COURT FILE NO.: 21-M15585 DATE: 2024/09/09

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – J.D.

Counsel: Michael Boyce and David Nugent, for the Crown Joseph Addelman and Ariya Sheivari, for the Defendant

HEARD: April 30 to May 3, May 13 to May 16, May 21, May 22, May 28 and May 31, 2024

Restriction on Publication Pursuant to subsection 110 (1) of the Youth Criminal Justice Act no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as having been dealt with under this Act. This decision complies with this restriction so that it can be published.

REASONS FOR DECISION

Maranger J.

Overview

[1] On January 16, 2021, at 3:02 AM, M.E.H. was shot to death while sitting in his motor vehicle. He was parked at Bruff Park in the city of Ottawa. He attended the park to meet up with a young woman A.H.

[2] A.H. testified that she lured the victim to the park at the behest of the accused J.D. The reason was to take revenge on M.E.H. for having insulted their deceased friend on social media. A.H. stated that she was unaware of the degree of harm that was to befall M.E.H. and had no idea that he would be killed.

[3] The accused J.D. stands charged with first-degree murder in the shooting death of M.E.H.

[4] The Crown’s theory was that J.D. set up the execution of M.E.H. as revenge against him for having insulted or mocked J.D.’s very close friend H.N., who died of an overdose in his presence several months before.

[5] The central issue at this trial was whether the Crown has established beyond a reasonable doubt that J.D. was the person who shot M.E.H.

[6] This decision will be divided into the following parts:

a) A summary of the Crown case including: a list of some relatively uncontentious findings of fact, a review of the testimony of the two primary Crown witnesses A.H. and Z.L., my ruling on the voluntariness of the accused statement, a review of those parts of the statement I found to be material and relevant, and a description of miscellaneous other evidence presented by the Crown. b) The legal principles that were applicable to this trial. c) The positions of the respective parties. d) My analysis of the evidence and conclusion.

Summary of Crown Case

[7] The Crown case mainly consisted of the following evidence:

a) The testimony of A.H. and Z.L. b) A timeline video created from the various video cameras in the vicinity of the shooting. c) The testimony of several Ottawa police officers including those involved in the gathering, processing, and photographing of relevant scenes and evidence in this case. d) The testimony of civilian members of the Ottawa Police Service involved in the presentation and preparation of technical evidence. e) A report and evidence as to the cause of death from a forensic pathologist. f) The testimony of two probation officers who dealt with J.D. g) Evidence relating to cell phones extracted from production records disclosing their likely location and usage both before, close in time to, and after the shooting. h) The testimony of police officers involved in the arrest of J.D. leading up to the taking of his statement by Sgt. Pascal Labine. i) J.D.’s statement. j) A series of intercepted communications. k) A firearms report and testimony from an expert from the Center of Forensic Sciences. l) Four separate s. 655 admissions filed as Exhibits 1, 11, 15 and 42.

[8] Firstly, I would make the following findings of fact as they relate to the issues of the circumstances of the shooting, the cell phone numbers used by the accused at the relevant times, and the conduct of the accused following the shooting. Many of these findings can be categorized as relatively uncontentious. Where there was an issue, I have provided the evidentiary basis for my finding:

Circumstances of the shooting:

• On July 26, 2020, H.N. died of a drug overdose in the presence of the accused J.D. They were very close friends. H.N.’s nickname was Skini. The words “Long live Skini” were tattooed on J.D.’s neck following his death. H.N. also had a younger brother named A.N.
• Shortly following H.N.’s death, the words “I’m smoking a Skini pack” were posted on social media by the victim M.E.H. In the eyes of the accused and his friends, these words were extremely disrespectful of their deceased friend.
• A.H., one of the Crown witnesses, was also close to H.N. and his family. She was very upset about his death. She also knew J.D. and reached out to him through Snapchat or text messages following H.N.’s death.
• On January 16, 2021, M.E.H. was lured to Bruff Park by A.H. He arrived at 2:51 AM. Approximately 15 minutes prior to his arrival, at 2:36 AM, a white vehicle entered the adjacent parking lot and made its way to a pedestrian path that leads to Bruff Park.
• At 3:02 AM, nine gunshots were heard fired in rapid succession. 22 seconds later, three more gunshots were heard. At 3:05 AM, the white vehicle was seen departing the area.
• The forensic pathologist’s evidence established that M.E.H. was struck with at least six bullets all of which were to the left side of his body. The bullets that struck the victim passed through intermediary targets, namely the glass of the driver’s window and the car door.
• The physical evidence taken from the vehicle, including the likely angle of the shots fired, supports the proposition that the shooter would have been standing at the driver side of the vehicle when the shots were fired. The shooter would have been no more than nine metres away.
• Following the shooting, M.E.H. drove a short distance and ultimately died, with the cause of death being a gunshot wound of the torso.

