COURT FILE NO.: 22/393

DATE: 20241023

ONTARIO

BETWEEN:

HIS MAJESTY THE KING

SUPERIOR COURT OF JUSTICE

-and-

CARLOS GUERRA GUERRA

Respondent )

J. Moser, K. Mildred, for the Crown

R. Golec, for the Accused/Respondent Carlos Guerra Guerra

HEARD: March 4-25, 2024, August 14,

2024

RULING ON EXTRINSIC DISCREDITABLE CONDUCT AND MOHAN VOIR DIRE

MOOREJ.

[I] Carlos Guerra Guerra ("Guerra Guerra") along with Emily Altmann ("Altmann") and Dylan Schaap ("Schaap") are charged with the second-degree murder of 18 year old Josue Silva and an assault with a weapon on Logan Marshall on July 31, 2021. Sehaap has been severed from this matter and is being dealt with in a separate proceeding.

[2] The Crown brought a number of pre-trial applications. The evidence on all applications was heard in one blended voir dire and then argument for each of the motions was made at the end. It was agreed that the evidence applied to all motions and therefore the three decisions should be read together.

[3] The Crown has brought an application for an admissibility ruling on several pieces of extrinsic discreditable conduct ("EDC") evidence. The evidence relates to Guerra Guerra's access to, possession of, and/or knowledge of firearms, that could be connected with the gun used in the murder. As part of that evidence, there was a Mohan voir dire in relation

to the expertise and admissibility of expert opinion evidence of Detective Constable Tobias Mullinder on the issue of firearm identification.

[4] Altmann has made a section 655 Admission that she believed that Guena Guena and Schaap had access to firemms, specifically handguns and large machete/knives including a machete depicted in a photo attached to the admission. Therefore, the EDC application was only for the respondent Guena Gue1Ta.

[5] The overview of evidence contained in the earlier applications applies to this application as well. In addition, the background information, outlined by the Crown and accepted as accurate for the purpose of this application, includes that there are witnesses who state that Altmann told the Silva group during the drink altercation that "you are going to get shot", a witness heard one of the two males who anived to assist Altmann say "the stick is in the bag", and Mackenzie Tulloch states that he saw Guena Guena with a gun in his waistband when they were searching for the other group.

[6] In addition,. there was an Agreed Statement of Fact ("ASF") filed for this application specifically. As part of the ASF, it is admitted that a 9mm Luger casing was located at the scene of the shooting in the area where Josue Silva was shot as well as a silver bladed "Gerber" machete. A black machete was located in Guerra Guerra's Dodge Journey during a search warrant. The firearm that was used to kill Silva was not recovered. I will deal with the other admissions when addressing the evidence.

[7] The Crown seeks admissibility of the various pieces of evidence on the basis that Guena Guena was the person who shot Silva and as evidence of his access to the type of firearm that was used in the shooting or in the alternative, on the basis that he was a co-principal and had knowledge that Schaap had access to such a handgun and a machete.

[8] In support of their theory, the Crown wishes to introduce the following evidence. I will break down the three categories of evidence as follows:

a. Text Messages between Guena Guena and Schaap,

Dylan Schaap is the user of226-234-8486
Carlos Guena Guena is the user of 519-701-9481

m. Guena Guena and Schaap discussing the purchase of a firemm.

b. Kaiah Edmonds's Anticipated evidence of Guena Guena having a handgun.

c. The Gun videos fonnd on phones.

[9] As part of the evidence relating to the gun videos, the Crown wishes to adduce the expert evidence of Tobias Mullinder on firearm identification to show that the firemms depicted in the gun videos are real firearms. They also submit that his evidence would be relevant to the text conversation they allege is concerning the purchase of a firearm, although they would also seek to call further expert evidence on the slang words used during that

conversation. The Defence does not contest Det. Mullinder's qualifications as an expe1i in firearms identification but does contest the necessity of his evidence and admissibility of his opinion.

[10] The overarching issue with respect to all categories of evidence the Crown seeks to introduce is whether its probative value outweighs its prejudicial effect. Determining this issue will require an understanding of the evidence said to link Guerra Guerra to the crime and the Crown's theory concerning the role of the respondent.

[11] For each type of evidence, the Court must dete1mine: 1) if the conduct which forms the subject matter of the proposed evidence is that of the accused; 2) if so, is the proposed evidence relevant and material; 3) if relevant and material, is the proposed evidence discreditable to the accused; and 4) if discreditable, does its probative value outweigh its prejudicial effect, to be determined on a balance of probabilities. See: R. v. B(L.), [1997]

O.J. No. 3042; R. v. Handy, 2002 SCC 56.

[12] I provided counsel the results of the EDC application with reasons to follow. These are those reasons. As I advised, I find that the evidence of the gun videos, Det. Mullinder' s expert evidence, and the testimony of Kaiah Edmonds are admissible. I find that the text conversation between Schaap and Guerra Guerra about purchasing a firearm is not admissible. The Crown had sought admission of some YouTube videos but abandoned that part of the application.

EVIDENCE

Text Messages between Guerra Guerra and Schaap

Identity of Users/Participants

[13] The Court heard evidence that, as part of the investigation, several cell phones were seized. Those phones were analyzed by Kim Seward, a digital forensic examiner employed by London Police Service ("LPS"). She filed a detailed report which was made an exhibit in these proceedings. In addition to the phones seized during this investigation, a Samsung Galaxy S7 phone was seized, as part of an unrelated investigation, and analyzed.

[14] The identity of the user of each phone is relevant to a determination of whether the text messages and videos on the phones can be connected to the accused persons. When I refer to Dylan Schaap's phone or Carlos Guerra Guerra's phone I am referring to the device that was seized directly from each individual by the police by way of warrant.

[15] The evidence that Dylan Schaap was the user of the Apple iPhone XR with phone number 226-234-8486 includes:

a. The same email "lollipopkarnagel0l@gmailcom" was used for the Gmail, Apple ID, Facebook and Expedia accounts.on the phone.

b. The usernarne for the Facebook account is "Chapz Hbb" and "Dylan Schaap" for the Expedia account.

c. The TikTok account on the phone uses a different email D***3@gmail.com, but is associated to "Dylan Schaap" and uses "lollipopkarnageIOI" as the username.

d. A screenshot of a selfie style video on the device that was taken with the device on July 25, 2021 is of a male who it is admitted (for the purpose of this application) to be Dylan Schaap.

[I 6] The evidence that Carlos Guerra Guerra was the user the Apple iPhone 11 Pro Max with associated phone number "519-701-9481" includes:

a. The phone number 519-701-9481 is associated to the SIM card in the Apple iPhone 11 Pro Max seized from Gue1rn Guerra on August 4, 2021 by General Warrant by Sgt. MacLachlan.

b. The device name for the seized Apple iPhone 11 Pro Max is "BigB!oodyBarlos". The user of the device would have had to change the device name to this from the default name of iPhone. Guerra Guerra admits this is his nickname in his video statement to police that I have ruled admissible.

c. The owner name which is linked to the Apple ID is listed as "Carlos Guerra."

d. The phone number was stored in Altmann's seized iPhone as "Barios" and in Schaap's phone as "Silver Da Shotta."

e. The youngsilver5 l 9@gmail.com email account is associated to the Apple ID, Facebook and Instagram accounts on the phone. The username for the Facebook account is "Carlos Andres Guerra" and the username for the Instagram account is "silvrmusicl481".

f. The straightouttadarkmoor@gmail.com account is associated with the Dropbox account on the phone with a username "Carlos Guerra".

g. The TikTok account has username "lbksilver5 l 9" and account name "Carlos Guerra335". Guerra Guerra admitted to his connection with LBK Silver in his police interview.

h. The WhatsApp account on the phone includes the number "15197019484" in its name and the account name is "LBK SILVR".

A selfie style photo of Guerra Gue1rn was taken on April 13, 2021 using the phone. The phone camera itself captures the date and time and latitude and longitude of the photo showing that the device was used to take the photo. The metadata indicates that the photo was taken with a timer.

J. Diana Guerra told Det. MacLachlan that her son's phone number was 519-701- 9481.

[17] The Crown also relies on evidence of identity within the text messages themselves. In particular, the Crown outlines messages that are found on DyIan Schaap' s phone that match with the same messages found in the deleted messages on Guerra Guerra's phone. I am not going to go through all the messages but agree that they demonstrate that the two individuals seem to be friends and see each other often.

[18] In the messages, there are texts to Schaap's phone from Guerra Guerra's phone where he calls him "Chapz" and asks, "can you go with Candace". There is evidence that Candace Jamieson is Schaap's girlfriend. Guerra Guerra also refers to "ur street" and "Hamilton m". There is evidence Schaap lives on Hamilton Road in London. On July 16, 2021, there is a message exchange from Schaap's phone: "that's ok you know chapz will be the first one to bop it so you know who to pass it too" with a response, "No no Barios gon b firing it". There is evidence from Kim Seward that the name of the device seized from Guerra Guerra had been changed to "Barios" and the contact name associated with his phone number on Schaap's phone was "Barios". Guerra Guerra's phone texts on July 24, 2021, "my Dad is in Miami". Kaiah Edmonds provides a statement that she was with Guerra Guerra at that time and his dad was away. Also on July 25, 2021, the Guerra Guerra phone texts, "R we going to the fair". Ms. Edmonds tells police that she went to the fair with Guerra Guerra that weekend. •

[19] Ms. Seward indicates in her report that she reviewed the timeline date for the Guerra Guerra iPhone 11 which showed consistent use for the device and she saw no evidence to suggest that anyone other than Guerra Guerra owned or had use of the phone.

[20] I have also ruled his police statement admissible in which he confirms his phone number and his use of the nickname Big Bloody Barios.

Guerra Guerra and Schaap discussing purchase of a firearm

[21] The messages are exchanged from 1-519-701-9481-9491 (alleged to be Guerra Guerra) to 1-226-234-8486 and lollipopkarnagelOl@gmail.com (alleged to be Schaap) on July 16, 2021 about 2 weeks prior to the shooting. They were recovered on Dylan Schaap's phone and from the deleted messages on the Guerra Guerra phone. I have balded the messages that were present on both devices. For ease of reference, I will use GG and DS.

GG: Wanna come tdot w me and KK tonight?

