His Majesty the King v. Michael Roberts

COURT FILE NO.: CR-22-30000038-0000

DATE: 20240709

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

MICHAEL ROBERTS

COUNSEL:

Jason Gorda and Adriana Moser, for the Crown

Jordana Goldlist and Madalyn Bavaro, for Michael Roberts

HEARD: October 3-6 & 11-13, 2023, January 15 and April 12, 2024

REASONS FOR JUDGMENT

GARTON J.

[1] The accused, Michael Roberts, stands charged with having committed second-degree murder upon Jakub Sudomericky on October 25, 2020.

[2] Mr. Roberts acknowledges that he shot Mr. Sudomericky in the parking lot of a Liquor Control Board of Ontario location at 3111 Danforth Avenue in Scarborough (the LCBO). Mr. Sudomericky died as a result of his injuries approximately one hour later.

[3] Although Mr. Roberts admits to firing the fatal shot that killed Mr. Sudomericky, he has pleaded not guilty to second-degree murder but guilty to the lesser and included offence of manslaughter. Mr. Roberts maintains that he was provoked by Mr. Sudomericky, whom he alleges confronted him in the parking lot, called him a “fucking nigger,” and pointed a knife at his abdomen.

[4] As the Crown did not accept the guilty plea to manslaughter, a not guilty plea was entered on the second degree-murder charge.

[5] The position of the Crown is that following a brief verbal altercation between the two men at the cash register, during which Mr. Sudomericky was the aggressor, Mr. Roberts deliberately chose to leave and follow Mr. Sudomericky out of the LCBO and into the parking lot. On his way out, Mr. Roberts is seen on video reaching into his satchel with his right hand, and looking and walking in the direction just taken by Mr. Sudomericky. Footage from a surveillance camera inside the LCBO but facing out toward the parking lot also captured Mr. Roberts as he was leaving and for a short distance after he was outside. Once outside, Mr. Roberts’ right hand appears to remain in the same position, that is, in his satchel, and his left arm was down by his side. However, he is then seen to reach up with his left hand and move his left arm in front of his body. Crown counsel alleges that when Mr. Roberts’ left arm came back down to his side, he was holding a gun in his hand. Mr. Roberts admitted that he was carrying a loaded semi-automatic handgun on his person that day, but denied drawing it at that time.

[6] Mr. Roberts testified that he only drew the gun after Mr. Sudomericky approached him in the parking lot, came face to face with him, insulted him with the racial slur, and pointed a knife at his abdomen. Mr. Roberts testified that his immediate response was to pull out his gun and, without saying anything, point it at Mr Sudomericky. He explained that he was in a blind rage as a result of the racial slur and the pulling of the knife.

[7] An independent witness who was in the parking lot at the time, Padraig Cullen, testified that when Mr. Sudomericky saw the gun, he shrieked, started screaming “no, no, no” and took off running. Mr. Roberts chased after Mr. Sudomericky and shot him in the lower back from a distance of about 10 to 15 feet. Mr. Roberts testified that he did not know why he chased Mr. Sudomericky or why he fired the gun in his direction. He testified that he did not intend to shoot or kill Mr. Sudomericky, and just reacted while in a blind rage and on sudden impulse.

[8] Mr. Roberts testified that prior to driving to the LCBO, he had smoked as many as 12 marijuana joints. The defence did not advance a defence of intoxication on its own. Nor does defence counsel suggest that Mr. Roberts did not have the capacity to commit murder on account of a mental condition. Rather, defence counsel submits that the cumulative effect of Mr. Sudomericky’s provocation through both his words and actions, in combination with the effect of all the marijuana that Mr. Roberts says that he smoked that day, along with the impact of a history of victimization, prevented Mr. Roberts from forming the necessary intent for murder. In other words, the principles of the “rolled-up instruction” in jury trials are also at play in this judge-alone trial, where the accused has advanced several avenues in which his mental state at the time of the offence could cast doubt on whether he had the requisite mens rea for murder.

[9] Crown counsel submits that Mr. Roberts was not a credible witness, that his evidence should be rejected, and that the Crown has established beyond a reasonable doubt that Mr. Roberts was not acting under provocation when he murdered Mr. Sudomericky. He submits that Mr. Roberts was neither intoxicated nor provoked, and that he knowingly and willingly engaged Mr. Sudomericky in the parking lot. Crown counsel submits that Mr. Roberts’ evidence does not raise any doubt that he intended to shoot and kill Mr. Sudomericky or intended to shoot and cause him bodily harm that he knew would likely cause death.

The Evidence

[10] An Agreed Statement of Facts and Admissions was entered as an exhibit. It is conceded that Mr. Roberts was not legally entitled to possess a firearm at the time of these events.

[11] Six LCBO security cameras captured the movements of the various parties while in the store and the interaction between Mr. Roberts and Mr. Sudomericky. There were no security cameras outside the store, although several interior cameras facing windows captured some events that took place in the parking lot, including Mr. Roberts chasing Mr. Sudomericky while armed with his loaded handgun.

[12] The security videos were 124 to 183 seconds behind the actual time based on the time noted on receipts issued for purchases made by Mr. Sudomericky and Mr. Roberts while they were in the store.

[13] I begin my review of the evidence with a review of the footage from the security cameras, which captured the conflict that arose between Mr. Roberts and Mr. Sudomericky at cash register #4 over “social distancing” and the “six-foot” rule during the COVID pandemic.

Entering the store

Front entrance video: Mr. Sudomericky and Mr. Roberts enter the LCBO

• At 5:23:40, the video from the front entrance shows Mr. Sudomericky, age 21, selecting a bottle of Moet & Chandon Champagne from a shelf near the entrance. He walked off screen toward the cash register at 5:23:54.
• At 5:24:00 p.m., Mr. Roberts, who was 20 years old at the time, and Ms. Jaliyah Costain-Williams, age 15, entered the store and proceeded off screen in the same direction as Mr. Sudomericky at 5:24:08.

Interaction at the cash register

Store Front Video

• At 5:24:43, Mr. Sudomericky is seen waiting to be served at cash register #4. He was holding the bottle of champagne in his hand and his hood was up.
• At 5:25:05, Mr. Roberts and Ms. Costain-Williams walked by Mr. Sudomericky but do not appear to look in his direction.
• At 5:25:19, Mr. Sudomericky attended at cash register #4 and was served by Tom Yilmaz. Mr. Sudomericky placed the bottle of champagne on the counter. He is seen speaking to Mr. Yilmaz, and pointed to an area off screen to the right. Mr. Yilmaz testified that Mr. Sudomericky asked for a bottle of Hennessy VSOP cognac, which is kept in a locked cabinet. Mr. Yilmaz retrieved the Hennessy and returned to the cash area at 5:25:58 with two bottles, one of which, as it turned out, he retrieved at the request of Mr. Roberts.
• At 5:26:08, Mr. Roberts walked up to cash register #4. He stood just in front of the counter and very close to where Mr. Sudomericky was standing. An exchange took place between them, during which Mr. Yilmaz also got involved by using his hand to point to an area behind Mr. Roberts. At 5:26:23, Mr. Roberts looked down and took a step back. Mr. Sudomericky also pointed to an area off to the side. He looked at Mr. Roberts for a couple of seconds, and then continued to make his purchase. At 5:26:43, he again looked in Mr. Roberts’ direction. At 5:27:16, Mr. Yilmaz gave Mr. Sudomericky his receipt. At 5:27:17, he gave him his change, which Mr. Sudomericky took with his left hand. At 5:27:20, Mr. Sudomericky left cash register #4 without looking again in Mr. Roberts’ direction. At the same time, Mr. Roberts moved forward and placed a bottle on the counter. Ms. Costain-Williams placed a second bottle on the counter.
• At 5:27:23, Mr. Roberts removed cash from his left pants pocket, put some of it on the counter, and put the rest of it back into the same pocket. He then leaned slightly toward Ms. Costain-Williams and started walking away. At 5:27:42, as he was leaving, he looked up toward the window closest to the exit, all the while starting to do something with the black satchel that he was wearing.
• Ms. Costain-Williams remained at the counter and completed the transaction. She picked up the two bottles of wine and the cognac without waiting for Mr. Yilmaz to put them in a bag. At 5:27:54, she looked out the window facing the parking lot. She left the cash register area as soon as Mr. Yilmaz gave her the change, which was at 5:28:05.

Exiting the Store

[14] The relevant evidence contained in the front exit video overlaps in time with the store front video. It records the parties leaving the cash area but from a different angle, and shows them walking toward the exit.

Front Exit Video

• At 5:27:20, Mr. Sudomericky picked up his bag containing the two bottles of liquor that he had purchased, left the cash register area, and headed toward the exit. He was holding his LCBO bag in his right arm. At 5:27:24, he looked at his left hand, which was holding his change. He is off screen at 5:27:27. At no point did he look back toward Mr. Roberts.
• At 5:27:21, Mr. Roberts and Ms. Costain-Williams are seen at cash register #4 where, as noted above, Mr. Roberts quickly took money from his left pants pocket, put some of it on the counter, and put the rest of it back into the same pocket. He turned and leaned toward Ms. Costain-Williams, looked toward the exit, and left the cash register area. As he was leaving, he looked out the window closest to the exit, which provided a view of the parking lot. Mr. Roberts’ black satchel was hanging from his right shoulder and was across his chest toward his left side.
• At 5:27:43, Mr. Roberts unzipped his satchel. A blue box in the satchel is visible for a short period of time. Mr. Roberts looked into the satchel, lifted up the bag slightly with his left hand, placed his right hand fully into the bag, and then walked with his right hand concealed in the bag. He is seen looking toward the right just prior to leaving the screen at 5:27:47.
• At 5:27:35, Padraig Cullen, who had just finished purchasing a bottle of wine, left the cash register area and walked toward the exit. Mr. Cullen, who is a high school teacher, witnessed Mr. Roberts shoot Mr. Sudomericky in the parking lot one minute later.
• After Mr. Roberts left cash register #4, Ms. Costain-Williams continued with the purchase of the wine and cognac. At 5:27:47, she turned to look in the direction that Mr. Roberts was walking as he proceeded toward the exit. At 5:27:54, she looked in the direction of the window for less than a second. As soon as Mr. Yilmaz gave her the change, she walked to the exit and was off screen at 5:28:09.

Front Entrance Video

• At 5:27:28, Mr. Sudomericky entered the front entranceway from the right of the screen, and exited the store. As he walked through the parking lot, he was holding the brown LCBO bag. His right hand was under the bag, and the bag was resting against his right arm and chest. He walked at a normal pace toward the median in the middle of the parking lot and was off screen at 5:27:44.
• Mr. Cullen exited the store at 5:27:44. He walked in the same direction and path taken by Mr. Sudomericky but at a faster pace. He is off screen at 5:27:55.
• At 5:27:48, Mr. Roberts entered the front entranceway. As he did so, he was looking outside in the direction where Mr. Sudomericky had walked. Mr. Roberts exited the store and walked in the same direction and path taken by Mr. Sudomericky and Mr. Cullen, but went to the left of the median. As indicated earlier, he was walking with his right arm up at an angle toward his body, as his right hand was in his satchel. His left arm was down by his side. However, at one point he moved his left forearm in front of his body. He then brought his left arm back down by his side. The Crown alleges that at this point Mr. Roberts was holding his gun in his left hand. Mr. Roberts denied drawing his gun at that time. Mr. Roberts is off screen at 5:28:01.
• Ms. Costain-Williams entered the front entranceway at 5:28:10. She exited the store and walked toward the median in the same general direction taken by Mr. Sudomericky, Mr. Cullen, and Mr. Roberts. At 5:28:23, she sped up her pace for a few steps, and went off screen at 5:28:25.
• At 5:28:25, Zullaikha Insanally, an LCBO employee, is seen in the front entranceway looking out in the direction of the parking lot where Mr. Sudomericky, Mr. Cullen, Mr. Roberts, and Ms. Costain-Williams had walked. She testified that she heard a gunshot and saw Mr. Sudomericky lying on the ground close to the entrance of the parking lot off Danforth Avenue.
• Mr. Yilmaz entered the front entranceway at 5:28:53 and was looking in the direction where everyone had walked. He exited the store and, at 5:29:02, ran into the parking lot in the same general direction and path of the others.

The Parking Lot

• Video footage from a camera facing a window that looks out onto the parking lot shows that between 5:28:13 to 5:28:15, an individual dressed in black was chasing another individual in between two parked cars. It is not disputed that the person running between the cars and being chased was Mr. Sudomericky, and that the person chasing him was Mr. Roberts, who had his right arm out and forward.

[15] Mr. Roberts shot Mr. Sudomericky when Mr. Sudomericky got “caught up,” as Mr. Cullen put it, behind a black pickup truck that was waiting to turn right onto Danforth Avenue. Mr. Sudomericky collapsed behind the truck and was bleeding profusely.

[16] At 5:32 p.m., Emergency Services started receiving calls reporting gunshots in the parking lot and that a man had been shot. Police Constables Scott McDonald and Matthew Nelson, as well as ambulance attendants, arrived on scene shortly thereafter. Mr. Sudomericky was taken to St. Michael’s hospital, where he was pronounced dead at 6:25 p.m. The cause of death is described as a penetrating gunshot wound entering the left upper buttock just left of the midline, travelling in a back to front, left to right, and slightly downward direction.

[17] Witnesses reported that the shooter fled the parking lot in a silver Acura TL (the Acura). Responding officers located the vehicle within minutes of the shooting. It was less than two kilometres from the scene. At 5:43 p.m., the three occupants of the vehicle – Mr. Roberts, Ms. Costain-Williams, and Mr. Roberts’ friend, Jason Walters – were arrested at 10 Trudelle Street, which was Mr. Walters’ address, and taken to 41 Division.

[18] At 8:00 p.m., a Forensic Identification Officer, Detective Constable Chris Rim, seized several items from the LCBO parking lot, including: a knife, a bottle of Hennessy VSOP in a box, a bottle of Moet & Chandon Champagne, a black jacket, and a 9 mm SIG Luger Cartridge casing.

[19] Security video from various locations was obtained in order to determine the route of the silver Acura after it left the parking lot. A video chronology of its route, which was prepared by Detective Constable Chariandy, shows that prior to being parked at 10 Trudelle Street, the Acura was in the vicinity of 187 Leyton Avenue, which was Mr. Roberts’ home address.

Testimony of Tom Yilmaz

[20] Mr. Yilmaz, age 47, had been working at the LCBO at 3111 Danforth Avenue for two or three years at the time of the shooting. As an LCBO employee, he had received training with respect to dealing with customers who appear to be intoxicated or under the influence of alcohol or drugs. He would tell customers who appeared to be drunk or high – for example, stumbling or slurring their words – that he was not allowed by law to serve them and that they could “try again tomorrow.” He testified that these situations happened quite frequently. He would also ask to see a customer’s identification if they appeared to be under the age of 19.

[21] Mr. Yilmaz was working at cash register #4 on October 25, 2020, when Mr. Sudomericky came to his counter and asked for a bottle of Hennessy VSOP. After Mr. Yilmaz obtained the key to the locked cabinet containing the cognac, Mr. Roberts approached him and told him that he wanted to buy a bottle of “regular” Hennessy. Mr. Yilmaz took out both bottles of cognac and told Mr. Roberts to come into his cash lane at the check-out counter.

[22] Mr. Yilmaz testified that he had no concerns about Mr. Roberts. To the contrary, Mr. Roberts seemed “very nice.”

[23] After returning to his cash register, Mr. Yilmaz placed both bottles of cognac on the counter. Mr. Sudomericky stated that he did not want to buy the “regular” Hennessy. Mr. Yilmaz told him that it was not for him but for the next customer.

[24] Mr. Yilmaz testified that as he was bagging Mr. Sudomericky’s bottles, Mr. Sudomericky told Mr. Roberts in an aggressive way to “back the fuck up, bro” or words to that effect. Mr. Roberts looked at Mr. Yilmaz and replied, “I’m not even close to you.” Mr. Sudomericky then repeated, “Just back the fuck up, bro.” He was “kind of mumbling” and “kind of just staring” at Mr. Roberts. At that point, Mr. Yilmaz asked Mr. Roberts, “If you don’t mind, sir, just the six-foot rule, just take a step back.” Mr. Roberts complied with that request. However, Mr. Yilmaz could not say whether taking the step back resulted in Mr. Roberts being six feet away from Mr. Sudomericky. As he was paying for his purchases, Mr. Sudomericky was “still kind of looking over at Mr. Roberts.” He then went on his way in a nonchalant manner.

[25] Mr. Yilmaz testified that as a result of the COVID pandemic, the LCBO had implemented the social-distancing policy, which required that people keep a distance of at least six feet from other people in the store. He stated that it was common at that time for customers to argue about social distancing.

[26] Mr. Yilmaz tried to take his time in cashing out Mr. Roberts in order to give Mr. Sudomericky time to leave, thereby avoiding any conflict between the two men from continuing or escalating outside. He did not hear or see anything further that was said or done by either of them that was of a threatening nature. He did not hear either of them make any statement suggesting that they meet outside.

[27] When Mr. Yilmaz scanned the bottles being purchased by Mr. Roberts, and the price came up on the screen, Mr. Roberts looked at the price, took out some cash, put it on the counter, said something to Ms. Costain-Williams, and then left. Mr. Yilmaz was not sure what Mr. Roberts said to Ms. Costain-Williams, but assumed it was, “I’ll see you outside” or “Pay for the products” or something along those lines. Mr. Yilmaz testified that it was unusual for someone to leave before getting their change or their products. Mr. Roberts did not appear to be under the influence of anything. Mr. Yilmaz was surprised that something happened in the parking lot later on, as he did not think that the dispute was “that big of an argument.”

[28] After Mr. Roberts left the store, Mr. Yilmaz gave Ms. Costain-Williams the change and she left. Mr. Yilmaz then focussed on the next customer. At some point, Mr. Yilmaz told a co-worker, Ms. Insanally, to look outside to see if anything was going on. He then looked through the window himself and saw one person chasing another person through the parked cars in the parking lot. Shortly thereafter, he heard one bang. He was in shock. He told someone to call 911 and decided to close the store.

[29] Mr. Yilmaz left the cash area and ran to the front door. He saw Mr. Sudomericky lying on the ground near the entrance to the parking lot and behind a pickup truck that was waiting to turn right onto Danforth Avenue. He did not see Mr. Roberts, but he saw Ms. Costain-Williams getting into a car.

[30] Mr. Yilmaz testified that the chase that he had witnessed earlier through the window was between the cars parked closest to Danforth and that it was “kind of going zig zag through the cars.” He marked that area on a map: see Exhibit #22. He also placed a square on an area closer to Danforth, where he recalled seeing the person who had been shot.

[31] When asked if he had previously dealt with Mr. Roberts, Mr. Yilmaz stated that he did not recall having seen him. He assumed, however, that he may have served him in the past by the way in which Mr. Roberts interacted with him. When asked to elaborate on that interaction, Mr. Yilmaz stated that Mr. Roberts greeted him by saying, “Hey, how’s it going?” and then told him that he wanted a Hennessy. Mr. Yilmaz replied, “No problem, just follow me.” There was no further conversation.

[32] Mr. Yilmaz testified that he had no difficulty understanding or communicating with Mr. Roberts, and had no concerns that he may have been intoxicated or impaired. He did not observe any signs that Mr. Roberts had consumed marijuana.

[33] In cross-examination, Mr. Yilmaz agreed that Mr. Sudomericky was the aggressor that day and that Mr. Roberts was not aggressive toward anyone in the store. After the dispute was over, he did not anticipate anything happening outside. Mr. Roberts never said anything to him or the female that caused him to be concerned. Mr. Roberts was calm and left the store at a normal pace.

[34] Mr. Yilmaz agreed that Mr. Sudomericky was taller and had a bigger build than Mr. Roberts. He estimated Mr. Roberts’ height at 5 feet 8 inches to 5 feet 9 inches, with an average build. Mr. Sudomericky was about three inches taller.

[35] Mr. Yilmaz did not recall if Mr. Roberts smelled of marijuana or if his eyes were red. In re-examination, he was asked whether he had seen any signs that Mr. Roberts had consumed marijuana that concerned him. Mr. Yilmaz stated “No,” and that if Mr. Roberts had exhibited such signs, he would have noticed them.

Testimony of Zullaikha Insanally

[36] Ms. Insanally had been employed by the LCBO for approximately two years in October 2020. She testified that she often dealt with customers who were intoxicated by alcohol and/or drugs. She was required as part of her job to be aware of signs of impairment and to ensure that impaired customers were not served.

[37] Ms. Insanally testified that on October 25, 2020, COVID social distancing signs were placed throughout the store and could not be missed.

[38] Mr. Roberts first came to Ms. Insanally’s attention when she heard a customer saying out loud, “I need a bottle of Hennessy.” She moved from the aisle that she was in so that she could see who was speaking. As it turned out, it was Mr. Roberts. He was with a young girl (Ms. Costain-Williams), who was wearing a tight-fitting body suit or cat suit, with a pinstripe pattern. Ms. Insanally rightly suspected that Ms. Costain-Williams was not of legal age to be in the LCBO.

[39] Ms. Insanally asked Mr. Roberts if he was being helped. He stated, “No.” Ms. Insanally then observed that a co-worker, Jason, was retrieving a key to open the locked cabinet where the cognac was kept. At that point, Ms. Insanally told Mr. Roberts, “I think you are being helped.” She then returned to the other aisle.

[40] Mr. Roberts and Ms. Costain-Williams walked up the aisle where the cabinet containing the Hennessy was located. Mr. Yilmaz also walked up that aisle as he was picking up the bottle of cognac for Mr. Sudomericky. Ms. Insanally did not hear any conversation that may have taken place between Mr. Roberts and Mr. Yilmaz at that time as she was on the other side of the aisle. Mr. Yilmaz retrieved the bottles of cognac requested by Mr. Roberts and Mr. Sudomericky, and returned to his cash register.

[41] Ms. Insanally testified that when Mr. Roberts went over to Mr. Yilmaz’s cash lane, he went right up and to the side of the counter. At that point, Mr. Sudomericky told Mr. Roberts, “Back the fuck up.” Ms. Insanally stopped what she was doing and looked up to see what was going on. At that point, she was about 10 feet from the two males. She saw Mr. Roberts step back and heard him say, “I am backed the fuck up,” although he was still not complying with the six-feet social distancing rules. He sounded irritated.

[42] Ms. Insanally went to cash #5 while Mr. Yilmaz was serving Mr. Sudomericky at cash #4. While watching, she noticed the body language of Mr. Sudomericky and Mr. Roberts, and saw that they were staring each other down. Mr. Sudomericky paid for his liquor and left the store.

[43] Given Mr. Roberts’ attitude and demeanour, Ms. Insanally continued to look over at Mr. Yilmaz’s cash area while he served Mr. Roberts just in case any problems arose. Mr. Roberts put his money on the counter and left. Prior to leaving, he murmured something like, “I’ll be back” to either Mr. Yilmaz or the young girl – she was not sure to whom. As Mr. Roberts left, Ms. Insanally saw that he was holding his satchel. He walked very casually, as if nothing was going to happen. The girl with Mr. Roberts completed the purchase. Mr. Yilmaz then looked at Ms. Insanally, told her that something was going on outside, and asked her to go see what was happening.

[44] Ms. Insanally finished with her customer and went to the front door. She saw Mr. Roberts running down the side of the parking lot by the fence and toward Danforth Avenue. His arm was out in front of him and he was holding a dark object in his hand. She believed that it was a bottle, as she had seen people attack other people with bottles at the LCBO.

[45] Ms. Insanally testified that she caught a glimpse of Mr. Sudomericky behind a car. She thought that he was hiding behind the car – she saw his head pop up and believed that he was running in between cars. She told a co-worker to call 911 as she thought that some sort of confrontation was going to take place. Almost immediately thereafter, she heard a gunshot and saw Mr. Sudomericky on the ground in the middle and close to the end of the driveway.