Cell phone numbers used by accused at the time of the murder and afterwards:

• The cell phone and cell phone numbers used by the accused around the time of murder and shortly after the shooting death of M.E.H. were not conceded. The Crown called two probation officers who were responsible for J.D. between December 2020 and July 2021. They presented evidence with respect to contacting J.D. via cell phone while acting as his probation officers during the relevant time frame.
• Omey Shine testified that she supervised J.D. pursuant to a youth court probation order from December 2020 to January 21, 2021. That the only contact she had with J.D. was by telephone, because of COVID-19 at the time.
• She testified that the number she used to contact him was 647-529-8232. That she contacted him on December 30, 2020 and January 11, 2021. That the first call lasted 10 to 15 minutes. That she asked him his date of birth over the phone and what his sentence was, then spoke to his mother afterwards to confirm.
• On cross-examination, she acknowledged never having met the accused face-to-face and only having spoken to him twice on the phone. That the 647-529-8232 number was not in her notes. That she had obtained the phone number from administration at the probation office.
• After January 21, 2021, another probation officer took over the file.
• Ben Gauthier testified to being J.D.’s probation officer from February 2021 through to July 2021. That J.D’s old cell number was taken from the sentencing intake form, and it was 647-529-8232. That J.D. advised him that he changed cell numbers and carriers starting in February 2021 that his new number was XXX-XXX-XXXX.
• On cross-examination, he acknowledged never meeting J.D. face-to-face. That when he spoke to him in February 2021, J.D. was residing with his father in Brampton.
• The cellular telephone production records establish that the 647-529-8232 number was never used again after 5:15 PM on January 16, 2021. That XXX-XXX-XXXX became the accused’s number.
• The production records for both numbers show a pattern of communication with persons known to J.D. including: his mother, his father, and the younger brother of his deceased friend.
• The testimony of the two probation officers, taken together with the production records for the cellular numbers in question, satisfy me that J.D.’s cellular number in use between December 2020 and January 16, 2021, was 647-529-8232. That number was replaced shortly thereafter by the XXX-XXX-XXXX number.

The accused conduct following the shooting:

• The phone number attributed to J.D. at the time of the murder (647-529-8232) ceased activity after 5:15 PM on January 16, 2021.
• On January 17, 2021, J.D. left the Ottawa area. The evidence (particularly the whereabouts of the XXX-XXX-XXXX cell phone number) supports the proposition that the accused made his way to the Toronto prior to going North, to Sudbury and Thunder Bay, before returning to Ottawa.
• The intercepted communications Exhibit 39 support the proposition that J.D. was looking for A.H. in a secretive manner in the Summer of 2021.

[9] I would summarize A.H.’s testimony as follows:

• A.H. described her background and how she knew various persons connected to the case. That their method of communication was frequently Snapchat or FaceTime. She described her boyfriend of two years who was friends with the accused, and how through high school, she came to know the accused.
• She described the nature of her relationship with Z.L., another Crown witness, and how she knew H.N. That she was close to H.N. and his family.
• She testified as to her knowledge of how J.D. and H.N. were very close friends and about attempting to communicate with J.D. following H.N.’s death on July 26, 2020.
• She testified as to how she knew the victim M.E.H.. That his nickname was “Topaz.”
• She described her criminal record as a young offender. That at that time in her life, she had no regard or respect for the law. That now, at the age of 22, her mindset had changed significantly in that she now respected the law and the justice system.
• She testified about the circumstances of H.N.’s death and how the people in her circle were very upset because of it.
• She testified how J.D. and Z.L. knew each other.
• A.H. then explained how she received a message from a friend Logan through Snapchat, which showed a Snapchat story which read “I’m smoking a Skini pack” together with the photo of M.E.H. That Skini was H.N.’s nickname. That this was taken to be an extremely disrespectful comment about their dead friend.
• She testified about the efforts to connect with M.E.H. through social media and a loose plan with Logan to convince M.E.H. to meet up somewhere and beat him up but that it hadn’t really been thought through. This was to pay him back for insulting their friend Skini.
• She testified that she didn’t connect with M.E.H. until early January 2021, when they then started speaking over Snapchat. That she didn’t confront him about the slur against her friend. That she didn’t want to close the door on the possibility of meeting him in person to see him get beat up for the slur against her friend. That she advised Logan about finding him, but he said that he lost interest.
• She described the events on January 15, 2021 and receiving a Snapchat message from the accused while she was at work at about 4 PM saying something like, “let’s deal with the ‘Topaz’ situation.”
• She testified that she understood this to mean to drag M.E.H. out of his car to beat him up and embarrass him.
• She testified to receiving a Snapchat message from Z.L. indicating that J.D. had asked her to deal with Topaz as well. That Z.L. said she couldn’t because of work.
• She then explained connecting with M.E.H. to meet later after work. That she advised J.D. of this. That J.D. told her to tell M.E.H. to meet her at the baseball diamond (Bruff Park) and J.D. would wait in the bushes and pull him out of his car and beat him up.
• She testified that J.D. offered her $500 to do this and she refused, saying she was doing it for H.N.
• She explained that M.E.H. reached out to her around 2:00 AM through Snapchat. That she told him to come to meet her at the baseball diamond to have a smoke. That she contacted J.D. via Snapchat call and advised him that M.E.H. was coming now.
• She testified that M.E.H. texted her when he arrived at the baseball diamond and told her to take her time.
• She recalled running late, and about 10 minutes later, heading to the baseball diamond which is only about five minutes away from her home.
• She testified that she made her way to the park, but M.E.H. wasn’t there. That she Snapchat messaged him and there was no answer. That she reached out to J.D., but he didn’t answer his phone. That she later received a Snap text from J.D. saying he never arrived at the park.
• She then said she saw emergency vehicles on Hunt Club Road and went to the scene. That she told the police at the scene that maybe the injured party was her brother. That she wanted to get close to see if the injured party was M.E.H.
• She said her memory was foggy and that she took four or five Xanax just after 3:00 AM that day.
• While she testified, video clips showing her in the general area near the park on the date and time in question—at a gas station, at a quickie store and her running to the scene—were introduced into evidence.
• She then recalled being in a police car, possibly mentioning that the injured person was M.E.H., and being taken to the police station. Her memory wasn’t very clear.
• She remembered being interviewed by Detective Benson and not telling him the truth. That she was trying to protect herself and J.D. That she was scared. That she made up a story about her brother and Petro points and meeting him at a gas station near their house.
• She said the police then took her to her home. That once at home, she told her mother about what really happened.
• She said J.D. never indicated that he was going to bring a gun, or that the plan was to shoot M.E.H.
• The police returned on January 16, 2021 and she gave a second statement to the police indicating she was trying to tell the truth without involving anyone else.
• She recalled being under arrest for something like obstruction of justice but wasn’t sure. She was never charged.
• On February 24, 2021, she returned to the police station and gave a final statement.
• She confirmed that her phone number was 613-986-8343 on January 16, 2021. That her Snapchat handle was Nina Rubberbander.
• She testified that she spoke with her friend Z.L. about the plan to bring M.E.H. to the park with J.D. waiting. This would have been just prior to her giving the February 24, 2021 statement.

