Ontario Superior Court of Justice

Court File No.: CR-22-593
Date: 2025-05-12

Between:

His Majesty the King
Peter Maund and Jennifer Goulin for the Crown

-and-

Tamaal Japp
John Struthers and David Reeve, for Tamaal Japp

-and-

Moses Tesfay
Darren Sederoff, for Moses Tesfay

Heard: October 16-18, 22-24, November 19, 2024 and April 7, 2025

Reasons for Judgment
Robert N. LeMay

Overview and Background

The Evidence Generally

[1] Mr. Uchenna Achioso was a young man who lived on his own in Brampton and dealt drugs. On December 17, 2020, at approximately 10:30 p.m., Mr. Achioso was shot on the stairs of his basement apartment at 60 Scott Street in Brampton. The shooting took place after several young men rushed the door to Mr. Achioso’s basement apartment as he was letting Ms. Hailey McVicar out after having sold Ms. McVicar some drugs.

[2] After a lengthy police investigation, charges of first-degree murder were laid against Ms. McVicar, Ms. Aliyah Rosan, Mr. Moses Tesfay, Mr. Tamaal Japp, Mr. D.T. (who is a youth) and Mr. Jerome Smith. Most of these charges have been resolved. I am aware that Ms. McVicar has pled guilty to manslaughter and Ms. Rosan has pled guilty to being an accessory after the fact. They have both been sentenced. I am not aware of the disposition of the charges in respect of D.T and Mr. Smith.

[3] The two accused remaining before me, Mr. Japp and Mr. Tesfay, remain charged with first degree murder. They have elected to proceed by way of a judge-alone trial. What follows are the reasons for my disposition of this matter.

Agreed Statements of Fact

[4] I start by observing that the parties were ad idem on much of the evidence that was presented to me during the trial. Indeed, the following agreed statements of fact (“ASF”) were filed by the parties:

• ASF regarding recognition evidence in respect of Mr. Jerome Smith (Exhibit 17).
• ASF in respect of 23 Glitch Rap Videos (Exhibit 18). The essence of these agreed facts is that Mr. Japp is the person rapping in these videos, and screenshots of Mr. Japp are provided in the ASF.
• ASF in respect of a Thunder Bay traffic stop (Exhibit 19). This confirms that one of the accused, Mr. Japp, was driving a car and was pulled over in Thunder Bay, Ontario, by a police officer approximately six months before the events giving rise to these charges. He was in the company of someone who identified himself as D.T.
• ASF in respect of the continuity of various pieces of evidence that were seized from Mr. Achioso’s apartment and from other individuals who were arrested (Exhibit 20). I will address this evidence in the relevant sections below.
• ASF regarding various business records (Exhibit 21).
• ASF regarding the authenticity and continuity of a series of surveillance videos (Exhibit 22).
• ASF regarding business records of various cell-phone service providers (Exhibit 33). I will address the evidence of what the cell-phone records demonstrate in discussing the various issues set out below.
• ASF respecting a photograph of Jerome Smith (Exhibit 34).
• ASF respecting additional 23 Glitch videos (Exhibit 35). The parties agree that the individual in this video was Mr. Japp.

[5] Even where there was no actual agreement on the evidence, there was a lot of evidence that was undisputed. The fact that the parties were able to agree on so much of this evidence meant that the trial was done in a very efficient and effective manner. Although many of the facts in this matter are not in dispute, there are some factual issues that were in dispute. In that respect, I heard viva voce evidence from Ms. Rosan, Ms. McVicar, and a number of police officers. The Crown also called two experts, and I will deal with their evidence below. As is their right, neither accused called any evidence.

[6] I should also note that, as will be seen, there is a significant issue about the evidence of Ms. McVicar. On occasions, she used the statement that she gave to the police on January 12, 2021, to refresh her memory. On other occasions, she adopted portions of the statement as past recollection recorded. In considering Ms. McVicar’s evidence, all counsel agreed that I was to watch the statement in order to observe Ms. McVicar’s demeanor but was not to use any portion of the statement as evidence unless I determined that parts of it could be admitted as past recollection recorded. I have done that.

[7] The evidence in this case also included surveillance videos from two different types of sources. First, there were innumerable videos that the police gathered from various traffic cameras, home surveillance systems, apartment surveillance systems and the like. Those videos were used to construct a narrative as to what happened and where individuals were at specific times.

[8] Second, there was specific and unusual surveillance of the entrance to Mr. Achioso’s basement apartment. As I will discuss, there was an incident involving Mr. Achioso on the morning of December 17, 2020. In addition, I understand that the police were concerned about activities at the basement apartment at 60 Scott Street where Mr. Achioso was the sole tenant. As a result, on the afternoon of December 17, 2020, staff from Peel Police installed a surveillance camera on a telephone pole across the street from 60 Scott Street. It had a mostly unobstructed view of the property.

[9] However, the camera had four limitations, as follows:

a) The camera only captured 8 frames per second, which means that you can see it glitching on occasion, as the officer who testified about the camera stated that the 8 frames per second is slower than the human eye processes images.

b) At night, the camera used gray scale rather than colour, and you could see streaks on the video.

c) The camera kept its video based on motion detection. As a result, if there was something moving in the camera’s line of sight that was significant enough to trigger the motion detection function, then it would keep the recording of events five seconds before the motion started and five seconds after the motion stopped.

d) Some motion was significant enough to trigger the camera’s record function. Other motion was not. For example, a car driving by, even on Church Street, the street that intersected Scott Street on the other side of 60 Scott Street, appears to have triggered the motion detection function. However, people walking (or even running) at the door to the basement apartment at 60 Scott Street would not trigger the motion detection function.

[10] In addition to the videos, I also had a significant body of evidence from cellphones. The parties agreed on who the cellphones belonged to. The cellphone data was presented through the evidence of Mr. John Yocom, who is a civilian employee of the PRP. He also presented much of the video evidence that was used to provide the narrative of what had happened. There is no dispute as to what is depicted in the videos. Indeed, one of the ASF’s dealt with the continuity of this evidence. Having studied the evidence in detail, I have accepted the narration that Mr. Yocom provided in his viva voce evidence and his slideshow as accurate. The videos fit with the viva voce evidence from the witnesses, and there was no dispute over either what the videos show or the narrative.

[11] All of the evidence was tendered by the Crown. At the conclusion of the Crown’s case, both accused elected not to call a defence.

[12] Based on the evidence that I have, I will now set out a summary of the events leading up to and after the shooting. The summary in this section is generally based either on the ASF or on facts that were either undisputed or uncontroversial.

The remainder of the judgment continues in the same structure as above, with clear section headers for each major part of the decision, including:

• The Events Leading Up to December 17, 2020
• The Events of December 17, 2020
• The Shooting
• The Events After the Shooting
• Relevant Events After December 17, 2020
• Expert Evidence
• The Pathologist’s Evidence
• The Firearms Expert’s Evidence
• The Conclusions from the Expert Evidence
• The Law
• The Burden and Standard of Proof
• Vetrovec Witnesses
• Past Recollection Recorded
• The Principles in Respect of Circumstantial Evidence
• Routes to Liability
• Issues
• Issue #1: Identity
• Issue #2: Extent of Liability
• Second Degree Murder
• First Degree Murder
• Conclusion

Conclusion

[198] For the foregoing reasons, I find Tamaal Japp and Moses Tesfay not guilty of murder, but guilty of the lesser included charge of manslaughter.

Robert N. LeMay
Released: May 12, 2025