Court File and Parties
COURT FILE NO.: CR 500/22 DATE: 2024/01/04
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING Crown T. Shuster and G. Akilie, on behalf of the Crown Attorney
- and -
JIAPENG WU Accused D. Heath, on behalf of the accused
HEARD: November 14, 15, and 17, 2023
REASONS FOR JUDGMENT
Introduction:
1The accused, Jiapeng Wu (“Wu”) is charged with second degree murder in the death of Yan Jing (“Jing”).
2At the arraignment, the accused entered a plea of not guilty to the offence as charged but guilty of manslaughter. The Crown did not accept the accused’s plea.
3The charge relates to an incident that was alleged to have occurred on April 12, 2021 in the City of St. Catharines.
4The only issue at trial is whether the accused is a party to the murder through the application of s. 21(2) of the Criminal Code, R.S.C. 1985, c. C-46 — namely that, when working with the shooter(s) in the planned robbery of Jing, he knew that murder was a probable consequence.
5Four witnesses were called by the Crown, including three civilians: Fang (Fiona)Wang, (“Wang” or “Fiona”) Steve Bonazza (“Bonazza”) and Joseph Katzman (“Katzman”). The remaining witness was Toni Brinck, an expert in firearms and ballistics. The accused did not call any evidence.
Agreed Statement of Fact (“ASF”):
6The relevant segments of the extensive ASF include:
Wang is 24 years old. Her English name is “Fiona”. She was born in Fujian, China in May 1999. She came to Canada in February 2017 to complete high school. She completed grade 12 in Toronto and gained admission to study HR management at York University. However, she failed the 1-year English pre-requisite course and she took English language courses at two colleges.
In 2018 she became roommates with Heng Du (“Du” or “Allan”) while living in a condo at Yonge and Finch in Toronto. They moved to a house in Richmond Hill at Yonge and Stouffville and then to 6 Greenhill Avenue in Richmond Hill. They were very close friends but did not have romantic relationship.
Fiona met Wu in May 2020. A mutual friend invited her to a friend’s house to play ma jiang. They met again at her birthday party when a mutual friend brought him to Fiona’s house. Wu and Fiona talked often and were friends. At the time, her dog was pregnant and Wu would come to her house every day to care for the puppies, and bought one of them. They did not have a romantic relationship.
Fiona learned from Wu that he would make money from gambling and frauds using other peoples’ ID cards. Fiona learned from Allan that Wu was involved in currency exchange robberies. Wu would contact the victim and Allan would be the driver. Two people would then show up from nowhere to steal the victim’s money. Apparently, Wu was the leader or organizer of these robberies.
Fiona leased a blue Audi S7. Allan would drive it and refill the gas whenever he used it. She does not know if Allan and Wu used it to commit robberies, but told them not to use it for robberies.
Fiona acknowledged giving an untruthful statement to the police on June 21, 2021 when she was first interviewed, and a half-truthful statement to police on August 27, 2021 when she was arrested. She testified that she lied to try to protect herself and her friends. In December 22, 2022, while in custody, Fiona voluntarily gave a third statement to the police to tell them the truth. She kept dreaming about how the victim died and realized she needed to tell the truth to police. She was not promised anything for her third statement and did not expect anything in return for her statement.
A couple of days before the robbery of April 12, 2021, Allan complained to Fiona about a job he was supposed to do with Wu. It was the most complicated job involving the largest amount of money - $70,000, but he would only get $1,000. Allan told Fiona the job would take place in Niagara. The plan was to meet up with a victim in front of a store, and then someone would go and steal the money from the victim. They would have to get fake license plates from somewhere in Markham.
The day before the incident, Allan’s pinky ring fell off – a sign of bad luck. Allan wanted to back out of the job. He and Fiona were afraid to tell Wu. Allan and Fiona decided to tell Wu that Allan had been arrested. Fiona messaged Wu on WeChat that Allan had been arrested, and sent him a screenshot of a conversation she had with “Coco”, an immigration lawyer, asking for advice about Allan’s “arrest”.
The morning of April 12, 2021, around 7 or 8 am, Wu called Fiona and asked if she could do a favour for him and be the driver for the job that day. His two other drivers Allan and “DD” were unavailable. He told her that she did not need to be involved in the robbery – she would just drive to Niagara, drop him off and go back to Toronto. Someone else would do the robbery. Fiona said no at first, but Wu promised to repay her $10,000 that he had borrowed from her. She then agreed. Wu told her she would have to pick up a Mercedes Benz.
On April 12, 2021 at 12:42 pm, Fiona messaged Wu to confirm if they were still going to Niagara that day. Around 2:45 pm Wu called Fiona to tell her it was time to go and Wu messaged her the phone number of the S63 owner and told her to go to 88 Sheppard Avenue. He also texted her the address of 25 Tangiers Road. Around 3:15 pm., Fiona left for 88 Sheppard. Allan drove her in her Audi S7 and dropped her off close to 88 Sheppard. He parked far away as the owner of the S63 knew both Allan and Wu, and Allan and Fiona did not want the story they had told Wu to be uncovered.
Fiona waited for about 15 minutes at 88 Sheppard Street, and then called Wu to ask where the S63 owner was. She contacted the S63 owner and learned he was at 5 Sheppard Avenue, across the street. The Mercedes owner picked up Fiona. She then drove the Mercedes towards 25 Tangiers Road, where she parked outside a body shop. She texted Wu to tell him the car didn’t have gas. Wu then entered the lobby from the back. He gave her $100 cash to fill up the tank. Fiona returned to the body shop 45 minutes later. She parked in the parking lot on the opposite side of the street and she messaged Wu.
Wu and two unidentified black males came out of body shop, crossed the street and got into the Mercedes. They did not talk as they walked. Black Male #1 was at least 6 feet tall. He was skinny, wearing black pants, a black hoodie with the hood up, grey or brown gloves, and a blue medical/surgical mask. He looked like he was in his 20s or 30s. Black male #2 was also over 6 feet tall. He was also wearing a black hoodie with the hoodie up, black pants, a mask and grey or brown cloth gloves. He was a bit skinnier than black male #1. She could tell from their eyes they were dark skinned.
Wu was wearing a light-coloured sweater, a vest, and possibly shorts and slippers. He had recently dyed his hair blonde. His hair was short. Black male #1 got into the Mercedes in the driver’s side passenger seat, behind Fiona. Black male #2 got into the rear passenger-side seat, behind Wu. Male #1 said he was hungry, so Fiona drove to an A&W on Finch Avenue West. Wu had to get out of the car and open the door for Black male #1, as the child locks were on. Fiona had seen Allan previously unlock the child locks while cleaning other vehicles.
Fiona then started driving the Mercedes towards Niagara. The two black men were playing Switch in the back seat and were talking about playing games. Jimmy did not talk with them. He was scrolling on TikTok.
At one point, about halfway to Niagara, Black male #1 said “everything is set up already” and that his boys were going to wait for them in Niagara. Wu did not say or ask anything about these boys. At this point Fiona understood that she would just drop the three men off in Niagara and she would return to Toronto. She understood the two black males’ role in the job would be to run from somewhere and steal from the victim. About halfway to Niagara, Wu typed the address of a school into Fiona’s phone. Fiona followed the GPS on her phone and drove directly to the school. Before arriving at the school, Fiona did not hear the men in the back call anyone or planning anything.