I'm gonna buy a stick DS: Howmuch

GG: 1680

Or 18 w the 30 bopper But ion need a 30 clip m

DS: Ahlie cuz your shaking it

GO: Who

I can't even fit a 30 bopper in the stizzy

DS: That's ok you know chapz will be the first one to bop it so you know who to pass it too

GG: No no Barios gon b firing it

Barios the new shoota The stick is mad sexy do Is a gl 7 w a P8 frame

DS: Are you dumb you wouldn't bop it And Ahlie

GO: Are you stupidddd

U think I'm a buy it and not bop a stick DS: We'll see

GO: Bout

But ya If u wanna fly°then lmk DS: Aii

GO: Watchhhhhhhhhhhhh

DS: And your not bout it shut up GO: Who

Who do I look like

DS : First body tonite den if your bod GO: Ahmed said

DS: So excited geez woah damn wow

[22] The text messages continue on July 16, 2021 with the person believed to be Guerra Guerra complaining that the other person does not have time for him and is always with "shawty" or "nasseebers", and that he doesn't come to the studio or call him unless he needs

something. The other person believed to be Schaap responds that he is ignoring the texter and "nasseeb" since they have their differences and he is not getting roped in.

Videos depicting firearms

[23] The Crown seeks to introduce five videos into evidence. The Crowu is relying on R. v. Nicho/ovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, and submits that the videos, especially when slowed down or paused, are of sufficient clarity and quality to allow this Court to identify the parties in the videos. The Crown also points to the additional contextual evidence provided to support this position. For ease of reference, I will refer to the people in the videos by who the police believe them to be. The numbering of the videos on this application corresponds to the numbers given to each video by Det. Mullinder in his report.

Video #1

[24] This video depicts two males, one in an orange sweatshirt and a second person alleged to be Guerra Guerra in a black t-shirt. The male in the orange shiti (believed to be Tyrece Dacres) shows a black handgun in the waistband of his pants, the person believed to be Guerra Guerra also has a handgun in his waistband. He then pulls a firearm from a satchel he is wearing cross-body. They both point the guns at the camera while singing. The video is 13 seconds long. Photos of Schaap's apartment which were taken during the execution of a search warrant were admitted on consent for this application and the video appears to have similar features to his residence in the background, including a silver box with a black or orange handle. The video was located on the Samsung S7 phone and the last access date for the video is July 23, 2021. What appears to be the same video is also located on Guerra Guerra's iPhone with a created date of July 31, 2021.

Video #2

[25] In this video, three males appear to be at Schaap's apartment, based on wallpaper that can be seen in the video and a distinctly patterned table. The males are believed to be Guerra Guerra, Schaap and Dacres. There is a brown handgun on the table. The person recording is holding a black handgun with an orange tag near the trigger. Guen-a Guerra is then observed pointing a black handgun with a similar orange tag at the camera. The camera then moves to Schaap who is holding a black handgun. The video was located on the Samsung S7. lt is 8 seconds long and was last accessed on July 23, 2021.

Video #3

[26] This video shows five handguns in a pillowcase. One handgun is a lighter brown colour with black and the other four are black. Two of the black guns have bright orange tags near the triggers. The camera zooms in to the serial number of one. The video is 16 seconds long, was created using Snapchat, had a created date of July 24, 2021, and was located on Dylan Schaap's phone in deleted files.

Video #4[^1]

[27] This video shows Schaap holding a small brown with black handgun, he points the gun at the camera, shows the profile of the handgun and unloads the magazine of bullets. There is a date filter on the video showing a date of July 25, 2021 and it isf5 second long. It was located on Dylan Schaap's phone in the deleted files.

Video #6

[28] This video depicts five handguns laid out on a table with the same pattern as the table in the photos of Schaap's residence. There is one brown handgun and four black handguns. Two of them have orange tags near the triggers. The video was located on Guerra Guerra's phone and is 3 seconds long.

[29] There was a fifth video (Video #5) which was analyzed but it relates specifically to Altmann so I need not deal with it.

[30] As preliminary issues, in determining the admissibility of the videos, the Court needs to determine: who is in the videos, when the videos were made, the video's connection to the accused persons, and whether the handguns depicted in the videos are real guns. These points will be impm1ant in later assessing the probative value of the videos and their prejudicial impact.

[31] The Crown called two witnesses to provide evidence on these issues. The Crown call Kim Seward, a digital forensic examiner with LPS, to provide evidence as to the origins and dating of the videos. The Crown also sought to have Det. Tobias Mullinder qualified as an expert to give opinion evidence as to whether the fireaims in the videos are real firearms.

Kimberley Seward

[32] Ms. Seward testified that she is a special constable with LPS. She has been employed with LPS since 2015 and in her current position as a digital forensic examiner since 2019. She described that in her role as a digital forensic examiner, she specializes in the recovery, presentation and analysis of digital devices including cell phones, tablets, computers and vehicles. She has taken courses from the Canadian Police College on how to forensically seize, search, analyze and acquire digital evidence. She has also taken courses with Cellebrite and Magnet. She was not qualified to provide expert evidence, but to testify as to her analysis of various devices seized.

[33] Ms. Seward testified that when she uses the term "download" in reference to a device, she is referring to an exact bit-by-bit image of the device or an exact copy. She prepared a rep011 of her analysis of devices related to the Silva investigation. She testified that when she receives a device from an officer, her first step is to download the device. She also notes who provided it to her and when and takes photos of the device. She notes whether the device was powered on and if it displays the correct date and time. She checks to see if airplane mode is enabled. She checks to see what security the device has, for example, a PIN or a passcode.

[^1]: Please see Corrigendum.

[34] Ms. Seward then connects the device to forensic software that, if the device is supported, will provide a full physical forensic image of that device. She testified that she loads the full forensic image into Cellebrite Physical Analyzer, which is the main tool used to decode data into a friendly format so that it is readable. She double checks the output by selecting text messages and verifying that the date, time and content are the same. After ensuring an accurate copy has been created, she checks the parameters of the warrant and inputs those parameters resulting in a package that the investigating officer will use to select what information is of interest to the investigation. Once, the officer has selected the information they want, she will ensure it is within the scope of the warrant and generate a .pdf report. She then provides any further information or clarification sought by the officer.

[35] Ms. Seward testified that she had prepared a separate 21-page rep01i that includes the information identified by the Crown for the application. This report is exhibit #8.

[36] The report contains information and analysis with respect to four devices: an Apple iPhone 11 Pro Max seized from Carlos Guerra Guerra, an iPhone seized from Emily Altmann, an iPhone XR seized from Dylan Schaap and a MacBook laptop belonging to Emily Altmann.

Guerra Guerra iPhone 11 Pro Max

[37] Ms. Seward testified that she received an Apple iPhone 11 Pro Max attributed to Guerra Guerra. She took photos of the device and noted it had password and facial recognition. As part of her analysis, she ejected a SIM card found in the device and ran it through a tool called a UFED Touch that acquired what is on the SIM card without altering, deleting or changing any data during acquisition. Each SIM card has a unique identifier called a ICCID. The UFED analysis also tells her what phone number is associated with the SIM card. For this device, the phone number associated to the SIM was 519-701-9481. This was also the last number used for the device. She noted that this number was also found under contacts in Altmann's phone under the name "Barios" and in Schaap's contacts in his phone under the name "Silver Da Shotta", devices which she also analyzed.

[38] Ms. Seward provided testimony about the various accounts and associated emails and names found on the device. This info1mation is summarized under user evidence above. Ms. Seward testified that she used the same process for all of the devices.

[39] Ms. Seward testified that Altmann's phone number was added to Guerra Guerra's device under the contact name "Big Beamer Gyal" on April 14, 2021. No messages between the Guerra Gue1rn phone and the Altmann phone were on the Guerra Guerra phone and there were none in the deleted messages. Messages in the deleted folder can be manually deleted by the user which then initiates the background processes to clean up the data and which makes the data unrecoverable. However, the database that records interactions, the "interactionC" database, shows there were 2,214 incoming interactions and 2515 outgoing interactions between the 2 contacts. An interaction can be text messages, iMessage, phone calls or phone log.

Altmann phone and MacBook computer

[40] The evidence of Ms. Seward's analysis of Altmann's devices is not particularly pertinent to the EDC application, but since there was cross-over between the motions, I will mention it here. Ms. Seward testified that there was evidence on Altmann's phone of 4,710 iMessage exchanges between Altmann and Guerra Guerra. The messages began on April 28, 2021 and ended on July 30, 2021. There were no iMessages recovered from the phone after July 30, 2021.

[41] On September 3, 2021, Ms. Seward received two MacBooks that had been seized from Altmann. Ms. Seward explained the process she used to get access to the MacBook Air as it was password protected. She was able to download that computer on December 6, 2021. She located 62,000 iMessages between Altmann and 519-701-9481. The messages had synced from Altmann's cell phone through iCloud. Ms. Seward explained that the messages synced because both devices were associated with the same Apple ID. Because of the way the phone was set up, messages that were synced to both devices did not automatically erase off the computer when they were deleted on the phone.

[42] Ms. Seward located messages on the computer from July 30 and 31rst, 2021 between Altmann and Guerra Guerra, and Altmann and Candace Jamieson, that had been deleted from Altmann' s cell phone. She created a report for these dates which was filed as an exhibit. The first message received from 519-701-9481 was on April 12, 2024 and the last was July 31, 2021. Altmann's phone was seized from her during her police interview on July 31, 2021.

Schaap_Jl.hone

[43] Ms. Seward testified that she received the Schaap phone on August 4, 2021. She completed the same intake processes and downloaded the phone and SIM card. The device was powered on and displayed the correct date and time. The phone number associated with both the device and SIM card is 226-234-8486.

[44] Ms. Seward noted the Schaap phone number stored in the Guerra Guerra phone under contact name "Chip Dutch Pussy Bitch Whore Robert". The contact had been created on December 16, 2018 and modified on July 30, 2021. She described the user attribution data that is summarized above.

Location of videos

[45] Ms. Seward testified that she located several deleted videos on the Schaap phone. She explained that she is able to tell when or how a video was created by looking at its file path. In addition, if a user uses a Snapchat filter for a photo or video, the filter will store time, date and location. The filter data cannot be changed by the device user. Ms. Seward in her evidence referred to an image or video as a camera image or video if it was taken by the phone's camera. If a photo or video was taken using the Snapchat application with the phone's camera, she called that a Snapchat camera photo or video.

Video #4[^2]

[46] Ms. Seward testified that this video was created on July 25, 2021. The video was created using the Snapchat camera and had a date filter. The created, accessed and modified date associated with the video are all July 25, 2021 at 4:07:02 AM (UTC-4). She testified that because the video was created with the Snapchat camera and not the iPhone camera the associated metadata that would show the original capture date and time is stripped. Ms. Seward testified that normally a video created using Snapchat would be stored with a Snapchat file path that includes "com.snap.file_manager_3_", but the file path for this video indicates that even though it was created using Snapchat, it was saved to the phone before being uploaded as a story, to a chat or not uploaded at all. She testified that filter data which cannot be altered by the user has the same date and time July 25, 2021 at 04:06. She explained the slight discrepancy in time. Ms. Seward testified that it does not appear that the video was sent. Ms. Seward testified that the timeline data for the phone was also consistent and showed the Snapchat application being opened on the device at 4:05:46 AM on July 25, 2021. The metadata on the phone shows that the video was erased on July 27, 2021 at 12:40 a.m.