On cross-examination:

• She was cross-examined on her criminal record, including details about the nature and extent of the crimes she committed as a young offender.
• She was questioned about her indifference towards the law and the police. That she believed the police were the enemy. That she wanted to project that she was tough as a teenager. That was her attitude from 2017 to 2021.
• She was cross-examined on her dealings with the police following the death of M.E.H. About her poor memory because of the Xanax that she had taken at the time. That in her first statement/interview with the police on January 16, 2021, she acknowledged that she was under oath and she lied. That she made up some story about her brother and Petro points.
• She was cross-examined on her testimony given at the preliminary inquiry. That her memory changed since the preliminary inquiry in December 2022 with respect to who she told the truth to (concerning her luring M.E.H. to the park) following her initial statement to the police. About whether it was only her mother or her mother and Z.L.
• She was questioned about what she told her mother, Z.L., and a friend named Maddie following the first police interview January 16, 2021.
• She was questioned about the details of her second interview on January 16, 2021. About her poor memory concerning the event. About being placed under arrest for obstruction of justice. That she was placed in a cell block for five hours. That at that interview, she indicated to the police she would tell the truth, to the extent that she would swear on the Bible or on her dead friend. That she came to realize that the police were going to figure out that she was involved in getting M.E.H. to go to the park by looking at M.E.H.’s phone. That this led to another series of lies to the police at that interview, including involving someone else as the suspected shooter—“some white guy” nicknamed Gunman, who lived somewhere in Greensboro.
• She denied sending the police on a wild goose chase, saying that she was trying to protect the real people involved in the incident, namely J.D. She agreed that she made up a shooter to obstruct the police investigation.
• She agreed that she didn’t provide the police with any details about her connecting with M.E.H., about leading him on about a romantic interest, or her arranging a meeting with him at the park on January 16. Nor did she tell them about any conversation with Z.L. concerning J.D.
• She acknowledged that there were conversations with Z.L. about her involvement in M.E.H.’s death between January 16 and February 24, 2021. This was because they lived together and it was an all-consuming matter.
• She was questioned about the statement she gave on February 24, 2021, including the immunity agreement and implicating J.D. as the shooter.
• She agreed that at that point, she told the police that Z.L. had information that would backup her story.
• It was put to her that she wasn’t truthful with the police on February 24, 2021, where she indicated that she had let go of the anger towards M.E.H. and that wasn’t true. That she still wanted to see M.E.H. get hurt for what he did. She agreed.
• She agreed that she was the person responsible for linking up with M.E.H. on Snapchat and luring him to the park leading to the events of January 16, 2021.
• It was put to her that it was her operation. She denied any knowledge that there was going to be a murder.
• She was cross-examined on her knowledge of the level of friendship between H.N., Logan, and J.D. That much of it came from third-hand information, social media feeds, and what others observed. She agreed. The tattoo on J.D.’s neck led her to that belief as well. To her recollection, she never socialized with J.D. and H.N. together in person.
• She agreed that from July 26, 2020 up to the time she made contact with M.E.H., she never spoke to J.D. about the “smoking a Skini pack” social media post.
• She acknowledged having an addiction to benzodiazepine from 2019 to 2021. That she had taken these pills in the days leading up to January 15 and January 16, 2021.
• She acknowledged that it was possible that on January 15, 2021, after coming back from work around 8:00 PM, she may have taken some Xanax pills. That she could’ve taken as many as for five pills, that this would have impaired her memory.
• She acknowledged not having screenshots of the Snapchat messages she exchanged with J.D. that she referenced, unlike those with M.E.H. That the interactions she said she had with J.D. on January 15 and January 16, 2021 had to be based on her memory.
• She couldn’t remember taking the screenshotted Snapchat messages with M.E.H. and sending them to the police.
• She was questioned about why her Snapchat messages with J.D. were not screenshotted. She explained that she had blocked him and that to do so would have involved a re-adding process.

On re-examination:

• She explained her snap messages with M.E.H. and the sending of the video of an empty parking lot. She indicated it was to prove to M.E.H. that she was there.
• She described how she came to see or know about the tattoo of “Live Long Skini” on J.D.’s neck.
• She was asked about her cooperating with the police and her different outlook. She responded that in the years later she came to understand the importance of telling the truth to law enforcement, particularly in the context of the murder and death of M.E.H.