Fiona backed into a parking spot at the Oakridge School. She saw some children playing on the playground. At 7:01 pm Fiona messaged Allan that she had just arrived, replying to a WeChat message Allan had sent from a secret account, so that Wu would not realize Allan was messaging her. At 7:02 pm she messaged Allan that she was tired and nothing had started yet. She exchanged some more messages with Allan until 7:03 pm. She did not message him again until 7:40 pm. While Fiona was messaging with Allan, the three men got out to urinate. Wu had to open the doors for the two black men. They were gone briefly, about one to two minutes. The men returned and got back into the Mercedes, into the same seats. Wu told Fiona they arrived earlier than he thought. They waited in the car. At this point Fiona still thought the robbery would happen at a shop.
While Fiona was scrolling through Tik Tok, Wu contacted the victim by phone. They sat there parked for about 10-15 minutes. Suddenly, Jimmy said “hurry up, get out of the car, he will be here in three minutes.” Wu looked anxious. He turned around to the back of the car and told the two black men to hurry up and get out of the car. Wu got of the car and unlocked the back doors for them. The two black men got out and Wu got back into the passenger seat.
Within a minute the victim pulled into the Oakridge School parking lot. This was about 10-20 minutes after Fiona’s last message to Allan. Jing’s Dodge pick-up truck passed them in the parking lot, turned around, and then stopped in front of the Mercedes. Jing rolled down his window and he made eye contact with Wu and nodded. He then drove into the parking spot next to the Mercedes.
Jing grabbed a black backpack from his truck. He then opened the rear passenger door of the Mercedes, and sat in the rear driver’s side seat behind Fiona. He closed the door. Wu, still sitting in the front passenger seat, turned around to talk to Jing. They said ‘Hi, how are you” to each other. Jing then gave Wu a piece of paper with his bank account or wire information and told Wang he could do the transfer right away while they were counting the money. Wu pretended to start the wire transfer and Jing asked Wu if he had a bag in his car.
Fiona heard the victim open the zipper of his backpack. She then heard what sounded like the victim taking money from his backpack and putting it into another bag. Jing then said he had a money counter in his car and asked Wu if he wanted him to get it. Wu said yes. Jing had been in the Mercedes about two to three minutes.
Fiona then heard the back driver’s side door of the Mercedes open. She heard black male #1’s voice aggressively yell “give me the bag” two to three times. Based on what she could hear, he was standing inside the rear driver’s side door. Immediately after, Fiona heard three very loud bangs in rapid succession. She didn’t realize they were gunshots at first. Her ears went partly deaf after the first shot. The second and third shots didn’t sound as loud.
Right after the gunshots, Wu was facing the back seat. Fiona felt a weight change in the car. The car went up, and then it went down. She felt someone get back in the car. The two black men got back into the Mercedes, into the same seats as before. Black male #1 yelled at her “bitch drive, bitch drive.” Fiona’s hearing was still numb and she wasn’t sure if he was talking to her. She then saw he was holding a gun above the console, shaking and waving. The male was holding the gun close to her elbow. She realized the “bang bang bang” were gunshots.
Wu saw she wasn’t moving and pushed her arms and told her “go go go go” in Chinese. Fiona stepped on the gas and drove 5-6 feet forward. She stopped because the three men were arguing. Male #1 was saying they couldn’t leave the body on the ground. Male #2 said why not –they could just drive the victim’s car and leave the scene. Wu was facing the back seat and yelling to the two black men “gimme the fucking bag, gimme me the fucking bag.”
Male #1 said “bitch stop, bitch stop.” Fiona didn’t realize he was speaking to her. Wu then told her “stop stop stop” in Mandarin. Wu then got out and opened the doors from male #1 and male #2. The child locks were still on. The black men got out. Wu then slammed the door and told Fiona to go home. Fiona started driving away, along Marsdale, leaving Jimmy and the two black men behind. She then saw Wu behind her chasing after the Mercedes. She stopped at the corner of MacBeth and Marsdale. He got in the front passenger seat. Wu said the black guys were crazy and took the money.
Wu told Fiona to loop around the neighbourhood to find the black men and get the money back. Fiona then drove a few times around Marsdale Ave., Byrne, Masterson, and MacBeth. She was feeling numb, paralyzed, and terrified. According to Fiona, they found the two black men in the middle of MacBeth. Black male #1 was standing closer to the street and to Fiona’s car. Black male #1 was standing closer to the house. Black male #1 was holding a paper bag like a baby. He gestured with his hand at Fiona to get away. Wu did not say anything. Fiona did not stop or open the window. Wu said just go back to Toronto and Fiona turned onto Glendale and then got on the highway to Toronto.
Wu made a phone call to someone in Mandarin. He said “everything’s screwed up, somebody probably died.” Based on what Wu was saying, it seemed like the other person was telling Wu that he and Fiona needed to hide somewhere and wait for the incident to pass. After he hung up the phone, Wu turned around to the back seat area and saw a bullet on the back seat floor. He bent over and picked up the bullet and said “that’s my bullet.” He was holding the thumb between his index finger and thumb. Fiona asked Wu why one of his guns ended up in their hands. He said he gave the gun to them when they were at the body shop (where Fiona had picked them up). After the call, Fiona asked Wu how he met the two black males. Wu told her they were friends of “O”, and that O promised Wu they were good. “O” had done robberies with Wu before. Wu said that this was the first day he had met the two black men.
While Wu was on the phone with someone else, Fiona was secretly texting Allan. She asked Allan for help. She was freaking out and felt paralyzed. She hit something while driving. At 7:40 pm she messaged Allan that someone opened fire. Over several minutes she exchanged several messages with him. She asked him to bring alcohol to wipe the car and a screwdriver to change the license plate. She told Allan there were bullet holes and blood in the back seat. Jimmy had told her there was a bullet hole in the back seat.
Fiona got off the highway, and went to an Esso gas station in North Burlington, which she picked at random. It seemed like an abandoned area. It was dark with no cars around. Fiona couldn’t drive anymore. She felt completely shocked and had hit something while driving. She shared her location with Allan. She parked at the Esso. Wu turned around and saw a wallet in the back seat. He picked it up. He checked inside the wallet and saw the victim’s picture. They sat there for 45 minutes waiting for Allan to come. They were shocked. They didn’t talk more about the incident.
Allan arrived at the Esso gas station with sanitizer wipes and a screwdriver. He had driven Fiona’s Audi. Fiona wiped down the steering wheel and the buttons and the dashboard. Allan cleaned the back seat area. Wu got rid of the victim’s property. He threw the bag and everything else into the bush. The three talked about abandoning the Mercedes, but rejected the idea as the Mercedes owner had seen Fiona’s face and had her phone number. They decided to call a tow truck company to tow the car back to Toronto. Fiona called a tow company she had used a few weeks earlier. The tow truck driver didn’t speak Mandarin, so Fiona gave the phone to Wu. They told the tow truck driver to come to the Esso station to pick up the car and left $300 inside the Mercedes console. They waited 10 minutes for the tow, but then decided to leave as there was no point in letting him see their faces. Allan drove the three of them back to Toronto.