Video #: 3

[47] Ms. Seward testified that this video of guns in a pillowcase is a possible Snapchat video. She did not note a Snapchat filter but did note that the Snapchat application was opened on the device on July 24, 2021 at 2:36 a.m., the video was then saved to the device at 2:37

a.m. and stored as IMG_Ol57. Again, the created, modified and accessed date and time were the same: July 24, 2021 at 2:37:22 AM (UTC-4). The video was deleted on July 27, 2021 at 12:40 a.m. She noted this was the exact same time as the other video (Video #3) was deleted, suggesting the user selected multiple files to erase.

Samsung S7 - Videos #1, #2, #6

[48] Ms. Seward testified that she examined an additional phone from an nnrelated investigation, a Samsung Galaxy 7. She received the device on August 25, 2021 at 1:07

p.m. from a Major Crime officer. She documented the device and performed her normal intake processes, including verifying that the date and time on the device were accurate, and downloaded the data. She generated a UFED report and gave it to the investigators to make their selections. She did not receive the selections back until January 19, 2022.

[49] Ms. Seward testified that the officer selected 4 user accounts of the 36 accounts on the device. The four user accounts were:

a. WhatsApp account under the name "Carlos",

b. Facebook account with an email carlosandresguerral@hotmail.com under the name "Carlos Andres Guerra",

c. Google Drive account with an email straightoutofdarkmoore@gmail.com and the account name was "Carlos Guerra", and

[^2]: Please see Corrigendum.

d. A second Google Drive account with an email youngsilver5I9@gmail.com and a username of "Carlos Guerra".

[50] Ms. Seward compared the user data on the Samsung S7 with the Apple iPhone 11 Pro Max (519-701-9481). She noted the following similarities and differences:

a. The emails for the Facebook with username Carlos Andres Guerra are different. She testified this was not unusual as people can change their emails or phone number associated to Facebook at any time. The phone numbers associated with the Facebook account were different on the two devices. She testified it's the same account as the user ID is the same.

b. The straightoutofdarkmoore@gmail.com account was configured on both phones. On the iPhone 11 Pro it was associated to a Dropbox account with username Carlos Guerra and on the S7 to a Google Drive account with username Carlos Guerra.

c. The youngsilver5l9@gmail.com account associated with a Google Drive account on the S7 was used as the Apple ID to set up the iPhone 11 Pro.

[51] Ms. Seward testified that there was only one device user for the Samsung S7 and the name was "Carlos Guerra". The "last logged in" information for the device indicates August 21, 2021 at 2:28 p.m. She explained that the device user is similar to the Apple ID for an iPhone that the device user would use to initially set up the device. The various user accounts are the accounts saved on the device. She agreed with the example that if a parent set up a phone for a child, the parent would be the "device user" but then there might be several user accounts not associated with the parent. The user accounts may better reflect who uses the phone versus who set up the phone. In this case, Gue1rn Guerra was the device owner and the user of 4 accounts on the phone. There were 36 accounts on the phone, but because she wasn't asked to analyze the other accounts, Ms. Seward is unable to say who the other 32 accounts belong to. They could belong to Guerra Guerra or someone else.

[52] The officer selected 3 out ofl ,231 data files/videos for analysis. For the purposes of clarity, it is agreed that the videos in the Samsung S7 extraction report numbered 1, 2 and 3 correspond to the videos referred to on this application as #6, #2 and #1, respectively.

Video #6

[53] As indicated, video #6 corresponds with video 1 in the extraction report (exhibit 11). Ms. Seward testified that the video's file name indicates this video was recorded using Snapchat as it has Snapchat in its name. The file path told her that the video was saved within the media partition of the device under the Snapchat album. There is no creation date. She cannot say whether the video was created on that device or received by that device as part of a Snapchat and then stored automatically by the device.

[54] The video has a modified and accessed date and time of July 23, 2021 at 10:46:55 PM (UTC-4). Ms. Seward indicated that since modified and accessed information are the same, it means the video was just watched and not modified on that date.

Video #2

[55] Ms. Seward can tell that this video (Video #2) was created in Snapchat using the Snapchat camera by the filename. The file path tells her that the file is stored in the Snapchat album. The modified and access dates are July 23, 2021 at 10:45:57 PM, or a minute before Video #6.

Video #1

[56] The third video (Video #1) on the Samsung S7 was also created using Snapchat. It had a modified and accessed date of July 23, 2021 at 10:53:49 PM. It was saved in the Snapchat album.

SIM card for Guerra, Querra Apple iPhgne 11

[57] Ms. Seward testified about another extraction report, Exhibit #12. She testified that the report related to the extraction of a video from a SIM card. The report does not identify a phone number or phone it is associated to. Ms. Seward was able to correlate the time of the extraction being August 4, 2021 at 10:55:51 AM to the time she was analyzing the Guerra Guerra iPhone 11 Pro Max, phone number 519-701-9481 and its SIM card. She testified she was not analyzing any other Apple iPhone 11 Pro Max that morning. Ms. Seward had to access the full UFED digital download report of the Guerra Guerra iPhone on her computer and during a break was able to verify that the extraction report was from the Guerra Guerra SIM card download. She testified that the video represented on the extraction report is found on the download from the Guerra Guerra iPhone 11 Pro Max SIM card.

[58] The video has a created and modified date and time of July 31, 2021 at 5:37:22 PM. Ms. Seward indicated that the video on the SIM card from the Guerra Guerra phone was created or received using Snapchat on July 31, 2021. The video was last accessed or previewed on August 1, 2021 at 3:42:39 PM.

[59] The video reference in the 2 page extraction report (exhibit #11) was played for the court. It appears to be the same video as Video #1 which had been located on the Samsung S7.

[60] In cross-examination, Defence asked Ms. Seward about other extractions she had done including Dylan Schaap, Candace Jamieson and Carlos Guerra Guerra. She agreed that most had at least some items deleted. He reviewed a chat between Kaiah Jenaii (Edmonds) and Candace Jamieson from Jamieson's phone extraction report. She had received the Jaimeson phone to download on August 4, 2021 at 6:02 p.m.

[61] In relation to the Guerra Guerra iPhone 11 Max Pro (519-701-9481), Ms. Seward was asked about the "last user ICCID" and explained that the phone's operating system records the last three SIM cards used in the phone. If the same SIM card is removed and then put back in after another SIM card, it would appear multiple times. She explained that the Mobile Station International Subscriber Directory Number (MSISDN) is the number associated with the phone and the SIM card. The iPhone had three SIM cards in its history. She agreed that the iPhone had two numbers associated with it, the 9481 number and a 226-977-8347

number. The 9481 number was the most recent number. She could not say at what point in the past the phone was associated with the 8347 number.

[62] Ms. Seward agreed that on the Guerra Guerra phone she did not find any accounts connected to two emails listed on the phone being cntower@outlook.com and D-I-G-U-E- S-A@hotmail.com. She agreed that these emails were two of the four Apple IDs on the device and she hadn't been able to attribute them to anyone. The most recent Apple ID for the device was the youngsilver519@gmail.com ID.

[63] In relation to the Samsung S7, Ms. Seward agreed that it likely came out in 2016 and was an older phone. The S7 did not have a SIM card in it when she received the device. She is unable to say what phone number was associated with that phone.

[64] Ms. Seward agreed that the file names for the 3^rd video on the Samsung S7 extraction report (video #I) and the file name for the video on the single video extraction report which she testified came from the Guerra Guerra iPhone 11 Pro SIM card are different. The file name on the S7 starts with Snapchat but the file name from the Guerra Guerra iPhone has letters and numbers. She points out however that the single video stored on the Guerra Guerra iPhone suggests that it is a Snapchat video as it had snap.file_manager in its file path. She agreed that although the date on the single video from the iPhone says "created" July 31, 2021, that does not mean it was created that day. The defence suggested that if the video is the same video as the one on the Samsung S7, it would lend credence to it not originating from the iPhone as the date on the S7 is earlier, and Ms. Seward testified that this was possible.

[65] The Defence suggested that it can't be said for certain that t]rree videos on the Samsung device were created on that device. Ms. Seward testified that the videos were created in Snapchat but also saved directly to the device so they could establish a more accurate created date. She testified that the file path with the Samsung S7 suggests that it was created on that device through the file path itself as that is the default file path for the device but agreed that without the Exif data, she could not confirm for certain.

[66] The Defence confirmed that the Samsung S7 with owner Carlos Guerra was last logged into on August 21, 2021. He asked Ms. Seward if she was aware that was 2.5 weeks after Guerra Guerra was arrested, and she responded that she was unaware. She agreed that this might suggest that someone else had access to the phone. She agreed that if someone had the name and password they could log on.

[67] In re-examination, Ms. Seward confirmed that the last SIM card in the Guerra Guerra phone was the one ending in 9264 and there was no evidence that this SIM card had been removed and then put back again as it wasn't repeated in the three most recent. She confirmed that investigators do not have access to the forensic image of a device, they open a "project" and make selections as to what data they want. Different officers can be seeking different data or projects from the same forensic image but the image is not altered. Usually, the officer puts a device in airplane mode, but if they don't, or have trouble, the digital forensic unit will assist. She imaged the Samsung S7 on August 25, 2021 at I:35 p.m.

Detective Tobias Mulliuder

[68] The Crown sought to have Det. Mullinder qualified to provide expert evidence in the area of firearms identification. He has been a police officer for 16 years. Det. Mullinder is employed by Peel Regional Police but seconded to the OPP since 2017 and to the OPP Provincial Weapon Enforcement Unit (PWEU) for the last 3 years. That unit deals with the manufacturing and trafficking of firearms.

[69] He was an infantry soldier in the Forces for 6 years. He took courses and trained on fireatms and explosives including machine guns, pistols, and hand grenades. His training also involved months oflive fire, shooting guns, taking them apart, learning how to change parts and using them effectively.

[70] At the beginning of his time with Peel Police in the uniform division, he encountered firearms often during his duties. In 2012, he moved to the Major Drugs and Vice Bureau and continued to deal with fireatms as part of drug investigations. In 2013, he joined the Peel Regional Police Street Crime Gang Unit. The unit would mainly do drug and fireaims investigations. He was in charge often firearms cases that went through the comts.