[46] Ms. Insanally testified that as 911 was being called, she saw a “grey silver-style” car backing up in the parking lot. Ms. Costain-Williams got into the front passenger seat and Mr. Roberts got in on the driver’s side. She thought that the car was moving as they got in. She did not see where Mr. Roberts came from as other cars in the lot were blocking her view.

[47] After the gunshot went off, Ms. Insanally tried to get the licence plate of the car. She stepped out of the LCBO and attempted to take a video with her cell phone but it did not have sufficient memory. About five minutes later, she took a very short video of the parking lot. She was also shown a map drawing of the LCBO parking lot on which she had placed various markings at the preliminary inquiry. She confirmed that her markings were accurate: see Exhibit 53, which shows i) her location just outside the front doors of the LCBO; ii) where she saw Mr. Roberts running; iii) where she saw Mr. Sudomericky’s head pop up; and iv) where Mr. Sudomericky was lying on the ground after he was shot.

[48] In cross-examination, Ms. Insanally testified that she did not see Mr. Sudomericky running but believed he was hiding from Mr. Roberts. When she stepped outside the front doors, she only saw his head, but was not sure if he was crouched or bent. She did not see the entire incident – only bits and pieces of it.

[49] Ms. Insanally stated that she never saw the gun go off – she only heard it. She saw Mr. Sudomericky on the ground and behind a black pick-up truck that had its engine running. She agreed that everything happened quickly and that this has been a troubling incident for her.

[50] Ms. Insanally testified that during the altercation at the cash, she did not hear Mr. Yilmaz say anything to Mr. Roberts, but also advised that Mr. Yilmaz is soft spoken. She did not hear any polite conversation between Mr. Roberts and Mr. Yilmaz while they were at the locked cabinet containing the cognac. When Mr. Yilmaz was dealing with Mr. Roberts and Ms. Costain-Williams, Ms. Insanally was at her cash register and about four to five feet from Mr. Roberts and Ms. Costain-Williams. They had their backs to her. She agreed that she did not expect anything to happen outside and that nothing else was said or done that caused her concern at that time.

Testimony of Padraig Cullen

[51] Padraig Cullen, age 54, is a Grade 12 high school teacher.

[52] Mr. Cullen testified that on October 25, 2020, he drove to the LCBO on Danforth Avenue in the late afternoon to purchase a bottle of wine. He parked his van three spots up from the front entrance. A fence down the centre of the parking lot prevented cars from parking on the east side of the lot due to construction that was taking place there.

[53] Once inside the store, Mr. Cullen grabbed a bottle of wine. He testified that as he headed to the area of the cash registers to pay for it, he noticed “a bit of an altercation” going on between two males. The altercation was about “spacing,” that is, the social distancing required as a result of COVID. The “white man,” referring to Mr. Sudomericky, was paying for his liquor when he told the “black man,” referring to Mr. Roberts, “Back up. You’re in my fucking space,” or words to that effect. There was a bit of an argument.

[54] Mr. Cullen testified that Mr. Roberts, who was waiting to pay for his purchases, was right behind Mr. Sudomericky, and was disputing the fact that he needed to back up. He told Mr. Sudomericky, “I am far enough away” or “relax.” He may have said, “I’m not in your fucking space,” or that he had “backed up enough”, and used a swear word within that phrase. Both males were standing their ground and appeared to be staring at each other.

[55] Mr. Cullen went to another line to pay for his purchase. He did not hear the males say anything more to each other. As Mr. Cullen was leaving the store, the incident was no longer on his mind as the dispute appeared to be over. The two men had separated and Mr. Sudomericky had already left.

[56] After paying for his wine, Mr. Cullen left the store and noticed that Mr. Sudomericky was walking ahead of him. He was about 25 feet ahead of Mr. Cullen. As Mr. Cullen continued walking toward his van, he saw Mr. Sudomericky stop, look over his right shoulder, and glare back in his direction. Mr. Cullen initially thought that Mr. Sudomericky was glaring at him. Mr. Cullen was still several steps away from his van, and Mr. Sudomericky was the equivalent of two or three parking spaces ahead of him at that point.

[57] When Mr. Cullen looked back to see what else Mr. Sudomericky might be glaring at, he saw that Mr. Roberts had exited the LCBO and was coming up behind him. Mr. Cullen then realized that Mr. Sudomericky was glaring at Mr. Roberts.

[58] Mr. Cullen testified that he did not stop walking when he turned his head to look back and saw Mr. Roberts. He had not as yet reached his van. He described his position as “kind of in the middle” of the two males, but he was closer to Mr. Roberts than he was to Mr. Sudomericky. He did not hear anything being said by either of them at that moment.

[59] As Mr. Cullen continued walking toward his van, he saw Mr. Sudomericky start walking back toward Mr. Roberts. It was then that he realized the situation was going to escalate and continue on from what had taken place in the LCBO because “they were both walking toward each other.”

[60] Mr. Cullen testified that Mr. Sudomericky had walked north toward Danforth and was 10 to 15 feet past Mr. Cullen’s van before he turned around and started walking south toward Mr. Roberts. Mr. Cullen had still not reached his van at that point. It was his intention when he got to his vehicle to open the front passenger door and drop his wine bottle on the front passenger seat. Mr. Cullen testified that when Mr. Sudomericky turned and walked back toward Mr. Roberts, he came back right behind Mr. Cullen’s van.

[61] Mr. Cullen testified that the two men met just as he turned to drop his wine onto the passenger seat. He described their meeting as follows: “They met each other in the parking lot, came close together, but not on top of each other,” and were “within a foot of each other.” Mr. Cullen testified that it only took him a couple of seconds to put his wine on the passenger seat. He did not get into his van and his head was never inside the vehicle.

[62] Mr. Cullen testified that his vantage point for observing Mr. Roberts and Mr. Sudomericky was parallel to the passenger side of the van where he put his bottle of wine, which Mr. Cullen demonstrated by extending his left arm out to his left side.

[63] During his testimony, Mr. Cullen placed marks on a map of the LCBO parking lot showing where his van and Mr. Roberts’ Acura were parked: see Exhibit 24, which is reproduced in Appendix 1 of these reasons. According to the diagram, the first parking spot was empty, Mr. Roberts’ Acura was in the second parking space, and Mr. Cullen’s van occupied the third space. Mr. Cullen placed a dot in the middle of the parking lot and behind his van to show where Mr. Roberts and Mr. Sudomericky met up with each other. It is apparent that at the point when Mr. Cullen was standing by the side of his van, he would have had a view of the right side of Mr. Roberts and the left side of Mr. Sudomericky.

[64] Mr. Cullen testified that as Mr. Sudomericky was walking toward Mr. Roberts, he heard him make several comments to Mr. Roberts along the lines of “Who is tough now?”; “What do you have to say now?”; or “Why aren’t you chirping now?” Mr. Sudomericky made these comments both as he was walking toward Mr. Roberts and when he stopped and was within a foot of Mr. Roberts:

Q. And when is it that [Mr. Sudomericky] says that?

A. As he’s almost – it all happened – the distance wasn’t that great, so as he was walking towards him, and right when he was on top of him, like within a foot of him, he was making those comments.

Q. Okay. So, just so I understand that, from what you recall, he’s making those comments as he’s walking or when he stops?

A. It’s a combination of both because it’s all within a few steps, so that was – he’s just saying those lines probably as he’s getting closer and as he got there, he’s still saying.

[Emphasis added.]

[65] When asked in cross-examination whether he had already moved to the passenger side door of his van when Mr. Sudomericky was making these comments, Mr. Cullen testified that the comments were made both as he was walking toward Mr. Sudomericky and as he turned to his right to go to the passenger side of his van:

Q. Now, before the white male makes that comment, do you move to the passenger side of your car?

A. At that point, I’m walking right towards him and I’m walking toward the passenger side.

Q. Okay.

A. And all of that is happening at the same time as I’m moving towards to put my wine into the passenger side front door.

Q. Okay. And so you’re walking toward the front passenger door of your van as the white male is approaching the black male to re-engage.

A. That’s correct.

[Emphasis added.]

[66] Mr. Cullen testified that he did not hear Mr. Sudomericky say, “What’s popping now?” – a statement that Mr. Roberts alleges was made by Mr. Sudomericky. Mr. Cullen testified that if such a statement had been made, he believed he would have remembered it.

[67] Mr. Cullen testified that Mr. Roberts responded to Mr. Sudomericky’s comments by producing a gun, which he pointed “straight out” at Mr. Sudomericky’s head – “right at the top shoulders and above.” The gun was very close to Mr. Sudomericky – less than a foot away – because they were standing within a foot of each other. It all happened within one or two seconds.

[68] Mr. Cullen did not see Mr. Roberts make any movement in order to draw or take hold of the gun. He did not see where the gun came from:

Q. And where had – how did the gun come out or what was done with it?

A. I don’t know where it came from, but it came out, it was pointing right at the white gentleman in the front.

Q. Okay. And can you describe how it was pointed?

A. Yes, out directly, just straight out and pointed it out towards the upper part of his body.

Q. Okay, And just for the record, you took your left hand and –

A. Oh, I don’t know why I used my left. I think – I don’t know which one it was, but he put – all I saw was the arm come up and the gun come out and it was right at him at the top part of his body.

Q. And you said you didn’t see where the gun came from, but did [Mr. Roberts] have to make any movement in order to get the gun?

A. None that I saw.

[69] Mr. Cullen testified that he did not see anything in Mr. Sudomericky’s hands other than his LCBO bag containing the champagne and cognac that he had purchased. He testified that Mr. Sudomericky was “hugging” his bag throughout these events – that is, both of his arms were up and crossed at the elbows, with the bag up against his chest. He did not see Mr. Sudomericky do anything that in his mind would have caused Mr. Roberts to pull a gun. He acknowledged that he was not looking at Mr. Sudomericky’s hands during the few seconds that he was placing his wine in his van.

[70] Mr. Roberts’ version of events – that is, that Mr. Sudomericky approached him, uttered a racial slur, and produced a knife – was never put to Mr. Cullen.

[71] Mr. Cullen testified that Mr. Sudomericky shrieked in fear or surprise upon seeing the gun, and instantly turned and ran, screaming “no, no, no, no, no” as he was running. Mr. Roberts immediately chased after him.

[72] Mr. Cullen testified that Mr. Sudomericky started to run north and turned to his right or east but the fence blocked his access to the other half of the lot. He then changed course and started running north toward Danforth Avenue, where he “got caught up by a truck.” Mr. Sudomericky was running at “full speed.” Mr. Roberts was also running very fast as he was trying to catch him.

[73] Mr. Cullen did not see what Mr. Roberts was doing with his gun while he was chasing Mr. Sudomericky. However, he testified that when he saw the black truck, he looked back and saw the gun. It was then that he heard two shots. Mr. Roberts was near the end of the parking lot at that point and about 10 to 15 feet from Mr. Sudomericky. He had not yet caught up to Mr. Sudomericky. Mr. Roberts was holding his gun out in front of him and pointing it at Mr. Sudomericky. After the shots, Mr. Sudomericky collapsed behind the truck.

[74] Mr. Cullen testified that Mr. Roberts then walked back down the parking lot toward him and the LCBO. Mr. Cullen was standing in the parking lot behind his van at that time. He testified that Mr. Roberts appeared calm and was walking at a relaxed or normal pace. Mr. Roberts made eye contact with Mr. Cullen and walked passed him as though nothing had happened. He then got into his silver Acura, which was parked beside Mr. Cullen’s van.

[75] Mr. Cullen saw Ms. Costain-Williams getting into the passenger’s side of the Acura. She looked at Mr. Cullen and then casually shook her head.

[76] At that point, Mr. Cullen ran over to Mr. Sudomericky to see what he could do to help him. He was the first person to reach Mr. Sudomericky, who was trying to roll over. Mr. Cullen told him to relax, and held his head to try to calm him down. There was a lot of blood on the parking lot. Mr. Cullen was trying to figure out how to stop the bleeding. He feared that Mr. Sudomericky was going into shock. A woman (Leslie Thorpe) and a man (Peter Mahut) came over to help. The driver of the black truck had called 911.

[77] Mr. Cullen testified that as he was attending to Mr. Sudomericky, he saw Mr. Roberts’ vehicle speed off as it headed east on Danforth Avenue.

[78] Mr. Cullen noticed that Mr. Sudomericky had dropped his wine bottle and the cognac, which were to the right of where he was lying. Mr. Cullen did not notice any other items as his attention was focussed on Mr. Sudomericky. When the police and ambulance arrived, Mr. Cullen remained at the scene and gave a statement to the police.

[79] Mr. Cullen estimated that the entire interaction between Mr. Sudomericky and Mr. Roberts in the parking lot – that is, from the time that Mr. Roberts exited the LCBO and the two men started walking toward each other to the time that Mr. Roberts shot Mr. Sudomericky – was only 20 to 30 seconds.

[80] In cross-examination, Mr. Cullen agreed that Mr. Sudomericky was heavier and taller than Mr. Roberts, who was shorter and had a skinny or wiry build. He did not know if he caught the start of the confrontation between the two men when they were in the LCBO, and did not recall what was said, “word for word.” He could not say for certain that Mr. Roberts swore.

[81] Mr. Cullen acknowledged that when he went over to a different cashier to make his purchase, his back was to Mr. Sudomericky and Mr. Roberts. However, when he looked over at them, Mr. Sudomericky was glaring at Mr. Roberts as he was being checked out. He did not hear either male make any threats. It appeared to him that the dispute at the check-out had ended.

Testimony of Jason Schell

[82] The police were unable to locate Mr. Schell and serve him with a subpoena for this trial. As a result, the Crown and defense counsel agreed that a transcript of his testimony at the preliminary inquiry be filed as an exhibit.

[83] Mr. Schell testified at the preliminary inquiry that on October 25, 2020, he had driven to the LCBO on Danforth Avenue. He was leaving the parking lot in his truck and about to turn right onto Danforth when he heard a very loud bang. He stopped and saw in his side mirror that someone was lying on the ground right behind his truck. When he got out of his truck, he saw a “young guy” on the ground who was screaming that he had been shot.

[84] Mr. Schell returned to his truck to get his phone. As he was dialling 911, a car came speeding out from the parking lot. As the car turned right onto Danforth, Mr. Schell got its licence plate number. He then returned to the back of his truck. Mr. Sudomericky was lying within a foot or two of the truck’s bumper, and would have been 10 to 15 feet from the sidewalk on Danforth Avenue.

[85] Mr. Schell saw a bottle of Moet Champagne on the ground, which he believed had rolled away. Mr. Schell picked it up and put it on the grass. He also saw a pocketknife. It was a couple of feet away from Mr. Sudomericky and looked like it had fallen and slid. He could see the blade.

Testimony of Leslie Thorpe

[86] Leslie Thorpe, age 60, is a grade school teacher. She and her partner, Peter Mahut, attended the LCBO sometime between 5:00 p.m. and 6:00 p.m. on October 25, 2020. As they were paying for their purchases, she heard a person yell out that someone had been shot. She had not noticed anything unusual happening in the store prior to that.

[87] Ms. Thorpe and Mr. Mahut, who had some first aid training, went out to the parking lot to see if they could help. At the preliminary inquiry, Ms. Thorpe marked an “X” on a diagram to indicate where she believed Mr. Sudomericky was lying on the pavement. At trial, she believed that he was actually about five feet south of that location, which she indicated with a darker “X”: see Exhibit 28.

[88] Ms. Thorpe recalled seeing a pocket knife on the pavement. It was about 10 feet from where Mr. Sudomericky was lying, and a few feet south of the road. She did not go up to the knife, but viewed it from a distance of about 10 feet. She was unsure as to whether the knife was open. She marked its location with a circle on Exhibit 28. She did not see anyone handling the knife prior to the arrival of the police.

Testimony of Mathew Kashila

[89] A transcript of Matthew Kashila’s testimony at the preliminary inquiry was made an exhibit pursuant to an agreement of the Crown and defence counsel.

[90] Mr. Kashila testified that he was parked across the street from the LCBO in the Beer Store parking lot when he heard two noises that sounded like fireworks. He also heard a car “squealing off.” When he turned to see what was happening, he saw a lot of commotion in the LCBO parking lot. As he waited to cross the street, he heard people talking about what had happened. That was when he learned that it was gunshots, not fireworks, that he had heard.

[91] When Mr. Kashila crossed the street, he saw a man lying on the ground close to the sidewalk or toward the end of the parking lot and behind a black truck. There was a pool of blood around him. A man was holding his head, and a woman was near his feet. Mr. Kashila, who is a nurse, held his legs. They were trying to keep him still until the police and ambulance arrived. A bottle of wine in an LCBO bag was beside the man on his right side.

Testimony of Police Constables McDonald and Nelson

[92] Police Constables McDonald and Nelson were called to the scene at 5:32 p.m., and arrived there at 5:34 p.m. Paramedics were attending to Mr. Sudomericky. Mr. Cullen was holding Mr. Sudomericky’s head.

[93] Officer McDonald saw $3.75 in change that was in blood on the pavement: see Exhibit 6, photo #69. This was the exact amount of change that Mr. Yilmaz had given to Mr. Sudomericky when he purchased the liquor and which Mr. Sudomericky was holding in his left hand on his way out of the store.

[94] Officer McDonald also observed a folding knife, and used a pylon to mark its location: see Exhibit 6, photos 53-57, which show that the knife was open. Officer McDonald testified that there was no blood on the knife.

[95] Officer Nelson testified that the knife was by Mr. Sudomericky’s feet.

The Knife: The Crown’s Position

[96] The Crown accepts and does not dispute the fact that the knife found at the scene belonged to Mr. Sudomericky. His DNA was on it. However, the Crown submits that what is not clear is how the knife came to be at the location where it was photographed, and at what point, if ever, Mr. Sudomericky took it out. The Crown accepts that Mr. Roberts saw the knife at some point prior to leaving the scene.

[97] The knife (Exhibit 20) is a folding knife and has a belt clip on the back of it so that it can be attached to a belt or pants. It is eight inches long when the blade is pulled out – the blade is three inches long and the handle is five inches long.

[98] As stated earlier, Mr. Sudomericky is seen leaving the LCBO with an LCBO bag in his right arm, and looking at his change in his left hand as he walked away from the cash counter. He was given $3.75 in change. That exact amount – a loonie, a toonie, and three quarters – along with the champagne and cognac that he had purchased, was found beside or near him where he collapsed on the pavement after he was shot.

[99] Mr. Cullen testified that when Mr. Sudomericky turned and walked back to approach Mr. Roberts in the parking lot, he was holding the LCBO bag with both arms, as if he were hugging it. It can reasonably be inferred that when Mr. Sudomericky screamed and ran away from Mr. Roberts, he was holding not only the LCBO bag but also his change.

[100] The only person who testified that they saw a knife being held by Mr. Sudomericky was Mr. Roberts.

[101] The Crown’s position is that there are three possible scenarios with respect to the knife:

1. The first scenario is that Mr. Sudomericky shifted his LCBO bag and used one hand to pull out the knife and open it as he was walking toward Mr. Roberts. The Crown submits that this would be a reasonable response after Mr. Sudomericky saw that Mr. Roberts had exited the LCBO abruptly and was walking toward him with one of his hands in his satchel – and not knowing what was about to happen. Crown counsel noted, however, that it is not clear what Mr. Sudomericky would have been able to see, especially if Mr. Cullen was in his line of sight for a period of time as he was approaching Mr. Roberts.

2. The second possible scenario is that Mr. Sudomericky, after seeing the illegal handgun, turned and ran away and took out his knife as he was running or when he collapsed, allowing Mr. Roberts to observe the knife either as Mr. Sudomericky was running and/or as he walked by Mr. Sudomericky after shooting him.

3. The third possible scenario is that the knife came off Mr. Sudomericky’s belt or fell out of his pocket when he collapsed, allowing Mr. Roberts to see it on the ground as he walked by Mr. Sudomericky after shooting him and was heading back to his car. The Crown submits that Mr. Roberts, having seen the knife, believed that it would provide an excuse – namely, self-defence – for his having shot Mr. Sudomericky.

[102] The Crown submits that even if Mr. Sudomericky approached Mr. Roberts while armed with the knife, it does not change the fact that Mr. Roberts was armed with a handgun. The Crown submits that given the fact that Mr. Roberts had an illegal handgun, he would not have been surprised or provoked when he saw the knife, and that he deliberately chose to run after and shoot Mr. Sudomericky in the back. Crown counsel submits that what would have been important to Mr. Roberts would be the fact that there was a knife, which could provide him with an excuse for shooting Mr. Sudomericky that day, likely thinking that he could claim that he acted in self-defence.

Testimony of Michael Roberts

[103] Mr. Roberts, age 23, was 20 years old at the time of his arrest on October 25, 2020. He has been in custody since that date. Prior to his arrest, he was living with his parents, a younger sister, and his brother, Jameel, who is one year older than Mr. Roberts. The family resided at 187 Leyton Avenue, which is in an area of Toronto known as Cataraqui.

[104] Mr. Roberts testified that his appearance has changed somewhat since his arrest. He was 5 feet 8 inches or 5 feet 9 inches tall when arrested, and weighed about 120 pounds. He has grown an inch or two since then and now weighs 155 pounds.

[105] At the time of his arrest, Mr. Roberts had acquired only three high school credits. He has now obtained a further 26 credits and is just one credit shy of completing high school. Mr. Roberts struck me as quite intelligent. He certainly had no difficulty understanding the questions put to him, and often anticipated a question before it was asked. Mr. Roberts could also be described as street smart, which is not surprising given the problematic neighbourhood in which he grew up.

[106] Mr. Roberts’ criminal record is as follows:

Youth Record

April 10, 2015: Assault causing bodily harm – 2 months custody and 1 month community supervision in addition to 15 months’ probation. He had served 77 days of pre-trial custody. Weapons prohibition for 2 years;

April 30, 2015: Assault – 12 months’ probation;

2018: Possession of property obtained by crime under $5,000 – 15 months’ probation;

Adult Criminal Record

August 8, 2022 – Assaulting a peace officer – one day plus 30 days pre-sentence custody, and a weapons prohibition for five years.

[107] Mr. Roberts described the various jobs he had as a young person, which included, among other things, working at a Canadian Tire store for five months when he was 14 or 15 years old. He had a summer job working in a chocolate factory. He also did demolition work in Kingston for a couple of summers. From 2018 to 2020, he worked as a delivery man for his older sister, who owned a cosmetic business. When the pandemic hit, he could no longer work, but started receiving the Canadian Emergency Response Benefits (CERB).

[108] Mr. Roberts described Cataraqui as a dangerous and crime-ridden neighbourhood. He stated that he was bullied from a young age because he was “mixed breed” – his mother is white and his father is black. His parents provided him with “nice things”, such as new shoes and new clothing. He had his own cell phone from a very young age. This caused other kids to pick on him. They would take his money or beat him up when he refused to give them his phone. He was in Grade 4 at the time of these events. Sometimes he would sneak out of school early in order to get home safely.

[109] Mr. Roberts described an incident when he was 14 or 15 years old when a group of kids were waiting for him to arrive home. When he reached his porch, they jumped him and there was a fight. His father opened the door and the neighbours broke up the fight. However, five minutes later, there were five to ten people banging on their door and trying to get inside. His father called 911 and the police attended.

[110] Mr. Roberts testified that their house on Leyton Avenue has been shot at five times over the years. On the first occasion, Mr. Roberts, who was 14 years old at the time, was not home. He was told that “some random guys” showed up at the front of the house and started firing shots at his brother.

[111] On the second occasion, Mr. Roberts had just returned home to find that the police had arrived after someone fired shots at the front window of the house.

[112] On the third occasion, Mr. Roberts was in the shower when he heard a loud bang. When he and his father went to investigate, they discovered that the front door had been damaged. The police determined that someone had fired a shotgun at the door.