[10] I would summarize Z.L.’s testimony as follows:

• She testified about her background and her relationship with A.H., including being charged as a young offender with A.H.
• She described the impact the incident had on their relationship. That she held a grudge against A.H. for involving her. That, however, she still considers A.H. to be her best friend.
• She explained how she did not want to get involved in a homicide case or talk to the police about it for fear of being turned against by everyone for “ratting out” someone.
• She described that she had no relationship whatsoever with the victim M.E.H. and how she knew H.N. as a friend. That she attended H.N.’s residence after his death to help the family.
• She described how she knew J.D. That they were friends in the context of going to school together and through social media, including Snapchat. That his Snapchat handle was J…613.
• She testified that she communicated with J.D. about A.H. and issues concerning her problematic relationship with her then boyfriend who was J.D.’s friend.
• She described speaking to J.D. about the circumstances of H.N.’s death. How H.N. was J.D.’s best friend. That they were always together.
• She described how she knew A.N., H.N.’s younger brother. That ever since she spoke to the police about J.D.’s involvement in M.E.H.’s death, A.N. blocked her on all social messaging and stopped communicating with her.
• She testified that she heard about the “I am smoking a Skini pack” post through A.H. in early January 2021. That M.E.H. posted it. That it was considered very disrespectful street slang about their deceased friend H.N.
• She described how she had A.H.’s passwords and could enter her phone to see who she was texting. That she went through A.H.’s phone. That going through A.H.’s phone was how she was aware of A.H. communicating with M.E.H.
• She described her circumstances on the night of January 15, 2021. That she was working the overnight shift at the Tim Hortons at the Civic Hospital and was living in the same home as A.H.
• She described communications with J.D. on the night of January 15, 2021. She said that she received a message from J.D. saying, “I’ll give you $500 if you can set up Topaz.” That it was at about 9:00 PM when she received the message, about the time she would get ready to go to work. That this message was through Snapchat from the J… 613 handle.
• She understood that this plan was to cause M.E.H. harm because of his slur against J.D.’s deceased best friend.
• She described a conversation she had with A.H. that same night concerning both of them being offered $500 by J.D. to set up M.E.H. That A.H. told her that the plan was to get A.H. to bring M.E.H. to the south so that J.D. could hurt him.
• She then described another conversation with A.H. at 5:30 AM on January 16, 2021, where A.H. indicated she could not pick Z.L. up from work because she had to go to a gas station with her brother to use Petro points and that she ran to an accident scene thinking that her brother might’ve been hit by a car.
• She then described taking an Uber back to A.H.’s residence after work. That 15 minutes later A.H. arrived with the police. That at that point, she was told by A.H. that M.E.H. was deceased. That he never showed up at the baseball diamond.
• In response to the question “can you explain sort of the plan that she had described to you in terms of what was going to happen?”, she testified, “They were supposed to meet at the baseball diamond. She was supposed to go to the driver’s seat side, talk to Topaz through the window, and J.D. was supposed to come from the back and shoot him.”
• She testified that A.H. didn’t have a private conversation with her mother at that time. That the police came back about an hour and a half later. That she observed the conversation between A.H. and the police.
• She was then shown the cell phone records of A.H. (Exhibit 8) and confirmed that she sent a message to A.H. at 6:37 AM on January 16, 2021.
• She described other messages sent that morning between her and A.H. between 8:30-8:34 AM. She couldn’t say what the conversations were about. She sent further messages to A.H. around 10:00 AM. She couldn’t say what was said.
• She then testified to a Snapchat phone call she said she had with J.D. later that day on January 16, 2021. She believes she reached out to him.
• She testified that she asked him where he was. That he told her he was in Thunder Bay. That she asked why. That he said he was at risk. That she told him A.H. was at risk. That A.H. was in a holding cell for 14 hours. That she then proceeded to ask him “J … Did you do it?” and he said yes. That she said she was asking him if he killed M.E.H.
• She described a second conversation with J.D. that took place two weeks later when he was asking about whether A.H. was going around telling people he did it. That she said that A.H. hadn’t. That she reached out to J.D. via Snapchat call. That the only way to preserve a Snapchat communication is take a screenshot and she didn’t in this case.
• She testified about going to the police station on February 24, 2021. That she understood she was doing this to backup A.H.’s story because she told the police that J.D. also asked her to set up M.E.H. That she was upset because she did not want to get involved. That she did not expect to have to give a full statement; she thought she was going to simply confirm that J.D. asked her to set up M.E.H. as well.
• She was then shown an image of J.D.’s Snapchat account messages that were taken from her phone, which would have been otherwise automatically deleted. It was marked Exhibit 13.

On cross-examination:

• She was asked about the level of the relationship she had with J.D. That they were just school friends who didn’t socialize outside of school.
• She agreed that J.D. wasn’t someone she saw in person much of outside of school.
• She acknowledged the last time she was in the same room with J.D. would’ve been shortly after H.N.’s death, while paying condolences to H.N.’s family around July 28, 2020.
• She believes she may have communicated with J.D. on social media between July 2020 and January 2021. However, that she never spoke to J.D. about the “smoke a Skini pack” post. That she only spoke to A.H. about the post.
• She explained the difference between a Snapchat message and a Snapchat post and how long they can be preserved.
• She was asked about an answer given at the preliminary inquiry where she indicated she never went through A.H. ‘s phone, while in her testimony at trial she clearly indicated the opposite. She didn’t or couldn’t provide a reason for the difference and requested a recess from the court.
• She acknowledged that she never met M.E.H. That after high school, she really didn’t see J.D. That A.H. was her best friend and was like a sister to her.
• She was confronted about previously saying in her February 24, 2021, statement that J.D. offered her $5,000 to set up M.E.H. and changing her story to say it was $500. That in responding no to J.D., she also told him that she was not a murderer.
• She was asked that if she knew about the plot to hurt/murder M.E.H. why she didn’t go to the police with this information. Furthermore, why she didn’t discuss it with the police when they picked up and dropped off A.H. on January 16, 2021. She indicated she didn’t want to get involved in any of this.
• She was asked about the confession she said J.D. made to her over the phone that that was never discussed with the police. That she lied to the police when they asked her if she knew anything about the incident in January 2021. She agreed that she lied by not telling them, but it was because she didn’t want to get involved.
• She explained that she only decided to speak to the police once A.H. asked her to, so she could backup A.H.’s story.
• She was confronted with what she did not tell the police. About what she knew as to A.H.’s knowledge that M.E.H. was going to be shot.
• She was asked if during her under oath interview of February 24, 2021, whether she ever mentioned to the police that J.D. had confessed to her that he committed the murder. She said she mentioned it multiple times. She was asked to read the whole interview during a recess. She then agreed she never told the police about the confession during the interview.