[71] He took courses with the Toronto Guns and Gangs unit in 2014 including the Fireatm Verification Course where he was trained to verify the make and model of firearms. He learned to use the RCMP firearm reference table that has basically every firearm in the world in order to properly identify most working models of guns. He took a Firearms Examination Course where pmticipants would take seized firearms and physically inspect and fire them including firing into a water tank and then retrieving the casing and uploading to IBIS database. He started to get into social media issues and was asked his opinion on whether guns posted online were real or not.

[72] He was seconded to the OPP Biker Enforcement Unit in 2017. That unit focuses on outlaw motorcycle gangs and organized crime and primarily investigated drugs, firearms and gambling. He worked on bit projects where he was tasked with proving large number of firearms safe and identifying them.

[73] He was then seconded to PWEU in April 2021. The unit runs its own investigations and is called upon to assist police forces when large caches of firearms are seized, and to identify legal and illegal guns. One of the largest caches of weapons he assisted with involved 700-1000 firearms, hand grenades and mortar rounds.

[74] He has been involved in over 100 firearms investigations and handled over 1000 firearms himself. He also regularly attends courses, follows social media and online forums and attends gun shows within Canada and the United States. He testified about his various memberships that can be found on his Statement of Qualifications. He reviewed the various other course he has taken including the armorer courses for Glock and SIG which designated him a certified Armorer for those guns and is for officers who take care of a police forces service weapons including inspecting and switching out parts. He outlined the various courses he has instructed at in relation to firearms. He has been asked to prepare expe1t reports for police and Crowns, but had not been qualified by a court yet.

[75] In examination by the defence on the voir dire, the Defence counsel suggested that there are a variety of objects that look like firemms, and that are not considered firearms under the Criminal Code, including air pistols, replicas, guns with their barrels welded shut and deactivated firearms. The officer agreed but notes that with Glocks they are not deactivated as one can simply replace the part and make the firemm functional. The officer agreed that 9mm ammunition could be fired from firearms that are not pistols such as rifles and carbines. The officer agreed with the Defence that other than in video #4, he does not see parts on the guns being manipulated. The videos he was provided didn't have audio. The detective has no involvement in the case and only knows it is a homicide. The officer agreed that without actually physically handling the firearms in the videos he can't say 100 percent that they are real firearms.

[76] The position of the Defence was that Detective Mullinder is a properly qualified expe1t to give evidence on firearm examination but that his evidence is unnecessary.

[77] For the purposes of this application, I need not repeat the testimony in detail of Det. Mullinder. His report was filed and he provided detailed evidence of why he opined that certain firearms in each of the videos were real firearms. His opinion was based on such things as:

• Authentic grip texture pattern

• Authentic slide serrations

• Material of the frames, slides and barrels

• Serial number placement

• Rail placement

• Placement of magazine releases and slide locks

• Visible markings (logos/stamped-etched information)

• Visible barrel diameter

• Visible internal mechanics (hole where firing pin hits round)

• Loaded chamber indicators

• Wear marks on chamber from slide movement

• Ammunition in magazine

• Stickers/Tags (in relation to the two identified Taurus pistols)

[78] The detective took us through his report and pointed out his observations in detail of the various factors set out above in relation to the gun(s) in each video using both the videos

and stills from the videos, and provided the basis for his opinion in relation to each firearm. Although the officer doesn't know the people in the videos as he has no connection with the investigation, the Crown alleges that the person identified as Male #1 in the repo1i is Tyrece Dacres, Male #2 is Carlos Guerra Guerra, Male #3 is Dylan Schaap and Female #1 is Emily Altmann.

[79] The detective came to the following conclusions:

Video #1: 3 firearms identified, Taurus G3, a Stoeger STR-9C and an unknown pistol believed to be a Sig Sauer clone. He opined that the Taurus G3 and Stoeger STR-9C are real firearms.

Video #2: 4 firearms identified, Taurus G3, a Taurus G2c, a Stoeger STR-9C and a SCCY CPX-2. He opined that all 4 firearms are real.

Video #3: 5 firearms identified, Taurus G3, a Taurus G2C, a Stoeger STR-9C, SCCY CPX- 2 and a Sig Sauer clone. He opined that the first four firearms were real but could not determine if the clone was real or an imitation/replica.

Video #4: 1 Firearm identified as a SCCY CPX-2. In the video one can see the firearm and also a magazine which appears to be loaded with bullets. The firearm is two-tone with a brown frame and a black barrel. He opined that this was a real firearm.

Video #5: this video was not played as it involved only Ms. Altmann but the officer opined that he could not determine if the gun seen in the video was a real fireaim.

Video #6: 5 firearms identified, Taurus G3, a Taurus G2C, a Stoeger STR-9C, SCCY CPX- 2 and a Sig Sauer clone. He opined that the first four were real firemms and could not determine if the clone was real or an imitation/replica.

[80] The officer agreed that it appeared that some of the same firearms were in multiple videos as it was unusual that the Taurus guns still had the orange tag or sticker at the trigger even though they did not appear new and the patterned table in the background appeared the same.

[81] Specifically, with respect to the SCCY gun, the officer testified that it can come in a variety of colours and is marketed in the U.S. as a purse gun. It is a small compact gun.

[82] Det. Mullinder testified that 9 mm mnmunition can be fired from a gun that fires nine- millimeter ammunition and also from a gun that fires 40 caliber ammunition but not vice versa; ie., 40 caliber ammunition cannot be fired from a gun designed to fire 9 mm ammunition. The SCCY has 9 by 19 Parabellum printed on the barrel and is a 9 mm gun. The officer can't say if the Taurus guns are 9 mm or 40 caliber. The Stoeger STR-9C is a 9mmgun.

[83] By law, manufacturers must put a serial number on the frame of handguns. Most companies also put a serial number on the frame of the gun. Det. Mullinder was able to

identify that three of the guns in the videos had serial numbers. He agreed in cross- examination that replicas could have serial numbers.

[84] Det. Mullinder testified that he is familiar with replica firearms. He stated that Glock air softs are the most common replicas the police see and they are often used in robberies. Replicas can have many features of a real firearm but are not identical. Certain things will be different like serial number placement and the diameter of the barrel.

[85] In cross-examination, the officer agreed that he doesn't know the people in the videos. He agreed that the person he calls Male #2 in Video #2 has his face partially obscured.

Evidence ofKaiah Edmonds

[86] Kaiah Edmonds was one of the people who arrived at the party with Carlos Guerra Guerra and Dylan Schaap. The Crown advised that she would be called as a witness at the trial.

[87] Sgt. MacLachlan interviewed Edmonds on August 8, 2021 at her residence. The officer wanted to interview her as she had been one of the persons identified by Guerra Guerra as being with him in his August 4, 2021 interview. Edmonds was present with her father. Sgt. MacLachlan was accompanied by Det. Robertson. The statement was audio and videotaped. It started at 1:26 p.m. and concluded at 4:28 p.m. with a 14 minute break that was not recorded.

[88] On consent, her evidence was introduced by the Crown playing a 20-minute segment of Kaiah Edmonds' audio/video statement for the court, starting at page 77 of the transcript and filing the transcript of the statement. The portion played is right after the umecorded break. The officer reminds her in this portion that they are investigating a second-degree murder and everything is being recorde.d as evidence, that she can talk to a lawyer and that she wasn't obliged to say anything.

[89] In that portion of her statement to police, Edmonds tells police that she is concerned because Dylan is in jail for something he shouldn't be in for. She tells the officers that Carlos is the one who drove them to the bush party. She tells the police about the phone call from Emily where she is crying and telling them that guys were going to jump her, so they went there. When they got there, they saw Emily at the car, they went to the party, they saw the guys, she heard the bop and they ran. She didn't see Guerra Guerra with a gun that night but had seen one before.

[90] Edmonds told the police that, the week before the party, she was with Guerra Guerra at his Dad's apartment on Richmond Street. Guerra Guerra showed her four guns. The guns were out in the open and she thinks he was cleaning or wiping them off. They were in one of the bedrooms. When he showed her the guns, she told him that she did not like guns.

[91] She testified that the guns were not the same, one of the guns was a small brown one, "it looked kinda weird". He made her hold it because it was shorter. She agreed it was a smaller sized handgun. The officer asked if it was all brown and Edmonds testified that "yes, Maybe it had a little bit of black on the ...." She said it was not the basic black gun

you would see, it looked weird to her because she doesn't know about guns that look different. The other handguns were just black.

[92] The officer asked if the small gun was loaded or unloaded and Edmonds responded, "Oh. Okay. That's why I remember. I was holding it and he's like whoa, don't press the trigger and I was like why and he was like it's loaded." She stated she doesn't remember if he unloaded it or not. She just put it down. She thought the guns were real because he said something about "the safety is on, blah, blah, blah".

[93] Edmonds described in the video how Guen-a Guen-a was loading some of the guns. The officer explains the difference between a revolver and a gun with a magazine and Edmonds said the gun wasn't a revolver.

[94] Edmonds is asked when this happened. She said his Dad was gone, and it happened "a while" before the party and stuff. She is then asked if it was "a day or two or couple days or...." And she responds that "maybe more than that it could be". The officer reminds her that she had told them she went to the St. Thomas Fair which was on July 24, 25^th and she indicated that it was around that time, the weekend before the bush party.

Evidence of Jessica Falardeau

[95] Evidence from the police statement of Jessica Falardeau from August 2, 2024 was introduced on the EDC application. Jessica Falardeau is the younger sister of Jamie Falardeau who was a friend/acquaintance of Emily Altmann. She went to the bush party with her sister and others in Altmann's BMW car.

[96] In her statement she describes to the police what she saw. She talks about the two guys with Altmann jumping on and beating two other guys. She saw that one of them pulled out a gun and shot one of the others in the stomach. She said that she thought it was "the one with the beard" who pulled out the gun while he was on top and shot.

[97] She says she thinks the person pulled it out of their pants, she just knows it was the right side, she didn't really see it. She is asked to describe the gun. I will replicate that part of her testimony.

Officer: Do you see the gun? Jessica: I saw the gun, yeah.

Officer: And what did the gun look like? Jessica: It was silver, I'm pretty sure.

Officer: Pretty sure?

Jessica: I don't really remember. Like it -I know I saw him pull it out. It's just I was in so much-, I didn't really think much about it, I just...

Officer: Sure Jessica: Yeah

Officer: Yeah, and sometimes, when we're in that kind of heightened state, we have-, um we're ve1y in, in tune to what we're looking at and what we're focused on.

Jessica: Mm-hmm

Officer: So I want you to just really try and , and think hard about, um what you saw there, and just think back to that.

Jessica: I don't kn-, the only thing that comes to my mind is silver.