[113] The fourth occasion was a drive-by shooting when someone came out of the sunroof of a vehicle and started shooting at his father and his father’s friend. Mr. Roberts was not home when this happened.

[114] On the fifth and last occasion, which was in 2017 or 2018, Mr. Roberts was playing the video game, Fortnite, when someone fired a shot through the front window of their house. The bullet went into the drywall.

[115] In each of these instances, the police attended at the home. Fortunately, no one was ever injured.

[116] When asked if he had ever been a victim of violence, Mr. Roberts stated “yes,” and went on to describe an incident when he was pistol-whipped. He testified that this assault took place a few months prior to this “terrible accident” – during his testimony, Mr. Roberts consistently described his shooting of Mr. Sudomericky as an “accident.” He testified that the pistol-whipping incident is what caused him to get a gun. Mr. Roberts, who was on bail when he acquired the gun, knew that he was prohibited from being in possession of a firearm.

The Pistol-Whipping Incident – Reason for Getting a Gun

[117] Mr. Roberts testified that in May 2020, he was pistol-whipped by a stranger. He testified that his then girlfriend, who was over eight months pregnant with their child – the baby was born on May 28, 2020, and just five months prior to the shooting of Mr. Sudomericky – was driving Mr. Roberts’ Acura to her parents’ townhouse, located near Greenwood and Danforth Avenue. The windows of the car were tinted. Mr. Roberts was in the front passenger seat.

[118] Mr. Roberts testified that when they pulled over and parked beside the curb, he noticed a black male walking on the sidewalk. The male’s hood was up, his hands were in his pockets, and he was looking at the Acura. Mr. Roberts testified that as soon as he opened his car door, the male approached him and asked him where he was from. Mr. Roberts testified that he responded, “What do you mean where I’m from? Like I don’t know you, you don’t know me.” In cross-examination, Mr. Roberts testified that the male got angry and responded by saying “Buddy.” Mr. Roberts then looked away from the male “to just ignore him,” at which point the male pistol-whipped him in the area of his right eyebrow and then ran away.

[119] Mr. Roberts pointed to a scar near his right eyebrow during his testimony. He stated that the injury was an open wound but did not require stitches. He did not report it to the police because in his neighbourhood “it is not acceptable to call the cops.”

[120] In cross-examination, Mr. Roberts maintained that his girlfriend was driving, although at one point he stated, “So I’m driving and they’re [referring to the unknown male] on the sidewalk.” He then reasserted that his girlfriend was driving.

[121] In cross-examination, Mr. Roberts testified that when he opened the front passenger door, the unknown male was on the sidewalk and behind the Acura, but on a diagonal. The male then approached the car with his hands in his pockets, crouched down, and was almost in the car when he asked Mr. Roberts, “Yo, buddy, where are you from?” When Mr. Roberts replied, “What do you mean where am I from? Like I don’t know you,” the male got angry. Despite the male’s anger and aggressive behaviour, Mr. Roberts turned away from him and did not respond, thereby indicating that he “didn’t have time for this.” He testified that he turned toward his girlfriend and was intending to unbuckle his seatbelt when he was pistol-whipped.

[122] In cross-examination, Mr. Roberts testified that the unknown male actually spoke to him before he approached the car, and while he was still on the sidewalk. He asked Mr. Roberts, “Hey, buddy, where are you from?” Mr. Roberts testified that he responded, “Buddy, I don’t even know anything. Why are you talking to me?” The male then approached the car, crouched down and asked, “Who are you talking to?” Although Mr. Roberts agreed that the male was only inches away from him and literally “right in his face”, he testified that he “brushed him off” a second time and turned away from him in order to unbuckle his seatbelt, at which point he was pistol-whipped. He stated that he never saw the gun. It was his girlfriend who later told him that the male had a gun.

[123] Mr. Roberts’ evidence regarding the pistol-whipping was somewhat problematic, given some of the inconsistencies in his description of this incident. The question also arises as to whether it is likely that Mr. Roberts, who testified that he had experienced significant bullying and several instances of violence and shootings in his neighbourhood, would turn away and look in another direction to undo his seatbelt when a total stranger was crouched down, almost inside his car, only inches away from his face, and was angrily demanding to know where he was from.

The Purchase of the Gun

[124] Mr. Roberts testified that following the pistol-whipping incident, which he described as “the last straw,” he decided to purchase a gun for his own protection and that of his girlfriend and their unborn child. He testified that his intention was never to shoot anyone, but he recognized that having a gun ultimately meant that he could run into a situation where he had to shoot a person. He understood that guns kill people. He agreed that if you shoot someone in the chest or general body area, they will die.

[125] Mr. Roberts testified that on the same day that he was pistol-whipped, he went home and spoke to a friend who happened to be at his house and who also happened to have connections to people who sell illegal firearms.

[126] Mr. Roberts testified that he did not tell his friend what kind of gun he wanted, such as a semi-automatic handgun. He just told him that he needed a gun, with no further details. Mr. Roberts claimed not to be a “gun expert.” However, he acknowledged in cross-examination that having watched movies and played a lot of video games, such as Call of Duty and Fortnite, both of which feature all kinds of firearms, he knew the difference between a .22, a 9-millimetre, and a .40 calibre firearm.

[127] Mr. Roberts testified that when his friend told him that the gun would cost $4000, he made no inquiry as to what kind of gun he was getting for that amount of money. Although the gun was expensive, he had saved some money from delivering smoothies and other products for his sister. He was also receiving CERB payments.

[128] Mr. Roberts testified that the following week, his friend told him to go to Warden Woods to meet the person who was selling the gun, and to bring $4,000 with him. When Mr. Roberts met the seller in the woods, the seller told him that the gun was loaded. He showed Mr. Roberts the clip, put in the clip, and stated that it was “ready to use.” All he had to do was pull the trigger. He also told Mr. Roberts that there was no safety on the gun.

[129] Mr. Roberts professed a certain disinterest in the gun. He testified that he never looked closely at it, and never loaded or unloaded it. He never took out the magazine to inspect the bullets to see whether it was a 9-millimetre or .40 calibre firearm. He claimed not to know that it was a 9-millimetre handgun until he read the disclosure materials after he was charged with the murder of Mr. Sudomericky. He kept the gun in his bedroom closet, but never left home without it. When outside his house, he kept the gun tucked into his waistband on the left side of his boxers. He testified that he did not carry it in his satchel because there was a hole in the satchel. He agreed that he worried about carrying the gun as he could be frisked by police at any time. However, that did not deter him from taking the gun with him whenever he left his house.

[130] Mr. Roberts testified that he had never owned a gun prior to purchasing this particular gun and, prior to October 25, 2020, he had never fired a gun.

Disposing of the Gun after Shooting Mr. Sudomericky

[131] Mr. Roberts testified that after shooting Mr. Sudomericky, he got into the Acura, turned right onto Danforth Avenue, and then left at the next street, St. Dunston Drive, which leads to a dead end. When he reached the dead end, he turned right onto Albion Avenue and threw the gun out the window. He testified that he threw it as far as he could and over a house on St. Dunston Drive while remaining seated in his vehicle. He assumed that the gun landed on train tracks that run behind the houses on that street, but allowed that it may have gone into the bushes. During cross-examination, Mr. Roberts testified as follows:

Q. Okay. So where do you drop the gun off?

A. I go up St. Dunstan Drive, and as soon as I get to the end right where Albion is …

Q. Right. So we’re – now left the LCBO, we’re going up St. Dunstan Drive?

A. About, in that area I chucked the gun, yes.

Q. Well, if I switch it to Layers, which I can do, you’re now able to see – just for the record, I’ve switched it to the Layers version. I can actually zoom, scroll in, this is all on the record. So you go down to St. Dunstan, you get to Albion, you get rid of the gun and then you make a right.

A. As I’m making the right, I just threw it out of my window. There’s trees, bushes here, there’s a train track there. The map – I don’t think it’s like that far in real life but, yes, right there is where -- along there I got rid of the gun.

Q. So this map, there’s something wrong with this map because from Albion and St. Dunstan, you were able to chuck a gun through or over all of these houses all the way over to the train tracks over here. Is that what you’re telling us?

A. Mr. Gorda, I chucked it over the houses. I don’t know if it landed on the train tracks. I don’t know if it landed in the bush area. I’m not sure, but –

Q. Are you a baseball player?

A. No, I’m not, Mr. Gorda, but –

Q. So how is it – so you’re telling me you’re able – you even told us you didn’t get out of the car. You said –

A. That’s correct.

Q. You threw it from the car window?

A. That is correct.

Q. So you’re telling me from getting to the end of Dunstan and turning right on to Albion, from your car, you were able to take the gun –

A. And –

Q. – whipped it over someone’s house all the way to the train tracks while driving which is probably, I would say – I mean those lots there are probably, still about maybe 80, 90 foot lots, and then probably still about maybe 20, 30 feet, the train tracks. I’m just guessing just by what houses are, regular houses. You’re telling me that you were able to throw it all the way over to somewhere on the train tracks.

A. In that direction, correct. That’s where I threw it. I don’t know if it went on the train tracks. I don’t know if it went into the bushes. I just know I chucked it.

Q. That’s quite some – that’s a very – you threw it very far.

A. Yes, I guess so.

[132] Mr. Roberts denied that getting rid of the gun had anything to do with his wanting to get rid of the murder weapon. He stated that he just did not want anything to do with that gun or any other gun at that time.

[133] Mr. Roberts testified that after tossing the gun, he turned right onto Pharmacy Avenue from Albion, left onto Newport Avenue, and then went up Leyton Avenue to his residence at 187 Leyton.

[134] There is no doubt that Mr. Roberts drove to his home on Leyton Avenue after shooting Mr. Sudomericky. However, the route that he took to get there is not the route that he described in his testimony.

[135] The Video Chronology Overview created from security videos and corresponding reports, and which was conceded by defence counsel in the Agreed Statement of Facts to be accurate, shows that Mr. Roberts did not turn left onto St. Dunstan Drive from Danforth Avenue, and that he was never on that street after he left the LCBO. Instead, he continued driving east on Danforth Avenue and then turned left or north onto Leyton Avenue, eventually arriving at his residence at 187 Leyton. It may be inferred that Mr. Roberts either left the gun at his house, hid it somewhere in that neighbourhood, or gave it to someone. It is unlikely that he would have tossed the gun, which cost him $4,000, or that he would have run the risk of someone finding it.

[136] The Video Chronology Overview shows that Mr. Roberts’ evidence that he drove up St. Dunstan Drive and tossed the gun 100 feet and over a house or houses while sitting in his car was a total fabrication. He never turned left onto St. Dunstan Drive and, despite being confronted with a scenario that defied logic, refused to acknowledge the implausibility of his version of events – a version that contained considerable detail but none of which was true.

[137] Mr. Roberts’ evidence as to how he disposed of the gun is not credible. However, it is consistent with his attempt to distance himself from the gun. For example, he testified that he was more or less driven into getting a gun because of the alleged pistol-whipping incident. He testified that when he told his friend that he wanted to buy a gun, he gave the friend no details as to what kind of gun he was looking for, even though he had a familiarity with firearms as a result of the video games he played. He testified that he was willing to pay $4,000 for a gun without asking a single question about what kind of firearm he was getting for his money. And after acquiring the gun, he maintained that he was not sufficiently interested in it to even ascertain its make or model. He never loaded the gun or took out the magazine and, after shooting Mr. Sudomericky, tossed it to get rid of it.

[138] Defence counsel submits that Mr. Roberts’ story about how and where he tossed the gun is post-offence conduct that is of no assistance in determining whether Mr. Roberts is guilty of murder or manslaughter. I agree. However, it is certainly relevant in terms of assessing the reliability and credibility of his evidence. Contrary to his affirmation to tell the truth, Mr. Roberts blatantly lied about his tossing of the gun, most likely in an attempt to avoid being questioned about what he actually did with the firearm after shooting Mr. Sudomericky.

Events at 187 Leyton Avenue on October 25, 2020 and before Leaving for the LCBO

[139] Mr. Roberts testified that he intended to go to a friend’s birthday party on October 25, 2020, and planned to leave his house at 6:00 p.m. He stated that he woke up around noon and smoked a marijuana joint a few minutes later. He took a shower, ate some food, and then hung out with his brother, Jameel. He played Fortnite in Jameel’s bedroom, and continued to smoke marijuana.

[140] Mr. Roberts testified that he normally smoked one or two joints a day, three at most. The number of grams that he smoked depended on the size of the joint. Three joints would be the equivalent of one-and-a-half to two grams. He testified that the first joint that he smoked on the day of the shooting was probably half a gram, assuming that he used a long rolling paper.

[141] Mr. Roberts estimated that he smoked roughly seven to ten joints with Jameel that afternoon. When asked why he smoked so much on this particular day, he stated that he did not realize how much he was smoking because he was engrossed in playing Fortnite, which he described as a very addictive and highly intense online game. He explained that up to 100 players participate in each game. They all start out in a helicopter, parachute out, and land randomly on a map. They then attempt to kill each other. A player shields himself from gunfire by building walls around himself. The goal is to shoot and kill everyone around you. The last player standing wins the game. Mr. Roberts testified that as he was playing Fortnite, Jameel was rolling up joints and passing them to him. Consequently, he was not aware of how much he was smoking. He agreed, however, that he was consciously making the decision to continue to smoke. He estimated that Jameel rolled around six joints for him.

[142] Mr. Roberts testified that he played Fortnite from 1:00 p.m. until 4:00 or 4:30 p.m., when Ms. Costain-Williams showed up at his house. He described her as “just a friend”, but acknowledged that he was hoping that the relationship would “go somewhere.” They had met at a party in June 2020, spoke a lot on the phone, and had seen each other about four times. Ms. Costain-Williams had earlier asked him if she could go to his friend’s party. He told her, “No problem.”

[143] Mr. Roberts testified that he was initially nervous when Ms. Costain-Williams arrived at his house: “At first I was nervous. I was high, so I was nervous. Usually when females are around, I get nervous.”

[144] On this occasion, Ms. Costain-Williams told him, “Michael, I see you’re high. It’s okay, you don’t have to be nervous, you can just relax.” Mr. Roberts testified that after receiving this reassurance from Ms. Costain-Williams, he was no longer nervous. He “got comfortable,” calmed down, and smoked one or two more joints before driving to the LCBO.

[145] Mr. Roberts testified that this was the first time during the five years that he had been smoking marijuana that he had smoked so many joints over a three to four-hour period. When asked when he first started thinking about the amount of marijuana that he smoked that day, he testified that he asked Jameel how many joints he had smoked after Ms. Costain-Williams commented that he was nervous and told him that he was high. Mr. Roberts had a specific memory of going into Jameel’s bedroom at that point and asking him, “How much did we smoke, bro?” Jameel looked at the joints in the ashtray and told him “six or seven.”

[146] Mr. Roberts never made a note to remind himself of his marijuana consumption on October 25, 2020. However, he testified that he had a clear recollection of what Jameel told him on that date and that his consumption of marijuana had not affected his memory.

[147] Mr. Roberts testified that he was high while driving and high while he was at the LCBO, but he just focussed on buying the alcohol and attending the party. When asked how he feels when he is “high”, Mr. Roberts described it as follows:

A. I’m not sure if you smoked marijuana before, Ms. Goldlist, but it affects the mental state so it kind of – it affects the emotion, it affects reactions and it affects just the mental state of things and I was feeling high. I don’t know how to describe it really, but depending on the circumstances and the situation, that would determine how I feel. So, for example, when Jaliyah showed up, I was nervous. Then she had let me know it’s okay, so I wasn’t nervous. So depending on the situation and the circumstances what affects, and, yeah.

Q. Okay. You said it affects your reactions. So some drugs speed people up, some slow them down, some cause people to hallucinate. What effects, if any of those does marijuana have for you?

A. Ah, it messes with the ability to think. It deals with emotions. Your emotions, your emotion already display [sic] opposed to if you were not high, people can actually see the emotion and stuff, but it was more so difficult to really think straight when you’re high off marijuana. You’re not slurring your words when you’re high off marijuana, you’re not stumbling when you walk, it’s more on just the mental.

Arriving at the LCBO

[148] Mr. Roberts testified that when he and Ms. Costain-Williams walked into the LCBO, his gun was on the left side of his waist and tucked into his boxers. He noted that there continued to be a lot of violence in the community at that time, including shootings and robberies, as well as drug dealing. He described the gun as “pretty small, like compact. It wasn’t a big, big gun.”

[149] Mr. Roberts, with Ms. Costain-Williams following behind him, went directly to the far right corner of the LCBO, where he grabbed two bottles of champagne. He then went to the middle of the store and waited for Mr. Yilmaz to retrieve the Hennessy from the locked cabinet. Mr. Yilmaz then asked him, “Would you mind coming to my line after?” Mr. Roberts replied, “No problem.” According to Mr. Roberts, Mr. Yilmaz always served him whenever he went to that LCBO. They had conversations, laughed together, and talked about sports. He did not learn Mr. Yilmaz’s name until sometime after he was in custody.

[150] When Mr. Roberts made his way to Cash #4, he noticed Mr. Sudomericky in the line ahead of him. As soon as he got to the counter, Mr. Sudomericky looked at him and told him, “Back the fuck up. You’re too close to me.” Mr. Roberts testified that he was confused, and asked him, “What? I’m not even close to you.” Mr. Sudomericky replied, “Bro, I said back the fuck up, you’re too fucking close to me.” At that point, Mr. Yilmaz gestured with his right hand and asked him to step back, at which point Mr. Roberts moved back. Mr. Roberts described Mr. Sudomericky’s tone as very aggressive. He acknowledged that he may have been a bit too close to Mr. Sudomericky, but felt that his aggression was not called for. At one point, Mr. Sudomericky pointed or gestured to an area, and said, “Go over there.”

[151] Mr. Roberts stated that he was “a bit upset” by Mr. Sudomericky’s behaviour, but “it was nothing major.” The situation dissipated after he stepped back and that was the end of it. Mr. Sudomericky paid for his liquor and left. Mr. Roberts testified that he did not expect any further interaction outside the LCBO.

Exiting the LCBO

[152] Mr. Roberts agreed that he counted out his cash and put it on the counter before Mr. Yilmaz had rung through his purchases. When asked why he failed to wait for the completion of the sale, he stated that he had smoked a lot of weed that day and was feeling paranoid about the argument he had with Mr. Sudomericky. He feared that someone was going to call 911. He had a loaded gun on him and was on bail at the time. In these circumstances, he did not want the police to show up and frisk him, as he would almost certainly end up in jail. He decided that he needed to get into the “safe space” of his car as quickly as possible and out of the public eye. Hence, he left the LCBO before the purchase of his liquor was complete. He testified that given the neighbourhood and his past experiences with police, he was sure that the police would frisk him if they arrived on scene.

[153] Mr. Roberts testified that when he is seen on video leaning toward Ms. Costain-Williams before leaving the cash area, he was telling her to meet him in the car.

[154] When asked what he was doing with his hands as he walked toward the exit, Mr. Roberts stated that he was shuffling in his satchel as he tried to find his car key and fob. His satchel was hanging on his left side and his gun was on his waist. The satchel was over the gun or in front of it.

[155] When asked why he kept his hand inside the satchel as he exited the LCBO, Mr. Roberts stated that he was still trying to find his keys.

[156] Mr. Roberts testified that when he stepped out of the LCBO, he saw Mr. Cullen, who was walking to his car. He also saw Mr. Sudomericky, who was by a Mercedes up near the end of the lot. He saw Mr. Sudomericky stop, turn around, and look at him. Mr. Roberts testified that he looked back at him, and then looked at his own car or somewhere else, as he continued to scan the area for police because of his fear of being frisked and found in possession of a firearm.

[157] Mr. Roberts acknowledged that he saw that Mr. Sudomericky was not only looking at him, but also walking toward him:

Q. Okay. So as you exit the LCBO, in your mind, where are you going?

A. To my vehicle.

Q. When you exit the LCBO, do you see Mr. Sudomericky?

A. Umm, as I’m walking, I look at him and I noticed yes, he was looking at me. I do see him. I think he was at his car. He was walking in my direction and I didn’t think anything of it. I just focused on getting to my car.

[158] Mr. Roberts testified that he was not concerned by Mr. Sudomericky’s behaviour, as he could have been walking in his direction for any number of reasons – for example, he may have been returning to the LCBO. It did not cross his mind that only a couple of minutes earlier, Mr. Sudomericky had behaved very aggressively toward him. Mr. Roberts denied having any intention to confront Mr. Sudomericky. All he wanted to do was to get to his own car.

[159] Mr. Roberts testified that when he reached the trunk of his car, he opened his satchel with his left hand, looked into it, and realized that his keys were not there. When asked why he failed to look for the keys in his satchel before he got to his car, Mr. Roberts stated that he “wasn’t thinking about looking into [his] satchel” and was more focused on the Danforth and his surroundings. He was really worried about the police showing up and that he would go to jail for being in possession of the gun. He stated, “I was so paranoid. I was just shuffling around and just canvassing the area” for police.

[160] Mr. Roberts testified that after looking in his satchel for his keys, he looked down and patted his pockets to see if the keys might be there: he squeezed his left pocket with his left hand and his right pocket with his right hand. He then looked up and was surprised to see Mr. Sudomericky, who was right in front of him. It was as though he “came out of nowhere.” They were only inches apart.

[161] Mr. Roberts testified that Mr. Sudomericky uttered the racial slur, asking him, “What’s popping you fucking nigger?” Mr. Sudomericky was holding his left pocket with his left hand as he uttered the slur. He then pulled out a knife from his left pocket, pointed it at Mr. Roberts’ stomach, and asked Mr. Roberts, “What you gotta say now?” The knife was in Mr. Sudomericky’s left hand and just one or two inches from Mr. Roberts’ stomach. Mr. Sudomericky did not do anything with the knife other than point it at him.

[162] When describing this encounter at another point during his testimony, Mr. Roberts added more detail. He testified that as he was looking down while checking or patting his pockets, he noticed another pair of feet at his own feet. When he looked up, Mr. Sudomericky was standing within a few inches of him, and so close that he could feel his breathe. When asked if Mr. Sudomericky was wearing a mask, Mr. Roberts testified that he could not recall. However, he suggested that if Mr. Sudomericky were wearing a mask, it is possible that he pulled it down before uttering the racial slur and pulling out the knife.

[163] Mr. Roberts emphasized in his testimony that Mr. Sudomericky spoke to him in a very low tone – close to a whisper – and that it was “just for us to hear.” Mr. Sudomericky was “right in [his] face”, and uttered the racial slur through “clenched teeth.” He also described Mr. Sudomericky’s tone as “menacing” and “vicious.” Mr. Roberts opined that Mr. Cullen would not have been able to hear what Mr. Sudomericky said to him, although he testified that he did not know exactly where Mr. Cullen was standing at the time.

[164] Mr. Roberts testified that he was enraged by the racial slur. He felt insulted and offended. He had been bullied as a child because of his race. He flew into a blind rage and immediately reached for his gun with his right hand and pulled it out from his waistband. Mr. Sudomericky started running. Mr. Roberts chased after him and fired a shot in his direction. He testified that he did not mean to shoot or kill Mr. Sudomericky.

[165] Mr. Roberts was questioned as to how, with the knife only two inches from his stomach, he had room to reach across his waist with his right hand and draw his gun on the left side of his boxer shorts. Mr. Roberts stated that he must have acted on instinct and jumped out of the way of the knife by taking a step or two back before reaching for his gun.

[166] I note that Mr. Cullen testified that he did not see Mr. Roberts make any movement in order to draw or take hold of the gun, and made no mention in his testimony of Mr. Roberts jumping back one or two steps. Mr. Cullen also made no mention of Mr. Sudomericky pulling down his mask or whispering something to Mr. Roberts. Mr. Cullen testified that Mr. Sudomericky was making comments to Mr. Roberts as the two men walked toward each other and then stopped within a foot of each other behind his van. This is a very different scenario from that painted by Mr. Roberts, who testified that he was completely surprised by Mr. Sudomericky’s presence – that is, he was looking down and patting his pockets behind the Acura when he noticed two feet near his feet and, upon looking up, saw Mr. Sudomericky.