The day of the incident or the day after, Wu paid Fiona $3,000. He told her to forget about everything.
The following day Fiona went with Wu and Allan to a barbershop to get their hair done. They were afraid people would find them out. Jimmy had his hair cut and dyed from blonde to black. The second day after the shooting, Wu shared a YouTube video with Fiona about the scene of the shooting. Fiona and Wu also checked a police website for information posted about the shooting. Two to three days later, Wu asked Fiona to go with Allan back to Oakridge school to check if there were cameras around the school. Fiona also wanted to go back to the scene to say sorry to the victim. Fiona and Allan drove back to St. Catharines. They parked somewhere south of Glendale and walked to the school. Fiona did not see cameras at the school and informed Wu.
Bonazza lives on the corner of Macbeth Blvd and Marsdale Drive, very close to Oakridge School. At around 7:30 pm on April 12, 2021, Bonazza was returning to his house from walking his dog. He ran into his neighbour, Katzman, on the corner of Macbeth and Marsdale. After chatting with Katzman for about two minutes, Bonazza saw two black men and an Asian man walking very close to his fence line (which runs along Marsdale Dr from Oakridge school), towards them. He thought it was odd they were walking so close to his fence line. They walked within five feet of them. Bonazza thought one of the men said something to him and asked “what was that?”, but then realized they weren’t speaking to him. The comment Steve heard was spoken in a normal tone, but he could not make out the words. The three men all looked in their early to mid-twenties. They were walking in a pack, about 1-2 feet apart from each other.
The male closest to Steve was a black man, wearing a black hooded sweatshirt with a white logo, black track pants. The other black male was wearing almost the same all-black clothing. Both men had their hoodies up and were wearing masks. They had a similar build and height. They were both carrying crumpled brown paper bags in their hands. The Asian male was shorter than the other two men. He was wearing a grey zipped-up sweat-shirt, black shorts, and had a mask. The top half of his hair was dyed bleach. The bottom half was black. The three men passed them at the corner of MacBeth and continued walking south towards the intersection of Byrne and Marsdale, where they got into a vehicle. As they passed them, Bonazza noticed that the Asian male started walking with more urgency to towards the vehicle, at a faster tempo than the two black men. This man got to the front passenger seat and looked back towards the two black men. The other two black men got into the back seats from their own sides. The 4-door dark coloured Mercedes Benz turned south onto Byrne and out of sight, travelling east bound towards Masterson Drive. Shortly after, less than 1-2 minutes later, Bonazza saw the Mercedes driving back towards them on Marsdale. Bonazza figured the car must have taken a right on Masterson, and then a right on Glendale, and then come back up Marsdale. The two black men got out of the car and started walking south on Marsdale away from them, towards Glendale. The Mercedes took a right and drove up Byrne out of sight.
Katzman also lives in the neighbourhood of Oakridge school. Around 7:40 pm on April 12, 2021 he ran into his neighbour Bonazza at the corner of MacBeth and Marsdale. After chatting for five to 10 minutes, Katzman saw two black men walking along Marsdale drive towards him and Steve. They were walking right along the property line of Steve’s house. The two black men were wearing dark clothes, hoodies, dark jeans, and surgical masks with their hoodies up. They were both carrying brown paper lunch bags. A large dark coloured Mercedes then came out of Oakridge parking lot and stopped on Marsdale between MacBeth and Byrne. A male Asian with blonde spiked-up hair came running from the school to the passenger side of the Mercedes, and got into the car. The two black men then got into the car and got into the car from the driver’s side. Katzman thought they got into the back of the vehicle. It then went along Marsdale and turned onto Byrne Blvd. Katzman remained there talking to Steve. At most one to two minutes later, he again saw the two black men with hoodies walking down Byrne towards Marsdale. The two men turned and started walking down Marsdale towards Glendale. Katzman then saw the Mercedes follow them and turn south onto Marsdale. He did not see the men or the Mercedes after that.
Toni Brinck testified at the trial as an expert on firearms, including firearm function, and firearm and ammunition components. She had examined a 0.40 calibre Smith & Wesson cartridge casing found at the scene of the shooting. The casing was manufactured by Winchester. The firing pin left a rectangular shaped mark on the casing. This would imply a rectangular shaped, or Glock-styled firing pin. The cartridge also had a rectangular shaped aperture shear. A Glock-style firing pin would also have a rectangular aperture. Rectangular-shaped apertures are not exclusive to Glocks. The firing pin shape suggested the cartridge was discharged from a semi-automatic. Glock makes 0.40 semi-automatic handguns.
Brinck also examined a 0.40 bullet retrieved from the scene of the shooting. It was examined microscopically but did not have markings of identification value. Brinck also examined a 0.45 calibre bullet retrieved from the scene of the shooting. The bullet was not a hollow point. It was possibly a round-nosed. The only manufacturers in the general rifling characteristics database with firearms that would fire 0.45 bullets and leave rifling with 8 lands and grooves were Bursa and Glock. Glock does not make revolvers.
Issue:
7As mentioned, the sole issue is whether Wu subjectively knew that murder was a probable consequence of the unlawful common purpose (robbery) he organized with the two unknown shooters on April 12, 2021.
Positions of the Parties:
8The Crown submits that Wu orchestrated, planned, and enacted the plan to rob Jing with violence and that the accused knew that the use of a firearm and murder was a probable consequence. The Crown says that the court ought to consider all of the circumstances and, on the entirety of the evidence, the charge has been established beyond a reasonable doubt.
9The defence submits that the Wu did not have the subjective mindset of a shooting or murder in the course of the planned robbery. Counsel argued that this is a circumstantial case and there are several competing inferences. His client’s intent was to rob money, nothing more. That intent did not change during the course of the events, nor did his client ever intend to murder.
10The evidence in its totality must leave the court in a state of reasonable doubt as to Wu’s knowledge and intention in respect of s. 21(2). Counsel submits that his client must be found guilty of manslaughter.
Legal Principles:
11All of the evidence must be considered by the trier of fact. An accused is entitled to the benefit of the presumption of innocence and is not required to give any evidence. The defence was not required to disprove the offences occurred as alleged by the Crown and in the manner proposed by the prosecution. The defence was not required to substantiate their theory of the case. The burden of proving guilt of the accused lies upon the prosecution throughout the trial. Before an accused can be found guilty, a court must be satisfied beyond a reasonable doubt that the evidence establishes all of the essential elements of the offence charged against him.
Reasonable Doubt:
12The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 14, the Supreme Court explains that the meaning of proof beyond a reasonable doubt is "[a] standard of proof [that] is higher than… a balance of probabilities, yet less than proof to an absolute certainty."
13The law provides for no burden of proof on the defendant at any stage in the proceedings. The standard of proof in a criminal matter is the higher standard of proof; namely, beyond a reasonable doubt. Absolute certainty is not required, for that would be an impossibly high standard for the prosecution to achieve. However, it does demand considerably more than probable or likely guilt.