On re-examination:

• She was asked about when she first mentioned the confession. That it was in preparation for the preliminary inquiry in December 2022. That the only time it wasn’t mentioned was in the initial police statement.

Voluntariness of JD’s statement:

[11] On August 27, 2021, one day following his arrest, J.D. provided a statement to Sgt. Pascal Labine.

[12] A blended voir dire was held mid-trial on the issue of the voluntariness of the statement. A brief oral ruling finding that the statement was voluntary was given at trial, with the understanding that further written reasons would be provided in due course. These are those reasons.

[13] The evidence presented at the voir dire included the following: the testimony of the police officers involved in the arrest of J.D., the testimony of the police officers who observed J.D. while he was at the hospital and who transported him to the Elgin Street police station cells, video evidence showing J.D. at the cells, Admission #3 (medical release records), and the video interview conducted by Sgt. Pascal Labine.

[14] This evidence allowed me to make the following findings of fact regarding the voluntariness of J.D.’s statement:

• In August 2021, the Ottawa Police Service concluded that there were sufficient grounds to arrest J.D. for the murder of M.E.H.
• On August 26, 2021, the Ottawa police received a call regarding a shooting. Constable Bourguignon arrived on the scene and observed two males being treated by paramedics on the sidewalk. One of the males was J.D. The officer recognized him. He noted that J.D. had a single gunshot wound to his right leg but appeared otherwise healthy.
• J.D. was placed under arrest for first-degree murder and unauthorized possession of a firearm. He was cautioned and brought to the hospital. J.D. requested to speak to a lawyer, Melanie Lord.
• J.D. was medically assessed at the Ottawa Civic Hospital. The police were advised that J.D. was stable with non-life-threatening injuries.
• Following this, Constable Bourguignon facilitated private communication between J.D. and his counsel. J.D. spoke to counsel Melanie Lord/Diane Magas for about one hour.
• After Constable Bourguignon spoke to J.D.’s counsel, he elected to read J.D. the Youth Criminal Justice Act right to counsel and caution. J.D. turned 18 years of age on July 18, 2021, but at the time of the offence, would have been approximately 17 ½ years old.
• J.D. then asked to speak to his older brother. This was facilitated by the police officer.
• On the morning of August 27, 2021, J.D. was medically cleared to leave the hospital. He was transported in a wheelchair to the police cell blocks. At that time, he was told he would be charged with first-degree murder and a series of a firearm-related charges. J.D. contacted his lawyer and spoke to her.
• He was then interviewed by Sgt. Pascal Labine from 11:12 AM to 3:27 PM.
• The interview was recorded from start to finish. He was explained the right to silence. At various times during the interview J.D. was asked if he was comfortable, warm enough, and was offered food and water. He was asked if he was in pain because of the shooting incident. He was never offered any inducements.
• Whether there was a power imbalance between J.D. and the police officer/ interrogator is clear. The officer is a skilled interrogator and at the time, J.D. was 18 years old and the victim of a shooting the night before. At times during the interview, J.D. appeared tired and may have very briefly dozed off during a long monologue-type question by the interrogator.
• The accused does not make any admissions until the interview is almost completed. At that point in time, in response to a broad question, J.D. provides, in my estimation, highly inculpatory answers connecting him to the murder charge. When that question was answered J.D. was wide-awake and simply volunteered the information as a response to the question.

[15] The onus is on the Crown to establish the voluntariness of a statement given to a person in authority beyond a reasonable doubt. A finding of voluntariness is required for such a statement to be admitted into evidence.

[16] R v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 sets out the factors that a trial court must take into consideration in determining the issue of voluntariness. They are: 1) the statement must not be obtained using implied or express threats, promises or inducements; 2) the statement must not be obtained by use of oppression on the part of the person in authority; and 3) the accused must be of an operating mind when the statement is provided. The rule in Oickle has been succinctly described in David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 426 in the following terms:

In order for most statements made to a person in authority to be admissible the Crown must establish beyond a reasonable doubt in light of all the circumstances that the will of the accused to choose whether to speak has not been overborne by inducements, oppressive circumstances, or the lack of an operating mind. In addition, there must not be police trickery that unfairly denies the accused’s right to silence.

[17] Whether J.D. was of an operating mind is clear based on the interactions he had with the interrogator. The nature of the exchanges between the officer and the accused throughout the interview, demonstrate that the requirement that the accused knew what he was saying, that he was saying it to the police, and knew that they could use it to his detriment, is undeniable.

[18] Defence counsel submitted that the interview took place under oppressive circumstances: it took place within hours of the accused being shot in the leg, after he had little sleep, and that the interviewer crossed the line by using interrogation techniques that were overbearing which resulted in the accused’s will being overborne.

[19] Defence counsel also submitted that the officer used subtle inducements which should call into question the voluntariness of the statement. They submitted that the interrogation techniques amounted to an amplification of the inducement that “it would be better” for the accused to talk to humanize his role in the matter.

[20] In Oickle, at para. 57, the Court explained when an inducement could potentially render a statement involuntary, in the following terms:

In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interest to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt whether the will of the subject has been overborne.... The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.