[167] Mr. Roberts later stated that he was “pretty sure” he pulled the gun out from his left side using his right hand, but he had difficulty remembering some details because he was in a “blind rage” as a result of the racial slur. He had no recollection of pointing the gun directly at Mr. Sudomericky’s chest and head area. He did not recall Mr. Sudomericky repeatedly screaming “no” when he saw the gun. He did not recall Mr. Sudomericky turning around and running away at full speed.

[168] Mr. Roberts did not recall Mr. Sudomericky holding anything in his right hand. He opined that if Mr. Sudomericky was, in fact, holding a bottle of wine, there would have been no need for him to “hug” it, as described by Mr. Cullen. I note that Mr. Sudomericky was actually holding two bottles, both of which were in an LCBO bag. He continued to hold them, as well as his change, while running away from Mr. Roberts and until Mr. Roberts shot him near the entrance of the parking lot.

[169] Mr. Roberts agreed that Mr. Cullen was just a few feet away from him and Mr. Sudomericky during their encounter. However, Mr. Roberts testified that the encounter took place behind his Acura: See Exhibits 49 (a) and 50.

[170] Exhibit 49(a) is a diagram of the parking lot and is reproduced in Appendix 2 of these reasons. Mr. Roberts drew the black rectangle to show where his Acura was parked. He used an “X” to show where he says he was standing behind his car while searching for his keys. Exhibit 50 is a “blow-up” of the same diagram. The smaller “X” is where Mr. Roberts says Mr. Sudomericky was standing when he suddenly appeared in front of him and “out of nowhere.”

[171] As reviewed earlier, Mr. Cullen testified that Mr. Roberts and Mr. Sudomericky approached each other and then came together within a foot of one another behind his van. Mr. Cullen was between them until he turned to his right to put his wine on the front passenger seat, which only took a couple of seconds. He saw Mr. Roberts and Mr. Sudomericky as they came together. Both Mr. Roberts and Mr. Sudomericky were within his line of vision. Mr. Cullen demonstrated the angle at which he viewed them by extending his left arm. None of the comments that Mr. Cullen testified that he heard Mr. Sudomericky utter were anything close to the racial slur that Mr. Roberts alleges was spoken. Neither the allegation that Mr. Sudomericky pulled a knife nor the racial slur that Mr. Roberts alleges that he made were put to Mr. Cullen in cross-examination.

[172] Mr. Roberts testified that the loud bang when he fired the gun at Mr. Sudomericky woke him up and brought him back to reality. Mr. Sudomericky was on the ground and yelling, “You fucking shot me, you shot me!” Mr. Roberts did not stay to help. He testified that he was in shock, and needed to get to his car and get out of there. He just wanted to get home. Ms. Costain-Williams got into the car as he reversed out of his parking spot. As outlined earlier, Mr. Roberts testified that he then drove to St. Dunstan Drive and tossed the gun over a house, which I have found to be a total fabrication. He then drove to his residence on Leyton Avenue.

[173] Mr. Roberts testified that he and Ms. Costain-Williams did not talk about what had just transpired at the LCBO parking lot. He did not tell her that Mr. Sudomericky had pulled a knife on him.

[174] Mr. Roberts testified that both he and Ms. Costain-Williams went into the house on Leyton. Ms. Costain-Williams retrieved her cell phone. Mr. Roberts’ friend, Jarvis Walters, was also at the house. Mr. Roberts had planned to give him a ride to the birthday party. However, Mr. Roberts told Mr. Walters that he was not going to the party and that he would drive him to his home at 10 Trudelle Street. He also planned to drive Ms. Costain-Williams to her home in Markham.

[175] As Mr. Roberts backed into a parking space at 10 Trudelle, multiple scout cars and unmarked police vans arrived. All three parties were arrested at that time.

[176] Mr. Roberts maintained that this was the first time in his life that he had been the subject of the racial slur allegedly uttered by Mr. Sudomericky, even though he was of a mixed race and was bullied and harassed at school. He explained that other kids picked on him because he had new clothes, new shoes, and a cell phone, and because he was a “mixed breed.” He did not fit in with “the blacks” or “the whites.”

[177] Mr. Roberts testified that he had never heard anyone call any of his friends or any other person the “n” word, and that he had never been in the presence of anyone who uttered that word. Mr. Roberts distinguished the “n” word from the word “nigga,” which is commonly used in rap music.

[178] When asked if it was the racial slur that caused him to lose his mind, as opposed to the brandishing of the knife, Mr. Roberts testified that “it all happened at one time.” Mr. Sudomericky uttered the racial slur and brandished the knife. He did not have time to think about it. He lost control. He was just “so angry.” He immediately went into a blind rage, reached for his gun, and pulled it out from his waistband.

[179] In cross-examination, Mr. Roberts was asked if his anger was attributable to the racial slur and the pulling of the knife, or a result of his being so high from having smoked up to 12 joints of marijuana. Mr. Roberts initially stated that it was the racial slur and the pulling of the knife that caused him to go into a blind rage. However, when asked, “So you are agreeing with me that [your blind rage] had nothing to do with the fact that you had smoked 12 joints by that point,” Mr. Roberts stated:

My reaction, it might have played a role, correct, because if you know marijuana – I don’t know if you smoke marijuana, Mr. Gorda, but it affects the mental state, it affects your reactions, it affects your emotions, it affects how you think. But at that moment, I was more enraged at the fact that somebody’s calling me a “fucking nigger” with a knife in their hand. I really can’t say if the high affected, I’m not sure. I just know I just went into a blind rage at the fact that – him calling me a “fucking nigger” with a knife in his hand.

[180] Mr. Roberts testified that he had been smoking one to three joints every day since the age of fifteen. He acknowledged that it was unusual for him to smoke ten joints, or even more, as he did on the day of the shooting. However, he maintained that this amount did not affect his ability to play Fortnite during the three to three-and-a-half hours prior to Ms. Costain-Williams’ arrival at his house. He agreed that playing Fortnite requires a lot of dexterity, decision-making, strategy, and an ability to react quickly. However, he testified that his consumption of marijuana had no effect whatsoever on his ability to play Fortnite because he is a “pro” when it comes to playing that game.

[181] Mr. Roberts testified that being high did not affect his ability to drive to the LCBO, although he recognized that it was an offence to drive while under the influence of marijuana. He acknowledged that he had driven a car while high “a few times.”

[182] Mr. Roberts agreed that the fact that he was high did not affect his ability to be cognizant of basic COVID protocols, such as wearing a mask. He was wearing a mask when he entered the LCBO. Just before entering, he is seen putting his cell phone into his pocket. He also gave a bit of a salute to the panhandler who was outside the store.

[183] Mr. Roberts agreed that after entering the LCBO, he walked directly to the far right-hand corner of the store, with Ms. Costain-Williams following behind him, and that he immediately selected two bottles of champagne. He agreed that he then approached a cashier and told him that he wanted a bottle of Hennessy. He subsequently spoke to Mr. Yilmaz, who retrieved the bottle of cognac for him.

[184] Mr. Roberts explained that these sorts of actions on his part were “nothing extravagant”. He testified that his mental state is only affected by marijuana in certain situations or circumstances. For example, after he got into the argument with Mr. Sudomericky at the cash counter, his being high on marijuana caused him to become paranoid that someone might call 911, that the police would soon be on scene in response to that call, he would be frisked, his gun would be discovered, and he would go to jail.

[185] Mr. Roberts denied the suggestion that he was simply claiming that he was paranoid at that moment because he needed an explanation as to why he left the LCBO so quickly when the real reason for his haste was to follow Mr. Sudomericky outside and confront or shoot him in the parking lot. Mr. Roberts insisted that he went outside to get to his car and out of the public eye.

[186] When asked why he thought he would be frisked if the police showed up, he testified that whenever the police canvassed the area, he would be frisked, and that he grew up with “carding.” Although carding ended in 2014, Mr. Roberts stated that whenever the police were in the area and “they see us outside, if we look fishy, you look funny, something’s going on, we’re getting frisked.”

[187] Mr. Roberts agreed that his being high did not affect his ability to attend at Mr. Yilmaz’s cash lane. When asked if being high prevented him from understanding the social distancing measurements laid out on the floor at the LCBO, Mr. Roberts testified that he did not see the decals on the floor, even though Ms. Costain-Williams stood on them and remained behind him when they were waiting at Mr. Yilmaz’s cash lane.

[188] When asked whether he had noticed, after eight months into the COVID pandemic, that people were keeping their distance from each other, Mr. Roberts testified, “Not that I recall. I’m not saying it never happened. I just don’t recall that.” He then admitted that it was common knowledge that people were keeping a distance from each other, and that there were signs all over the place telling people to stay six feet apart. He denied that he deliberately chose to ignore the six-feet rule, but stated that he was not thinking about it when he went to Mr. Yilmaz’s cash counter. He did not think it was a serious matter not to be six feet away. When Mr. Sudomericky reacted in such an aggressive manner, telling him to “back the fuck up”, he was caught off guard. He did take a step back. Contrary to Mr. Yilmaz’s evidence, Mr. Roberts denied that Mr. Yilmaz mentioned the “six feet” rule when he waived his hand and told him to step back. He testified that if Mr. Yilmaz had mentioned the rule, he would have stepped back six feet. As far as Mr. Roberts was concerned, the fact that he was only a few steps away from Mr. Sudomericky was not a big deal.

[189] Mr. Roberts denied that when Mr. Sudomericky told him to “back the fuck up”, he responded, “I am back the fuck up,” which were the words that Ms. Insanally heard him say. Mr. Cullen also thought that Mr. Roberts may have used those words. Mr. Roberts testified, “I don’t recall because I don’t think I would have said that. I don’t think I would have swore [sic] at Mr. Sudomericky. I think I would have just simply have said what I said, ‘What, I’m not even close to you.’” I accept Ms. Insanally’s evidence that Mr. Roberts did, in fact, tell Mr. Sudomericky, “I am back the fuck up.”

[190] Mr. Roberts agreed that he was “a bit upset” by Mr. Sudomericky’s comments and behaviour, which took place in front of Ms. Costain-Williams – the girl with whom he was hoping to have a romantic relationship. When asked whether he felt disrespected by Mr. Sudomericky, he stated that he was upset and confused by his aggression, but “the female [he] was with had nothing to do with it.”

[191] Mr. Roberts testified that after he stepped back, he and Mr. Sudomericky continued to stare at each other. They were in a standoff but, as far as Mr. Roberts was concerned, the situation had dissipated. Although Mr. Sudomericky was glaring at him, he did not think anything of it.

[192] After Mr. Roberts stepped back from Mr. Sudomericky, he handed Ms. Costain-Williams one of the champagne bottles they were purchasing, and then adjusted the way in which he was holding the other bottle – he is seen briefly holding the neck of the bottle with both hands at one point. Mr. Roberts denied that he was readying himself in case Mr. Sudomericky became more aggressive or came at him. All he did was simply readjust his hold on the bottle.

[193] Mr. Roberts agreed that Mr. Sudomericky, who behaved aggressively toward him, was bigger and taller than he was. He agreed that he was angry with Mr. Sudomericky and wondered what Mr. Sudomericky might do next. Given these circumstances, he was asked why he continued to “stand his ground” and did not simply go to another cash lane, which would have been the easiest thing to do in the circumstances. Mr. Roberts maintained that he did not consider changing cash lanes because he only deals with Mr. Yilmaz when he attends that liquor store:

I only deal with Tom Yilmaz when I get there. I don’t deal with any other clerks. Me and Tom have a very good relationship. We’re actually cool with each other. We talk about baseball games and certain games. We see each other, it’s fair greeting, but no, I don’t see myself going to another aisle to purchase or pay for my purchase. Tom Yilmaz asked me to come to his lane, and that’s the person I only deal with.

[194] Mr. Roberts also testified that although going to another cash lane would have been a reasonable step to take, he did not think it was necessary, since “Mr. Yilmaz asked [him] to come to his cash.” He continued: “I’m a frequent customer, he wants to deal with me, he doesn’t ask for I.D. We have good conversations.”

[195] I note that Mr. Yilmaz testified that he did not recognize Mr. Roberts, but thought that he may have served him in the past due to the way in which Mr. Roberts greeted him, that is, by saying, “Hey, how’s it going?” and then stating that he wanted a Hennessy.

[196] Defence counsel submits that it is not surprising that Mr. Yilmaz did not recognize Mr. Roberts, as he no doubt serves multiple customers every day. However, in attempting to explain why, in the circumstances, he “held his ground” rather than simply changing cash lanes, Mr. Roberts chose to greatly exaggerate his familiarity with Mr. Yilmaz, who did not recognize him but whom Mr. Roberts claimed, “wants to deal with [him]” whenever he attends at that LCBO (emphasis added.).

[197] Mr. Roberts testified that the situation between himself and Mr. Sudomericky dissipated and was “no big deal” after he took the step back. The only thing that he was concerned about was that the police might show up as a result of their brief verbal exchange. He testified that he was fully paranoid at that point. He felt that people were watching him.

[198] When it was suggested to Mr. Roberts that no one in these circumstances would have called 911, Mr. Roberts attempted to explain his belief by stating that he had witnessed similar situations where two people were in a verbal altercation and the police attended after good Samaritans called 911. He gave as an example a time when he was in a bar at night when two intoxicated individuals were arguing aggressively. Someone called 911, and the police showed up five minutes later to assess the situation. He later agreed, however, that this example was a very different situation from the one that took place between himself and Mr. Sudomericky. He also agreed that had he not been high, which caused him to be paranoid, he likely would not have thought that anyone would call 911 in order to get the police to attend the LCBO in these circumstances. However, he insisted that “it still could happen.”

[199] Mr. Roberts agreed that as soon as Mr. Yilmaz had scanned the three bottles of liquor that he was purchasing, and he saw that the total was $135, he quickly pulled out cash from his left pants pocket and counted it in order to give Mr. Yilmaz the right number of 20’s, 10’s and 5-dollar bills such that his change was only $3.15. Mr. Roberts testified that his being high did not affect his ability to quickly count the money and quickly put the rest of it back into his pocket.

[200] Mr. Roberts agreed that the video shows him leaving the LCBO quickly, with purpose, and prior to completing his purchase, which left the underage Ms. Costain-Williams to finish the transaction. Mr. Roberts testified that Ms. Costain-Williams, who was 15 years old at the time, had told him that she was 18, and he just “took her at her word.” Again, his explanation for leaving in a hurry was that the marijuana that he had smoked had made him paranoid that someone was going to call 911. As a result, he needed to get to his car, and “needed a moment to [himself] in a safe space.” He denied the suggestion that he was in a hurry to leave because he wanted to go out and confront Mr. Sudomericky while armed with his loaded handgun following their altercation at the cash register.

[201] Mr. Roberts agreed that after he left the cash register area, Ms. Costain-Williams was looking at where he was going and appeared to be concerned about what was going on.

[202] As noted earlier, the video shows that Mr. Roberts looked out the window as he left the cash counter. Mr. Roberts disagreed with the suggestion that he looked out in order to see Mr. Sudomericky’s whereabouts. He testified that he just looked up and the window was in front of him.

[203] The video shows that Mr. Roberts unzipped his satchel with his right hand as soon as he left the cash counter. The satchel is a medium-sized bag that was about one foot wide and covered the front area of his body.

[204] Mr. Roberts testified that he did not put anything into his satchel when he unzipped it. He was just shuffling around with his hand trying to locate his car keys as he could not recall where he had put them. It was only later, after the shooting, that he realized that they were in the smaller pocket, as opposed to the primary pocket of his satchel.

[205] It is apparent from the video that there was a blue box in Mr. Roberts’ satchel. Mr. Roberts testified that it was a box of tampons that he was carrying for Ms. Costain-Williams because she did not have any pockets. The video shows that when Mr. Roberts unzipped his satchel, he used his right hand to grab the back portion of the satchel, and used his left hand to grab the front of it, as if to open it and look inside it. Mr. Roberts acknowledged looking into the satchel at that point. However, he was not shuffling through the satchel with his hand at that moment: the video, when viewed frame by frame, shows that his right index finger was inside the satchel and his other fingers were behind it. As he continued to walk and turned toward the exit, the blue tampons box appears to pop up and then pop back down on its own. Neither of Mr. Roberts’ hands were touching it at that moment. Mr. Roberts then looked down briefly at the satchel and reached into it. His hand remained in the satchel as he exited the building.

[206] The popping up and down of the blue box suggests that it was on top of another object, which caused it to move as Mr. Roberts was walking and while the satchel was pressed against his body. Crown counsel submits that the inference may be drawn that Mr. Roberts’ gun was under the blue box and that Mr. Roberts took hold of the gun when he put his right hand inside the satchel and exited the LCBO. It does not appear that the satchel, at the time of Mr. Roberts’ arrest, contained any other object large enough to cause the box to rise up as he was walking. Other articles in the satchel included papers for rolling marijuana joints, lip balm, a face mask, a health card, a lighter, and possibly a phone.

[207] Mr. Roberts maintained that he was simply using his right hand to shuffle items around in the satchel as he searched for the two-inch long fob and key for his car. He testified that he continued to shuffle items in the satchel with his right hand until he reached his car in the parking lot, but was still unable to locate them. He testified that his gun was on the left side of his waist in his boxers, and his satchel, which was also on his left side, was over his gun.

[208] Mr. Roberts agreed that as he neared the exit, his eyes were turning to the right. However, he denied that he was getting ready to see where Mr. Sudomericky was located in the parking lot. He testified that his whole thought process was focussed on whether the police were going to show up. His thoughts were not on Mr. Sudomericky.

[209] During his cross-examination of Mr. Roberts, Crown counsel played the video showing Mr. Sudomericky exiting the LCBO, followed by Mr. Cullen and Mr. Roberts. They exited at 17:27:31, 17:27:46, and 17:27:50, respectively. Mr. Roberts exited just 19 seconds after Mr. Sudomericky left the store.

[210] Mr. Roberts agreed that the video shows that he rounded the corner quite quickly when exiting and appeared to be walking with a purpose. He agreed that his steps were a little hurried, but denied the suggestion that he was following Mr. Sudomericky with the intention of confronting him with his gun. Rather, he just wanted to get to his car and out of the public eye as soon as possible as he was paranoid that someone might have called 911.

[211] Mr. Roberts explained that his right arm remained at an angle after exiting the LCBO because his right hand was still in his satchel as he searched for his keys. His left arm was down by his side. However, after exiting the LCBO, Mr. Roberts raised his left hand so that his forearm was in front of his chest. When it was suggested to Mr. Roberts that his body was angled and his left hand was up at an angle, Mr. Roberts stated that he was adjusting his face mask with his left hand. The cross-examination continued:

Q. All right. So as you’re walking, you watch your (left) hand now as you come – as it comes down. All right? Do you see that? Do you see how you’ve got this long extended thing from your hand that’s black?

A. Um, yes.

Q. Yeah, that’s the gun, isn’t it?

A. No, that is not the gun.

Q. No? well, what is that? You magically have grown long hands?

A. I’m not sure what that is, Mr. Gorda.

Q. Well, let’s watch the frame there. You see again, you see what’s there?

A. I see there’s something there. I don’t know if it’s the quality of the video. As we’re zoomed in, it looks blurry. I don’t know what that is.

Q. Okay, but –

A. But that is certainly not the gun.

Q. Let’s go frame-by-frame here. You’d agree with me there that looks like your hand, looks like the gun area, and it looks like a barrel. Correct?

A. No, I don’t agree, Mr. Gorda. It looks like my hand, but because it’s zoomed in so far, it’s hard to even tell if what’s – it’s just blurry. You can’t tell what’s that –what that is, Mr. Gorda.

Q. Okay, and then you see after you have it down, you see your hand go up, and then you see it down again. Then you see a dark object there. Correct?

A. Mr. Gorda, that’s my hand, like my hand. The footage is just zoomed in so far that it may look like it’s something, but you can tell, common sense, that that is my hand. There’s nothing in my hand. Mr. Cullen says actually he doesn’t see a gun in my hand or nothing of the sort.

Q. Well, I think Mr. Cullen testified that he never saw your hands.

[212] Having viewed the video multiple times and played it frame by frame, I find that the object that Mr. Roberts was carrying in his left hand just seconds after exiting the LCBO was his gun.

[213] There are several points of interest that I have noted in viewing the video. They are as follows:

1. The Empty Hand: When Mr. Roberts first appears on the screen, he is walking toward the exit. When the video is paused just as he is about to exit, his left hand is empty. He is clearly not holding anything in his left hand at that time. His right hand is in his satchel.

2. The “In and Out” Movement of the Left Arm: As Mr. Roberts walks out of the LCBO, he makes a motion with his left arm. The motion appears to be a swaying motion, consistent with his taking something out of his satchel, where he has his right hand. Mr. Roberts’ left forearm goes up, moves to the right in front of his chest, then reverses in that same order.

3. The Removal of the Item and the “Wobble”: This point is a continuation of Point 2. When Mr. Roberts’ left arm becomes visible again, he appears to forcefully drop his arm. There is now a dark object visible in his left hand. When his arm drops, the item in his hand wobbles or shakes for a moment. This movement is consistent with the item having some weight to it. The shape of it is consistent with the shape of the barrel of a gun.

4. The Movement of the Fabric of his Pants: As Mr. Roberts continues walking, the item remains in his left hand. At one point, when he bends over very slightly, there is some movement in the fabric of his pants. More specifically, the movement can be seen on the inside left pant leg. As he is bending over, he moves his left arm in front of him, which is out of sight for a fraction of a second. It is at this point that one sees the very slight bend- over and the inside of the left pant leg moving. This is consistent with his using whatever is in his hand to touch the inside of his left pant leg, which causes the fabric to move.

5. The Slight Tilt in his Left Wrist: As Mr. Roberts continues walking, his left arm and hand are again visible. When he is almost off screen, his left hand turns or twists slightly to the left. The item in his hand also moves with the twist in his wrist, which is consistent with his holding something.

[214] I note that when Mr. Roberts was first shown the video while testifying, he initially acknowledged that there was a long black object extending from his left hand, but denied that it was a gun. He then stated, “I see there’s something there … but it is certainly not the gun.” He then stated that the zoomed-in footage was blurry, making it impossible to tell what the object was. In the end, he maintained that there was no object in his hand.

[215] Based on the video and all of the circumstances, I find that Mr. Roberts drew his gun just seconds after exiting the LCBO. Mr. Roberts had a loaded handgun on his person at the time – either in his satchel or, as he testified, in his waistband. The shape of the object as seen in the video is consistent with the shape of the barrel of a gun. None of the objects contained in his satchel were of a similar size or shape. Nor were they of sufficient weight such that they would have caused the wobble as seen in the video when Mr. Roberts lowered his left arm while holding the object.

[216] Mr. Roberts went off screen while holding the gun at 17:28:02:058. The confrontation between him and Mr. Sudomericky in the parking lot and the ensuing chase took place less than 11 seconds later – the video from the camera facing the windows behind the cash register area shows that at 17:28:13:463, Mr. Sudomericky was already being chased by Mr. Roberts. Mr. Sudomericky is seen running between Mr. Cullen’s van and the vehicle parked beside him on the driver’s side or north of the van. At 17:28:14:469, Mr. Roberts is seen running between the same two vehicles while holding out the gun and pursuing Mr. Sudomericky.