14Further, reasonable doubt cannot be based on sympathy or prejudice, but must be founded in reason and common sense and be logically connected to the evidence or the absence of evidence.
Assessing Credibility:
15It is trite law that a trier of fact may believe all, none, or some of a witness’ evidence. A judge is entitled to accept parts of a witness’ evidence and reject other parts. Similarly, the trier can accord different weight to different segments of the evidence that is accepted.
16Much of the evidence in this case is circumstantial. The relevant considerations that must be applied in addressing the relationship between circumstantial evidence and proof beyond a reasonable doubt was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 35-38. See also the discussion in R. v. B. (S.), 2018 ONCA 807, 143 O.R. (3d) 181, at paras. 122-124.
17Finally, it must be remembered that a potential inference of guilt will only satisfy the Crown's burden of proof if it is the only reasonable inference arising from the evidence. However, inferences consistent with innocence do not have to arise from proven facts and they do not have to be the only reasonable inferences. Inferences consistent with innocence can arise from a lack of evidence and they may simply be reasonable possibilities, provided they are based on logic, common sense, and experience and not on speculation. See: Villaroman, at paras. 35-43; R. v. Finlay and Grellette (1985), 52 O.R. (2d) 632, at 58 (C.A.).
18Circumstantial evidence analysis must be conducted holistically. I must not address the evidence in a piecemeal fashion when assessing the reasonableness of conceivable alternative inferences.
Prior Discreditable Conduct (Similar Fact Evidence):
19Following a pretrial application, in oral reasons provide to the parties, I ruled that certain similar fact and/or prior discreditable conduct evidence, namely certain text or other messages involving the accused, was admissible. The legal framework applicable to similar fact or discreditable conduct evidence stems from the Supreme Court of Canada’s decision in R. v. Handy, 2002 SCC 56. It reflects the adoption of a modern, principled and purposive approach to the question of admissibility — an approach that is not dependent on fixed categories and rigid rules. It applies to evidence that is discreditable and attributable to the accused. See also R. v. Arp, [1998] 3 S.C.R. 339, at paras. 54, 56; R. v. Tsigirlash, 2019 ONCA 650, at para. 34.
20Like evidence of bad character, disposition, and general propensity, similar fact evidence is presumptively inadmissible. It will, however, as in this case, earn admission where the prosecution establishes, on a balance of probabilities, that it is legitimately probative of an issue in the case and its probative value outweighs its prejudicial effect. Similar fact evidence need not be conclusive, or determinative of guilt.
After-the-Fact Conduct:
21After-the-fact conduct is circumstantial evidence of what the accused said and did after an alleged offence. Its “content and contours are confined only by the limits of human experience.” It allows a fact finder to draw particular inferences based on a person’s words or actions and is not subject to any special rule of admissibility: See R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 106, 111; R. v. Rosen, 2018 ONCA 246, 361 C.C.C. (3d) 79, at para. 50.
22Where it is tendered to prove an element of the Crown’s case, it is presumptively admissible, provided it is relevant to a live, material issue in the case, its admission does not offend any other exclusionary rule of evidence, and its probative value exceeds its prejudicial effect. It is commonly admitted to demonstrate that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. A trial judge always has a residual discretion to exclude evidence that is otherwise admissible where its prejudicial effect outweighs its probative value, though this is the exception rather than the rule: See R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 57; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 106, 140, 157; R. v. White, [1998] 2 S.C.R. 72, at para. 19.
23The admissibility of after-the-fact conduct evidence, and the use to be made of it by the trier of fact depends on the nature of the evidence, the issues in the case, and the positions of the parties. Sometimes, this type of evidence may be probative of a person's participation in a crime, but of no value in determining the person's level of culpability. In other cases, as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind.
24The question is whether the evidence is capable of supporting the inference sought to be drawn about the accused's state of mind. It will be irrelevant to this issue if the conduct is "equally consistent" with the proposed inference and the alternate inference, such that the conduct no longer allows the trier of fact to choose between available inferences as a matter of common sense, experience, and logic: Calnen, at para. 124. However, the mere fact that after-the-fact conduct can support a range of inferences does not render it irrelevant: Calnen, at paras. 112, 144.
25Finally, where multiple possible explanations for after-the-fact conduct are proposed, they do not immediately become "equally probable" and subject to a “no probative value” instruction. Instead, the overall conduct and context must be such that it is not possible to choose between the available inferences as a matter of common sense, experience and logic.
Discussion:
26This was a very short trial. As mentioned, there is only one issue for my determination.
27Section 21(2) of the Criminal Code imposes party liability for offences that are incidental to the carrying out of a common unlawful design. Liability under this section requires the Crown to prove that an accused formed an intention with others to engage in an unlawful purpose and that one or more of the others, in carrying out that unlawful purpose, committed a different offence that the accused knew or ought to have known was a probable consequence of carrying out the common unlawful purpose: R. v. Kelly, 2017 ONCA 920, 138 O.R. (3d) 241, at para. 24; R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at paras. 39-43, leave denied [2010] S.C.C.A. No. 459).
28Liability under s. 21(2) derives from the accused’s promise to devote physical and intellectual resources to the achievement of the common unlawful purpose. The accused’s liability in respect of the incidental offence stems from his or her decision to participate in carrying out the unlawful purpose and to contribute resources needed to achieve it. To ground a conviction on the basis of common purpose requires proof of three elements: (1) the party’s participation with the principal in the original unlawful purpose (the “agreement”); (2) the commission of the incidental crime by the principal in the course of carrying out the common unlawful purpose (the “offence”); and, (3) the required degree of foresight of the likelihood that the incidental crime would be committed (“knowledge”): See R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 44; R. v. Patel, 2017 ONCA 702, 356 C.C.C. (3d) 187, at para. 39; Simon, at para. 43; R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at para. 64. As mentioned, in this case the focus at trial was on the third prong of the applicable elements.
29Where the offence is murder, the knowledge element under s. 21(2) requires the Crown to prove that the party in fact foresaw that murder was a probable consequence of carrying out the original unlawful purpose. To convict a party of manslaughter relying on s. 21(2), the objective standard requires that the Crown prove that a reasonable person in all the circumstances would have foreseen that a probable consequence of carrying out the original common purpose was perpetration of an inherently dangerous act creating a risk of bodily harm to the deceased that was neither trivial nor transitory.
30An accused’s mere participation in an armed robbery, standing alone, does not amount to proof of his or her subjective knowledge that murder was a probable consequence of the original joint endeavour.
31In R. v. Kawal, 2018 ONSC 4560, at paras. 53-54, Harris J. wrote:
Violence and the threat of violence fails to demonstrate sufficient evidence of an intention to kill. In law, robberies and kidnappings definitionally and as a practical matter involve violence of one type or another. The prospect of violence does not equate to the probable consequence of the full offence of second degree murder.
