also conclusively excludes anyone else.
[286] Finally, this combination of evidence supports the answers given by the prosecution to the questions raised by the defence about specific features of the analysis. Each line of attack, flawed on its own, becomes untenable in light of the larger portrait of Mr. Williams, 1651 and the events surrounding the crimes. This includes the argument for an alibi; the contention that 2579, rather than Mr. Williams, could have been in the Volkswagen with Mr. Rowe and Mr. Blair-Taylor; the suggestion that a different person flew with 1651 from Pearson airport on October 3; the claim that 1651 was out of power and out of the possession of Mr. Williams at Yorkdale Mall; and the assertion that the Pearl Street videos are correctly time-stamped and exclude Mr. Williams as the user of 1651.
[287] I have provided my detailed assessment of those challenges to aspects of the Crown case and will not repeat them here. They have in common that they focus on details of the larger picture but elide the probative force of that picture. The connection of Mr. Williams to 1651 and the connection of 1651 to the crimes does not depend on a single premise, the weakening of which might cause the logical structure to fall. Rather, the soundness of the structure, supported by different but connected pillars, undermines the plausibility of purported challenges to it and makes the factual findings drawn from the big picture credible while stripping the challenges of cogency. There is no rational inference from the evidence viewed as a whole other than the truth of the allegations against Mr. Williams.
(v) Legal Issues Related to Counts 2 and 3
[288] Counsel for Mr. Williams argues that he cannot properly be convicted of planned and deliberate first degree murder on count 2, relating to the death of Eric Rowe because his conduct did not cause Mr. Rowe’s death and the death was not intended by him. He argues that the transferred intent provision in s. 229(b) of the Criminal Code applies only to the principal whose conduct causes the death of a victim, not to an aider or abettor of the intended shooting.
[289] On count 3, the defence urges that if the evidence does prove beyond a reasonable doubt that Mr. Williams possessed the 1651 phone which shows him to be a participant in the crimes of October 1, it does not prove that he was one of the three shooters at each scene; he could have been driving the Volkswagen. Accordingly, it is argued, he cannot be found guilty of attempted murder on count 3, relating to the shooting of Adrian Seebalack, because that count describes the crime as having been committed by “discharging a restricted or prohibited firearm” at Mr. Seebalack, an act obviously not performed by the driver.
[290] I will address these two arguments.
(a) Liability for the First Degree Murder of Eric Rowe
[291] Counsel for Mr. Williams contended that he could not be found guilty as charged in the shooting death of Mr. Rowe even if he performed the acts alleged by the Crown and was liable for first degree murder in the death of Delauntae Bryant. He argued that with the evidence showing to the point of certainty that it was a bullet fired by Mr. Blair-Taylor, not Mr. Williams, that took the life of Mr. Rowe, causation was not made out. He also called into question the application of the “transferred intent” provision in s. 229(b) where the intended victim has died and the second death was not planned or deliberated upon by an accused who did not fire the fatal bullet and did not intend the death.
[292] I disagree. On this evidence and my factual findings, Mr. Williams is guilty of first degree murder in the death of Mr. Rowe. While the strength of the evidence that it was a bullet fired by Mr. Blair-Taylor that ended the life of Mr. Rowe, and the acknowledged fact that Mr. Rowe was an accomplice of the two shooters, may seem to complicate the analysis, the reasoning is straightforward.
[293] First, in law, Mr. Williams and Mr. Blair-Taylor were both principals in the murder of Mr. Bryant. They plainly acted together, each of them firing bullets in a planned exercise that, when carried out, was intended to kill Mr. Bryant and did so: R. v. Johnson, 2022 ONCA 534 at paras. 62-63, 70-72. Establishing liability as a co-principal does not require proof that physical acts attributable to a particular accused played any mechanical role in ending the life of the victim. It is not a defence, for example, that ballistics evidence proves that a co-accused fired the fatal bullet or that the co-accused struck the blows to the head which caused the fatal brain injury in a beating, if each accused was an active, cooperating participant in the assault which led to death and, if the charge is murder, did so with the prescribed mens rea. A theory of co-principal liability that could be defeated by raising a reasonable doubt about the role of a particular blow, bullet or wound in the pathological cause of death would undermine the purpose and utility of the co-principal doctrine.