[217] As reviewed earlier, Mr. Roberts testified that he left the LCBO prematurely and in a rush because he was feeling paranoid about the altercation he had with Mr. Sudomericky. He attributed his paranoia to the amount of marijuana that he had smoked that day. Although he testified that he did not regard his dispute with Mr. Sudomericky as anything major, his paranoia caused him to fear that someone might have called 911. As he was in possession of an illegal handgun, was on bail at the time, and was prohibited from possessing a firearm, he feared that if the police showed up, they would frisk him, find his gun, and he would end up in jail. It was therefore imperative that he get to the “safe space” of his car and out of the public eye.

[218] If Mr. Roberts were truly concerned that someone might have called 911 and the police might arrive at any minute, the last thing he would have done would be to draw his gun and carry it in his left hand after exiting the LCBO. However, the video shows that he did exactly that.

[219] Mr. Roberts was not paranoid that the police might arrive in response to a 911 call. Rather, the drawing of his gun is consistent with an intention on his part to confront Mr. Sudomericky who, after looking over his shoulder and seeing that Mr. Roberts had exited the LCBO and was walking toward him, turned around and began walking toward Mr. Roberts, thereby signaling his intention to confront Mr. Roberts. Mr. Cullen testified that when he saw the two men walking toward each other, he realized that their earlier dispute in the LCBO was about to escalate.

[220] The video footage, in addition to showing Mr. Roberts drawing his gun upon exiting the LCBO, also shows him walking at a purposeful pace. Mr. Roberts testified that he was heading toward his car, which was parked in the second spot north of the median. If Mr. Roberts were, in fact, heading to his car, one would expect that he would have started veering to his right at the point in the video where he was about to walk out of range of the camera. However, as Crown counsel observed, the video, when viewed frame by frame and in slow motion, shows that at that point, Mr. Roberts’ feet were veering somewhat to the left, or toward the middle area of the parking lot, which is where, according to Mr. Cullen’s testimony, Mr. Roberts and Mr. Sudomericky met behind his van, and where Mr. Roberts produced his gun and pointed it at Mr. Sudomericky’s head.

[221] Mr. Roberts’ evidence that he paid no attention to the fact that Mr. Sudomericky was walking in his direction makes no sense, given Mr. Sudomericky’s aggressive behaviour toward him just moments earlier in the LCBO. Mr. Roberts’ evidence that he was behind his car, focused on finding his keys, and was surprised when Mr. Sudomericky suddenly appeared in front of him, is not credible.

[222] Mr. Roberts agreed that Mr. Cullen was just a few feet away from him and Mr. Sudomericky during their encounter in the parking lot. However, as stated earlier, Mr. Roberts testified that the encounter took place behind his Acura. Mr. Cullen testified that Mr. Roberts and Mr. Sudomericky were approaching each other and came together behind his van. He was between the two of them until he turned to his right to put his wine on the front passenger seat, which took a second or two. Mr. Roberts and Mr. Sudomericky, who came within a foot of each other, were still within his line of vision and to his left after he turned. I accept Mr. Cullen’s evidence that the confrontation between Mr. Roberts and Mr. Sudomericky took place behind his van.

[223] Mr. Roberts did not recall why he chased Mr. Sudomericky or fired the gun in his direction. It was suggested to him in cross-examination that he was no longer afraid after he pulled out his gun: “He’s got a knife, you’ve got a gun. You’re no longer afraid any more, right?” Mr. Roberts stated, “I can’t say. I really cannot say.” He then reiterated that he was enraged by the racial slur and felt threatened when he saw the knife.

[224] During cross-examination, Mr. Roberts testified that later on, when he was at the police station, he was able to “process the whole situation” and fill in all the blank spots caused by his blind rage. He then qualified this statement. He testified that he did not remember pulling out his gun. He recalled Mr. Sudomericky running away but did not recall him repeatedly shouting “no” as he ran. He recalled chasing Mr. Sudomericky and firing the shot but did not recall pointing the gun at him. However, shortly thereafter, Mr. Roberts stated that he did recall firing a shot in his direction.

[225] Mr. Roberts agreed that, setting aside the fact that he was in a blind rage, common sense would tell him that he had the upper hand in a situation where he had a gun and Mr. Sudomericky only had a knife and was running away. He also agreed that common sense would tell him that firing a 9-millimetre or .40 calibre gun at someone from eight, ten, or fifteen feet away, could and probably would kill that person.

[226] Mr. Roberts testified that his “buzz” or “high” from smoking marijuana ended when the gun went off. He heard Mr. Sudomericky yelling and he went into shock. He just needed to get to his car and get out of there.

Mr. Roberts’ Search for His Car Keys

[227] Mr. Roberts denied that he walked back to his car calmly or at a normal speed after the shooting, as described by Mr. Cullen. He testified that he “speed-walked” back to his car. He had no difficulty locating his car keys at that time – according to Mr. Roberts, they had been in the smaller pocket of his satchel all along.

[228] Mr. Roberts’ evidence with respect to his search for his keys was problematic. I first note that the key and fob to his vehicle are not tiny but quite bulky, as seen in Exhibit 44, photo 28. They were at least one-and-a-half to two inches in length and would easily have been felt by him, whether they were in a pocket or his satchel.

[229] There were seven places where the keys could have been – two front pant pockets and one rear pant pocket; two pockets in his hoodie; and one large pocket and one smaller pocket in his satchel. From the video and his own evidence, Mr. Roberts had his money rolls in the front left pocket and his cell phone in the front right pocket of his hoodie. It is unlikely that he would have put his keys in his rear pants pocket. He never mentions checking that pocket in his testimony, and it is common sense that he would have felt them if they were there. There were therefore only four pockets where the keys could have been, including the two pockets in his satchel.

[230] The LCBO security video shows Mr. Roberts leaving the cash area at 5:27:39. He walked to the exit, exited the store, and is seen walking off camera at 5:28:01. He had approximately 25 seconds to find his keys – if he was really trying to find them – and if his sole purpose was “to get to the safety of [his] car.” The distance from the entrance to where his car was parked would have been approximately 85 feet. Thus, once he was off camera, he would have had another few seconds to search as well. However, as the video shows, he is not really searching for his keys or feeling for them in any of his pockets.

[231] Mr. Roberts had no trouble finding his money and counting the correct amount quicky when at the cash counter, despite his evidence that he was feeling paranoid that someone might have called 911. He was able to find and grab his handgun and use it in a split second when, according to him, he had never previously fired a gun. And he had no trouble finding his keys in a matter of seconds after having gone into a “blind rage,” after chasing Mr. Sudomericky, and after shooting him. I note that Mr. Roberts’ evidence of looking in and getting his keys from the smaller pocket of his satchel on the way back to his car was not put to Mr. Cullen in cross-examination. Mr. Cullen described Mr. Roberts’ pace after the shooting as relaxed or normal, and made no mention of him searching for or retrieving his keys from the satchel.

[232] The inference may be drawn that Mr. Roberts was not, in fact, searching for his keys in his satchel when he exited the LCBO. His hand was in his satchel for some other reason – that is, he was getting ready to use his handgun and confront Mr. Sudomericky.

[233] Mr. Roberts was not paranoid about a possible police presence when he exited the LCBO and drew his gun. In addition, he was not on his way to his car, and he was not trying to find his car keys. Rather, he was on his way to confront Mr. Sudomericky. As Crown counsel submitted, the keys did not conveniently disappear as Mr. Roberts was leaving the LCBO and then conveniently reappear as he walked back to his car after shooting Mr. Sudomericky.

The Arrest

[234] Following the shooting, Mr. Roberts drove to his home at 187 Leyton Avenue, where Ms. Costain-Williams retrieved her cell phone, and where Jarvis Walters was waiting to be driven to the party that night. Mr. Roberts told him that he would drive him to his home at 10 Trudelle Street.

[235] As Mr. Roberts backed into a parking space at 10 Trudelle, multiple scout cars and unmarked police vans arrived. The officers got out of their vehicles with guns drawn and ordered Mr. Roberts and his two passengers to put up their hands. They all complied with that demand. Mr. Roberts testified that he put up his hands, but was then told to turn off the ignition. Mr. Roberts responded, “Officer, I’m not turning off the ignition. My hands are up. You asked me to keep my hands up, my hands are up.”

[236] Mr. Roberts described the officers as “antsy or agitated.” As a result, he told them to “calm down.” He also told them, “I don’t have nothing (meaning a gun), just relax.” Police Constable Borch testified that Mr. Roberts told him and the other officers to “relax and chill.” Officer Borch opened the driver’s door, pulled Mr. Roberts out of the car, and brought him to the ground. Mr. Roberts alleged that there were three or four officers on him. One of them was holding one of his arms. He testified that he resisted giving him his other arm because he was trying to shield his face from being kicked by another officer. He was eventually handcuffed.

[237] Officer Bowles testified that while he was dealing with Mr. Walters, whom he had taken out of the back seat of the car and put on the pavement, he felt someone – who turned out to be Mr. Roberts – grabbing his left ankle and pulling at his foot. He testified that he kicked backwards a couple of times in order to free his foot. The officers who were dealing with Mr. Roberts were telling him to get his hands behind his back and to “stop resisting.”

[238] During the course of his arrest, Mr. Roberts was asked, “Where’s the gun?” Mr. Roberts told them that there was no gun, and also stated, “He pulled a knife on me.” This statement was admitted as evidence pursuant to the rule in R. v. Edgar, 2010 ONCA 529, 78 C.R. (6th) 106, where, at para. 72, Sharpe J.A. stated:

I conclude, therefore, that it is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination. … [T]he statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.

[239] Mr. Roberts made no mention at that time of the racial slur that he alleges Mr. Sudomericky uttered and which caused him to go into a blind rage. He testified that he did not think that white officers would care, “given their way,” referring to his history of being frisked because he is a young black male. He agreed, however, that one of the officers, Detective Constable Phuong, was Asian and that Asians also face discrimination.

[240] Officer Phuong was one of the officers who pulled Mr. Roberts out of the car. He testified that this action was taken because it was a high-risk arrest, given that the shooting had taken place just minutes earlier and there was a high probability that the gun was still in the car.

[241] Officer Phuong described Mr. Roberts as co-operative. He conducted a quick search of Mr. Roberts while Mr. Roberts was still on the ground. After being advised of his Charter rights, Mr. Roberts stated that he had a lawyer.

[242] Detective Justin Kapp testified that all three people in the car were told that they were under arrest for a shooting. They were later advised that they were under arrest for aggravated assault and discharging a firearm.

[243] Officer Borch advised Mr. Roberts of his right to speak to a lawyer and that anything that he said could be used in evidence. Mr. Roberts requested to speak to counsel.

[244] At 6:00 p.m., Police Constable Erick Moran and Officer Borch transported Mr. Roberts to 41 Division and were present during the booking procedure. There is nothing in the booking video to suggest that Mr. Roberts was intoxicated or impaired by drugs or alcohol. In fact, Mr. Roberts appeared to be composed and very much attuned to what was going on. When the officers advised the booking sergeant that a frisk search had been conducted at the scene, but that they wanted to conduct a further frisk search at the station, Mr. Roberts interjected and asked the booking sergeant, “A Level III search is not necessary, correct?” The booking sergeant told him that they would “take it a step at a time.” No Level III search was, in fact, conducted.

[245] During their dealings with Mr. Roberts that evening, neither Officer Moran nor Officer Borch noted any signs that Mr. Roberts was impaired. Officer Moran testified that he did not smell any alcohol or drugs emanating from Mr. Roberts. Officer Borch testified that if he had smelled a strong odour of marijuana, he would have noted it in his memo book. He made no such note.

[246] Officer Moran testified that following the booking, Mr. Roberts was placed in a cell. However, he was later taken to the print room to await the arrival of forensic officers who were to test his hands and clothes for the presence of gunshot residue. Officer Moran testified that during the hour or so that they were waiting, Mr. Roberts appeared to be calm. He was polite and friendly. There was no indication that he was under the influence of drugs or alcohol. He and Mr. Roberts had a friendly conversation during which Mr. Roberts mentioned that his mother was from Chile. Officer Moran, who was from El Salvador, asked if he spoke Spanish. Officer Moran made no notes of his conversation with Mr. Roberts during this time period, with one exception: he noted that Mr. Roberts at one point stated, “I knew you guys were following me and if I wanted to get away, I would have done it.”

[247] Officer Phuong, who had followed closely behind Mr. Roberts’ vehicle prior to his arrest, noted nothing abnormal about his driving. He also observed Mr. Roberts back into the parking space at 10 Trudelle without difficulty.

[248] Mr. Roberts testified that after arriving at the police station, he was still upset and did not want to speak to the police because they had arrested him “roughly.”

[249] At 7:40 p.m., Officers Borch and Moran advised Mr. Roberts that he was charged with second degree murder, after which Mr. Roberts spoke to counsel.

[250] On October 26, 2020, at 4:23 a.m., Detectives Thornton and Jitta advised Mr. Roberts that he was now charged with first degree murder. Mr. Roberts spoke to his lawyer again.

[251] At 5:27 a.m., Detectives Thornton and Jitta attempted to interview Mr. Roberts. At one point, Mr. Roberts stood up and stated that he wanted to be returned to his cell. He was told to sit down, which he did, but told the officers to “hurry up, man.” Shortly thereafter, he stood up again, stating that he wanted to go back to his cell. He remained standing despite being told to sit down. At that point, Detective Thornton placed her hand on his chest and told him to sit down. Mr. Roberts was quite combative, telling her several times “Don’t touch me” and “Would you like me to touch you?” He also told her, “I will touch you.” He ultimately complied with the request that he sit down again.

[252] Mr. Roberts claimed that 10 or 11 hours after his arrest, he was still angry about the racial slur allegedly uttered by Mr. Sudomericky. Although he was upset about being “roughed up” by the police during his arrest, he was more focussed on “processing the fact that somebody had called [him] a ‘fucking nigger.’”

[253] When asked whether he was upset and processing the fact that he had been charged with first degree murder and that he had shot and killed someone, Mr Roberts stated that he was upset about being charged but repeated that his mind was still processing the racial slur uttered by Mr. Sudomericky.

Legal Principles and Analysis

Second Degree Murder

[254] The defence of provocation is only available where it has been established that the accused had the necessary intent for murder and acted upon this intent: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para.10.

[255] As Mr. Roberts has pleaded guilty to manslaughter, there is no dispute that the death of Mr. Sudomericky was culpable. The evidence establishes beyond a reasonable doubt that Mr. Roberts had the requisite subjective intent to support a conviction for second-degree murder.

[256] Subsection 222(1) of the Criminal Code provides that a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Subsection (2) provides that homicide is culpable or not culpable. Subsection (4) provides that culpable homicide is murder or manslaughter (or infanticide), and paragraph (5)(a) provides that a person commits culpable homicide when he causes the death of a human being by means of an unlawful act.

[257] Subsection 229(a) of the Criminal Code provides that culpable homicide is murder where the person who causes the death of a human being:

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not.

[258] In order to prove murder under the first branch, it must be found that an accused intended to cause the death of a person. Under the second branch, the court in R. v. MacDonald, 2008 ONCA 572, 59 C.R. (6th) 339, at paras. 40-41, provided the following analysis:

The essential elements of murder as defined in s. 229(a)(ii) were examined in R. v. Nygaard (1989), 1989 CanLII 6 (SCC), 51 C.C.C. (3d) 417 (S.C.C.) and R. v Cooper (1993), 1993 CanLII 147 (SCC), 78 C.C.C. (3d) 289 (S.C.C.). In Cooper at 294, Cory J. provides this description of the section:

This section was considered in R. v. Nygaard, supra. On the issue of the requisite intent the court was unanimous. At p. 435, it was said: The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim. The aspect of recklessness is almost an afterthought …

The aspect of recklessness can be considered an afterthought since to secure a conviction under this section it must be established that the accused had the intent to cause such grievous bodily harm that he knew it was likely to cause death. One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur. That is to say he must, of necessity, be reckless whether death ensues or not.

As these authorities demonstrate, the word “reckless” in the section is in most fact situations redundant insofar as it purports to describe the requisite mens rea. What is important, however, is that the concept of recklessness not be described in a way that could detract from the Crown’s obligation to prove beyond a reasonable doubt that the accused knew the bodily harm he inflicted was likely to cause death: Cooper, supra, at 295.

[Footnote and emphasis omitted.]

Common Sense Inference

[259] In determining an accused’s state of mind at the time of the offence, it is permissible to draw the reasonable inference that a sane and sober person intends the natural and probable consequences of their actions: R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 SCR 252, at pp 262-263; and R. v. Magno (2006), 2006 CanLII 21758 (ON CA), 210 C.C.C. (3d) 500 (Ont. C.A.), at paras. 18-19.

[260] However, as stated in R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at paras. 63-67, this common sense inference is permissible, not presumptive. In assessing the specific intent required for murder, the finder of fact should consider the whole of the evidence that could realistically bear on the accused’s mental state at the time of the alleged offence. If, after considering the whole of the evidence, the finder of fact believes or has a reasonable doubt that the accused did not have one or the other of the requisite intents for murder at the time the offence was committed, it must acquit the accused of murder and return a finding of manslaughter. However, if there is no evidence that could realistically impact on whether the accused had the requisite mental state at the time of the offence, or if the pertinent evidence does not leave the finder of fact in a state of reasonable doubt about the accused’s intent, then the finder of fact may properly resort to the common sense inference in deciding whether intent has been proved.

Application to this Case

[261] Mr. Roberts has admitted to being in possession of an illegal semi-automatic handgun. He has also admitted to chasing Mr. Sudomericky and firing a shot at close range in his direction, which struck Mr. Sudomericky in the lower back. In these circumstances, the only rational inference is that it was done with the intention to kill, or with the intention to cause bodily harm that he knew was likely to cause death.

[262] The purpose of guns is to kill. In R. v. Bains, (1985), 7 O.A.C. 67 (C.A.), at para.27, the court made the following observations respecting the rational inferences to be drawn concerning firearms:

All firearms are designed to kill. A handgun is a particularly insidious and lethal weapon. It is easy to carry and conceal, yet at close range, it is every bit as deadly as a .50 calibre machine gun. It follows that when, at close range, a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim. No other reasonable conclusion can be reached: a deadly weapon was used in the very manner for which it was designed – to cause death. It is appropriate to conclude that in these circumstances the gun was fired in order that it might fulfil its design function and kill. An element of surprise arises only if death does not occur.

[263] Mr. Roberts acknowledged that he is familiar with various types of guns. It may be inferred that he was aware of the lethal effects of firing them. He testified that he was a “pro” at the video game, Fortnite, whose sole purpose is to use various lethal weapons to kill. He also acknowledged that he was subjectively aware of the fact that guns kill and that if a person is shot and hit by a bullet, they will probably die:

Q. Right, because you understand that if you – if somebody had a gun and they shot you, you’d probably die.

A. Correct.

Q. Right? I mean if you go up to somebody and you shoot them in the chest area or the general body, they’re going to die.

A. Yes, fair.

[264] The intent of Mr. Roberts can also be inferred from the evidence of Mr. Cullen and Ms. Insanally.

[265] Mr. Cullen testified that when the gun appeared in Mr. Roberts’ hand, he pointed it at Mr. Sudomericky’s head and upper body – “at the top shoulders and above.” When Mr. Sudomericky started running, Mr. Roberts chased after him. When the shot or shots were fired, Mr. Roberts had the gun out in front of him and was pointing it at Mr. Sudomericky, who immediately fell to the ground.

[266] Ms. Insanally testified that when she saw Mr. Roberts running down the side of the parking lot by the fence and toward Danforth Avenue, his arm was straight out and bent down slightly, at approximately his head level. He was holding a dark object in his hand. Ms. Insanally thought that it was a bottle.

[267] It may be inferred that from the moment Mr. Roberts produced the gun, he was pointing and aiming it at vital areas of Mr. Sudomericky’s body – namely, his head and upper body.

[268] Given all of the circumstances, Mr. Roberts clearly shot Mr. Sudomericky with the intention of killing him. In the alternative, and at the very least, Mr. Roberts shot Mr. Sudomericky with the intention of causing him bodily harm that he knew was likely to cause death and was reckless as to whether death ensued or not.

[269] I turn then to the issue as to whether Mr. Roberts’ claims of provocation, intoxication, and his mental state, either individually or in combination with each other, raise a reasonable doubt with respect to his intent, thereby resulting in a conviction for manslaughter.

The Law of Provocation

[270] The law on the partial defence of provocation is set out in ss. 232(1) – (3) of the Criminal Code, which states:

Murder Reduced to Manslaughter

232(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

(3) For the purposes of this section, the questions

(a) whether the conduct of the victim amounted to provocation under subsection (2), and

(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

[271] Mr. Roberts must be found not guilty of second degree murder, but guilty of manslaughter on the basis of provocation, only if all of the following five conditions are present:

1. Mr. Sudomericky engaged in conduct that constituted an indictable offence punishable by five years or more;

2. Mr. Sudomericky’s conduct was sufficient to deprive an ordinary person of the power of self-control;

3. When Mr. Roberts shot and killed Mr. Sudomericky, he had lost the power of self-control as a result of Mr. Sudomericky’s conduct;

4. Mr. Sudomericky’s conduct was sudden; and

5. Mr. Roberts’ acts that caused Mr. Sudomericky’s death were committed suddenly and before there was time for his passion to cool.

[272] Mr. Roberts is not required to prove that the defence of provocation applies. The Crown is required to prove beyond a reasonable doubt that it does not apply. Unless the Crown proves beyond a reasonable doubt that at least one of the five conditions for provocation was absent, then Mr. Roberts must be found not guilty of second degree murder but guilty of manslaughter.

[273] In determining whether the Crown has met its onus, I bear in mind the principles set out in R. v. W. D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

Indictable Offence Punishable by Five Years or More

[274] Pursuant to ss. 264.1(1)(a) and 264.1(2)(a) of the Criminal Code, anyone who, in any manner, knowingly utters, conveys, or causes any person to receive a threat to cause death or bodily harm to any person is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

[275] According to s. 267 of the Criminal Code, every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable by summary conviction, who in committing an assault carries, uses, or threatens to use a weapon.

[276] Thus, if Mr. Sudomericky brandished a knife and pointed it at Mr. Roberts, that conduct is statutorily capable of grounding a provocation defence pursuant to s. 232(2).

The Alleged Racial Slur

[277] On July 17, 2015, s. 232 of the Code was amended to read as set out above. Prior to that date, the racial slur that Mr. Roberts alleges was uttered by Mr. Sudomericky would also have been statutorily capable of grounding a provocation defence as the section pre-amendment read as follows:

232 (2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.

[Emphasis added.]

[278] The constitutionality of the 2015 amendments was recently upheld by the Court of Appeal for Ontario in R. v. Brar, 2024 ONCA 254. The court found that the removal of “insult” as a potential statutory ground for provocation does not violate s. 7 of the Charter. Consequently, the racial slur that Mr. Roberts alleges was uttered by Mr. Sudomericky is no longer capable of grounding the defence: if Mr. Roberts shot Mr. Sudomericky in response to the racial slur, Mr. Roberts would be guilty of murder.

[279] As a note, any case pre-dating July 17, 2015 may include an analysis concerning an “insult” as a ground for the defence of provocation. I have not removed the word “insult” from any quoted portions from these decisions. I am mindful, however, that the word “insult” has been removed from the Criminal Code provision in its current application.

Difference in Size between Mr. Roberts and Mr. Sudomericky

[280] The defence focused to a certain degree on the size difference between Mr. Roberts and Mr. Sudomericky. The latter was taller than Mr. Roberts and had a heavier build. However, as observed by the Court in R. v. Hill, 2015 ONCA 616, 23 C.R. (7th) 224, at paras. 84-88, the loss of control essential to a provocation claim is primarily rage-based as opposed to fear-based. Attributes such as athletic ability, and difference in size between the accused and the victim are irrelevant when determining the degree of self-control expected. The physical attributes of Mr. Sudomericky do not dictate the degree of self-control expected of Mr. Roberts or an ordinary person and is not a relevant factor for consideration when assessing the defence of provocation.