Professor Colvin writes in Principles of Criminal Law (Carswell, 1986) at page 323:
... in the most common type of case where s. 21(2) is used, which is the commission of a murder during the course of an armed robbery, it is by no means obvious that the condition [of probability] is met. To say that a consequence is "probable" (or "likely") is ordinarily to say that it can be expected to occur, that its occurrence is more likely than not, or that there is a better than even chance of its occurrence. Armed robberies do not usually lead to killings. Killing might be regarded as a possible outcome of any armed robbery, but it will rarely be a probable outcome. Thus, if the calculation of probability is made from the time the implementation of the common purpose commences, the condition would place stringent restrictions on the extension of secondary liability. See also: R. v. Gong at paras. 36-44 in the context of reasonable foreseeability (manslaughter), and R. v. Roks, 2011 ONCA 526 on the definition of probable meaning “likely”.
32The “probable consequence” analysis hinges on an exploration into whether the secondary offence was within the realm of contemplation of the parties to the joint endeavor. A party need not foresee the precise circumstances which lead to the offence actually committed.
Application of the Facts to the Legal Principles:
33My analysis requires consideration of the degree of concurrency between the wrongful act and the requisite subjective knowledge.
34Section 229 of the Criminal Code provides that murder has three essential elements, all of which Crown counsel must prove beyond a reasonable doubt.
35In order to obtain a conviction under s. 229(a)(ii) the Crown must prove that the accused caused and intended to cause bodily harm that he knows was likely to cause death of the victim. If death results from a series of wrongful acts that are part of a single transaction, then it must be established that the requisite intent coincided at some point with the wrongful acts.
36In R. v. Cooper, [1993] 1 S.C.R. 146, at paras. 19-22, the Supreme Court held that it is not necessary for the guilty act and the intent to be completely concurrent. The court relied upon two English decisions: Fagan v. Metropolitan Police Commissioner, [1968] 3 All E.R. 442 (Eng. Q.B.), and Meli v. R., [1954] 1 W.L.R. 228 (P.C.). The principles that emerge from Cooper include: A series of acts may be part of one continuing transaction; It is not always necessary that the requisite mens rea persist throughout the commission of the wrongful act; It is sufficient that the intent and wrongful act coincide at some point; It is not required that the Crown prove a persistent or continued awareness of a likelihood of death right up to the moment of death or until the precise moment when it is established that death is likely to occur. See also R. v. Firlotte, 2023 ONCA 854, aff’d 2020 ONSC 6122, at para. 50.
37In Kawal, the judge found that what happened was a split-second strangely malicious decision which could not have been anticipated. If the men had attempted to beat the victim in order to get information about how to separate him from his wealth and, being unsuccessful, had attempted to kill him, that would be different. Those would be actions evolving from the scheme itself, not reactions to external unanticipated events.
38It is clear that I must consider whether the offence was the result of a supervening causative event wholly outside the agreed plan. In other words, whether the act and mental element grounding the murder was formed spontaneously and was independent of the ongoing plan. It was the result of an intervening unanticipated event which was not a probable consequence of the kidnapping robbery nor could it have known to be.
39Kawal has been applied in subsequent cases to deny the extension of s. 21(2) liability to mere parties to an armed robbery. For example, in R. v. Jama, 2023 ONSC 2375, at para. 129, Schreck J. recently held that “[…] evidence that Mr. Jama knew that a firearm would be brandished does not, by itself, give rise to the reasonable inference that he subjectively knew that an intentional killing was a probable consequence of the plan to commit robbery.”
40In R. v. Douse, 2022 ONSC 3228, at para. 89, Schreck J. again refused to instruct a jury on a charge of murder via s. 21(2), citing Kawal and noting an insufficient evidentiary basis for an inference of subjective foresight:
However, in my view there is no evidence that the non-shooters would have known that murder was a probable consequence of the agreement. The jury heard no evidence about the nature of any plan between the three men, if there was one. There were no intercepted communications, no statements by any of the accused, and no witness who overheard anything being discussed: R. v. Bidesi, 2015 BCSC 863, at para. 145. The jury also heard virtually no evidence about any of the parties to the agreement, such as whether any had a propensity for violence or anger management issues that would have been known to the others: R. v. Jongbloets, 2017 BCSC 2329, at paras. 166-167. And there was no evidence about any relationship between the three men and the deceased or any motive to harm him.
41The Ontario Court of Appeal made a similar finding in R. v. Kreiger, 2008 ONCA 336, a case upholding the appellant’s conviction for second-degree murder as a party. The accused and his co-accused planned a robbery of the victim in his driveway. The victim was initially attacked while the parties were in his vehicle. The victim escaped and was chased by the co-accused, who repeatedly shot him. The parties fled the scene together and were arrested shortly thereafter. Based on the injuries to the victim and a thorough forensic examination of the scene and parties themselves, the court found that leaving s. 21(2) with the jury was justified, despite there only being “slim” evidence about the underlying plan itself. At para. 9 the Court of Appeal held:
Taken as whole, in our view, it would have been open to the jury to infer on the basis of this evidence that the appellant and the co-accused formed an intention in common to carry out a robbery before the deceased was murdered and that the appellant knew that his co-accused had a gun and that the murder was a probable consequence of the robbery. Accordingly, we do not give effect to this ground of appeal.
42Similarly, in R. v. White, 2009 CarswellOnt 4634 (S.C.), Sproat J. dismissed a directed verdict application for a second-degree murder charge arising out of a group robbery. Four men had chased the deceased on an enclosed catwalk after attempting to rob him. A co-accused grabbed the deceased in a bearhug and the other stabbed him. The accused was still running toward the scene at the time of the stabbing and played no physical role in the killing.
43The court ultimately determined that a properly instructed jury acting reasonably could find that the essential elements of second-degree murder were made out. The accused knew when he joined the chase that one co-accused had previously used a knife to accost the deceased, while the other was angry and had cut the deceased on his finger. Accordingly, the jury could reasonably find that the accused knew that the stabber was likely to commit murder during the robbery.
44In the case of Simon, the Ontario Court of Appeal upheld a second-degree murder conviction stemming from a robbery (or drug purchase) gone awry. The victim was a drug dealer. Simon and his co-accused visited the victim to purchase marijuana, bringing loaded handguns with them. During a struggle, either Simon or his accomplice shot the victim in the chest at close range, causing his death. The co-accused pled guilty to manslaughter and testified at the accused’s trial, providing evidence that the parties were armed because they were buying drugs from strangers.
45Writing for the Court, Watt J.A. held that s. 21(2) was properly left with the jury, despite there being a lack of evidence concerning what the underlying plan (robbery or drug transaction) entailed, what exactly occurred during the transaction and who ultimately shot the deceased.
46As I interpret the prevailing jurisprudence, in order to ground a conviction for murder as a party under s. 21(2), there must be a sufficient evidentiary basis — something beyond mere participation in the underlying agreement and offence. There may be evidence that the accused knew that his colleague had been told or instructed to intimidate, if not harm the victim. In Simon and Krieger, the circumstances of the underlying offence coupled with knowledge of the co-accused’s possession of a loaded handgun was sufficient.
47Each case will ultimately turn on its facts, but the overarching question remains whether murder was known to be a probable, or likely, consequence of the joint endeavor — and, by extension, whether the murder was entirely unanticipated or instead emerged from the circumstances of the plan itself.
48It is settled law that a trier of fact may infer a state of mind, such as intention from the doing of an act. Where the prosecution proves that an accused engaged in conduct, the natural consequence of which would be a certain result, in the absence of evidence of an explanation, the trier of fact may infer that the accused engaged in such conduct with the intent alleged.