[98] She demonstrated how the gun was pulled out. The officer asked her other questions about what the person was doing with his other hand and she said she didn't really pay attention to that. After that, he shot the guy and "everything else was a blur". She said she ran. She didn't remember what the person on the ground looked like. She couldn't describe others at the party and indicated that it was dark.

POSITION OF THE PARTIES

[99] The Crown argues that Guerra Gue1Ta's access to a firearm capable of having committed the shooting within a short period of time prior to the July 31, 2021 death is highly probative and outweighs any prejudicial impact of the evidence. The Crown submits that the prejudicial impact can be addressed by a strong jury instruction on general propensity reasonmg.

[100] The Crown also argues that Schaap's access to such a firearm is highly probative. The theory of the Crown will be that either Guerra Guerra shot Silva or that Schaap shot Silva and Guerra Gue1Ta is a co-principal and was aware of Schaap's access to firearms.

[101] The Crown submits that the gun video evidence is strong evidence that the parties were in possession ofreal firearms which were capable of being the murder weapon.

[102] The Crown submits that the evidence of Kim Seward in combination with the evidence of Kaiah Edmonds shows that the possession of the guns is in close proximity to the time of the shooting.

[103] The Crown submits that there can be an inference that the guns seen by Kaiah Edmonds are the same guns as are in the video and that Guerra Guerra's words and actions demonstrate that they are real guns.

[104] The Crown argues that they have sufficiently connected Gue1Ta Guerra and Schaap to the text conversation about the "stizzy" with the "30 bopper" and that the Crown can rely on the evidence ofDet. Mullinder and the anticipated evidence of a street slang expe11 to show the meaning of the text messages. The Crown argues that the evidence is highly probative given the timing of the text only 2 weeks prior to the shooting.

[105] The Defence submits that the evidence the Crown wishes to introduce is nothing more than general propensity evidence and guilt by association.

[106] The Defence argues that the gun video evidence is weak, that the Crown has not sufficiently connected Guen-a Guen-a to the Samsung S7 or the iPhone 11 Pro Max, that it has not proven when the five videos that are sought to be admitted were actually created on either device, and that they have not been altered. The Defence argues that the Crown has not proven authenticity of the videos.

[107] The Defence submits that the Crown has not brought a Nicholovski or Leaney application regarding identification of the individuals in the videos and should not be permitted to rely on Nicholovski for the purposes of this pre-trial application without a formal application.

[108] The Defence concedes that Det. Mullinder is a properly qualified expert but submits that his proposed evidence is of limited probative value, thereby lacking in the area of "necessity", and should not be admitted.

[109] The Defence submits that the evidence of Kaiah Edmonds lacks credibility and that she is biased in favour of Dylan Schaap and was lead in her evidence by the officers. He submits that her evidence on its own would not be admissible and is tied to the gun video evidence and expert testimony which should not be admitted.

LEGAL FRAMEWORK

[110] I start with the proposition that generally, evidence of discreditable misconduct extrinsic to the offences charged will be inadmissible except when its probative value outweighs its prejudicial effect. See: Handy.

[111] The reasons for this policy have been clearly articulated in the common law. The concern of the Court is that the trier of fact will convict the accused person, not on the basis of the evidence of the alleged offence, but because the accused is a bad person or has a general propensity for the type of behaviour alleged.

[112] This concern is set out by Sopinka J. in R. v. B. (C.R.), 1990 CanLII 142 (SCC), 1 S.C.R. 717, at para. 56:

The principal reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person's actions on the basis of character. Paiiicularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning.

See also: R. v Amin, 2024 ONCA 237, at para. 27.

[113] A further concern with the admission of extrinsic discreditable conduct evidence is its potential to distract the trier of fact from the task at hand, which is determining whether the Crown has proven the charges in the indictment beyond a reasonable doubt, based on the evidence before them. This concern is expressed by Binnie J, in Handy at paras. 31-40 as follows:

The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwanted degree. Its potential for prejudice, distraction, and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer...

ANALYSIS

[125] I must analyze the categories of proposed evidence in light of the inferences the Crown seeks the trier of fact to make and the "live" issues at trial. The inference the Crown seeks to establish is that Mr. Guerra Guerra had possession of or access to a handgun capable of committing the shooting, within the weeks prior to the homicide and therefore had possession of or access to such a firearm at the time of the shooting. Alternatively, the Crown seeks to establish the inference that Dylan Schaap had possession of or access to a handgun capable of committing the shooting within the weeks prior to the homicide and Guerra Guerra was aware of that and therefore had knowledge of Schaap' s possession of or access to such a gun at the time of the shooting.

[126] The firearm used to shoot Josue Silva was not recovered. A 9mm casing was recovered from the scene suggesting that the gun was not a revolver and was capable of firing 9mm ammunition. The identity of the person who shot Silva is a live issue at trial as is the knowledge of the "non-shooter" paiiies about the shooter's possession of or access to a firemm at the time of the shooting.

[127] The analysis of the probative value and prejudicial effect of the proposed evidence and balancing that is required must be assessed within the context of the particular facts and issues in the case.

Text Message re Gun Purchas(:)

[128] The Crown called evidence from Ms. Seward to establish usership of the two phones taking part in the text exchange on July 16, 2021 about the alleged gun purchase. It proposes that this evidence be admissible to show that Mr. Guerra Guerra was attempting to purchase a gun and that Mr. Schaap had knowledge of that proposed purchase and the inference of possession or access and knowledge by the other on the date of the shooting can then be made.

[129] I find that the evidence called clearly establishes the primary users of the two devices as being Dylan Schapp and Carlos Guerra Guerra and that the Crown has established that the impugned conversation took place between the two accused. The phones were physically

seized from each individual, the user accounts and contents of text messages themselves connect each party to the respective device. However, for the reasons that follow, I find that the probative value of this evidence does not outweigh its prejudicial effect.

[130] As to the content of the messages, the Crown argues that it can be inferred that what is being discussed is a conversation about a gun purchase by the use of words like "stick" "clip" "gl 7 w a P8 frame" and there is an indication that the "30 bopper" goes in the "stick" or "stizzy" and that it can be "fired". They indicate that they would seek to call a street language expert, although when is unclear since the trial begins in a week. The Crown argues that based on the language of the messages themselves, in context, and the evidence ofDet. Mullinder that a clip is another name for a magazine and that certain handguns such as Taurus and Glock have names like G2c, G3 or Glock 17 or Glock 22, the evidence is admissible.

[131] In considering the probative value of the evidence, I have considered that the gun conversation would require an additional expert whom I have not heard from and if allowed would add to the complexity of the trial. More importantly, I have considered that there is no evidence that the firemm, assuming it is a firearm, which is the subject matter of this conversation, was ever purchased. The gun in the conversation is not connected to any of the guns seen in the videos. There was no evidence that any of those particular guns which would be described as a "G17 with a p8 frame" or a "30 bopper" were purchased. There is also no evidence that the firearm under discussion would be capable of firing a 9 mm bullet.

[132] The potential prejudice is obvious. If the jury were to find that the conversation is as suggested, a conversation about the purchase of a gun, it may cause moral prejudice against Mr. Guerra Guerra. Nmnely, that Guerra Guerra, as someone who wanted to buy a gun, especially a gun with a "30 bopper", is a "bad" person.

[133] In balancing the probative value of this evidence against its prejudicial effect, I have considered the degree to which the evidence goes beyond general propensity to show a disposition to do the very act alleged in the indictment, or in this case, demonstrate possession, access or knowledge of a firearm of a type capable of committing the shooting.

[134] I find, on balance, that the Crown has not proven that the probative value outweighs the prejudicial effect with respect to the gun purchase conversation.

The gun videos Probative value

[135] The Defence submits that the probative value of the gun videos is low. He submits that there are a number of weaknesses in the evidence including: connecting the accused to the device and to the videos, authenticating the videos as not having been altered, identifying the accused within the videos, and proving that the guns in the videos are real firearms. The latter concern ties in with the evidence of the proposed expert Det. Mullinder.

[136] The videos in evidence are all of very high quality with good clarity.

[137] I have already indicated that the evidence called across the three pre-trial motions demonstrate that Schaap is the primary user of the iPhone XR, with number 226-234-8486, and Guerra Guerra is the primary user of the iPhone 11 Pro Max with number 519-701- 9481.

Videos #3 and #4

[138] The evidence from Ms. Seward indicated that Videos #3 and #4 came from Dylan Schaap's iPhone. It is admitted that Dylan Schaap is the male depicted in these videos. They were found in the deleted files and had been deleted at the same time on July 27, 2021. Both videos were created using the Snapchat application. Video #3 had a creation date of July 24, 2021 at 2:36 a.m. She acknowledged that the "creation date" did not necessarily mean the video was created on that date but could have been stored on that date. Video #4 had a creation date of July 25, 2021 at 4:07 a.m. An important feature of Video #4 is that there was a Snapchat date filter used during the video. Ms. Seward testified that the date of the filter cannot be altered by the user. That filter shows that the video was taken on July 25, 2021 at 4:07 a.m., which corresponds to the date on the video itself.

[139] I would note that in Video#4, Schaap is depicted with the brown and black gun later identified by Det. Mullinder as the SCCY, and also appears to be showing a loaded gun magazine. Video #3 shows 5 guns in a pillowcase. The same gun as in Video #4 appears to be one of the guns in the pillowcase.

Videos #1, #2, #6

[I40] Ms. Seward testified that these three videos were found on a separate device, a Samsung S7, that had been seized and analyzed for a different investigation. Video #1 was also located on the SIM card for the Guerra Guerra iPhone 11 Pro Max and is in the original download of that device and SIM card.

[141] A male alleged to be Carlos Guerra Guerra is depicted as one of the people in both Video #I and Video #2. Although there is a longer look at the person in Video #1, the person in Video #2 has the same appearance and appears to be wearing the same clothing with the same logo in both videos. In the videos, there is a partial view of the male's tattoos which match the booking photos of Mr. Guerra Guerra taken by Cadet Hueng at the time of his arrest. The Crown's position is that the videos are of sufficient clarity for the Court to make its own assessment as to the identify of the person in the video. I agree. Having spent at least 15 days with the accused Mr. Guerra Guerra, including watching him during many hours of his police interviews, I have no difficulty finding that the person identified in Video#1 and #2 is Mr. Guerra Gue1rn. The Crown was clear in their application that they would be asking the court to view the videos and make its own assessment of identity. I do not find that the Defence was prejudiced by the lack of formal Nicholovsky application.