Section 232: Objective and Subjective Elements

[281] The requirements of s. 232 include two elements – objective and subjective. Both elements must be met for there to be an air of reality to the defence.

The Objective Element

[282] The objective element presupposes the existence of a wrongful act that is sufficient to deprive an ordinary (reasonable) person of the power of self-control. This “normative” standard serves to ensure that only losses of self-control which comport with “contemporary society’s norms and values will attract the law’s compassion”: Tran, at para. 30; and R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at paras. 36-37.

[283] The objective element represents Parliament’s attempt to “balance those very human frailties which sometimes lead people to act irrationally and impulsively on the one hand, and the need to protect society by discouraging acts of homicidal violence, on the other”: R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29, at para. 51. As stated in R. v. Thibert 1996 CanLII 249 (SCC), [1996], 1 S.C.R. 37, at pp. 46-47, the objective test exists in order to ensure that the criminal law encourages reasonable and responsible behaviour. The defence of provocation must always bear this principle in mind. However, “if the test is to be applied sensibly and with sensitivity, then the ordinary person must be taken to be of the same age and sex, and must share with the accused such other factors as would give the act in question a special significance”: at para. 14. In other words, all the relevant background circumstances should be considered.

[284] In Tran, at para. 34, the court held that the ordinary standard must be informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Charter. As a result, the court held that it would be appropriate to ascribe to the ordinary person relevant racial characteristics if the accused were the recipient of a racial slur.

The Subjective Element

[285] The subjective element requires evidence establishing that the accused acted in response to the provocation, on the sudden, and before there was time for his or her passion to cool. This means that “[t]he wrongful act or insult must itself be sudden, in the sense that it ‘must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame”: Tran, at para. 38. Further, the intentional killing must have been committed by the accused before there was time for his passion to cool: Tran, at para. 38, citing R. v. Tripodi, 1955 CanLII 10 (SCC), [1955] S.C.R. 438, at p. 443.

[286] The subjective element considers the accused’s mental, emotional, and physical condition, and includes a wide range of responsive emotions by the accused. Suddenness is not made out where the accused has acted in a calculated manner to retaliate to some perceived insult or wrong. The focus is on whether the accused was in fact acting as a result of the provocation. Suddenness is a necessary requirement to ensure that the accused did not react with vengeance after being provoked and involves consideration of what the accused believed, intended, or knew. Both the act of provocation and the accused’s reaction must be sudden: Cairney, at para. 43, citing Tran, at para. 38; and citing Tripodi, at p. 443.

Self-Induced provocation

[287] “Self-induced provocation” refers to the situation where the accused initiates or invites the act that he says provoked him. It is not a special category of the defence of provocation. The fact that an accused initiated or invited the provocation is simply a contextual factor in determining whether the subjective and objective elements of the defence are met: Cairney, at para. 42.

[288] As stated earlier, the subjective component of the defence requires that the wrongful act or insult must itself be sudden, in the sense that it “must strike upon a mind unprepared for it.” As the court in Cairney observed, ‘[t]he subjective component is not met where the accused in fact subjectively expected the victim’s response and, as a result, did not act on the sudden. Depending on the circumstances, where the accused precipitated the provocation, there may be no basis in the evidence for any reasonable doubt as to whether the accused acted on the sudden”: Cairney, at para. 43.

[289] The court in Cairney, at paras. 44 and 45, made the following comments concerning the objective component:

The objective component asks whether the provoking act would cause an “ordinary person” to lose his self-control, having regard to all the relevant circumstances. Again, depending on the circumstances, where the accused precipitated the victim’s wrongful act or insult by aggressively confronting him or her, there may be no basis in the evidence for any doubt as to whether that act or insult would cause an ordinary person to lose self-control. The fact that the victim’s response to the accused’s confrontational conduct fell within a range of reasonably predictable reactions may suggest that an ordinary person would not have lost self-control, although it must be weighed together with all other relevant contextual factors: Cairney, at para. 44.

It has been suggested that “the defence [of provocation] will not be available where the accused is prepared for an insult or initiates a confrontation and receives a predictable response”. … This is best understood not as an absolute rule, but as the usual result of application of appropriate contextual factors to the question of whether an ordinary person would have lost control: Cairney, at para. 45. [Emphasis added and citations omitted.]

[290] The majority in Cairney concluded that while there was an air of reality to the subjective element in that case, there was no air of reality to the objective element.

[291] In Cairney, at paras. 33-34, the Supreme Court restated the requisite elements of the defence of provocation pursuant s. 232 as follows:

First, there is a two-fold objective element: “… (1) there must be a wrongful act or insult; and (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control”….

Second, there is a two-fold subjective element: “… (1) the accused must have acted in response to the provocation; and (2) on the sudden before there was time for his or her passion to cool.”

[Citations omitted.]

Position of the Parties

Position of the Crown

[292] Crown counsel submits that the provocation defence must fail in this case in respect to both the objective and subjective components. The Crown submits that the evidence supports the following findings:

1. Mr. Sudomericky did not call Mr. Roberts a “fucking nigger.”

2. Even if Mr. Sudomericky uttered the racial slur, that is not an indictable offence. Thus, the only wrongful act in this case that is statutorily capable of grounding a provocation defence is the alleged pulling of the knife.

3. Mr. Roberts self-induced any alleged provocation by leaving the LCBO abruptly and confronting Mr. Sudomericky with an illegal handgun.

4. The alleged wrongful act (pulling of the knife) would not deprive a reasonable person of their power of self-control, especially when that reasonable person is armed with an illegal handgun at the ready and sees that the person is fleeing.

5. Subjectively, Mr. Roberts did not shoot Mr. Sudomericky in response to the alleged wrongful act (pulling of the knife) on the sudden and before there was time for his passion to cool.

Position of the Defence

[293] Defence counsel submits that the provocation defence should succeed, and that the evidence supports the following findings:

1. Mr. Sudomericky called Mr. Roberts a “fucking nigger.”

2. Mr. Sudomericky pulled a knife on Mr. Roberts immediately after uttering the racial slur.

3. The wrongful act – the pulling of the knife – and the insult, were sufficient to deprive an ordinary person of the power of self-control, particularly when the “ordinary person” in this case must be taken to be a young Black male who has experienced bullying and violence in his community while growing up.

4. As Mr. Roberts responded to the provocation within seconds, he has met the subjective burden of the test for provocation, that is, he acted on the sudden and before there was time for his passion to cool.

Analysis and Findings

[294] The issues to be addressed with respect to the partial defence of provocation are as follows:

1. Whether Mr. Sudomericky engaged in conduct that constituted an indictable offence punishable by five years or more

2. Whether Mr. Sudomericky called Mr. Roberts a “fucking nigger”

3. Whether Mr. Roberts self-induced any alleged provocation by confronting Mr. Sudomericky while armed with a firearm

4. Whether the alleged wrongful act (the pulling of the knife) by Mr. Sudomericky would deprive a reasonable person of their power of self-control in circumstances where the reasonable person is armed with an illegal handgun at the ready and sees that the person is fleeing

5. Whether subjectively Mr. Roberts shot Mr. Sudomericky in response to the alleged wrongful act (the pulling of the knife) on the sudden, before there was time for his passion to cool

First Issue: Whether Mr. Sudomericky engaged in conduct that constituted an indictable offence punishable by five years or more

[295] The defence alleges that Mr. Sudomericky pulled a knife on Mr. Roberts which, pursuant to s. 267 of the Criminal Code, is an offence punishable by a term of imprisonment of up to ten years. The pulling of the knife would also constitute an offence pursuant to ss. 264.1(1)(a) and 264.1(2)(a) of the Code.

[296] The only person who testified that they saw a knife being held by Mr. Sudomericky was Mr. Roberts.

[297] There is no issue that the knife belonged to Mr. Sudomericky as his DNA was on it. In support of Mr. Roberts’ position that Mr. Sudomericky pulled the knife on him, the defence relies on Mr. Roberts’ statement made upon his arrest. When asked, “Where’s the gun?”, Mr. Roberts replied that there was no gun, which was true – he had already gotten rid of the gun by then, although he lied during his testimony as to how he got rid of it. Mr. Roberts then went on to assert, “He pulled a knife on me.” This statement was admitted pursuant to the decision in Edgar. Defence counsel submits that the fact that Mr. Roberts knew of the knife’s existence prior to the release of the disclosure in his case supports his testimony that Mr. Sudomericky possessed and brandished the knife.

[298] Although it is clear that the knife belonged to Mr. Sudomericky, it is not clear how it got to the place where it was photographed and at what point, if ever, Mr. Sudomericky took it out.

[299] Crown counsel posited three scenarios in which Mr. Roberts may have seen Mr. Sudomericky’s knife during the confrontation with Mr. Sudomericky. Those scenarios were as follows:

1. Mr. Sudomericky may have shifted his LCBO bag and used one hand to get his knife and open it as he walked toward Mr. Roberts after seeing that Mr. Roberts, with his hand in his satchel and his other hand down by his side, was walking toward him. It is not clear what Mr. Sudomericky may have been able to see, given that Mr. Cullen was in his line of vision for a period of time. In any event, not knowing what to expect, and wondering why Mr. Roberts was approaching him, Mr. Sudomericky may have prepared himself for a confrontation by drawing his knife as a precaution, but not necessarily to use it other than in self-defence. Crown counsel noted that even on Mr. Roberts’ account, Mr. Sudomericky never verbally threatened to kill or hurt him with the knife, and never made any motion to actually cause him physical injury. He only pointed it at his abdomen.

2. Mr. Sudomericky may have drawn his knife while running away from Mr. Roberts after Mr. Roberts drew his gun and pointed it at his head. Mr. Sudomericky could have shifted his liquor bottles to one hand and used his other hand to pull out and open the knife while he was running, in the faint hope of defending himself against Mr. Roberts, who had a gun. He would have dropped the knife when he collapsed after Mr. Roberts shot him, allowing Mr. Roberts to see the knife as he walked by Mr. Sudomericky on his way back to his car. Mr. Roberts testified that Mr. Sudomericky yelled at him, “You fucking shot me! You shot me!” as Mr. Roberts passed by him.

3. The knife may have fallen off Mr. Sudomericky’s belt or pocket when he collapsed, allowing Mr. Roberts to see it as he walked by Mr. Sudomericky on his way to his car.

[300] The truck driver, Mr. Schell, testified that the knife was only a couple of feet from where Mr. Sudomericky was lying on the ground. Mr. Schell made this observation almost immediately after the shooting. He testified that he was waiting to turn right onto Danforth Avenue when he heard a loud bang. He immediately got out of his truck and saw Mr. Sudomericky lying on the ground behind his truck. It appears that Mr. Schell observed the knife prior to the arrival of the police and paramedics and before there was a lot of pedestrian traffic, which could have caused the knife to be moved from where it initially fell, which was close to Mr. Sudomericky.

[301] Officer Nelson, like Mr. Schell, described the knife as being close to where Mr. Sudomericky was lying on the ground. He testified that the knife was near Mr. Sudomericky’s feet.

[302] Ms. Thorpe thought that the knife was about 10 feet from Mr. Sudomericky.

[303] Officer McDonald used a pilon to mark the knife’s location at some point after he arrived on scene: See Exhibit 6, photograph 57, which shows the knife closer to Danforth Avenue and perhaps ten or more feet from where Mr. Sudomericky presumably fell, judging from the location of his Hennessy bottle, his change, his black jacket, and the blood on the pavement.

[304] The first scenario proffered by the Crown entails Mr. Sudomericky having drawn his knife while walking toward Mr. Roberts in a confrontational situation, albeit not one that Mr. Sudomericky instigated. Nevertheless, such conduct is statutorily capable of grounding a provocation defence pursuant to s. 232(2). Given the Crown’s position that this is a potential scenario based on the evidence, the Crown has not established beyond a reasonable doubt that Mr. Sudomericky did not engage in conduct that constituted an indictable offence punishable by five years or more. The first condition has therefore been met.

Second Issue: Whether Mr. Sudomericky Called Mr. Roberts a “Fucking Nigger”

[305] For the reasons given earlier, I find that Mr. Roberts’ evidence regarding the lead-up to his interaction with Mr. Sudomericky in the parking lot is not credible. I reject Mr. Roberts’ explanation as to why he exited the LCBO so quickly after Mr. Sudomericky’s departure – that is, that he was paranoid that someone might have called 911 and that the police might arrive at any moment, frisk him, find his gun, and arrest him. Mr. Roberts left the LCBO just seconds after Mr. Sudomericky left the store because he wanted to confront Mr. Sudomericky while armed with his loaded semi-automatic handgun. In preparation for that confrontation, Mr. Roberts drew his gun almost immediately after exiting the LCBO. Mr. Roberts denied drawing his gun at that time. However, as explained earlier in these reasons, the video shows otherwise.

[306] After completing his purchases and exiting the LCBO, Mr. Sudomericky did not pull out a knife and lie in wait for Mr. Roberts to come outside. Instead, he proceeded to walk toward his car while carrying the bag containing his bottles of liquor as well as his change. It is apparent that Mr. Sudomericky had no intention at that time of having any further dealings with Mr. Roberts. It was not until he looked back over his shoulder and saw that Mr. Roberts had exited the LCBO and was walking toward him that Mr. Sudomericky turned around and started walking back toward Mr. Roberts while glaring at him. Although it is a fair inference that Mr. Sudomericky, having seen Mr. Roberts approaching him, was prepared to re-engage with Mr. Roberts, he continued to hold his bottles of liquor and his change as he approached Mr. Roberts and never let go of them. He was still holding those items when he was shot.

[307] Mr. Cullen initially thought that Mr. Sudomericky was glaring at him until he looked back and saw Mr. Roberts coming up behind him. When he saw that the two men were walking toward each other, he realized that their earlier dispute in the LCBO was about to escalate.

[308] Mr. Roberts acknowledged that he looked at Mr. Sudomericky when he saw that Mr. Sudomericky was looking at him. He also saw that Mr. Sudomericky had turned and was walking in his direction. However, Mr. Roberts testified that he paid no heed to what Mr. Sudomericky was doing because he was focused on getting to his car, finding his keys, and keeping an eye out for the police.

[309] Mr. Roberts’ evidence that he “didn’t think anything” about the fact that Mr. Sudomericky was heading in his direction is not credible, given that Mr. Sudomericky, whom he described as taller and bigger than himself, had acted aggressively toward him only a minute or so earlier and was now glaring at him.

[310] I find that Mr. Roberts was not on his way to the “safe space” of his car. Nor was he searching for his keys. Rather, Mr. Roberts intended to confront Mr. Sudomericky with the gun he had drawn as he exited the LCBO because he was angry about the aggressive and disrespectful way in which Mr. Sudomericky had treated him in the store.

[311] Mr. Cullen and Mr. Roberts gave very different versions as to how Mr. Sudomericky and Mr. Roberts came together in the parking lot. Mr. Cullen’s version was credible. Mr. Roberts’ version was not.

[312] Mr. Cullen was an independent and impartial witness who took care to be accurate in his description of events. He admitted when he was not in a position to see certain things and when he might be mistaken. His evidence was both credible and reliable.

[313] I accept Mr. Cullen’s testimony that Mr. Roberts and Mr. Sudomericky met or came together behind his van, as indicated by his markings on the plan diagram, Exhibit 24 (Appendix 1 to these reasons), as opposed to behind Mr. Roberts’ Acura, as alleged by Mr. Roberts and indicated by Mr. Roberts’ markings on Exhibits 49(a) and 50 (Appendices 2 and 3 to these reasons.)

[314] Mr. Cullen was between Mr. Roberts and Mr. Sudomericky until he turned to his right to put his wine on the passenger seat of his van. Mr. Cullen testified that while he was walking toward Mr. Sudomericky and after he turned to his right, Mr. Sudomericky made several comments to Mr. Roberts along the lines of “What do you have to say now?”, “Who is tough now?, or “Why aren’t you chirping now?” As noted earlier, none of those phrases is remotely close in terms of sounding like the alleged racial slur. Mr. Cullen made no mention of Mr. Sudomericky uttering a racial slur. Nor was he ever asked if he heard the alleged slur. Had it been made, Mr. Cullen would have heard it as he was only a few feet away from Mr. Sudomericky even after he turned to drop his bottle of wine on the passenger seat, which only took a few seconds. He testified that his head was never inside the vehicle.

[315] Mr. Cullen demonstrated the angle from which he observed Mr. Roberts and Mr. Sudomericky when they came together behind his van by raising his left arm out to his left side. His vantage point was parallel to his van and to his left .

[316] According to Mr. Roberts, he did not approach Mr. Sudomericky. Nor did he see Mr. Sudomericky approaching him as he was looking in his satchel and patting his pockets in search of his keys while standing behind his Acura. According to Mr. Roberts, he was completely taken by surprise when Mr. Sudomericky suddenly appeared out of nowhere and was right in front of him. Mr. Roberts acknowledged that he saw Mr. Sudomericky turn around, look at him, and start walking in his direction, but testified that he paid no attention to him because he was occupied with scanning the area for police and getting to the “safe space” of his car – testimony that for reasons already stated, I have found not to be credible, including the fact that Mr. Roberts drew his gun almost immediately after exiting the LCBO, which he would not have done if he were truly concerned about police arriving on scene in response to a 911 call.

[317] In describing how Mr. Sudomericky took him by surprise, Mr. Roberts testified that while he was looking in his satchel and patting his pockets while standing behind the Acura, he noticed a pair of feet in front of his feet. When he looked up, he saw Mr. Sudomericky standing just inches away from him and looking down on him. Mr. Sudomericky then whispered the racial slur through clenched teeth. Mr. Roberts testified that Mr. Sudomericky was so close to him that he could feel his breath on him, which would be unlikely if Mr. Sudomericky were wearing a mask. When asked if Mr. Sudomericky was wearing a mask at the time, Mr. Roberts stated that he could not recall, but suggested that if he was masked, it was possible that he pulled the mask down before uttering the racial slur and pulling out the knife. I note that Mr. Sudomericky was wearing a mask when he entered the LCBO and was still wearing it when he exited the store. Mr. Cullen, who was facing Mr. Sudomericky when Mr. Sudomericky began uttering his comments to Mr. Roberts, made no mention in his testimony of Mr. Sudomericky reaching up to pull down his mask before making the comments.

[318] In summary, Mr. Roberts’ entire account as to how he and Mr. Sudomericky came together in the parking lot was contrived and not credible. Mr. Roberts was not standing behind his Acura; he was not searching for his keys; and he was not surprised to see Mr. Sudomericky. Rather, Mr. Roberts exited the LCBO with the intention of confronting Mr. Sudomericky with his handgun, which he drew just after exiting the store, as seen on the video. The two men came together in the middle of the parking lot and behind Mr. Cullen’s van, as described by Mr. Cullen and illustrated by him in Exhibit 24 (Appendix 1 of these reasons), with Mr. Sudomericky making several comments to Mr. Roberts as they approached and confronted each other. Mr. Sudomericky’s comments were audible to Mr. Cullen. They were not whispered through “clenched teeth,” and they did not contain any racial slurs.

[319] I am satisfied beyond a reasonable doubt that Mr. Sudomericky did not utter the racial slur as alleged by Mr. Roberts.

[320] As noted earlier, even if Mr. Sudomericky uttered the racial slur and Mr. Roberts shot him in response to the slur, Mr. Roberts would be guilty of murder as the provocative phrase is insufficient to engage the statutory requirements of provocation. While such a slur would no doubt make a person very angry or wish to exchange blows, and would be part of the objective analysis, it would not equate to a loss of self-control. Mr. Roberts’ response to the alleged comment would fall far outside the range of reasonably anticipated responses of the ordinary person, based on the legislative requirements.

Third Issue: Whether Mr. Roberts Self-Induced any Alleged Provocation by Confronting Mr. Sudomericky while armed with a Firearm

[321] The only wrongful act in this case that is statutorily capable of grounding a provocation defence is the alleged pulling of the knife by Mr. Sudomericky.

[322] Self-induced provocation refers to the situation where an accused initiates or incites the act that he says provoked him. An accused ought not to be able to rely on the partial defence of provocation when he himself spurred the provoking act.

[323] As stated in Cairney, “self-induced provocation” may be relevant to both the subjective and objective components.

[324] The subjective component requires that the wrongful act be sudden, in the sense that it must strike upon a mind unprepared for it. The subjective component is not met where the accused in fact subjectively expected the victim’s response and, as a result, did not act on the sudden. Depending on the circumstances, where the accused precipitated the provocation, there may be no basis in the evidence for any reasonable doubt as to whether the accused acted on the sudden.

[325] In the present case, Mr. Roberts is captured on video leaving the cash area abruptly and in the middle of his purchase. He is seen looking and reaching into his satchel with his right hand. As he exits the store, his right arm remains at an angle with his right hand remaining inside his satchel. Then, almost immediately after he exits the store, his left arm is seen to bend at the elbow and his left forearm is in front of his body. Mr. Roberts testified that he was reaching up to adjust his mask. However, it does not appear that his hand reached up as far as his face. Rather, his movement is consistent with his reaching into either his satchel or his boxers, the latter being the place where he testified he had tucked his gun. When Mr. Roberts’ left arm comes back down, his left hand is holding a dark object which, for reasons given earlier, I have found to be his illegal handgun.

[326] With his gun drawn and at his side, Mr. Roberts was prepared for whatever physical confrontation that might take place with Mr. Sudomericky. The fact that he was holding the gun in his hand explains why he was able to produce it so quickly and point it at Mr. Sudomericky’s upper body and head when they came together behind Mr. Cullen’s van. As Mr. Cullen testified, the gun came out of nowhere as an immediate response to Mr. Sudomericky’s comments as the two men met and came within a foot of each other. Mr. Cullen did not see Mr. Roberts make any movement in order to draw or take hold of the gun – Mr. Roberts’ arm came up and the gun was pointed straight out and at Mr. Sudomericky’s upper body.

[327] Mr. Roberts denied any intention to confront Mr. Sudomericky. He testified that although he saw that Mr. Sudomericky was walking toward him, he did not think anything of it as he was focused on reaching his own car, finding his keys, and also scanning the area for police. Mr. Roberts’ evidence in this regard makes no sense and is not credible, given that Mr. Sudomericky, whom Mr. Roberts described as bigger and taller than himself, had acted aggressively toward him only minutes earlier and was now glaring at him. It defies logic that Mr. Roberts would exit the LCBO, see Mr. Sudomericky looking in his direction and walking toward him, but then continue to look for his keys without paying any attention to Mr. Sudomericky’s whereabouts.

[328] Mr. Cullen’s evidence contradicts the evidence of Mr. Roberts. Mr. Cullen testified that he was closer to Mr. Roberts than to Mr. Sudomericky, who was walking ahead of Mr. Cullen and toward his car until he looked back over his shoulder and reversed direction. When Mr. Cullen turned around to see who Mr. Sudomericky was glaring at, he saw that Mr. Roberts had exited the LCBO and was walking toward Mr. Sudomericky. Mr. Cullen then realized that the earlier dispute in the LCBO was about to escalate as the two men were walking toward each other.

[329] Mr. Cullen witnessed the coming together of the two men – they came within a foot of each other when they were behind his van. This evidence contradicts Mr. Roberts’ testimony that he stopped walking and stood behind the trunk of his car while looking down, patting his pockets in search of his keys, and simultaneously scanning the area for police officers who might have shown up in response to a possible 911 call by a good Samaritan. For the reasons stated earlier, I have found that Mr. Roberts’ testimony in this regard is not credible. Mr. Cullen’s evidence supports the finding that Mr. Roberts left the LCBO with the intention of confronting Mr. Sudomericky and that he was not heading to his car.