49In this trial, the principal witness for the Crown was Wang. Much of the Crown’s case relies on her testimony. Apart from the accused, she was the only witness present at the shooting. She provided the Court with a first-hand account of Jing’s tragic end.
50True, she had lied to the police on several occasions and was an admitted fibber. Thus, her evidence must be treated with caution. Apart from some of Wang’s evidence being corroborated, there is no evidence of any motive to fabricate. She explained why she lied in her previous statements — to protect herself and her friends, including Wu — and why she eventually decided to do the right thing. I am aware that she is facing charges in relation to this incident, albeit there is no evidence that a quid pro quo is being offered for her testimony at this trial.
51That being said, during her testimony, I find that she was credible and, to the extent that she could provide her observations, they were reliable. She did not embellish her evidence and admitted not knowing certain events that transpired during the actual shooting given her relative positioning in the vehicle. Moreover, she conceded certain points against her own interest. As counsel fairly conceded, there were some indicia of reliability. Her testimony was even-handed and detailed.
52Further, Wang’s testimony was abundantly fair to Wu. If she legitimately had any animus toward him, or a true motive to fabricate, she would not reasonably have included such significant exculpatory details in her account — namely, that Wu was “shocked” and that he “didn’t think anyone was going to get hurt” during the robbery.
53I also find that Wang was not shaken in cross-examination on any core elements of her evidence. If any inconsistencies arose between her trial testimony and her third statement to police, it was on peripheral details such as when the “plan” changed, or whether the “plan” was to go to the store versus waiting for the “black guys’” in the parking lot. In my view, none of this was significant.
54Over three years later, Wang described a detailed account of a chilling situation she found herself in as a naïve 21 year-old international student. Certain frailties or minor inaccuracies, considering the circumstances, are perfectly understandable.
55Moreover, Wang’s testimony was corroborated in many respects — not only on key evidence, but on seemingly innocuous, minute details. For example, in her testimony, she recounted that “black guy #1” was hungry and asked to get food before leaving Toronto. They stopped at an A & W. She did not recall what he ordered, but assumed he bought something and brought it back into the car. This ostensibly meaningless detail was corroborated in the ASF at pages 7-9. Police Exhibit #7 was an unopened A & W straw left on the ground of the Oakridge School parking lot.
56Similarly, Wang’s account of hearing and later seeing a paper bag in the “black guys’” hands is consistent with the A & W stop, as well as the later accounts from both Katzman and Bonazza, who both saw the men departing the scene with hand-sized paper bags.
57I am satisfied beyond a reasonable doubt on all the evidence that the common unlawful design alleged in fact existed. This is really not in dispute, as the ASF provides Wu developed a plan to rob the victim.
58The next stage of the s. 21(2) analysis is establishing the commission of the incidental crime by the principal in the carrying out of the parties’ common unlawful purpose.
59In this case, the unknown principal shooters undeniably committed the incidental crime of murder. These two men fired multiple gunshots at close range into a locked vehicle in which the unarmed, unsuspecting victim was seated, clutching his bag of money.
60The fatal shot passed through the victim’s torso, damaging his lung, heart and liver. Death would be expected in minutes due to massive internal bleeding.
61Jing was then forcibly removed from the vehicle by these men and left to die in the parking lot. No assistance was rendered by any party. There is no evidence that this was an accident or self-defence. There are no applicable partial defences going to the shooters’ mens rea, such as intoxication or provocation.
62It is not disputed that a murder occurred in the parking lot on April 12, 2021. If one or both shooters did not have the specific intent for murder at the time of the shooting, each most certainly meant to cause Jing bodily harm that he knew was likely to cause death, and was reckless as to whether Jing’s death ensued. Again, this is not contested.
63The more salient question now becomes whether Wu was a s. 21(2) party to that murder.
64An assessment of the actual knowledge of an accused is an intensely fact-specific inquiry that requires and involves a careful analysis of all the circumstances in which the alleged criminal act occurred. This includes both direct and circumstantial evidence of what the accused said and did before, during and after the offence. The court should not engage in retrospective reasoning from the actual consequences of a dangerous act – for example, the death of a human being – to the actual foresight or knowledge of the accused in committing that dangerous act: See R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3) 1, at paras. 132-136, and R. v. Shand, 2011 ONCA 5, 104 O.R. (3d) 291, at paras. 207-212.
65In R. v. Bidesi, 2015 BCSC 863, at paras. 146-148, the court conducted an instructive review of the myriad of relevant factors potentially pointing to subjective foresight. In my review of those factors, most, if not all of them have been established by the Crown in this case. These include, but are not limited to: evidence, if any, of the parties’ plan; the circumstances of the robbery/shooting itself; whether the firearm(s) were operable; animosity or relationship between the robbers and the victim; the use of violence in prior robberies; the parties’ knowledge of the robbery scene; the parties’ knowledge concerning their accomplices possession of weapons; any efforts made by the parties to avoid detection or identification; whether the robbery (plan) continued following the use of violence; the accused’s role in the plan (organizer or leader); the parties’ demeanor following the shooting; and any post-offence interactions between the parties.
66As established in evidence, Wu was committing other violent currency exchange robberies around the GTA prior to the Oakridge Robbery on April 12, 2021. He would contact victims to orchestrate the robberies, during which shadowy parties would then swoop in to steal the money. Individuals named Heng Du or Hoaran Du would act as the driver. “O” was sometimes involved.
67In Wang’s version, Wu was the “leader” of this ongoing operation. Extreme violence was clearly an expected component of these robberies — a necessary part of doing business. This is borne out by the accused’s own WeChat messages summarized in the ASF at paras. 100-101.
68Wu’s messages with “Kay” repeatedly refer to gratuitous violence being employed in the commission of currency exchange robberies. For example, as set out in the first exchange with Kay, Wu is asked why he shot at people. He simply replies, “they tried to run,” before asking Kay for more bullets.” Similarly, in another conversation with Kay, the accused refers to almost shooting someone for saying “some fuck shit in Chinese”. Finally, in another conversation with Kay, Wu states in reference to tasing someone: “I know he was fucking resisting.” “I didn’t want but I have to”.
69That same thread — employing violence in the face of resistance — runs through the group conversation at para. 101 of the ASF. Indeed, amongst other exchanges, he tells his compatriots, “If they don’t cooperate, just tase the motherfucker, and ditch them”. [1]
70I am satisfied that, given these WeChat exchanges, Wu obviously knew how currency exchange robberies play out. His statements or comments speak to his subjective knowledge of the potential consequences that are associated with this activity. He knew volatility and extreme violence were inextricable components of his chosen profession, which he spoke of somewhat callously. He knew he had to work with people he could trust and control, especially considering the seriousness of the criminal activity they were doing.
71I find that the lead-up to the April 12, 2021 Oakridge Robbery was no different. Wu began communicating with the victim, Jing, on April 9, 2021. The ASF sets out the entirety of the WeChat conversation with Jing, spanning three days. In one passage, Wu repeatedly asks for Jing to send him a picture of his cash, justifying the request by saying that there are “many frauds around now”. Once the picture of the money is sent, he says, “[a]ll of us will have a peace of mind”.