[21] In my review of the interrogation/interview, there were no inducements that could constitute “quid pro quo offers by the interrogator”. And, while the circumstances leading up to the interview in this case were less than ideal, by any objective measure, the accused was treated properly and was never placed under circumstances of oppression such that his will was ever overborne. Throughout the interview, the accused frequently asserted his right to silence, was offered food, water and asked about his level of comfort. He did not appear in pain during the interview. He was responsive and, at times, subtle in how he gave his answers.

[22] I find that when the interview is considered in its entirety the relevant evidence obtained by the police officer was because of a skilful interrogation and not because of any violation of the rule in Oickle. The material evidence wasn’t obtained until close to the end of the interview, when the interviewer asked an open-ended question about what the accused could have done differently. The accused’s decision to respond was clearly voluntary, and his will was at no time overborne.

[23] Therefore, the Crown has met its burden. The statement given by the accused on August 27, 2021 has been proven to be a voluntary statement beyond a reasonable doubt.

JD’s statement/interview:

[24] The statement/interview’s probative value lies in how it can be used to buttress or support other evidence presented by the Crown. The accused’s utterances of importance are given after the officer has gone to considerable lengths to describe to J.D. the evidence that the police have gathered against him, including what the witnesses A.H. and Z.L. have said, parts of the intercepted communications, certain parts of the video evidence, and the evidence concerning cell phones and their location.

[25] The exchanges that I focused on and consider probative and relevant to the issues in this case were as follows:

• When shown video footage/photos of A.H., the accused initially denied knowing her name, only that he went to school with her.
• On the issue of the motive, in the context of the slur against the deceased friend H.N., the accused admits that “a lot of people were upset” at p. 87 of the transcript of the interview.
• At p. 99 of the transcript, the following exchange takes place: PL: Let me ask you this question directly, okay? You know, because a lot of times, people never get asked that question, and I didn’t. So, the most important question I really got to ask you and you know a lot of times I’ve learned over time you know, people are just waiting for that question be asked to … to answer it is… is on January 16 did you pull that trigger and shot Topaz? JD: is seen shaking his head no, PL: What’s that? JD : Like what, you’re asking me this? PL: Yeah, I am asking you straight up. JD: No comment.
• At pp. 100 and 101 of the transcripts, the following exchange takes place: PL: Where you think you fucked up in this whole thing? Just shootin the shit. JD: Talking to Aaliyah. PL: Talking to Aaliyah? JD: Yeah. PL: Yeah, That’s right. That’s number one. What’s the number two fuck up you’ve done? JD: Number two fuck up probably people call me on the phone. PL: People calling your phone? Yeah? On the phone? JD: Besides that, I don’t really know. PL: Number three? JD: I don’t know. PL: You’re right. You’re bang on, on the first two. Number three. JD: The cell phone. PL: yeah? Like what? JD: The towers? PL: towers yeah? What else you could have done differently with your cell phone? JD: Dump it and turn it off. I said dump it and turn it off. I don’t know.

Miscellaneous Evidence: Timeline video, Cell usage/cell towers, Intercepted Communications, and Discreditable conduct evidence:

[26] The Crown case included the testimony of Michael Ross a civilian member of the Ottawa Police Service. He is a forensic media examiner and he presented a timeline video (Exhibit 5). He explained that it was a single video put together from a variety of video sources that were available in the general area of the crime scene. This evidence assisted in arriving at certain specific conclusions for example where A.H. was at the time of the shooting, the precise time of the shooting, and the timing of the arrival and departure of the vehicle (white) used by the person likely responsible for the shooting.

[27] The Crown also called Stephane Poirier, an employee of Bell Canada. His main duty is to answer production orders. He explained the call detail records for the various numbers associated with the case (Exhibit 23). He also explained the meaning of certain entries and how they could be used to identify a specific number called or number reached and the duration of call.

[28] Mr. Poirier also explained the general rule concerning cell towers and cell phone usage. He testified that a cell phone will normally ping off the cell tower that it is nearest to. He explained that there were several factors that could impact this general proposition.

[29] Crown witness Diane Topshee was a crime intelligence analyst and civilian member of the Ottawa Police Service. She prepared and introduced summaries of phone records, including possible locations at various times of certain cell numbers based on their activity and cell tower locations.

[30] The Ottawa Police Service obtained wiretap/intercepted communication authorizations for specific numbers, including those belonging to J.D. The authorization ran from June 29, 2021 to August 27, 2021. The intercepted communications and book of intercepts were filed as Exhibit 39. The context of the intercepted communications included the accused being arrested on July 15, 2021 for gun related offences and the charges being dropped based on a fictitious Charter violation. The evidence obtained from the intercepts allows for certain specific findings of fact relating to the accused.

[31] Further, the Crown brought an application to introduce discreditable conduct evidence against the accused. The evidence was allowed, specifically that the accused pled guilty to the July gun related charges, and that the intercepted communications at various times disclosed that he was familiar with and had dealt with firearms, in particular, handguns.

Applicable legal principles:

[32] The accused before the court stands charged with first-degree murder. To sustain a conviction for first-degree murder in the circumstances of this case, the Crown must establish the following beyond a reasonable doubt: 1) that J.D. caused the death of M.E.H; 2) that he caused the death unlawfully; 3) that he had the state of mind required for murder—that he either meant to cause M.E.H.’s death or meant to cause M.E.H. bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not; and 4) that the murder was both planned and deliberate.