[330] Defence counsel took issue with the Crown’s position that Mr. Roberts’ intention when he exited the LCBO was to confront Mr. Sudomericky. She noted that Mr. Roberts did not call out to Mr. Sudomericky, or attempt to close the gap between them by running after him. He did not exit the LCBO, draw his weapon, and then start to fire it. Defence counsel submits that if Mr. Roberts had intended to re-engage Mr. Sudomericky for the purpose of shooting him, he would not have left it to chance that Mr. Sudomericky would, on his own accord, turn around and start walking toward him.

[331] However, as Crown counsel submits, the fact that Mr. Roberts drew his gun immediately after exiting the LCBO for the purpose of confronting Mr. Sudomericky does not mean that he did so with the intention at that time of shooting and killing him. Mr. Roberts is not charged with first degree murder. The Crown does not take the position that it could prove beyond a reasonable doubt that Mr. Roberts had that specific intention when he left cash register #4. Rather, the evidence shows that Mr. Roberts left the cash register area with the intention of confronting Mr. Sudomericky and that he prepared himself for a physical confrontation by having his gun in his hand and at his side. And when he was confronted by Mr. Sudomericky, the first thing he did was pull it out. Again, as Mr. Cullen testified, the gun appeared out of nowhere and within seconds.

[332] Mr. Sudomericky’s reaction to Mr. Roberts approaching him in the parking lot was to walk toward Mr. Roberts and utter one or other of the comments: “What do you have to say now?”; “Who is tough now?”; or “Why aren’t you chirping now?” Mr. Roberts’ version of events – that is, that Mr. Sudomericky pulled out a knife from his pocket with his left hand – was never put to Mr. Cullen. As noted earlier, Mr. Cullen made no mention of Mr. Sudomericky uttering any racial slur or pulling out a knife, and was never asked about either in cross-examination.

[333] In any event, even if Mr. Sudomericky pulled out his knife at some point, it is clear that it was only after he saw that Mr. Roberts had exited the LCBO and was walking in his direction. Prior to that, Mr. Sudomericky was walking toward his own car and preparing to leave the LCBO parking lot. He was not lingering outside the LCBO with a knife in his hand and waiting for Mr. Roberts to emerge. It was Mr. Roberts, not Mr. Sudomericky, who sought out and precipitated the confrontation. It was only after Mr. Sudomericky saw that Mr. Roberts was walking toward him that he turned around and began walking in Mr. Roberts’ direction. Mr. Sudomericky was still holding his change and carrying his LCBO bag containing his two liquor bottles. He continued to hold them during the confrontation with Mr. Roberts and while being chased by Mr. Roberts. He was still holding them when Mr. Roberts shot him near the entrance of the parking lot.

[334] Mr. Roberts took issue with Mr Cullen’s testimony that Mr. Sudomericky was holding his LCBO bag during the confrontation. However, Mr. Cullen testified that Mr. Sudomericky was more or less “hugging” the bag with both arms throughout these events. That Mr. Sudomericky continued to hold his bag while being confronted, chased and shot by Mr. Roberts is supported by the fact that his wine bottles and change were found very close to where he was shot and collapsed in the lot.

[335] Mr. Roberts would have and should have anticipated any violence that could ensue as he was leaving the LCBO to confront Mr. Sudomericky. That he was prepared for violence is demonstrated by the fact that he left the LCBO while armed with a loaded handgun and, almost immediately after exiting the store, he drew it. The gun was at his side and he was ready to use it in whatever confrontation with Mr. Sudomericky that was about to occur. In other words, Mr. Roberts’ mind was prepared for any resulting violence – such as the potential brandishing of a knife and angry words – and his reaction was therefore not on the sudden. In these circumstances, and assuming that Mr. Sudomericky drew his knife, the subjective element of the test has not been met. The provocation was self-induced, and there is no basis on the evidence for any reasonable doubt as to whether Mr. Roberts acted on the sudden. The Crown has established beyond a reasonable doubt that Mr. Roberts did not act on the sudden.

Fourth Issue: Whether the alleged wrongful act (the pulling of the knife) by Mr. Sudomericky would deprive an ordinary person of their power of self-control in circumstances where the ordinary person is armed with an illegal handgun at the ready and sees that the person is fleeing

[336] The objective component asks whether the provoking act would cause an “ordinary person” to lose his self-control, having regard to all the circumstances. Where the accused precipitated the victim’s wrongful act by aggressively confronting him, there may be no basis on the evidence for any doubt as to whether that act would cause an ordinary person to lose self-control. The fact that the victim’s response to the accused’s confrontational conduct fell within a range of reasonably predictable reactions may suggest that an ordinary person would not have lost self-control when weighed with other relevant contextual factors.

[337] The question of whether the alleged provocation fell within a “range of reasonably predictable reactions” – that is, the deceased’s reaction/response – is a contextual factor in determining whether an ordinary person would have lost self-control. Provocation requires evidence that the accused’s mind was struck unprepared.

[338] Mr. Sudomericky, upon seeing Mr. Roberts approaching him in the parking lot, turned around, walked toward him and, as they met, confronted him by saying, “What do you have to say now?”; “Who is tough now?”; or “Why aren’t you chirping now?” These comments fall within the range of reasonably predictable reactions that would not cause a reasonable person to lose self-control. Having drawn his firearm upon exiting the LCBO, Mr. Roberts sought out an aggressive confrontation and received a predictable response in return, thereby depriving him of the defence of provocation based on these comments.

[339] The position of the defence is that Mr. Sudomericky’s alleged action in pulling out the knife and pointing it at Mr. Roberts’ abdomen falls outside the range of reasonably anticipated responses of a reasonable person, thus making Mr. Roberts’ claim of “provocation” objectively viable.

[340] However, Mr. Sudomericky’s actions would not cause a reasonable person to lose self-control. They do not fall outside the range of reasonably predictable responses because Mr. Roberts chose to follow Mr. Sudomericky outside and confront him after having drawn his loaded handgun, which was down by his side and which he had at the ready. Having chosen to act in such a manner, Mr. Roberts cannot assert that he was faced with an unexpected situation – that is, that he was surprised or provoked by seeing the knife. In these circumstances, the purported action that makes out the indictable offence – the pulling of the knife – would not deprive a reasonable person of self-control.

[341] I note that Mr. Roberts, in cross-examination, agreed that setting aside his assertion that he was in a blind rage as a result of the alleged racial slur (which I have found was never made), common sense would tell him that he had the upper hand in a situation where he had a gun and Mr. Sudomericky only had a knife and was running away. A reasonable person who feels that they have the “upper hand” in such a situation would not be deprived of their power of self-control.

[342] I conclude that the objective component of the provocation defence has not been met. The Crown has established beyond a reasonable doubt that the pulling of a knife by Mr. Sudomericky would not deprive a reasonable person of their power of self-control in circumstances where the reasonable person is armed with a handgun at the ready and sees that the person is fleeing.

Fifth Issue: Whether subjectively, Mr. Roberts shot Mr. Sudomericky in response to the alleged wrongful act (the pulling of the knife) on the sudden, before there was time for his passion to cool

[343] The subjective element of the test for provocation has not been met. Mr. Roberts did not shoot Mr. Sudomericky in response to the alleged wrongful act, that is, Mr. Sudomericky’s pulling of the knife. Nor did Mr. Roberts react “on the sudden” before there was time for his passion to cool.

[344] Mr. Roberts did not shoot Mr. Sudomericky because he had pulled out a knife. Rather, he shot him because of his animus toward Mr. Sudomericky resulting from Mr. Sudomericky’s aggressive behaviour toward him in the LCBO. If Mr. Roberts were truly acting in response to Mr. Sudomericky’s pulling of a knife, he would not have drawn his gun before Mr. Sudomericky had pulled the knife: the video shows Mr. Roberts drawing his gun upon exiting the LCBO and before the confrontation in the parking lot had taken place.

[345] In addition, if Mr. Roberts were truly acting in response to Mr. Sudomericky’s pulling of the knife, he would have shot Mr. Sudomericky at the time that the knife emerged and when he pointed his gun at Mr. Sudomericky’s head. He would not have waited to shoot him in the back as Mr. Sudomericky was running away through the parking lot.

[346] Mr. Roberts exited the LCBO with a loaded handgun and shot Mr. Sudomericky in the back. These actions were not a response to the provocatory act of pulling a knife, but the steps taken by someone who wanted to shoot and kill a person. As noted earlier, the alleged racial slur is not an unlawful act. If Mr. Roberts shot Mr. Sudomericky because of that slur and the pulling of a knife, that would constitute motive, but motive does not equate to provocation.

[347] Suddenness is a necessary requirement in order to ensure that an accused did not react with vengeance after being provoked. Both the act of provocation and the accused’s reaction must be sudden. To qualify as sudden, the conduct must have caught the accused unprepared and the accused must have reacted to it before there was time for his passion to cool: Tran, at paras. 36-38; R. v. Dupe, 2011 ONSC 3316, at para. 51.

[348] Mr. Roberts’ actions were not “on the sudden” but were the culmination of an altercation that Mr. Roberts both instigated and fully anticipated, which is demonstrated by the following:

1. Mr. Roberts observed Mr. Sudomericky, who had told him to “back the fuck up” in a “loud and aggressive” tone in the LCBO, walk outside to go to his car. This incident took place in front of Ms. Costain-Williams, with whom Mr. Roberts was hoping to have a relationship. Mr. Sudomericky exited the store. Mr. Roberts followed him out seconds later.

2. Mr. Roberts testified that his reason for leaving the LCBO in such haste was as a result of his having smoked copious amounts of marijuana that day, and his desire to get to the “safe space” of his car following the verbal dispute. He testified that the marijuana caused him to be paranoid that a good Samaritan might have called 911, even though, on his own evidence, his verbal altercation with Mr. Sudomericky was very brief and had already ended. Mr. Roberts’ evidence with respect to his concern about a potential 911 call is not credible. Common sense dictates that he could have and should have waited for his transaction to finish in order to provide some space between himself and Mr. Sudomericky. Mr. Roberts’ sudden paranoia about a possible police presence as a result of a possible 911 call appears to have struck him only in a moment of convenience when he required an explanation for leaving the store so quickly. As observed by Crown counsel, Mr. Roberts did not experience paranoia when he left the cash register area shortly behind Mr. Sudomericky who, on his evidence, was a bigger and more aggressive male. Mr. Roberts did not experience any paranoia when he chose to enter the LCBO while in possession of an illegal loaded handgun while on bail. He did not feel paranoid when he ignored the social distancing rules laid out around the store at the height of the pandemic, and instead, chose to stand very close to and less than six feet away from Mr. Sudomericky. Mr. Roberts acknowledged driving to the LCBO while he was high without feeling paranoid that such behaviour could lead to an interaction with police and, upon being frisked, could lead to the discovery of his illegal handgun. Oddly, Mr. Roberts’ moment of paranoia only affronted him at the exact moment that Mr. Sudomericky exited the LCBO.

[349] The gun seen in Mr. Roberts’ hand as he exited the LCBO points to Mr. Roberts’ anticipation and instigation of what transpired next. Mr. Roberts saw Mr. Sudomericky leave the store. In anticipation, he went outside to confront him while armed with the gun.

[350] As stated in Cairney, the fact that the victim’s response to the accused’s confrontational conduct falls within a range of reasonable predictable reactions may suggest that an ordinary person would not have lost self-control, although it must be weighed together with all other relevant contextual factors.

[351] Simply put, Mr. Roberts sought out an aggressive confrontation with Mr. Sudomericky and received a predictable response within the range of reasonable responses. Whether or not Mr. Sudomericky pulled out a knife or said, “Who is tough now?”, “What do you have to say now?” or “Why aren’t you chirping now?”, all those responses are reasonable in circumstances where Mr. Roberts confronted Mr. Sudomericky while armed with a loaded gun, which was down by his side and which he had at the ready. As stated earlier, having chosen to act in such a manner, Mr. Roberts cannot assert that he was faced with an unexpected situation – that is, that he was surprised or provoked by seeing the knife or by the comments. Mr. Roberts, by his own actions, created the very “provocative” act upon which he now seeks to rely. As a result, the objective component of the provocation defence has not been met.

Conclusions with respect to Conditions Necessary for the Defence of Provocation to Apply

[352] In order for the defence of provocation to apply, all five conditions must be present. The following are my findings with respect to those conditions:

1. The Crown has not established beyond a reasonable doubt that Mr. Sudomericky did not engage in conduct that constituted an indictable offence punishable by five years or more. Thus, the first condition has been met.

2. The Crown has established beyond a reasonable doubt that Mr. Sudomericky did not call Mr. Roberts a “fucking nigger.”

3. The Crown has established beyond a reasonable doubt that Mr. Roberts self-induced any alleged provocation by confronting Mr. Sudomericky while armed with a firearm.

4. The Crown has established beyond a reasonable doubt that the alleged wrongful act – the pulling of the knife by Mr. Sudomericky – would not deprive a reasonable person of their power of self-control in circumstances where the reasonable person is armed with a handgun at the ready and sees that the person is fleeing.

5. The Crown has established beyond a reasonable doubt that Mr. Roberts did not shoot Mr. Sudomericky in response to the wrongful act – that is, the pulling of the knife – on the sudden, before there was time for his passion to cool.

[353] In arriving at these conclusions, I have borne in mind that the Crown must prove beyond a reasonable doubt that the defence of provocation cannot succeed, and that Mr. Roberts does not have to prove anything. Having considered all of the evidence and the submissions of counsel, and having applied the principles in W.(D.), I am satisfied that the Crown has disproved provocation beyond a reasonable doubt.

The Defence of Intoxication

[354] On a charge of murder, the defence of intoxication will only be available to negate specific intent so as to reduce the charge to manslaughter.

[355] Mr. Roberts does not advance a defence of intoxication on its own. Nor does defence counsel submit that Mr. Roberts lacked capacity to commit murder on account of a mental condition. Rather, the position of the defence is that the cumulative effect of Mr. Sudomericky’s provocation through both words and actions, in combination with the effects of Mr. Roberts’ marijuana-induced intoxication and the impact of a history of victimization, resulted in a blind rage, which prevented him in that particular moment from forming the necessary intent for murder.

[356] The principles in the “Rolled-Up Instruction” in a jury trial are at play in cases such as this, where an accused has advanced several avenues in which his mental state at the time of the offence could cast doubt on whether he had the requisite mens rea for murder: see R. v. Ethier, 2023 ONCA 600, 430 C.C.C. (3d) 121, at paras. 30, 31, and 35.

[357] The Crown and defence counsel set out in their submissions the case law dealing with the three broad categories of intoxication as a potential defence to a criminal charge, including R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523 and R. v. Thanapalasingam, 2023 ONSC 4282. In Daley, at paras. 41-43, the Court stated as follows:

Our case law suggests there are three legally relevant degrees of intoxication. First, there is what we might call “mild” intoxication. This is where there is alcohol-induced relaxation of both inhibitions and socially acceptable behaviour. This has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea. See Daviault, at p.99. Second, there is what we might call “advanced” intoxication. This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea. The Court in Robinson noted that this will most often be the degree of intoxication the jury will grapple with in murder trials:

In most murder cases, the focus for the trier of fact will be on the foreseeability prong of s. 229(a)(ii) of the Criminal Code, R.S.C., 1985, c. C-46, that is, on determining whether the accused foresaw that his or her actions were likely to cause the death of the victim. For example, consider the case where an accused and another individual engage in a fight outside a bar. During the fight, the accused pins the other individual to the ground and delivers a kick to the head, which kills that person. In that type of a case, the jury will likely struggle, assuming they reject any self-defence or provocation claim, with the question of whether that accused foresaw that his or her actions would likely cause the death of the other individual. [para.49]

A defence based on this level of intoxication applies only to specific intent offences.

It is important to recognize that the extent of intoxication required to advance a successful intoxication defence of this type may vary, depending on the type of offence involved. This was recognized by this Court in Robinson, at para. 52, in regard to some types of homicides:

[I]n cases where the only question is whether the accused intended to kill the victim (s. 229 (a)(i) of the Code), while the accused is entitled to rely on any evidence of intoxication to argue that he or she lacked the requisite intent and is entitled to receive such an instruction from the trial judge (assuming of course there is an “air of reality” to the defence), it is my opinion that intoxication short of incapacity will in most cases rarely raise a reasonable doubt in the minds of the jurors. For example, in a case where an accused points a shotgun within a few inches of someone’s head and pulls the trigger, it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill.

Although I would hesitate to use the language of capacity to form intent, for fear that this may detract from the ultimate issue (namely, actual intent), the point of this passage, it seems to me, is that, for certain types of homicides, where death is the obvious consequence of the accused’s act, an accused might have to establish a particularly advanced degree of intoxication to successfully avail himself or herself of an intoxication defence of this type. [Emphasis added.]

The third and final degree of legally relevant intoxication is extreme intoxication akin to automatism, which negates voluntariness and thus is a complete defence to criminal responsibility. As discussed above, such a defence would be extremely rare, and by operation of s. 33.1 of the Criminal Code, limited to non-violent types of offences.

[358] Before a defence of intoxication can be considered by a court, the court must be satisfied that the effect of the intoxication was such that it might reasonably have impaired the accused’s foresight of consequences sufficient to raise a reasonable doubt. In a murder trial, the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death. In considering the mental element required under s. 229(a)(ii) and the effect of any intoxication, the Court in Daley, at paras. 51-53, stated as follows:

Finally, there has been some discussion in the lower courts on whether in cases involving a defence of intoxication to homicide under s. 229(a)(ii) of the Criminal Code the trial judge should link the effect of intoxication to the ability to foresee the consequences of one’s actions. This is because in murder as defined in s. 229(a)(ii), the mental element the Crown must prove includes elements of intention and subjective foresight. The recommendation that the trial judge should instruct on the link between intoxication and foreseeability was offered by Martin J.A. in MacKinlay, in 1986, at p. 322:

The state of mind required under s. 212(a)(ii) involves an ability on the part of the accused to measure or foresee the consequences of his act: McAskill v. The King, 1931 CanLII 58 (SCC), [1931] S.C.R. 330, at p. 334. Where the Crown on a charge of murder relies on the intent under s. 212(a)(ii) of the Code, it would be helpful to remind the jury that the state of mind required by this subsection involves a knowledge by the accused of the “likely” consequences of his act and the jury should consider the effect of intoxication along with the other facts in deciding whether the accused intended to inflict an injury on the victim which he knew was likely to cause death or whether intoxication affected his ability to foresee the consequences of his actions.

More recent cases have gone so far as to find that a non-direction on the link between foreseeability and intoxication will constitute a reversible error: see R. v. Berrigan (1998), 1998 CanLII 6146 (BC CA), 127 C.C.C. (3d) 120 (B.C.C.A.), at paras. 13-14, and R. v. Hannon (2001), 159 C.C.C. (3d) 86, 2001 BCCA 566. In the latter case it was held that “where a central realistic issue was whether the accused was intoxicated such that he knew it was likely that the bodily harm would cause death, a clear and specific linkage in the charge was required” (para. 9). These cases rely on the following passage in Seymour to ground their finding of a mandatory duty to link intoxication and foreseeability:

One of the effects of severe intoxication is an inability to foresee the consequences of one’s actions, much less intend them. It was for this reason that the Ontario Court of Appeal in MacKinlay, supra, at p. 322, held that the state of mind required to commit the crime described in s. 229(a)(ii) involves an ability on the part of the accused to measure or foresee the consequences of his act and that, therefore, the jury should consider whether intoxication affected his ability to have the required foresight. [para.22]

While I agree that the inquiry under s. 229(a)(ii) is whether the accused possessed the ability to foresee the consequences of his action and the main determination in cases involving a defence of intoxication to a second degree murder charge will be whether the accused’s degree of intoxication affected this ability, and that it is very important for the jury to understand this, I do not think this Court’s jurisprudence goes so far to require that a particular phrase expressly making this link be included in the charge, the absence of which leads to reversible error.

[359] Thus, there is no rigid formula that must be followed. What is critical is that the “jury be made to understand, in clear terms, that in assessing the specific intent required for murder, it should consider the whole of the evidence that could realistically bear on the accused’s mental state at the time of the alleged offence”: Walle, at para. 64.

[360] The court further noted, at paras. 66 and 67, that,

[I]f, after considering the whole of the evidence, [the jury] believes or has a reasonable doubt that the accused did not have one or the other of the requisite intents for murder at the time the offence was committed, they must acquit the accused of murder and return a verdict of manslaughter.

If, however, there is no evidence that could realistically impact on whether the accused had the requisite mental state at the time of the offence, or if the pertinent evidence does not leave the trier in a state of reasonable doubt about the accused’s intent, then the jury may properly resort to the common sense inference in deciding whether the intent has been proved.

[361] In addition, when considering the whole of the evidence, “[t]he extent of intoxication and … the extent to which an accused is suffering from an abnormal mental state, sufficient to advance a successful defence to a specific intent offence may vary, depending on the type of offence involved …”: R. v. Sheepway, 2022 YKCA 3, at para. 62. In other words, the issue is determined case-by-case and is contextually informed. An important factor in this analysis will be whether an accused “exhibited numerous examples of rational, linear and goal-directed behaviour both immediately before and after” the incident that caused the death: Sheepway, at para. 65.

Application to this Case

[362] Mr. Roberts testified that he was high from smoking marijuana on October 25, 2020. However, there is no independent evidence to support this claim. No one attested to having seen Mr. Roberts smoke any joints that day. No witnesses testified to having observed any signs of intoxication or that they had any concerns that Mr. Roberts may have been under the influence of any drug. There is no evidence that anyone smelled marijuana emanating from Mr. Roberts, despite the large number of joints he says that he smoked in his brother’s bedroom before leaving for the LCBO.

[363] Defence counsel noted that there was a sandwich-sized bag of fresh marijuana found in the Acura following Mr. Roberts’ arrest. However, there were three people in the car at that time, and there is no evidence as to who owned the marijuana. In addition, Mr. Roberts never alleged during his evidence that he smoked any marijuana in the car that day or after leaving his residence.

[364] The only evidence that Mr. Roberts was high came from Mr. Roberts, whose evidence was not credible in many respects. To name a few, his evidence with respect to how he disposed of the gun was detailed but entirely made up by him, as is evident from the Video Chronology Overview. Mr. Roberts lied when he denied drawing his gun shortly after exiting the LCBO, as seen on the video. Mr. Roberts lied as to where the confrontation between himself and Mr. Sudomericky took place, insisting that it occurred behind his Acura when, as I have found, it took place behind Mr. Cullen’s van. Mr. Roberts attempted to bolster his evidence by adding details, such as how Mr. Sudomericky surprised him by appearing out of nowhere while he was patting his pockets for his keys. He testified that Mr. Sudomericky uttered the racial slur through clenched teeth and was so close to him that Mr. Roberts could feel his breath, although Mr. Sudomericky was wearing a mask. Mr. Roberts then altered his evidence and suggested that Mr. Sudomericky may have taken time to pull down his mask just before uttering the insult and pulling out his knife.

[365] Based on his own evidence, Mr. Roberts was not sure when he was high, or if being high had any impact on his reaction to being confronted by Mr. Sudomericky. More importantly, the evidence regarding Mr. Roberts’ actions both before and after the shooting of Mr. Sudomericky clearly show that he was in complete control of all his faculties despite his alleged consumption of copious amounts of marijuana. On the evidence before the court, there is no basis to have any doubt about Mr. Roberts’ ability to foresee the consequences of his actions on the day of the shooting.