72Meanwhile, Wu assembled a crew. Hoaran Du and Heng Du were unavailable for their respective legal and spiritual reasons. Wang, a first-timer, was recruited at the last minute. As noted above, she was offered $10,000, Wu’s outstanding debt, to be paid out of the $70,000 bounty. The expectation was that she merely drive Wu and his associates to Niagara, after which she could return to Toronto alone. To her, it sounded like a “good deal”.
73The two “black guys” — the eventual shooters — were also recruited, through “O”, by Wu. “O” had known these guys for seven years. Apparently, they could be trusted and were up to the task. Accordingly, Wu proceeded to arm them — two strangers — with a loaded handgun prior to the Oakridge Robbery while at the auto body shop in Toronto.
74Wu orchestrated the renting of the Mercedes for the commission of the Oakridge Robbery. He used a fraudulent ID, sending Wang to Shephard Ave. to complete the transaction.
75I agree with the Crown that heading into the Oakridge Robbery, Wu was in charge. He knew how these operations unfold and prepared accordingly. He recruited his team, “rented” a vehicle, armed his compatriots and duped a credulous victim for days.
76First, the Mercedes vehicle. The child locks were specifically engaged to keep the victim trapped in the rear seat prior to and during the robbery. Wang testified that she had seen Heng Du unlocking the child-lock mechanism on prior rental cars. She told the Court how on April 12, 2021, Wu repeatedly had to open the doors for the two “black guys” prior to the robbery. Wu knew that Jing would be trapped in the back of the Mercedes with no avenue of escape.
77Second, and importantly, the shooters. Wu knew they were both armed with loaded handguns. Indeed, as noted above, Wu armed at least one of the shooters with a loaded firearm mere hours before the shooting. If the mere threat of violence was sufficient to gain the victim’s compliance, why not simply provide these strangers with an unloaded gun?
78Third, the setting. This was approximately 7:30 p.m. on a spring evening in a residential neighbourhood. Children were playing in the schoolyard. People were walking their dogs and chatting on the street corner.
79Accordingly, the robbery had to be executed quickly, as there was no time for resistance, which would inevitably draw attention from civilians and police.
80Fourth, the plan. On Wang’s evidence this was a complicated robbery. It was high-value and high stakes. Initially, there was talk of securing fake license plates for the trip. However, the plan for the execution of the robbery was straight-forward and well-tested. While Wu “pretended” to conduct the wire transfer in the front passenger seat, the unwitting victim would be surprised by two unknown masked men clad in all-black, yelling and brandishing firearms after unexpectedly opening the door.
81It bears repeating that given Wu’s prior involvement in similar currency exchange robberies, he knew precisely how likely it was that the victim, in those terrifying circumstances, would resist, or at the very least turn away while clutching his money. Common sense dictates that people are loathe to part with $70,000 cash. Some form of resistance was inevitable.
82Further, the victim could also have been armed, a risk only enhancing the volatility of the situation and the likelihood that one of his accomplices would preemptively pull the trigger. As noted by Wu himself, the currency exchange business was rife with fraud — best be cautious, and armed.
83There is no direct evidence on what Wu told his two accomplices, if anything, about how the Oakridge Robbery was to unfold. But the requisite foresight can be readily inferred from the available evidence.
84In R. v. Mooring, 2003 BCCA 199, 174 C.C.C. (3d) 51, the British Columbia Court of Appeal upheld the trial judge at para. 48, as follows:
In my opinion, the evidence supported the conclusion that Woods had the requisite foresight. Both he and Mooring armed themselves with weapons clearly modified for the use of deadly force. Their weapons were loaded. After Mooring murdered Mr. Kimberley, Woods quickly complied with Mooring's direction to shoot Mr. Choquette. He did so with intent to kill. It was open to the trial judge to conclude that the plan of the robbers "was to use whatever force was necessary, including murder" to carry out their unlawful purpose. In all the circumstances both robbers must have had the foresight that murder was a probable consequence of their plan should it become necessary to force compliance with their demand for valuables, to prevent their identification as the robbers, or to facilitate their escape.
85As mentioned, Wu gave a loaded handgun to two trusted accomplices. In doing so, the implicit expectation was that violence would be meted out as necessary to obtain swift compliance. As noted in Mooring at para. 42, “[t]he use of deadly force to deal with contingencies that might impact negatively on the success of their unlawful purpose was something that they contemplated, prepared for and ultimately acted upon.”
86At some uncertain point, the plan switched to the robbery taking place at the school parking lot. As Jing was expected to arrive, Wu hastily directed his armed accomplices to “hurry”, get out of the vehicle and to “get your men”. There is no indication that Wu deviated from the script whatsoever despite the alleged change of location, according to Wang.
87It is true that much of the post offence conduct is consistent with either states of mind required for manslaughter or murder. However, the immediate after-the-fact conduct in this case galvanizes the position that Wu knew that murder was a probable consequence of the robbery he orchestrated and armed. The victim was left to die on the pavement. No aid was administered to Jing. No 911 call. No comment to the effect of “what did you just do, why did you shoot him?!” Instead, Wu remained singularly focused on obtaining the victim’s money and getting back to Toronto.
88I agree with defence counsel’s submissions and reject Wang’s evidence regarding Wu allegedly saying “drag him down, drag him down.” Nonetheless, Wu was facing the back seat at the relevant time and I draw the inference that he was directing the shooter(s). Fiona testified that she felt a weight change in the car.
89Following the shooting, in Mandarin, he then directed Wang to “Go, Go, Go”. The vehicle lurched forward in the parking lot, only to have him direct her to “Stop, Stop, Stop” after five feet. Within seconds of the shooting, Wu began arguing with the shooters about what to do with the victim’s body and truck. This was all in an effort to evade detection and get the cash. On Wang’s evidence, Wu was angry and repeatedly yelled “give me the fucking bag!”.
90He proceeded to voluntarily exit the vehicle with these two armed killers. Later, upon eventually returning to the Mercedes, he directed Wang to “loop” around the neighbourhood to search for the two “black guys” — and, more importantly, for his money.
91Indeed, there are conflicting versions about the Mercedes departure and route from the shooting scene, along with when and where Wu and the Black men entered or exited the vehicle. Indeed, the three eyewitness’ evidence on this point is at variance with each other.
92On the issue of whether the two “black guys” ever re-entered the Mercedes, I am not persuaded by Wang’s testimony on point. She was admittedly “paralyzed” and “terrified”. One could reasonably expect some frailty to her evidence in the aftermath of the shooting.
93While there are external inconsistencies in their respective versions, the evidence of the neighbours is preferred. Both individuals are entirely independent of the events in question. They were standing on the street-corner within feet of the three men as they passed by. Their descriptions of the men and the Mercedes were objectively verifiable and to a limited extent, consistent with Wang’s account.
94One neighbour viewed all three men re-enter the Mercedes at the corner of Byrne Blvd. and Marsdale Drive. At its highest, the version that I accept reveals that Wu and the others were observed conversing and walking or returning to the Mercedes. All of their observations of the “Asian man” were not the actions of a man, who was in any way surprised by what happened in the Oakridge School parking lot, or who feared the two men who had unexpectedly opened fire against the victim. In furtherance of that objective, for some unknown or undefined reason, Wu asked Wang to drive around and find them.