[33] The core principles in a criminal trial in Canada, that the accused is presumed innocent and that the Crown has the burden of proving an alleged offence, beyond a reasonable doubt, cannot be overstated. It is a heavy onus. To be convinced beyond a reasonable doubt means to be certain or sure that an offence has been made out before convicting someone of the offence: R. v. Lifchus, [1997] 3 S.C.R. 320. A finding of not guilty is required where the evidence only convinces the decision-maker that an offence probably or even very likely occurred: Lifchus, at para. 36.

[34] Reasonable doubt has been defined in the following terms: A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence, in proof of the charge: Lifchus, at para. 36.

[35] Here, the Crown case is, in part, based on circumstantial evidence. The court must carefully assess any reasonable inferences that are inconsistent with guilt when considering the evidence. The Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, summarized the principles regarding the assessment of circumstantial evidence at paras. 37-42:

[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d , [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

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

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

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

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

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

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

[36] I have considered the credibility and reliability of the testimony of the witnesses, particularly the two primary Crown witnesses A.H. and Z.L. My assessment of credibility and reliability considers that many individuals called upon to give evidence at a criminal trial are not familiar with the process, may never have experienced a courtroom setting, and are required to rely upon their memory of events that transpired years earlier.

[37] I am mindful of inconsistencies and contradictions in the testimony of any witness. Consistency is an element of truthful testimony, but I do not expect perfection in a witness’s testimony. Significant inconsistencies or contradictions, however, can, in some circumstances, result in a witness’s testimony being rejected in whole or in part.

[38] Finally, a trier of fact can accept all, none, or some of a given witness’s testimony.

Position of the parties:

[39] I would highlight the Crown’s position as follows:

a) That the shooting death of M.E.H., on January 16, 2021, was an execution-style murder, therefore it was planned and deliberate and consequently a first-degree murder. That the direct evidence of a set up, along with the circumstantial evidence of the manner of the shooting, together with the timeline video evidence, should leave the court with no doubt that this is the case. b) That the central issue at the trial was the identity of the shooter. c) That the motive for the murder was a slur posted by the victim against the accused’s deceased friend. The words “smoking a Skini pack” were considered extremely insulting towards the deceased friend. d) That the testimony of A.H. should be accepted. That it was reliable and credible. That the core parts of her story—that she communicated with the victim to have him meet her at Bruff Park, that J.D. communicated with her to have her set the victim up and that he told her where to have the rendezvous and to do something to distract him—remained unshaken and even unchallenged on cross-examination. e) That the cell phone record activity of the accused following the shooting supports the proposition that he attempted to communicate with A.H. about one hour after the shooting, he was in the vicinity of the shooting at the relevant time, and he communicated with Skini’s brother A.N. shortly after the shooting. That this evidence also supports A.H.’s testimony. f) That the intercepted communications and statement given to Sgt. Labine further support A.H.’s testimony concerning J.D.’s involvement. g) That the testimony of Z.L. that J.D. communicated with her about trying to set up M.E.H., and that he later confessed to her over the phone to “doing it”, should be accepted as credible and reliable. h) That J.D.’s after-the-fact conduct, such as discontinuing the use of his phone, leaving the area after the shooting, and wiping his phone, further support the Crown’s theory. i) That J.D.’s familiarity with and habitual possession of 9mm pistols, taken with his knowledge of their use, as evidenced by his plea to the gun charges and the intercepted communications, support the proposition that he had the means to commit the murder. j) Finally, that the accused’s statement to the police on August 27, 2021, amounts to an admission of his involvement in the murder. k) That the Crown has thus established that J.D. committed the murder of M.E.H. beyond a reasonable doubt.

[40] I would highlight the defence’s position as follows:

a) That the testimony of A.H. should be rejected in its entirety because she was an incredible and unreliable witness. The reasons for this included but were not limited to her lack of general integrity (criminal convictions/violent tendencies), the implausibility of her testimony, her interest in a motive to fabricate, and the existence of contradictory other evidence. b) That the testimony of Z.L. should be rejected in its entirety because she was an incredible and unreliable witness. The reasons for this included the implausibility of her testimony, her motive to fabricate, her having lied to the police, and the inconsistency in her testimony. c) That once the direct evidence is rejected, what remains is an entirely circumstantial evidence case against J.D., on the central issue of whether the Crown has established beyond a reasonable doubt that he was the shooter. d) That with respect to the cell phone records and cell tower data, there could be innocent explanations/non-nefarious explanations for J.D.’s numbers being in that area on the evening in question. e) That the court should place little to no weight on J.D.’s statement to Sgt. Labine because his answers were by and large a product of being told something that he then repeated. That he did so only after being questioned for over four hours and repeatedly advised about the very strong evidence the police have against him. f) That the evidence of means and opportunity is weak. The Crown has only shown that J.D. habitually possessed guns in the summer of 2021 (July/August), six months after the shooting. There is no evidence of J.D.’s access to firearms in January 2021. g) Therefore, the Crown case has not established that the only reasonable inference to be drawn from the totality of the circumstantial evidence is that J.D. is the person who killed M.E.H. on January 16, 2021. h) That there are other possibilities/reasonable inferences to support the proposition that someone other than J.D. was the shooter. i) That therefore there should be a finding of not guilty.

Analysis:

[41] Firstly, the circumstances of the shooting, including the deceased being lured to a specific area, the shooter attending the area in question shortly before the victim’s attendance, the timing of the shooting (around 3:00 AM), the number of shots fired, the direction of the shots, and the likely proximity of the shooter to the victim, all act in concert to establish beyond a reasonable doubt that this was an execution-style murder. An execution-style murder is, by its very nature, an unlawful, intentional murder, that was planned and deliberate. Thus, making it a first-degree murder.