[142] Ms. Seward testified to the connection of Mr. Guerra Guerra to the Samsung S7. He is indicated to be the device "owner". He is also connected to four of the user accounts on the device including WhatsApp, Facebook and two Google Drive Accounts by the use of his name and through emails that are also used on his iPhone Pro 11 Max. The Samsung

S7 didn't have a SIM card in it when it was recovered. Ms. Seward was not asked by investigators to analyze the other 32 user accounts so can't say if they belonged to Mr. Guena Guerra or someone else. She agreed that a phone can be used by others without being registered or signing in as a device user.

[143] The videos on the Samsung have the following modified and accessed dates: Video #I - July 23, 2021 at 10:53:49 p.m., Video #2 -July 23, 2021 at 10:53 p.m. and Video #6 -July 23, 2021 at 10:46 p.m. Ms. Seward also testified as to her belief that the 3 videos had been recorded on the device due to their file path which would have been the default file path if the videos were made with Snapchat on the device, although she agreed that she could not confirm this without fmther analysis.

[144] Upon my comparing the videos, it appears that Video #3 in the Samsung extraction report which conesponds to what we are calling Video #1 is the same video as the video located on the Guerra Gue1rn iPhone SIM card. The video on the iPhone does not have the same filename. Ms. Seward testified that the video on the iPhone was either created or stored on that device on July 31, 2021 at 5:37:22 p.m. and last accessed on August 1, 2021 at 3:42 p.m.

[145] Three sections of the Canada Evidence Act, R.S.C. 1985, c. C-5, are at play in considering the admissibility of the video evidence, specifically, ss.31.1, 31.2(1) and 31.3:

Authentication of electronic documents

31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purpo1ted to be.

Application of best evidence rule - electronic documents

31.2 (1) The best evidence rule in respect ofan electronic document is satisfied

(a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or

(b) if an evidentiary presumption established under section 31.4 applies.

Presumption of integrity

31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven,

(a) by evidence capable of suppo1ting a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic

document and there are no other reasonable grounds to doubt the integrity of the electronic documents system;

(b) if it is established that the electronic document was recorded or stored by a pmiy who is adverse in interest to the party seeking to introduce it; or

(c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it.

[146] Ms. Seward testified that she checked that the time and date on each of the cell phones was accurate, and it was. She confirmed the videos on the Samsung were saved in the folders where she would expect to find them. She confirmed that the phone and Snapchat filter recorded the same date and time for Video #4 found on the Schaap phone. She was able to confirm that the timeline activity matched the other activity on the Schaap iPhone as to when the Snapchat application was open and when a video using Snapchat was recorded. She confirmed that the date and time on the Guerra Gue1Ta iPhone was accurate. I find that the Crown has produced evidence capable of supporting a finding that at all material times the cell phone devices used to create or store the videos were operating properly. There was no evidence to indicate, or argument made, that they were not.

[147] The bar for admissibility is low. The pmiy seeking to have an item admitted into evidence must prove that the electronic evidence is what it is purported to be. Itis not necessary that the party prove this fact beyond a reasonable doubt or any other standard other than through evidence "capable of suppmiing" such a finding.

[148] The difficulty of establishing the authenticity of digital evidence captured on an accused or other adverse party's device is obvious. The Crown cannot call the accused to testify as to the authenticity of the digital evidence. This is the reason for s. 31.4.

[149] It must be remembered that at this stage authentication relates not to the ultimate reliability of the evidence but is a threshold question of admissibility. Section 31.1 does nothing more than repeat the "low" common law authenticity standard. At common law, authenticity is established for the purposes of admissibility if the trial judge is satisfied that there is some evidence to support the conclusion that the thing is what the party presents it claims it to be. Therefore, authentication for the purposes of admissibility is nothing more than a threshold test requiring that there be some basis for leaving the evidence to the factfinder for ultimate evaluation. See: David M. Paciaocco's "Proof and Progress: Coping with the Law of Evidence in a Technological Age" (2013), 11 Can. J.L. & Tech. 181, at p. 13-14.

[150] This ase is distinguishable fromR. v. Andalib-Goortani,2014 ONSC 4690, where a police officer was charged and the Crown sought to rely on a photo of the alleged assault uploaded anonymously to a G20justice website. In that case, Trotter J. found the photo inadmissible as the Crown could not prove the criterion of "fairness and absence of any intention to mislead," given the lack of information as to the origins of the photo, where it was uploaded originally and the evidence that there had been some properties stripped through the

uploading process. In that case there was a real possibility the photo had been altered to the detriment of the accused. There is no such evidence in this case. The videos were not anonymously uploaded to a "justice" site, they were on phones connected to the accused persons.

[151j I am satisfied that the videos were found on the devices of parties adverse to the Crown. I am also satisfied that the devices in question appear to be functioning properly and that the Crown has proven on a balance of probabilities that the video evidence has been sufficiently authenticated.

[152] I do not find that Nicholovski, which was decided four years prior to the enactment of the digital evidence sections cited above, stands for the proposition that a higher threshold than that set out in ss. 31.1-31.3 of the Canada Evidence Act must be met as a necessary condition before accepting videos into evidence in that the Crown must show that the video was not altered or changed before it is admissible. See: R. v. Bulldog, 2015 ABCA 251; R.

v. Anane et al., 2023 ONSC 6681. Nicholovski was not a case about the admissibility of video evidence; rather, it was a case about to what use the video could be made. The statements made in Nicholovski should not be seen as setting a higher threshold for admissibility but in the event that they were intended in that way, I find that they have been superseded by statute.

Expert Evidence of Detective Mullinder

[153] The Defence conceded that Det. Mullinder was a properly qualified expert. He submits that the evidence is not necessary as Det. Mullinder is not able to say with 100% certainty if the guns in the videos are real firearms without physically handling them.

[154] We do not require absolute ce1iainty in relation to the opinion of an expert. That standard would rarely be reached. If the evidence of the expe1i is within the experience of the trier of fact, then the expert's opinion will not be necessary: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at

p. 24. Further, if the expert's opinion is so unce1iain or weak, then it is likely that its low probative value would prevent its admission. What is important is that the trier of fact is given a balanced view of the evidence so they can assess both the strengths of the evidence and its frailties.

[155] In this case, the testimony by Det. Mullinder about the minute details to look for that are indicative of a firemm in a photo or video being a real firearm, are something that would be far outside the knowledge and experience of most jurors.

[156] Det. Mullinder is fair in his testimony that he can not say with absolute ce1iainty that the firearms depicted in the videos are real. He agreed that some replicas can look very real. He provided significant detail in his testimony of the various features he identified that lead him to the opinion that certain firearms were real. Some of those features included barrel diameter and being able to look down the barrel of some of the guns to where the firing pin would be located, wear and scratches where the slide on a real gun would move back a11d forth, the magazine and bullets seen in the one video, and some of the fine details like placement of release buttons, springs and serial numbers. He was able to identify three

serial numbers but did not investigate those numbers as he was not an investigator on this case.

[157] The analysis per R.. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at para. 16,requires that a Court, in determining the admissibility of expert evidence, must be satisfied:

That the opinion is relevant;
The opinion is necessary to assist the trier of fact to draw the correct inference;
The absence of any other exclusionary rule;
The expert possesses the required qualifications including impartiality, independence, and unbiased.

[158] There is a final stage of the analysis that requires the Court to engage in a cost-benefit analysis and determine whether the benefits outweigh the risks. In this second stage, the Court in its role as gatekeeper must consider: I) legal relevance, 2) necessity, 3) reliability, and 4) impartiality, independence and absence of bias. See: R. v. Abbey, 2009 ONCA 624 at paras. 79-96; Mohan.

[159] I find that Det. Mullinder was a properly qualified expert with significant experience in the verification and handling of various firearms including handguns. I find that his evidence would be necessary for the trier of fact to assess whether the guns seen in the videos are real firearms. The issue of the exclusionary rule of extrinsic discreditable conduct is dealt with in these reasons. I find that in balancing the benefits of inclusion against the risks of this evidence, including the risk that it may overwhelm the trier-of-fact or take up additional court time, that the threshold requirements for admissibility have been met and absent any other exclusionmy rule, the evidence of Det. Mullinder should be admitted.

[160] I have reviewed carefully the case of R. v. Agil, 2012 ONSC 5099, where the accused was charged with a number of gun possession charges based on videos found on cell phones located at his residence during a search wa1Tant. He was acquitted on most charges as the comi was not able to determine if the possession had taken place in Ontario which was an essential element of the offence. The accused was convicted on two counts based on the video evidence. Molloy J. relied on the expert evidence from the Crown and Defence firearms expe1is in reaching her conclusion. I note that the evidence in that case included physical descriptors as well as sounds, how mechanisms worked, how the guns were handled and what the accused was saying about the gun. Molloy J. also found that some of the guns in the video, where there were acquittals for jurisdictional reasons, were real firearms.

[161] On this admissibility hearing, the Crown does not have to prove beyond a reasonable doubt that the firearms in the videos were real. I have to consider the strength and weaknesses in the evidence as to whether they were real firearms in determining the probative value of the evidence.

[162] I find on the basis ofDet. Mullinder's evidence that the four firearms were real firearms which were all capable of firing 9 mm ammunition, that the videos are probative and capable of demonstrating that, at the time of the videos, Gue1rn Guerra and Dylan Schaap had possession of or access to firearms of a type that could be the firearm used in the shooting.

Evidence of Kaiah Edmonds

[163] Ms. Edmonds told police that she was with Mr. Guerra Guerra at his father's apartment when his father was not there. She believes it was around the time they went to the St. Thomas fair which was the weekend of July 23 and 24, 2021. That is the weekend before the shooting at the bush party.

[164] She detailed that he had 4 guns, 3 black and one brown with maybe some black. The brown and black gun was smaller and that is the one he had her hold. He told her it was loaded. She saw him load another gun with bullets, and she described the action to the police in her statement.

[165] These observations were in the same time frame as the creation dates on the videos found on Dylan Schaap's phone and the Samsung S7. In those videos there are a total of 5 guns, 4 of which the Det. Mullinder opined were real guns including a Taurus G3, a Taurus G2, a Stoeger STR-9C and a SCCY CPX-2, which were all capable of firing 9 mm bullets. The first three are black and the last is brown with some black and is a smaller gun or "purse gun". The guns all have silver metal near the bullet chamber at the top of the gun.

[I66] The jury could infer that the guns seen by Ms. Edmonds are the same guns seen in the videos given the number (I less) and description. If Ms. Edmonds evidence is believed as to being told the gun was loaded and of watching Mr. Guerra Guerra load a gun, this could lend credence to the timing of the videos and the guns being real.