[366] Mr. Roberts’ evidence-in-chief with respect to his consumption of marijuana was as follows:

• Back in 2020, he smoked marijuana on a regular basis. He testified that he normally smoked one or two joints a day, three at most.
• On the day of the shooting, he woke up at noon and smoked a joint a few minutes later. He showered, ate some food, and then smoked seven to ten joints in his brother’s bedroom while playing Fortnite. He did not realize how much he was smoking because he was engrossed in the game. He played Fortnite from 1:00 p.m. until 4:00 or 4:30 p.m., when Ms. Costain-Williams showed up at his house.
• After Ms. Costain-Williams told him that he was high, that he did not have to be nervous, and that he could relax, Mr. Roberts smoked two more joints. They then left for the LCBO. Mr. Roberts noted no issues while driving to the LCBO, despite having smoked at least 13 joints.
• Mr. Roberts’ response when asked by defence counsel how he feels when he is high is set out earlier in these reasons. I repeat his response here for ease of reference:

A. I’m not sure if you smoked marijuana before, Ms. Goldlist, but it affects the mental state so it kind of – it affects the emotion, it affects reactions and it affects just the mental state of things and I was feeling high. I don’t know how to describe it really, but depending on the circumstances and the situation, that would determine how I feel. So, for example, when Jaliyah showed up, I was nervous. Then she had let me know it’s okay, so I wasn’t nervous. So depending on the situation and the circumstances what affects, and, yeah.

Q. Okay. You said it affects your reactions. So some drugs speed people up, some slow them down, some cause people to hallucinate. What effects, if any of those does marijuana have for you?

A. Ah, it messes with the ability to think. It deals with emotions. Your emotions, your emotion already display [sic] opposed to if you were not high, people can actually see the emotion and stuff, but it was more so difficult to really think straight when you’re high off marijuana. You’re not slurring your words when you’re high off marijuana, you’re not stumbling when you walk, it’s more on just the mental. [Emphasis added.]

[367] In cross-examination, Mr. Roberts repeated that marijuana affects the “mental state, reactions, and emotions,” and that the way in which he would be affected “would depend on the situation and circumstances.” It conveniently did not affect Mr. Roberts when common sense suggested, and, according to his own testimony, it should have affected him. And it only did affect him when he was trying to explain how he realized he was high in the first place (because Ms. Costain-Williams told him he was high and he felt nervous) and to explain why he left the LCBO so abruptly. As Crown counsel put it, it was a “high” of convenience.

[368] Mr. Roberts testified that being high did not affect his ability to think, react, or manage his emotions in the following situations:

• He was able to play Fortnite for over three hours, which he agreed is a game that requires a high degree of concentration, quick reaction time, interaction with others, thinking, and dexterity. Not only did his smoking marijuana not affect his gameplay, but Mr. Roberts did not even feel high or notice that he had smoked so many joints. It was only after Ms. Costain-Williams arrived at his home around 4:00 or 4:30 p.m. and told him that he was high that he “realized” he was high.
• When Ms. Costain-Williams, according to Mr. Roberts, told him that he was high and not to be nervous, he was able to quickly process that information – he knowingly sought out confirmation of his being high from his brother, and was able to control his emotions so that he was no longer nervous. In addition, he processed that smoking another two joints would be okay because he was not so high anymore.
• Mr. Roberts had no trouble keeping track of time that afternoon. He left his house in time to get to the LCBO before it closed. Before leaving, he remembered to retrieve his firearm and apparently had no trouble locating his car keys.
• Mr. Roberts drove to the closest LCBO without any issue. He remembered his COVID mask and put it on prior to entering the store.
• Once in the store, Mr. Roberts walked directly to two specific areas and selected three specific bottles of alcohol.
• Mr. Roberts was able to clearly converse with employees, including Mr. Yilmaz.
• Mr. Roberts was able to quickly observe the amount of money that he owed for the alcohol, pull out his money, and count out the right amount of cash to leave on the counter within a matter of seconds.
• Mr. Roberts was able to react very quickly when Mr. Sudomericky approached him and “pulled out a knife.” According to his own evidence, Mr. Roberts was able to instantaneously pull out his handgun, chase Mr. Sudomericky down the parking lot, take aim, and shoot him in the lower back, which required a certain level of precision and focus.
• After shooting Mr. Sudomericky, Mr. Roberts walked back to his car at a relaxed or normal pace, got in, and drove out of the LCBO parking lot. Mr. Roberts described himself as “speed-walking” back to his car. However, I accept Mr. Cullen’s evidence as to the manner of his walking after the shooting. [This factor, as well as the following two factors, constitute after-the-fact conduct, which is addressed later in these reasons.]
• Mr. Roberts was able to process things very quickly after the shooting. On his own evidence, he realized that he needed to get rid of his illegal handgun and he quickly disposed of it, although he lied during his testimony as to what he actually did with it.
• Mr. Roberts was able to drive to his house and from there drive to Trudelle Street, where he was observed by police to back into a parking space without difficulty. Mr. Roberts testified that while he was driving, he observed that the police were following him. That he was alert and observant while driving is evident from his comment to Officer Moran after his arrest and while he was at the police station: he boasted to Officer Moran, “I knew you guys were following me and if I wanted to get away, I would have done it.”
• Mr. Roberts testified that being high that day did not affect his memory, as he was able to recall three years later the conversation that he says he had with his brother regarding the number of joints he smoked in his brother’s bedroom.

[369] All of Mr. Roberts’ actions that day, both before and immediately after the murder, show that Mr. Roberts was in complete control of his faculties, despite his alleged consumption of copious amounts of marijuana. These are all factors that are important in determining not only an accused’s level of intoxication, if any, but also if there is any basis to the defence: Sheepway, at paras. 56-65; and R. v. Robinson, 2019 ABQB 889, at paras. 203-208. Taking into account all the factors listed above, it is clear that Mr. Roberts was not intoxicated at all or to any degree and that a defence of intoxication on its own must fail.

[370] Mr. Roberts admitted that he was unsure as to whether his consumption of marijuana played any role in the shooting or his claim of provocation:

Q. So after he pulls the knife on you, calls you the name, at that point in time you’re saying everything’s blank.

A. Basically, I lost control, Mr. Gorda.

Q. Okay.

A. I was just so angry.

Q. All right. And is that because he pulled the knife and called you a name or because you were so high from smoking twelve joints?

A. That was because he had called me a “fucking nigger” and pulled a knife out on me, and I just went into a blind rage.

Q. So you’re agreeing with me that had nothing to do with the fact that you had smoked twelve joints by that point.

A. My reaction, it might have played a role, correct, because if you know marijuana – I don’t know if you smoke marijuana, Mr. Gorda, but it affects the mental state, it affects your reactions, it affects your emotions, it affects how you think. But at that moment I was more enraged at the fact that somebody’s calling me a “fucking nigger” with a knife in their hand. I really can’t say if the high affected, I’m not sure. I just know I just went into a blind rage at the fact that – him calling me a “fucking nigger” with a knife in his hand. [Emphasis added.]

[371] Mr. Roberts testified that immediately after shooting Mr. Sudomericky, his “high” or “buzz” was gone. As a result, he was thinking clearly and able to determine within minutes that he had to dispose of his illegal firearm:

Q. So at that point you’re thinking clearly. Correct?

A. Driving to my house, um-m, yes, I’m no longer like – my buzz is gone, I’m upset. I’m processing everything. Someone’s just called me a “fucking nigger,” I’m angry. Yes, I can honestly think clearly to get rid of this gun.

THE COURT: I didn’t quite hear that what you just – you mumbled a little bit.

THE WITNESS: Sorry, Your Honour.

THE COURT: It was something about you were no longer angry, you said?

THE WITNESS: I was no longer – my buzz was gone so …

THE COURT: The buzz was gone.

THE WITNESS: My buzz as being high was gone. And yes, I just – I was angry at the fact, still processing, he calling me a “fucking nigger,” just threw the gun,

MR. GORDA: And the reason I’m saying at this point your buzz is gone and you’re able to process things even though you’re still upset about being name-called, you know when you’re leaving the LCBO that now someone probably has to call 911. Correct?

A. That’s correct.

Q. And someone’s probably called 911 and the police are actually going to descend upon the LCBO pretty quick now.

A. That is correct.

Q. And you got the gun.

A. Correct.

[372] It is noteworthy that the only time that Mr. Roberts was clear in his testimony about having been affected in some way from smoking marijuana was when he claimed that it caused him to be paranoid and abruptly leave the LCBO, leaving Ms. Costain-Williams to complete the purchase of alcohol. When asked during his examination-in-chief as to why he left the store alone, he stated as follows:

Q. Why are you exiting alone?

A. Umm, I was paranoid. I had smoked so much weed that day and I just started to get paranoid at the fact that me and Mr. Sudomericky had gotten into an argument and I just thought somebody was going to call 911 and I have a gun on me. I’m on bail at the time. I really didn’t want the police to show up and frisk me and I ultimately go to jail. I have a son out there. I didn’t want to leave him to grow up by himself, so I just decided I need to get into the safe space of my car and out of the public eye and by doing so, I left prematurely.

[373] In giving this evidence, Mr. Roberts was asking the court to accept that his consumption of marijuana made him susceptible to being paranoid in a situation where, common sense dictates, no one would be. On his own evidence, Mr. Roberts did not believe that his interaction with Mr. Sudomericky in the LCBO was a big deal. He testified that he was “a bit upset” by Mr. Sudomericky’s behaviour, but “it was nothing major.” As far as he was concerned, the situation dissipated after he took a step back and that was the end of it. He did not expect any further interaction outside the LCBO.

[374] Mr. Roberts testified that he was not paranoid about driving high that day. Nor was he paranoid about leaving his house in the late afternoon with an illegal firearm tucked down his pants and while he was on bail. These are matters that common sense dictates would make a person who is susceptible to being paranoid as a result of consuming marijuana, be paranoid. It is convenient that up to that point, according to Mr. Roberts’ evidence, his marijuana consumption had no noticeable effect on his faculties.

[375] I find that Mr. Roberts was not paranoid and did not leave the LCBO in a rush because of any paranoia. Mr. Roberts’ claim to being paranoid was an attempt on his part to use his consumption of marijuana as an excuse to explain what he knew was obvious from the video, which clearly shows him leaving the cash area abruptly in order to pursue Mr. Sudomericky. Mr. Roberts agreed with that objective assessment of the video:

Q. So approximately three years after the incident happened and two years after the preliminary hearing.

A. Yes.

Q. Okay. And you were at the preliminary hearing, and you heard people testify, and you saw videos.

A. Yes.

Q. Okay. And you saw the fact that when you leave the LCBO, that it’s unusual that you leave in such a fashion, in a quick fashion without waiting to finish your purchase. Correct?

A. Correct.

Q. So you knew that that would become a point of contention at this trial or you’d have to have some sort of explanation for that and explain your actions that day. Right?

A. Yes.

Q. Right. So you’d also agree with me that anybody using common sense watching this video looks – would interpret your actions and the interaction that happened at the cash register that, oh, gees, something has happened at the cash register, these two guys got into it. Correct?

A. Yes.

Q. Mr. Roberts, as a result of that interaction, before his purchase is finished, decides to go after the person he just had the dispute with. Correct?

A. He left first and I went after him.

Q. Right.

A. Like after he left, I also left right after. Correct.

Q. Right. So again, I know you’ve got – you’ve got your explanation as to why you left but I’m just putting it to you fairly. The video, for anybody looking at it, who doesn’t know you guys, doesn’t know what happened, doesn’t know something happened beforehand, doesn’t know what happened after, you’d agree with me the way I describe what happened there is what makes sense.

A. Yes, there’s other reasons to it. You could be paranoid, and me leaving the store with – correct, but what was shown, yes, it’s possible.

[Emphasis added.]

[376] As noted earlier in these reasons, if Mr. Roberts were truly paranoid about the police arriving on scene in response to someone calling 911, he would not have pulled out his gun upon exiting the LCBO. He testified that his paranoia about the possible arrival of the police was based on his fear that he would be frisked and his illegal handgun discovered. The fact that he pulled out his gun shows that he was not concerned or paranoid about police arriving at that time. Rather, he pulled out his gun in preparation for confronting Mr. Sudomericky. And he left the LCBO quickly in order to catch Mr. Sudomericky before he left the parking lot. Mr. Roberts’ evidence as to his consumption of marijuana had nothing to do with his decision to leave the LCBO quicky and within seconds of Mr. Sudomericky’s departure.

[377] Mr. Roberts’ evidence as to the number of joints that he smoked that day and how unusual it was for him to have smoked such a large quantity of marijuana was convenient and highly suspicious, as was his testimony regarding his alleged paranoia.

[378] According to Mr. Roberts, for some reason he did not realize that he had smoked so much marijuana that afternoon until Ms. Costain-Williams arrived, from which it may be inferred that he was not that high, if at all. Although Mr. Roberts never counted, wrote down, or really thought about how many joints he had smoked, he specifically recalled a conversation with his brother on that topic that day, which was over three years ago. For some reason, Mr. Roberts was able to remember this conversation, and testified that his marijuana use on that day had not affected his memory.

[379] In terms of the amount of marijuana he consumed, Mr. Roberts agreed that it was unusual that he just happened to smoke such a large quantity of marijuana on October 25, 2020, when, according to his evidence, he had never smoked that many joints over the course of a three-and-a-half or four-hour period during the five years that he had been smoking the drug. He agreed that these coincidences looked suspicious:

Q. And then it just so happens that on the day that, as you put it, the accident happens, you’re in court testifying that, “Well, you know what, this was an accident. That day for some reason I decide to smoke seven or ten joints, leave my house high, drive high, and take a gun with me.” You understand that, right?

A. I understand that.

Q. Right. You understand how it doesn’t look good.

A, It’s possible. Then again, Mr. Gorda, it was a Sunday. Like I was saying, it’s not because it’s convenient. Something had just happened and I’m – just an explanation, it’s like, no it was a Sunday, I was going to a birthday party and I was just …

Q. Mr. Roberts, again, like I understand that. I’m not trying – you understand I’m not trying to be like be difficult with you. I’m trying to be fair with you and just putting to you that someone looking at this or listening to it would – may think that it’s – you know, it’s a convenient explanation for you. Right?

A. I wouldn’t call it an explanation but sure, I guess.

[380] In summary, the only evidence with respect to Mr. Roberts’ consumption of marijuana on October 25, 2020, and its effects, if any, on him comes from Mr. Roberts. There is no independent evidence in this regard. Mr. Roberts’ evidence as to how many joints he smoked is unreliable, not credible, and purely speculative. There is no foundation on the evidence to consider intoxication in determining whether Mr. Roberts had the requisite mens rea for murder.

The “Rolled up” Instruction – Provocation, Intoxication, and Credibility

[381] It is necessary to consider and assess all of the evidence in determining whether the Crown has established beyond a reasonable doubt that Mr. Roberts intended to cause Mr. Sudomericky’s death or intended to cause bodily harm that he knew was likely to cause his death, and was reckless as to whether death ensued or not.

[382] Typically, items of evidence may be relevant, material and admissible on more than one issue in a criminal trial. In these situations, the trier of fact must not compartmentalize the evidence, considering it only in connection with a particular defence, justification or excuse. The appropriate charge to a jury in such instances was set out in R. v. Srun, 2019 ONCA, 453, 146 O.R. (3d) 307, at para. 91:

To ensure that jurors do not take a compartmentalized or siloed approach to evidence relevant, material and admissible on more than one issue, considering it only in relation to a particular defence, justification or excuse, then never considering it again, we expect judges to ensure that jurors understand that the use of this evidence is not spent. In the end, what jurors must understand, whether by express instruction or otherwise, is that in deciding whether the Crown has proven either state of mind necessary to make an accused’s unlawful killing of another murder, they are to consider all the evidence that illuminates the issue, even if they have rejected the specific defences, justifications and excuses in play, to which that evidence also relates: Cudjoe, at para. 109.

[383] In the present case, having considered all of the evidence and the credibility of Mr. Roberts’ testimony, I am satisfied beyond a reasonable doubt that Mr. Roberts shot Mr. Sudomericky with the intention to kill him or, at the very least, with the intention of causing him bodily harm that he knew was likely to cause death and was reckless as to whether death ensued or not.

[384] The evidence of Mr. Roberts being “high” is objectively non-existent. His direct evidence of being high was conveniently selective, defied common sense, was self-serving and does not raise a reasonable doubt.

[385] Mr. Roberts’ evidence of provocation was also self-serving. His evidence as to how and where he and Mr. Sudomericky came together in the parking lot was contrived and not credible. According to Mr. Roberts, he was completely surprised when he looked up from patting his pockets and saw Mr. Sudomericky standing within an inch of him. What actually happened was that Mr. Roberts quickly followed Mr. Sudomericky out of the LCBO so that he could confront him with his handgun, which he had at the ready. Mr. Roberts was not caught by surprise, whether or not Mr. Sudomericky did or did not have a knife in his hand. For reasons already stated, I find that Mr. Sudomericky did not utter the alleged slur. Mr. Roberts was not provoked.

[386] Based on the evidence as a whole, both direct and circumstantial, there can be no doubt with respect to Mr. Roberts’ intent on that day.

After-the-Fact Conduct

[387] Some of the circumstantial evidence on which I have relied is after-the-fact conduct.

[388] After-the-fact conduct is circumstantial evidence that encompasses the statements and actions of an accused after the offence was allegedly committed. Its admissibility is subject to the same rules as other evidence: it must be relevant to a material issue, its admission must not offend an exclusionary rule of evidence, and its probative value must exceed its prejudicial effects: Ethier, at para. 56.

[389] After-the-fact conduct will be relevant if it makes a particular inference more likely, as a matter of logic and human experience. There is no impediment to using after-the-fact conduct to determine intent or to distinguish between different levels of culpability. Whether or not after-the-fact conduct has probative value in relation to intent “depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial.” R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 42. Where after-the-fact conduct is as equally consistent with an offence the accused has admitted as it is with the offence the Crown alleges, it will not be relevant to determining the accused’s level of culpability as between two offences. But where the accused’s after-the-fact behaviour is out of proportion to the level of culpability admitted, it is relevant to degree of culpability: Ethier, at para. 61.

(a) Provocation/Intoxication

[390] There is no bright-line rule controlling whether after-the-fact conduct evidence is admissible to assess the partial defence of provocation to a murder charge. Relevance governs. Since the defence depends, in part, on the accused’s subjective state of mind, such evidence may be relevant to the accused’s state of mind. Evidence of behaviour immediately after the state of mind that was said to exist may shed light on whether it actually did exist at the relevant time: R. v. Head, 2014 MBCA 59, 306 Man. R. (2d) 186, at para.49; and R. v. Nagy, 2023 ONCA 184, 166 O.R. (3d) 545, at paras. 21-23.

[391] In the present case, evidence of after-the-fact conduct is relevant for two reasons:

i) Firstly, to assist in the assessment of Mr. Roberts’ level of cognitive impairment shortly after he shot Mr. Sudomericky. Thus, the after-the-fact conduct is probative of Mr. Roberts’ ability to have the requisite intent for murder due to intoxication.

ii) Second, to assist in the assessment of the defence of provocation. Since the defence of provocation depends, in part, on the accused’s subjective state of mind, such evidence may be relevant to the accused’s state of mind. The Crown submits that Mr. Roberts’ demeanour and actions after the shooting do not support his evidence that he was in a “blind rage” when he shot Mr. Sudomericky and that, to the contrary, they convey the same demeanour and calmness that Mr. Roberts is seen to display throughout – that is, cool, calm and calculated.

(b) Mr. Roberts’ Level of Impairment

[392] As observed earlier, there is no independent evidence that Mr. Roberts was impaired by marijuana. No witness testified to having observed Mr. Roberts smelling of marijuana or appearing to be impaired.

[393] After shooting Mr. Sudomericky, Mr. Roberts walked to his vehicle, retrieved his keys, started his car, and drove away. He had no difficulty operating a motor vehicle. Based on his own evidence, Mr. Roberts quickly determined that he had to dispose of his illegal firearm. Despite being “intoxicated,” he devised a plan mere moments after the shooting to dispose of or hide the gun, albeit not the plan he attested to in court.

[394] Officer Phuong, who was following closely behind Mr. Roberts’ vehicle after the shooting, noted “nothing abnormal” about Mr. Roberts’ driving. He observed Mr. Roberts reverse into a parking space without difficulty. There was nothing about Mr. Roberts’ driving that gave him any concern.

[395] Officer Moran spent a considerable amount of time with Mr. Roberts after his arrest. He and Officer Borch transported Mr. Roberts to the police station and were present during the booking procedure. There was nothing in the booking video to suggest that Mr. Roberts was intoxicated or impaired by alcohol or drugs. To the contrary, Mr. Roberts was very much attuned to what was going on. For example, when Officers Moran and Borch indicated that they wanted to conduct a further frisk search, Mr. Roberts interjected and asked the booking sergeant, “A Level III search is not necessary, correct?” During the booking procedure, Mr. Roberts inquired as to whether a particular officer he knew was working that day.

[396] Officer Moran spent an hour or so with Mr. Roberts while waiting for the gunshot residue tests to be performed. During that time, he and Mr. Roberts had a friendly conversation, during which Mr. Roberts taunted or joked with the officer, telling him, “I knew you guys were following me and if I wanted to get away, I would have done it.” Officer Moran saw no indication that Mr. Roberts was under the influence of drugs or alcohol.

[397] All this behaviour is consistent with Mr. Roberts being sober and is inconsistent with his being intoxicated. This circumstantial evidence serves to disprove the intoxication defence, and also undermines any alleged effect that intoxication would have on the “rolled up charge.”

(c) After-the-Fact Conduct and Provocation

[398] The defence of provocation goes to the state of mind of the accused. Mr. Roberts claims that he went into a “blind rage” because of the alleged conduct of Mr. Sudomericky. Yet immediately after he shot Mr. Sudomericky, Mr. Roberts walked calmly back to his car and drove away. Mr. Cullen testified as follows:

Q. Okay. And did you notice anything about how he was walking back or what his demeanour was at that point in time?

A. Yes, it was much calmer, more relaxed than what had just occurred. It was everything was so frantic and frenetic at that point and then when he was walking back, he seemed much, calmer, like more relaxed pace, walking back towards his vehicle.

[399] In cross-examination, Mr. Cullen agreed that Mr. Roberts’ pace could be described as “normal.” Mr. Roberts testified that he was “speed walking.” I accept Mr. Cullen’s evidence over that of Mr. Roberts in terms of Mr. Roberts’ pace and demeanour while returning to his car.

[400] Mr. Roberts’ behaviour as observed by Mr. Cullen is not consistent with that of someone who was just provoked and in a blind rage, and who, based on his own evidence, was still angry about the alleged racial slur 11 hours later. However, in the end, I do not place significant weight on this particular piece of evidence.

[401] Crown counsel referred to other after-the-fact conduct that he submits shows that Mr. Roberts was not intoxicated, that he is not a person who is easily provoked, and that he is not paranoid, scared of authority, or scared of the police. For example, Mr. Roberts remained remarkably cool, calm, and collected during his arrest at gunpoint, telling the officers to “relax” and “chill.” While their guns were drawn, Mr. Roberts argued with them regarding their order to turn off the ignition, and ultimately refused to comply with that order. During the drive to the police station, he asked about his cell phones and the other people who were arrested with him. During the booking process, he questioned the necessity of a Level III search. When in the interview room, he told the detectives to “Hurry up, man” as he wanted to return to his cell.

[402] The way in which Mr. Roberts stood up to Detective Thornton shows that he was not paranoid. The tension in the interview room was palpable as Mr. Roberts stood up, demanded that he be taken back to his cell, and told the detective, “Don’t touch me”; “Would you like me to touch you?”; and “I will touch you.” Mr. Roberts was clearly not afraid to stand up for himself and not paranoid.

[403] Mr. Roberts’ interactions with the police clearly support the inference that he was not intoxicated or under the influence of any drug. He was clear thinking throughout his dealings with the police. While the evidence also shows that Mr. Roberts is not scared of the police or prone to paranoia in their presence, the context in which his behaviour took place is not such that I would rely on it. There is other evidence, as reviewed in these reasons, that amply supports the finding that Mr. Roberts was not struck with paranoia from the effects of marijuana while he was in the LCBO on the day of the shooting.

Conclusion

[404] A summary of the events on October 25, 2020 is as follows:

• Mr. Roberts and Mr. Sudomericky were involved in a brief confrontation at the cash register over social distancing. Words