[42] It was common ground between the parties that the central issue at trial was whether the Crown established beyond a reasonable doubt the identity of the shooter as being J.D.

[43] I agree with counsel for J.D. that Z.L.’s evidence should be rejected, largely for the reasons he provided. In arriving at my conclusion, I ultimately placed little to any weight on her testimony.

[44] That said, I disagree with the proposition that the testimony of A.H. should be rejected entirely and that J.D.’s statement to Sgt. Labine should be accorded little to any weight in the analysis.

[45] In truth, it is the combined effect of the testimony of A.H., taken together with J.D.’s statement to Sgt. Labine, the cell phone and cell tower evidence, the video evidence, the intercepted communications, and the rest of the circumstantial evidence presented at this trial, considered as a whole, that led me to the conclusion that the Crown had established beyond a reasonable doubt that J.D. was responsible for the first-degree murder of M.E.H.

[46] I arrived at that conclusion based upon the following analysis:

a) With respect to the testimony of A.H. and Z.L., in general, the trier of fact in any criminal trial can believe some, none, or all the testimony of a given witness. As indicated, I accorded very little weight to the testimony of Z.L. I found her to be a difficult witness, evasive, unresponsive, and her story respecting J.D. confessing over the phone to her, implausible. b) The testimony of A.H. had to be approached with great caution. She lied to the police, she has a criminal record, and she was granted immunity in exchange for her evidence. A.H. could have been charged as a party to the offence for her role in luring M.E.H. to the park. What she really knew about what was going to happen to the victim in this case is still somewhat of an open question. Her friend Z.L. flatly contradicted her in this regard. c) What I chose to accept from the testimony of A.H. required a degree of corroboration or the existence of other independent evidence to buttress what she had to say about a fact or event. I, for all intents and purposes, treated her like a Vetrovec witness. d) I arrived at the following findings of fact based upon the testimony of A.H. taken with other evidence presented at this trial: * A.H. was responsible for setting up or luring M.E.H. to Bruff Park. The motive for doing so was M.E.H’s slight against “Skini”. The video evidence, cell phone evidence, screenshots of Snapchat messages with M.E.H., and the evidence of the “smoking a Skini pack” posting all serve to buttress/corroborate her testimony in this regard. * J.D. and Skini were very close friends. J.D. and others were upset about M.E.H.’s “smoking a Skini pack” posting. The words of the tattoo on J.D.’s neck “Long Live Skini” and parts of J.D’s statement to the police (Exhibit 31, pp. 65, 68 to 70, 87) corroborate/support her testimony on this issue. * J.D. communicated with A.H. about M.E.H. and wanted to set him up. This is corroborated by J.D.’s statement given to Sgt. Labine, where he confirmed that he spoke to A.H. in the context of what happened to M.E.H. (Exhibit 31, pp. 99-101). The cell phone records establish that J.D. attempted to communicate with A.H. at 4:00 AM on January 16, 2021, about one hour after the shooting. This further supports her evidence on this issue. e) The video timeline evidence and cell phone cell tower records support the proposition that J.D. was likely in the white vehicle that attended Bruff Park before the shooting and left almost immediately after the shooting on January 16, 2021. The 647-529-8232 number attributed to J.D. and the cell tower usage and movement on January 15 and 16, 2021 support this proposition (Exhibit 26 and Exhibit 44, together with the Admission #4). f) The call by J.D. to “Skini’s” younger brother A.N. at 3:09 AM, 7 minutes after the shooting, suggests that J.D. was telling A.N. about the event. The other communications between the two in the early morning hours of January 16, 2021 were out of the ordinary (as supported by J.D.’s phone records and pattern of calls). This further supports the proposition/inference that the communications were connected to the shooting. g) In my view, J.D.’s statement to Sgt Labine was tantamount to an admission of responsibility. His acknowledgement of his mistakes or “fuck ups” in speaking to A.H. and by not turning off or ditching his cell phone at the material time, unmistakably connect him to the crime. I see no other logical inference to be drawn from the statement. h) The intercepted communications disclosing his familiarity with and customary possession of weapons, in particular with 9 mm pistols, although the intercepted communications took place only after July 2021, the inference is still available that J.D. had that knowledge, familiarity, and possible gun possession in and around the time of the shooting. i) The intercepted communications are also probative of the connection between J.D. and A.H. The calls he made and the language he used support the proposition that he was secretly looking for her. Furthermore, in one instance, J.D. in discussing the dropped gun charges of July 15, 2021, indicates to an unknown male that the police are trying to catch him on something “bigger”, very likely referencing the shooting of M.E.H. j) J.D.’s after-the-fact conduct, including stopping the use of the 647-529-8232 number very shortly after the shooting, leaving the jurisdiction, secretly looking for A.H., is further circumstantial evidence that I considered together with all the other evidence respecting J.D.’s connection to the shooting of M.E.H. k) Defence counsel suggested that there were other reasonable inferences to be drawn from the totality of the evidence that could suggest a shooter other than J.D. He suggested A.N., Skini’s little brother as a possibility. I disagree, as the Court of Appeal for Ontario indicated in R. v. S.B.1, 2018 ONCA 807, 143 O.R. (3d) 81, at para 124:

[124] With respect, I do not agree. Villaroman reminds us that in a circumstantial evidence case such as this, the trial judge must consider “other plausible theories” and “other reasonable possibilities” that are inconsistent with guilt. Those theories must be based on logic and experience applied to the evidence or absence of evidence, not on speculation.

Conclusion:

[47] Therefore, I find J.D. guilty of first-degree murder in the death of M.E.H. on January 16, 2021.

Maranger J.

Released: September 9, 2024