General propensity or specific propensity

[167] Whether evidence of prior possession of a similar weapon to the weapon used in a crime is general propensity evidence which is inadmissible or is evidence of a specific propensity offering circumstantial evidence that the person possessed that gun or type of gun at the time of the crime, involves a fact-specific and contextual analysis.

[168] The Defence and Crown took me to a number of cases with varying results.

[169] In R. v. Singh, IO weeks following the murder, police located a handgun in a secret compartment of the car owned by Singh. CFS testing confirmed that the gun was not the gun used to commit the murder. Ammunition loaded in the gun and under the front passenger floor mat included three different types, and was similar to the combination of ammunition found at the site of the murder. The trial judge allowed the ammunition, but not the firearm. The trial judge found that the firearm had very little probative value other than to show the accused's propensity to access and possess firearms. She found that the probative value of the firearms, as a means to prove identity, was not high. However, the ammunition found at the scene and in his car were probative based on their similarity. In

my view an important factor in the case was that the firearm the Crown wished to connect to the accused had been shown scientifically not to be the murder weapon.

[170] In R. v. Boyko, [1975] B.C.J. No. I 033, the Crown introduced evidence that four weeks prior to the murder, a principal Crown witness who was a member of the illicit drug trafficking underworld, was present for a conversation where the accused told another person that he had a .32 caliber pistol and a .38 caliber pistol and some rifles. The weapon used in the murder was a .38 caliber. One of the grounds of appeal was that this evidence was inadmissible as it was not probative and was highly prejudicial. The appellate court held that the evidence was clearly admissible and was relevant to show that the accused, a short time before the killing, was in possession of a .38 caliber weapon and the killing was done with a .38 caliber weapon.

[171] In R. v. Brown, 2018 ONCA 481, the accused appealed his convictions for firearm and drug offences. The accused's phone was seized when he was arrested. The police executed a search warrant at a residence of the accused's common law spouse and located a loaded fire;irm, ammunition, an ounce of crack cocaine, cash and drug paraphernalia, several phones and a shirt believed to be used in the robbery under investigation. The trial judge admitted photographs of a gun found on the accused's phone resembling the gun seized. The Court of Appeal found that the photo was properly admitted into evidence but overturned the conviction on the basis that the trial judge had failed to provide a limiting instruction to the jmy on the use that could be made of the photo and to warn the jury of improper general propensity reasoning.

[172] In Brown, the comi noted thatthe trial judge had not overemphasized the similarity between the firearms in the photographs and the gun found and had told them that the photographs depicted the same or similar gun. The Defence had contested the admissibility on grounds that the prejudicial effect outweighed their probative value. They argued that the photo was of little probative value as there was no evidence how the photo came to be stored on the accused's phone or that the images of the firearm were of the gun found and that the photos were highly prejudicial as they would put the onus on the accused to explain the origins of the photos and had the potential to encourage the jury to engage in impermissible propensity reasoning.

[173] The Court in Brown found that the Crown had offered the photographs as circumstantial evidence of the appellant's possession of the gun that was seized during the search warrant. The Court found that, in that case, the photographs suppmied only two inferences: first, that the photographs were of the actual gun that was found, and second, that because the appellant had an interest in guns similar to the one found, it was likely he came to possess such a gun. The latter inference invites impe1missible general propensity reasoning, since the inference necessarily entails the conclusion that the appellant has shown himself to be the kind of person likely to possess such a gun: Brown, at para. 28.

[174] In R. v. Campbell, 2015 ONSC 6199, the Court was asked to rule on a number of pieces of extrinsic discreditable conduct evidence. Two accused, Campbell and David, were charged with murder and while the murder weapon was not recovered, it was believed to be a revolver as several shots were fired and no casings were left at the scene. Nordheimer J.

went through helpful analysis of why he found that each item was or was not admissible on a probative versus prejudicial test. Evidence of rap videos and lyrics which suggested gang affiliation were excluded as well as possession of a firearm that was not a revolver. The Comt allowed in two pieces of evidence where it found that the probative value outweighed the prejudicial effect. The Court allowed in a statement of Campbell that he was "locked and loaded". Evidence that David had a revolver a day or two prior to the shooting was also admitted.

[175] The Comt found that the evidence of David's possession of a revolver was relevant and its probative value outweighed its prejudicial impact. Nordheimer J. found at para. 65:

The evidence that Mr. Sissons saw Mr. David with a revolver a day or two before the shooting is a different matter. Given the proximity of that observation to the shooting, it has probative value to the issue whether Mr. David may have had the murder weapon in his possession at the time of the shooting. Mr. David essentially concedes that point. While I appreciate that the prosecution's main theory is that Mr. David got the gun from Mr. Campbell, the prosecution is nonetheless permitted to lead evidence that may sustain an alternative theory, that is, that Mr. David had the gun all along. In addition to the proximity of the observation, the fact that the gun, that Mr. Sissons says that he saw in the possession of Mr. David, is the same type of gun as the murder weapon is believed to have been, i.e. a revolver, adds to the probative value of that evidence.

[176] The Court went on to note that the witness, Mr. Sissons, may prove to be a challenge for the prosecution as a witness, but found that was a matter that could only be addressed once he actually gave his evidence.

[177] R. v. Chizanga, 2024 ONCA 545, a recent case from the Ontario Comt of Appeal, involved a shooting where the victim was shot multiple times in the washroom area of a Popeye's restaurant. The gun was not recovered. Mr. Meredith admitted to shooting the victim, claiming accident. The Crown theory was that the accused also shot the victim or was a co- principal in the shooting by the co-accused. One of the grounds of appeal was the admissibility of a motel video taken the day before the shooting that showed both appellants and a third person at a Super 8 motel the day before the shooting. Mr. Chizanga can be seen knocking the door of a motel room. Mr. Meredith is seen holding a black assault-type firearm with a long barrel after pulling the weapon out of his pantleg. No one answers and the three men leave.

[178] The Comt in Chizanga summarized the law of prior discreditable conduct and emphasized that the probative value of the evidence cannot be analysed in the abstract but arises from the relationship between the prior discreditable conduct and live conduct: Chizanga, at para. 22. The probative value of the prior discreditable conduct further depends on the disputed issues at trial including the facts alleged by the Crown and the Defences reasonable advanced or anticipated: Chizanga, at para. 23. Evidence of prior discreditable conduct need not be proven conclusively, or even make it more probable than not that the live conduct also occurred. The prior discreditable conduct is probative to the live conduct as long as it makes it more or less likely that the live conduct occurred: Chizanga, at para.

The trial judge found that the video had substantial probative value beyond its tendency to lead to the conclusion that the accused was guilty merely because of a disposition to commit a certain type of wrongful act, as it rendered it more likely that in the minutes before the victim arrived at Popeye's, Meredith was concealing the long-batrnlled fireatm in the same manner as demonstrated in the video. The Court of Appeal found no error in the trial judge's admissibility ruling or instructions to the jury. The Court also found that the video was relevant and admissible on the issue of Mr. Chizanga's liability for murder on a joint enterprise/co-principle basis.

[179] I have reviewed the other cases provided on the issue by both Crown and Defence but wish to reference only one other case. In R. v. Asante, 2022 ONCA 657, it was alleged that the two victims were stopped at a red light when a gunman exited another vehicle and shot them, killing one of them and rendering the other a quadriplegic. The Crown's theory was that Mr. Asante was driving the car when Mr. Afrifa got out and shot the two men, before getting back in. Video surveillance showed the accused's vehicle following the other vehicle prior to the shooting. Mr. Asante did not dispute being the driver but took the position that he did not intend to assist Mr. Afrifa, nor did he know that Mr. Afrifa was going to shoot the victims. One of the issues on appeal was the trial judge's admission into evidence of a photo of a handgun found on the appellant's cell phone taken approximately four months before the shooting. The photo was taken on a bedspread with a pattern similar to the one later seized in the appellant's apartment.

[180] The Crown had argued that the photo was admissible to show that Asante had access to the means to commit the murder. An expert testified that the gun in the photo was a Smith & Wesson handgun that fires either .40 caliber ammunition or one that fired 9mm ammunition. The expert could not say if the gun was real or which model it was. The trial judge admitted the photo as "circumstantial evidence that connects [the appellant] to the type of handgun used in these shootings: It is circumstantial evidence that he had access to and possession of such a handgun sometime before the shootings": Asante, at para. 13. The trial judge had also considered that it was likely to be a cutthroat defence and Afrifa's counsel would likely elicit the evidence as part of Afrifa's defence: Asante, at para. 14.

[181] Defence counsel argued that the trial judge had en-ed in admitting the evidence on the basis that the photo had little probative value and that the trial judge failed to properly balance its probative value against its prejudicial effect and that the trial judge had misapprehended the evidence of the firearms expert. The Court of Appeal found that the photo was properly admitted, stating the following at para. 28:

The photo had significant probative value. As the trial judge made clear, the photo was not admitted on the basis that it was the murder weapon. At paragraph 13 of the ruling, he states, quote the crown does not allege and need not prove that the handgun shown in the photo was the murder weapon". Rather, the trial judge admitted the photo because it was circumstantial evidence that the appellant had access to, and possession of, a handgun similar to the type of gun used in the shooting bracket (at paras. 13 and 19).

[182] The Court of Appeal went on to find that the trial judge had appropriately considered the prejudicial impact. The Court indicated that the trial judge was aware of the defence position that the photo had very little probative value and that value was exceeded by its prejudicial impact, but determined that the photo was probative to a material issue: whether the appellant had access to the means to commit the murder. The trial judge had properly addressed the prejudicial impact with a limiting instruction: Asante, at para. 29. The Court then found that the photo was not admitted on the basis of the cutthroat defence but on the premise that the gun in the photo was similar in type to the murder weapon, and thus, was probative of the appellant's access to or possession of the type of handgun used in the shootings. The comments about the cutthroat defence were in the context of that likely defence at that stage of the proceedings.

[183] It is the Crown's position that this case is akin to Asante and in fact that the probative value of the evidence in this case is even higher than that in Asante. In this case, we have expert evidence that 4 of the guns seen in the videos are real firearms. Further, there is evidence that points to the accused being in possession of the guns about a week before the shooting and telling a witness that the gun was loaded.

[184] The Crown submits that the evidence is probative to show that Mr. Guerra Guerra and Mr. Schaap had access to real guns of a type capable of being the type of handgun used in the shooting. The Defence submits that the evidence is of low probative value and is simply evidence of guilty by association or of general propensity or bad character and is highly prejudicial.