[294] That means that with clear evidence that both Mr. Williams and Mr. Blair-Taylor were shooting at Mr. Bryant, with an obvious intent to kill him, the bullet of each man was, in law, the bullet of both: R. v. McMaster, 1996 CanLII 234 (SCC), [1996] 1 S.C.R. 740 at p. 753; R. v. Abdulle, 2020 ONCA 106 at paras. 28-38; R. v. Elder, 2015 ABCA 126 at para. 17.
[295] There is no authority, and in my view no reason, for limiting transferred intent to instances where the initial victim survives and the lethal force kills a different person. Section 229(b) applies to make an unintended killing murder “where a person, meaning to cause death to a human being, or to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being”. It would make no sense, and advance no plausible legislative objective, to read into that language a proviso that the intended murder must have been unsuccessful before the section could apply. That would provide undeserved protection to a lethally effective killer not granted to an inept one, whose shots are inaccurate.
[296] A simpler answer to the argument is that, with the two surviving shooters properly characterized as co-principals in the killing of Mr. Bryant, the language of s. 229(b) applies to the case with exactitude.
[297] Nor is there any question about causation. Again, a premise of co-principal liability is that each person’s bullet is that of the other principal; on that view, as a matter of law, Mr. Williams shot and killed Mr. Rowe. There is no legal distinction between a bullet fired by Mr. Blair-Taylor and a bullet fired by Mr. Williams when they were firing together with the same intention. The analysis is no different than if a family member of Mr. Bryant had happened to look out the window he was standing close to and been killed by one of the bullets intended for Mr. Bryant. Both shooters would have caused that unintended death and their liability would not change if one of them could prove the other fired the fatal shot or could raise a reasonable doubt about it. Neither the clarity of the evidence that it was Blair-Taylor who fired the bullet that killed Mr. Rowe nor the fact that it was a result neither shooter desired, changes the essence of the legal analysis.
[298] Finally, the argument that the murder of Mr. Rowe cannot be characterized as planned and deliberate on Mr. Williams’ part must also fail. R. v. Droste, 1984 CanLII 68 (SCC), [1984] 1 SCR 208 at pp. 220-223 stands unambiguously for the proposition that if a planned and deliberate murder goes wrong, and leads to the unplanned, unintended, undesired death of a separate victim, that death is nonetheless a planned and deliberate murder.
[299] The Criminal Code treats “murder” as a distinct and separate finding to be made under s. 229 before the crime is categorized as first or second degree murder under s. 231. In this case, under s. 229(b), the action capable of constituting “murder” was the firing of guns at Delauntae Bryant with the intent to cause his death. Though the death of Eric Rowe was unintended and unanticipated, it was nonetheless murder by virtue of s. 229(b) on the part of both principals. When the intended lethal action leads to an unintended death, that death is murder, despite the lack of intent to bring about death. When the intended lethal action that brings about the unintended death was a planned and deliberate lethal action, s.231(2) directs that the unintended murder be treated as planned and deliberate.
[300] Accordingly, Mr. Williams will be found guilty of the first degree murder of Delauntae Bryant on count 1 and the first degree murder of Eric Rowe on count 2.
(b) Liability for Attempted Murder in the Shooting of Adrian Seebalack
[301] Counsel for Mr. Williams advanced a legal argument based on a factual premise I have rejected. It is argued that if there is a reasonable doubt that Mr. Williams was one of the shooters, and may instead have participated in these crimes as the driver of the Volkswagen, then he should be acquitted on count 3 of the indictment which charges him with an attempt to murder Mr. Seebalack “by discharging” a firearm. The driver did not discharge a firearm.