95In the context of a group robbery resulting in murder, an accused’s failure to display any noticeable reaction to the shooting, his continuation with the robbery without hesitation, and his prevention of anyone assisting the victim may be relevant, collectively or individually, to the issue of intent.
96This apparently steady commitment to the execution of the plan at all costs, coupled with Wu’s callous disregard for the victim, directly speak to his intent at the time of the shooting.
97Indeed, as noted by Rouleau J.A. in R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183, at paras. 43-44:
On the facts of the present case, the inference that can be drawn is strengthened by the second element of the post-offence conduct, which involves a key distinction from the facts in White. In White, the shooter immediately fled, and only the relevance of his lack of a reaction prior to flight was at issue. Here, not only was there a lack of reaction or surprise, but also the immediate continuance of demands as to the location of the drugs and money. This evidence of the robbery being pursued without missing a beat served to rebut McLellan's claim that he was in shock after Swan was shot. It also suggested that Mullen was not, as his counsel suggested, reluctantly continuing with a robbery gone wrong. Rather, it showed both McLellan and Mullen as being unfazed by the occurrence of a shooting during the execution of their planned robbery.
I also view the third aspect of the post-offence conduct, the failure to assist Swan and preventing others from assisting him, to be probative. It is simply a matter of common sense. As Charron J. observed in White, the evidence of a shooter stooping down to check on a victim's condition would surely be properly left with the jury, and furthermore, would likely be relied upon by the defence to suggest that the shooting was accidental: see White, at para. 126. The failure to show any concern is likewise, in my view, capable of supporting the opposite inference that the shooting was intentional.
98Similarly, in R. v. Campbell, 2018 ONCA 837, 366 C.C.C. (3d) 346, the Court of Appeal held that an accused’s failure to render assistance to a shooting victim may be relevant to the accused shooter’s state of mind at the time of the crime’s commission.
99In the ensuing days, Wu paid $3,000 to Wang as hush money and sent her on surveillance reconnaissance mission. Next, Wu engaged in the WeChat exchanges. These conversations further illustrate that even the killing of Jing did not dissuade the accused. Within five days of the Oakridge Robbery, he was back at it, telling Ben Ma “I need to borrow the Revy from u,” as he “[…] threw my 45 in the forest cuz you know why”.
100These messages may be, but are not determinative with someone who subjectively knew that murder was a probable consequence of the Oakridge Robbery. I observe, however, that this passage strongly suggests that Wu in fact retrieved his gun from the two “black guys” in the days following the killing. At its highest, Wu not only provided the firearm but again, was clearly not afraid of them, reinforcing a strong inference, amongst others, that he subjectively foresaw the likelihood of what ultimately played out.
101While I am cautious not to place significant weight to this segment of post offence conduct, I am reminded that in the causation language used in Kawal, the actions of the “black guys” were not entirely unanticipated, suggestive that the intervening events did not serve to diminish Wu’s knowledge or culpability.
102The Crown submits that the next segment of the post offence conduct is significant, but I again remind myself that there are competing inferences to be drawn from this evidence. Wang’s account is likewise corroborated. Her description of the two shooters was again almost identical to that of Bonazza and Katzman. Her account of driving down Byrne Blvd. just after the shooting is confirmed in the ASF. Her recollection of the victims’ belongings being thrown by Wu into the bush beside the Esso Gas Station aligns with the ASF and corresponding surveillance summary. Her testimony that the victim offered to use a money counter is corroborated by what was ultimately located in the victim’s vehicle.
103Wang’s testimony regarding Wu turning around in the Mercedes and finding “my bullet” is corroborated by the independent ballistics evidence. As noted in the ASF, only two bullets were recovered from inside the Mercedes. However, Jing had three projectile wounds from two different firearms, a .45 and .40 caliber. That source of the third bullet remains a mystery.
Summary: Was Murder a Probable Consequence in the Circumstances?
104I find that Wu was the leader, the chief orchestrator and facilitator of the Oakridge Robbery. He approved the robbery location and plan, requiring a quick takedown with no resistance. His other conduct and history with other robberies implicitly provides for his expectation of violence and the knowledge of the likelihood of extreme violence. Wu continued leading even after the shooting with the victim left in the parking lot.
105Layered atop all of this evidence is the prior discreditable conduct, with Wu’s own WeChat messages outlining his history and understanding for extreme violence in remarkably similar circumstances.
106The Crown submits that Wu was neither shocked nor surprised. Clearly, the question is not whether Wu wanted Jing’s murder to happen. Frankly, it is also not whether he was shocked, stunned or saddened by the killing. At its highest, he may have been, as explained by Wang on the drive away from the scene. [2] As noted in Mooring, victims will acquiesce and simply hand over the money on demand. But if not, contingencies were always in place. Such contingencies may involve the use of deadly force, as in this instance: See R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411. at paras. 15-17; R. v. Hibbert, [1995] 2 S.C.R. 973 at paras. 26-39; R. v. Johnson, 2017 NSCA 64, 360 C.C.C. (3d) 246, at para. 75.
Conclusion:
107The evidentiary landscape of the very circumstances of the armed robbery itself, supports that Wu was far more than a mere participant in this armed robbery. Wu was instrumental to the killing that was a direct and likely consequence of the joint endeavor he alone planned.
108Wu’s prior knowledge of and participation in violent currency exchange robberies, combined with his words and actions before, during and immediately after the robbery, also provide a solid evidentiary basis to sustain the Crown’s case. Indeed, the brazen nature of the robbery itself reinforces not only that Wu was the leader throughout, but that he was subjectively aware, either through direct knowledge or willful blindness, of the likelihood of a murder.
109Based on the entirety of the evidence, and my analysis pursuant to s. 21(2) of the Criminal Code, I am satisfied beyond a reasonable doubt that when working with the shooter(s) in the planned robbery of Jing, Wu subjectively knew that murder was a probable consequence. Therefore, I find Jiapeng Wu guilty of second degree murder. A conviction shall be registered on the indictment.
A.J. Goodman J. Date: January 4, 2024
COURT FILE NO.: CR 500/22 DATE: 2024/01/04 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING - and - JIAPENG WU REASONS FOR JUDGMENT A. J. GOODMAN, J. Released: January 4, 2024
Footnotes
1See also excerpts spanning from 2021/01/31,6:24 p.m. to 2021/02/21,12:40 p.m. and certain segments of excerpts from 2021/02/28, 8:49 p.m. – 8:52 p.m. Proximate in time to the alleged offence (approximately two months) and is similar in detail to the alleged offence (violent, planned currency exchange robberies), similar in circumstances (the robberies clearly involved violence, or the threat of violence, upon meeting resistance); and, illuminates the accused’s own understanding of the need for trust in high-stakes operations, such as the Oakridge Robbery.
2Wang’s description of Wu’s demeanour on the return drive to Toronto is inconsistent with the latter’s overall conduct post-incident, which tends to belie his so-called emotional state.