[185] I must assess the evidence in light of the live issues at trial and likely defences. It will certainly be a live issue at trial as to whether Mr. Guerra Guerra possessed a gun and shot Josue Silva at the bush party. It is the Crown's theory that either he was the shooter or he was a co-principal and Mr. Schaap was the shooter. On the alternate theory, evidence of Mr. Schaap's possession of a handgun capable of committing the murder and Mr. Guerra Guerra's knowledge of same would be an important factor. The Crown has taken a similar position with respect to Ms. Altmann's knowledge. As already indicated, by way of as. 655 admission, the jury will be told that Ms. Altmann believed that Mr. Guerra Guerra and Mr. Schaap had access to firearms, specifically handguns, and to knives/machete. This evidence cannot be used against Mr. Guerra Guerra but speaks to the relevance of this knowledge.

[186] It can be anticipated that Mr. Guerra Guerra's defence may be that he was not the shooter and that he did not intend to aid Mr. Schaap nor did he have any knowledge of Mr. Schaap's possession of a handgun at the time of the shooting.

[187] I find that the evidence of Mr. Guerra Guen-a and Mr.·schaap's access to and possession of the cache of guns seen in the videos, four of which Det. Mullinder has opined are real guns and capable of firing 9mm ammunition, has significant probative value with respect to the live issues before the court.

[l 88] Further, based on Ms. Seward's evidence and the evidence of Kaiah Edmonds, it could be inferred that the possession of the cache of guns was close in time to the shooting, likely

within a week or so. The one video, Video #4 has a filter with a time stamp filter indicating it was taken on July 25, 2021 at 4:06 am. The small brown with black handgun seen in Video #4 is the same or similar to a handgun seen in Video #3 and Video #6 and could be the gun described by Ms. Edmonds. That time stamp on the filter matches the creation time on the video. The date associated with the other video on Schaap's phone of all five guns in a pillowcase is July 24, 2021. Both the videos were deleted at the same time on July 27, 2021. The three videos from the Samsung S7 connected to Mr. Guerra Guerra have modified and accessed dates all within a short period of time, July 23^rd at 10:45:57, 10:46:57 and 10:53:49 PM. Ms. Seward testified that date could mean that the video was created on the phone or was sent to the phone and saved. Due to how the video was saved, Ms. Seward believed the videos were created on the Samsung device but could not confirm. A copy of Video #1 with a different file name is also found on Mr. Guerra Guerra's iPhone Pro Max with a created date of July 31, 2021, which at a minimum would mean the video was sent to that device and saved on that date.

[189] Having watched the videos, it appears that Videos #I, 2, 4 and 6 were all taken at Dylan Schaap's apartment based on features in the background. Although not conclusive, the guns seen in Videos #1, #2 and #6 appear to be the same or very similar to the guns in Video #3 and #4 as they possess the same features including the unusual orange tags and the smaller black and brown gun. Given all of the evidence, certainly the inference could be made that the two accused both had possession of or access to four real guns of a type capable of being the murder weapon on or prior to July 25, 2021.

[190] Ms. Edmonds provided a statement that right around that same weekend of July 24 and 2511\2021, she saw Mr. Guerra Guerra with a similar cache of guns. She associates that time with when she and Mr. Guerra Guerra went to a fair. Her description is similar in that

she believes there were 4 guns in total, while there are 5 on the video, and she in particular describes one gun as being brown with some black and being small and looking weird as it was shorter. She states that the accused told her the brown gun was loaded. She saw the accused loading a different gun. The guns were not revolvers. The rest of the guns were all black. Det. Mullinder described the SYYC gun in the video that is brown with a black top as being a smaller gun or one advertised in the USA as a "purse gun".

[191] I acknowledge the weaknesses in the video evidence pointed out by the Defence including that the Samsung S.7 was last logged into on August 21, 2021, after Mr. Guerra Guerra was in custody, and that has not been explained except that someone else could have accessed the phone if they had his username and password. That phone was examined by Ms. Seward on August 25, 2021 as part of an unrelated investigation. Ms. Seward is not able to confirm with certainty that the videos were recorded on the devices upon which they were found, although she opined that she believed the Samsung videos were recorded on that device. She was fmihright in acknowledging that "created" doesn't necessarily mean created on that device but can also mean saved on that device. This is demonstrated by Video #I being "created" on Mr. Guerra Guerra's iPhone on July 3lrst while also appearing on the Samsung with a date of July 23, 202L The evidence as to timing is somewhat strengthened by the date stamp filter on Video #4 and the evidence of Ms. Edmonds.

[192] I also appreciate that Det. Mullinder testified that he could not say with absolute certainty the guns in the videos were real firearms without physically manipulating them. There are also the issues with Ms. Edmonds' credibility. Lastly, there is the statement of Jessica Falardeau wherein she says that she is "pretty sure" the gun used was silver or at least she doesn't know but "silver comes to mind".

[193] I have considered whether these weaknesses lessen the probative value of the gun evidence to the extent that its probative value is outweighed by its prejudicial impact. I do not. These are issues which I have considered in the overall assessment, but that I find do not change the balance on the issue of threshold admissibility and the probative versus prejudicial assessment in the extrinsic discreditable conduct analysis. They are issues which can be explored at the trial so that the ultimate reliability of the evidence can be determined by the trier-of-fact. See: Chizanga, at para 25.

[194] lfl was of the view that none of the guns which are the subject of the extrinsic discreditable

• conduct application could be the murder weapon, my view may be different. However, the only evidence to suggest that none of the guns depicted in the video or seen by Ms. Edmonds could have been involved, is Ms. Falardeau's evidence-which, having reviewed her entire statement, is quite weak. She is by no means certain of the colour of the gun. When asked to provide other descriptions of people and events at the party, she is unable to or is somewhat vague indicating that it was dark at the time. I do not find that this case is akin to Singh or Campbell when certain evidence of a firearm was excluded as that gun could not have been the murder weapon either because it had been found and tested or because it was the wrong type of gun; ie., not a revolver.

[195] There is no doubt that evidence that Mr. Guerra Guerra had possession of or access to a cache of guns prior to the shooting raises the real danger of moral prejudice, and a danger that a jury may convict him on the basis that he is a bad person or due to his general propensity for having guns. That danger is somewhat lessened here as the prior conduct is not as serious as the offence alleged, in that, just because a person has in the past possessed a gun, this does not lead directly to a belief that such a person would use that weapon to kill someone.

[196] As has been made clear in the caselaw, another important safeguard against the dangers of improper reasoning is a limiting instruction to the jury which identifies the evidence of extrinsic discreditable conduct, defines the permitted use of the evidence, and cautions the jury regarding its prohibited use. See: Chizanga, at para. 31; Z.WC., at para. 109. Such a warning will be provided in this case.

[197] As Handy indicates, a second concern with extrinsic discreditable conduct evidence is the potential for reasoning prejudice or that the jury will become distracted by the extrinsic discreditable conduct evidence from their central task of determining the issues on the case before them. This concern is heightened when the evidence is disputed and unclear, leading the trier-of-fact to focus their attention on the sufficiency of proof of the extrinsic discreditable conduct evidence, rather than whether the Crown has proven the particular allegations in the indictment beyond a reasonable doubt. In this case, much of the evidence that would be called for the extrinsic discreditable conduct evidence would be part of the

Crown's case for other reasons; for example, connecting Mr. Guerra Guerra to his iPhone. The Crown advised of their intention to call Ms. Edmonds regardless, for her evidence relating to the night of the shooting. I do not find that the other required evidence of Ms. Seward and Det. Mullinder would unduly distract the trier of fact. The Crown has advised that they expect their case may take up to eight weeks. I would expect that the extrinsic discreditable conduct evidence would be no more than a day or two of that time.

[198] I find that both the gun videos and the evidence of Ms. Edmonds have probative value to live issues at trial that goes significantly beyond general propensity reasoning or any suggestion of guilt by association. I find that the probative value of the evidence outweighs its prejudicial impact and that this impact can be minimized through a proper limiting instruction to the jury.

CONCLUSION

[199] The evidence of the text conversation suggesting that Mr. Guerra Guerra may be buying a gun is excluded. The evidence of the five gun videos and Det. Mullinder's expert opinion is admitted. The videos shall be played without sound. The testimony of Kaiah Edmonds as to her observations of Mr. Guerra Guerra with four guns about a week prior to the shooting is admissible. The evidence of the gun videos and of Ms. Edmonds' evidence of gun possession shall be accompanied by a proper limiting instruction as to the limited use of this evidence and a warning of the improper use for general propensity reasoning.

Released: October 23, 2024

Justice P.J. Moore

COURT FILE NO.: 22/393

DATE: 20241023

ONTARIO SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

-and-

Carlos Guerra Guerra

RULING MOHAN VOIR DIRE

Justice P.J. Moore·

Released: October 23, 2024

Corrigendum

Prior to the sentencing in this matter, the Crown and Defence brought to the Court’s attention that all parties at the Extrinsic Discredible Conduct application were of the belief that the video referred to in

this judgement as “Video #4” in Det. Mullinder’s report showing Dylan Schaap in possession of a firearm was the same video that Kim Seward referenced in her testimony on the application. This is a video with a thumbnail of Mr. Schaap smoking a cigarette and with a date stamp of July 25, 2021.

It has been discovered that there were in fact two Snapchat videos with a date stamp of July 25, 2021. The Crown and Defence have filed an Agreed Statement of Fact setting out that screenshots from the videos are nearly identical but for their time stamps. They were both created using the Snapchat

application, with the same “filter”, in the same physical location, on the same phone. Dylan Schapp is wearing the same clothing in each. The report created by Det. Mullinder reviewed Video A with a time stamp of 22:51 while Kim Seward testified about Video B with a time stamp of 04:06.

It is agreed that Kim Seward’s digital forensic evidence with respect to authenticity, how the video was

created and when it was created, would have mirrored her evidence on Video A. Video A, referred to as Video #4 in these reasons ultimately formed part of an Agreed Statement of Fact at trial.

It is agreed that this error would not have any effect on the pre-trial motions or the admissibility of the video that was entered.

DATED: July 7, 2025

R. v. Guerra Guerra, 2024 ONSC 5865

Case Summary

EVIDENCE

Text Messages between Guerra Guerra and Schaap

Identity of Users/Participants

Guerra Guerra and Schaap discussing purchase of a firearm

Videos depicting firearms

Kimberley Seward

Detective Tobias Mulliuder

Evidence ofKaiah Edmonds

Evidence of Jessica Falardeau

POSITION OF THE PARTIES

LEGAL FRAMEWORK

ANALYSIS

Text Message re Gun Purchas(:)

The gun videos Probative value

Authentication of electronic documents

Application of best evidence rule - electronic documents

Presumption of integrity

Expert Evidence of Detective Mullinder

Evidence of Kaiah Edmonds

General propensity or specific propensity

CONCLUSION

Corrigendum

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 2