[302] I am satisfied beyond a reasonable doubt that Mr. Williams was the unmasked man wearing a white top, who carried and fired a handgun with his left hand, at the shooting sites where the offences charged were committed. A tight, ultimately conclusive line of analysis leads me to the determination beyond a reasonable doubt that the person who possessed and was using the 1651 phone on October 1 was a party to the offences charged. The evidence underpinning the analysis included images of Mr. Williams along with the admission that Mr. Williams, like the white-shirted shooter, was left-handed. The physical similarities between Mr. Williams in person and the images of the shooter are not capable in themselves of proving identity in this case but they are also undeniable and there is no suggestion of a variance between those images and the actual appearance of Mr. Williams. I would be speculating to credit the possibility that, with circumstantial evidence having narrowed the field of participants to the user of 1651, and having also narrowed the potential users of 1651 to Mr. Williams, the actual third shooter was not the man on video with significant points of resemblance to Mr. Williams, but some different person, similar to him in those visible ways, who fired a gun at Mr. Seebalack while Mr. Williams was sitting inside the Volkswagen.
[303] I also would not accept the complaint about the pleading and proof on count 3 if my determination that Mr. Williams was, beyond a reasonable doubt, the white-shirted, left-handed shooter were shown to be in error. Mr. Williams could have been jointly charged on a single count with Mr. Blair-Taylor (and with Mr. Rowe if he had lived) alleging an attempt by them to murder Mr. Seebalack by “discharging a firearm” at him. That would have been a legitimate framing of the charge if the three men had been arrested and tried together. At such a trial, it would have been permissible for a judge or jury to convict on the charge as framed if the Crown could prove all three accused were at the shooting and were parties to it but could not distinguish the shooters from the driver (who would be liable as an aider under s. 21(1)(b) of the Criminal Code). The possibility that any one of the accused was the driver rather than the shooter, would not be an impediment to conviction of all of them, on the very logic that s. 21(1) rests upon. The law does not require the Crown to prove whether a person is guilty of a crime as the person who “actually committed” it or as an aider or abettor: R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 SCR 652 at paras. 68-73.
[304] The pleading of the attempted murder charge in the case I have imagined would be unimpeachable respecting all three accused. It is no more subject to attack because a single accused is charged and tried alone.
[305] In this case, an attempt was clearly made to murder Mr. Seebalack by discharging a firearm at him, as count 3 alleges. Mr. Williams would be equally culpable for the offence whether he discharged the firearm personally or aided in its discharge, which the driver certainly did. Given that there was no obligation on the Crown to plead, or prove, a mode of participation, an accurate description in the count of how the attempt to kill Mr. Seebalack was made, without specifying the role of the accused in the attempt, is legally sound. On the facts of the case, it was in no way misleading to the defence.
[306] I am, therefore, satisfied that it would be proper to find Mr. Williams guilty on count 3 even if there were uncertainty about whether he was a principal or an aider in the attempt to kill Mr. Seebalack.
VII. CONCLUSION
[307] For these reasons, I find Mr. Williams guilty as charged on counts 1, 2 and 3 of the indictment.
P. Campbell J.
Date: May 21, 2024
COURT FILE NO.: CR-21-40000424-0000
DATE: 20240521
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
JATORRI WILLIAMS
Defendant
REASONS FOR JUDGMENT
P. Campbell J.
Released: May 21, 2024
[^1]: A voir dire was held into the admissibility of the 1651 records allegedly associated with Mr. Williams. The seizure of devices potentially associated with Mr. Williams was excluded from evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms, based on a series of rights violations regarding his arrest and the search of the seized devices. The evidence obtained under the production order was held to be admissible.
[^2]: The Crown’s written Aid Re Crown’s Final Submissions mistakenly says in several paragraphs examining occasions where a video clip shows no cell phone communication by Mr. Williams, that Rogers records “show no cell site activity by the device associated to ICCID 89302720524848463339 between 18:15:23 and 19:23:32”. This was repeated in oral argument. In fact, the Rogers records show eleven instances of activity between these times, though none of them undermines the logic of the Crown’s argument.